Naturalisation refusal upheld; court finds no arbitrariness, EU law not engaged, and no ECHR breach regarding character assessment.
Legislator summary
AI generatedThe High Court refused the applicant's certiorari and declarations, upholding the Minister's refusal of his naturalisation application. The court found the Minister did not act arbitrarily or capriciously when considering Garda reports on motoring offences and alleged child care violations. Consequently, the court determined EU law was not engaged, submissions were considered, and no ECHR rights were breached.
Legislator headnote
AI generateds. 15 of the Irish Nationality and Citizenship Act, 1956; s. 15 of the Irish Nationality and Citizenship Act, 1956 as amended: The court's review of a naturalisation refusal is limited to determining whether the Minister acted arbitrarily, capriciously, or autocratically; the court holds that such a refusal is lawful where the Minister reasonably considers character factors including motoring offences and alleged incidents without acting beyond the bounds of discretion.
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[2018] IEHC 758
THE HIGH COURT
2018 No. 389 JR
Between:
MIGUEL NKOLOVATA NSUNGANI
Applicant
– and –
MINISTER FOR JUSTICE AND EQUALITY
Respondent
JUDGMENT of Mr Justice Max Barrett dated 21st December, 2018.
1. Mr Nsungani’s naturalisation application has been refused by the Minister. Under s.15 of the Irish Nationality and Citizenship Act,
1956, as amended, an applicant for naturalisation must be of good character. In this regard, the Minister considered a Garda report
concerning Mr Nsungani which, per the internal departmental documentation concerning the application, “details motoring offences…
and an alleged incident where Section 12 [of the] Child Care Act was invoked”.
2. The Minister’s wide discretion regarding naturalisations is identified in, e.g., AA (Algeria) v. Minister for Justice and Equality [2016]
IEHC 416, AMA v. Minister for Justice and Equality [2016] IEHC 466 and AA v. Minister for Justice and Equality [2017] IEHC 491.
These cases show that the court is limited to reviewing whether the Minister acted arbitrarily/capriciously/autocratically in reaching
his conclusions or in the conclusions reached. The Minister has not so acted: he considered submissions made and the Garda report;
he did not consider the “alleged incident” as more than alleged; and it is clear since Tabi v. Minister for Justice, Equality and Law
Reform [2010] IEHC 109 that the Minister may consider motor offences when assessing character. As to proportionality, this Court
considers, consistent with the later AA decision, that proportionality plays a part in the Minister’s exercise of his discretion (e.g., in
distinguishing between the differing seriousness of different criminal behaviours). In any one case a want in proportionality might
conceivably impact on the issue of whether the Minister acted arbitrarily/capriciously/autocratically. Here no such want is evidenced
or presents.
3. Three points remain. Mr Nsungani claims that: (1) EU law is engaged in his naturalisation application. But Cooke J. in Mallak v.
Minister for Justice, Equality and Law Reform [2011] IEHC 306, para.24 (which aspect of his judgment did not require to be
addressed, and was not reversed, on appeal) indicates that acquisition of national citizenship is a sovereign matter for Member
States, so EU law is not engaged; (2) his submissions of 06.11.2017 were not considered. But a senior department official has averred
that they were considered and that following consideration his view was that the recommendation to refuse should stay as was,
which averments have not been controverted; (3) the naturalisation process breached Art.6 and/or 8 ECHR. This line of argument was
not greatly developed in submission; however, the court sees no such breach to present.
4. Mr Nsungani has sought an order of certiorari as well as certain declarations and other reliefs. For the above reasons, all the reliefs
sought by him are respectfully refused.