The Irish Supreme Court has quashed a refusal by the Minister for Justice and Equality to grant citizenship to a non-EU national on ‘national security’ grounds.
Mr P, an Iranian national, was granted refugee status in 1991. He made a number of unsuccessful applications for naturalisation, the most recent being in August 2011. This was refused without reason by the Minister for Justice in April 2013. Mr P instituted judicial review proceedings quashing this decision and seeking reasons from the Minister. As part of these proceedings, an affidavit was provided that claimed public interest privilege over three confidential documents (Documents A, B and C) regarding Mr P’s background which formed the basis of the decision. The High Court examined these documents in 2014, holding that Document A should be disclosed, Document B should be redacted and disclosed, and that Document C should be granted full privilege. This decision was not appealed. From the disclosed documents, it was clear that the Minister had been advised to refuse the application as it could not be determined that Mr P met the ‘good character’ requirement of Section 15(1)(b) of the Irish Nationality and Citizenship Act 1956.
Mr P submitted his 2011 application for reconsideration, this time containing additional information. In September 2014, the Minister again refused to grant a certificate of naturalisation citing that the Minister could not have confidence or be satisfied that Mr P met the condition of good character required under Section 15(1)(b). The recommendation appeared to be on the basis of ‘national security’ considerations which could not be disclosed and remained privileged under Document C of the 2014 judgement. Mr P therefore once again brought judicial review proceedings, which were not successful in the High Court or the Court of Appeal as both deemed the interests of national security a legitimate justification.
In allowing the appeal, the Supreme Court found that the limited reasons given by the Minister were not sufficient. Chief Justice Frank Clarke observed that the central issue was whether the difficulties that may present in accessing intelligence from national and international agencies on foot of disclosure to named third parties provided a legitimate justification for the Minister’s approach in this case. Chief Justice Clarke was of the view that Mr P’s right to be informed of the reasons for the negative decision should have been curtailed only to the minimum extent necessary to protect the interests of the State. The process followed by the Minister was found not to have done so as it would have been possible to have an independent person with the appropriate security clearance analyse the information and advise on what to disclose, if anything. Chief Justice Clarke thereby quashed the decision on national law grounds and ordered the Minister to reconsider the application through an ‘enhanced process’ that conforms with the judgement of the Court.
While Chief Justice Clarke commented that it was ‘strongly arguable’ that granting citizenship is within the sole competence of Member States, no finding was made by the Court on the Charter of Fundamental Rights of the European Union.
Justice Donal O’Donnell agreed that a complete procedure may not be possible, but that ad hoc solutions may need to be sought where different and difficult situations of disclosure of information arise. He emphasised that Mr P may not be entitled to citizenship or the reasons he sought, but concluded that the decision not to disclose further reasons was not justified.
Click here for the decision in A.P. v The Minister for Justice and Equality.