The Court of Appeal delivered an important judgment on the 12th of May in the case of Talla v Minister for Justice and Equality (2020) IECA 135.
The decision is an important precedent for individuals applying for citizenship who have been convicted of road traffic offences, or who may have come to the attention of the authorities in the past with respect to such offences, and sets out the manner in which such cases should be considered by the Minster for Justice and Equality.
The Applicant in the case is a Kosovan national who entered the State in 2002 as a minor. He is married, with two children born in Ireland and runs his own take-away restaurant. He applied for Irish citizenship in July 2013, and the application was refused on the 20th of February 2018 on the basis that he was not of “good character” due to previous road traffic offences.
In 2011 the Applicant was fined for a speeding offence which occurred in July 2010. At the time he did not receive the fixed penalty notice and when summoned to the District Court was fined €380 which he duly paid.
In May 2011 he was convicted of driving without insurance and fined €400, without disqualification or endorsement on his licence. On this occasion he was driving his brothers car on the understanding that he was insured in circumstances where he regularly drove his brothers cars. At the time he was a named driver on his brothers insurance policy but was not actually insured on the car which he was driving.
When completing his citizenship application form, the Applicant mistakenly answered “no” to the questions asking about previous convictions under section 11 of the Form 8 application.
The Applicant was further summoned to court in May 2016 on a charge of no insurance/failure to produce insurance certificate, failure to produce driving licence/learner permit, driving without driving licence and failing to produce driving licence/learner permit (within 10 days). On this instance the Applicant had produced the documentation to the garda station within the set time period, however in circumstances where it was not recorded properly by the Garda Station, he was incorrectly issued with a court summons. This matter was later struck out on the application of the relevant Garda.
A further incident arose in December 2016 when the Applicant was summoned to court on a charge of no insurance. In this instance he was driving a car which his brother in a complete error had failed to renew the insurance policy on. The error was immediately rectified and when he appeared before the District Court in September 2017 the court struck out the charges accepting the plea of mitigation advanced.
The Applicants citizenship application was refused in February 2018 on the basis that that the Minister was not satisfied of his “good character” and referring to the Applicant as having a “history of non-compliance with the laws of the State”.
The Applicant sought Judicial Review of the decision to refuse to grant him a certificate of naturalisation. The application was dismissed by the High Court and subsequently appealed to the Court of Appeal.
Mr Justice Haughton in the Court of Appeal (sitting with Mr Justice Noonan and Ms Justice Power) was not satisfied that the Minister for Justice had considered and weighed all relevant considerations, including the man’s explanations for the motoring offences.
“Notwithstanding that the Minister has an absolute discretion in determining an application for a certificate of naturalisation, it is beyond question that the Minister has a duty to act fairly and judicially in accordance with the principles of constitutional justice. It follows that in addressing the condition that an applicant be of ‘good character’ the Minister must consider and analyse all relevant material, and a failure to do so makes the lawfulness of the decision susceptible to judicial review.
Put another way, the appellant had a legitimate expectation that the material favourable to him, including explanations for road traffic offences, would be considered and weighed by the Minister.”
The Court of Appeal held at paragraph 36 and 38 of the judgment:
In the instant case it is “the nature of the offences” that led the Minister to refuse the application on the grounds that the appellant was not of “good character”. As noted by Faherty J (in a previous case) not all road traffic offences will debar an application. Minor offences do not necessarily reflect on a person’s “good character”, particularly if balanced against other matters in their favour. It is therefore the case that where there are road traffic offences it is the nature of those offences and the circumstances in which they were committed that will demand more attention.
While criminal convictions, or the commission of offences, are relevant to this enquiry and assessment, it is wider in scope than that, and the outline facts and any mitigating circumstances, the period of time that has elapsed since the last conviction, and other factors that may be relevant to character, must all be taken into consideration”.
This is an important finding in circumstances where many individuals have been denied citizenship due to previous road traffic offences, some of which are often very minor, and as such it is clear that a road traffic offence itself is not the only factor which should be considered when assessing the application.
The Court did note that a citizenship applicant must disclose previous convictions, even if “spent convictions” and that the Minister is entitled to have regard to what would otherwise be “spent convictions” in considering good character for citizenship applications. This is an important observation to be noted by applicants who are applying for citizenship and mistakenly believe that “spent convictions” are not of relevance to their application and this is something which we often come across in practice at Sinnott Solicitors.
The Court of Appeal was not satisfied that the Director General on behalf of the Minister for Justice had considered all the relevant material on file and that the High Court erred in finding that there was “no reason to believe” that the complete application file, including all submissions made on behalf of the Applicant were considered.
“As in the instant case it was the relevance of the omitted material to the nature of the offence that that was critical, and this could not be properly considered without all relevant material. The Submission refers to the onus on the appellant to disclose all appropriate information, yet a failure to disclose information does not form part of the reasoning for recommending refusal of a certificate, or for suggesting that the applicant is not “of good character”
I am left with the impression that the file was presented to the Director General on 19 February 2018 with the Submission and Garda Report on top, and that these were the only documents and information that were actually considered before the decision was made.”
The Court further held that the decision should be quashed because the Minister failed in all the circumstances to give reasons and in particular failed to express his rationale for deciding that the “nature of the offences” meant that the applicant was not a person of “good character”.
This means that the Minister is obliged to explain to an applicant in clear express terms the reasons why they have decided that they are not of good character and the rationale resulting in determining such reasons should be set out.
The immigration team at Sinnott Solicitors greatly welcomes this judgement in circumstances where we have seen many vague decisions from the Department of Justice refusing citizenship applications on the basis of previous road traffic offences in recent years. The judgement clarifies that the Minister cannot simply refuse an application as result of a traffic offence alone and is obliged to consider all mitigating factors relevant to an applicant’s circumstances. If refusing an application, a reasoned analysis explaining how the decision has been reached must be provided.
If you have any queries on your application for Irish citizenship or wish to discuss any immigration matter, do not hesitate to contact the office of Sinnott Solicitors today on +35314062862 or info@sinnott.ie.
