Section 15 of the Irish Nationality and Citizenship Act 1956 as amended provides that the Minister may, in his absolute discretion, grant the application if satisfied that the Applicant is of good character.
The onus is on each Applicant to disclose in their application all appropriate information and evidence to help demonstrate that he or she satisfies the conditions for a Certificate of Naturalisation including character.
Sinnott Solicitors receive numerous queries from Applicant’s whose applications have been refused on the basis of their character. As there is no appeals process provided under the Irish Nationality and Citizenship Act 1956, it is extremely important to get proper and appropriate advice in relation to any character matter that might have a bearing on an application. A person may reapply for a grant of a Certificate of Naturalisation at any time. However, it is very important that a person’s initial application is submitted in such a way as to give the Applicant the best chance of success during the initial applications.
Ministers Discretion – Good Character in Citizenship cases
It is important to remember that the Minister has absolute discretion to grant or refuse a Certificate of Naturalisation if the Minister is satisfied or not satisfied that the Applicant fulfils the statutory conditions specified in the Irish Nationality and Citizenship Act 1956 as amended. It is also important to remember that naturalisation/citizenship is a privilege and not a right and the Minister is under no obligation to grant a certificate of naturalisation.
Minister obliged to provide a proper rationale if Citizenship is refused for Character reasons
When it comes to character, the Minister is obliged to provide a proper rationale as to why character was called into question and indeed if the application is ultimately refused, the rationale for that refusal.
Recent case law on refusal of Citizenship application based upon character – MNN –v- The Minister for Justice and Equality July 2020
On 13th July 2020, the Court of Appeal delivered Judgement in the case of M.N.N .v. The Minister for Justice & Equality. The appeal arose from the refusal of the High Court to grant an Order quashing a decision of the Minister to refuse an application for a Certificate of Naturalisation on the basis that the Applicant was not of good character. The Applicant was from Angola and arrived in Ireland in January 2003. The Applicant’s application for naturalisation was refused on the basis that it is a statutory requirement that applicant’s for naturalisation be of “good character”. The Applicant disclosed in his application that he had two road traffic convictions. At the time of making the application, the Applicant had no criminal or other charges pending against him. As is usual in these cases, the Minister requested a Garda Report about the Applicant’s background. A Garda Report was furnished and it disclosed the traffic offences.
A letter was received from the Minister to provide further information regarding the offences.
In preparing his application for citizenship, the Applicant contacted the District Court in Galway to find out if there were any charges pending against him. he learned then of the imposition of fines in respect of two traffic offences. As he was no longer living at the marital home, he had not received the Summons to appear in Court. Upon discovery of the matters, he paid the fines immediately. The Court file also revealed that the Applicant had furnished to the Minister a copy of his policy of motor insurance and a copy of his motor taxation disc valid for the period for which the offences took place.
A further Garda Report issued dated 4th January 2016 which disclosed an alleged domestic dispute wherein Section 12 of the Childcare Act had been invoked. The Minister wrote to the Applicant on 12th February 2016 seeking details of the circumstances surrounding the latter incident noted in the Garda Report. The Applicant replied and provided an explanation in relation to the alleged incident. The Applicant’s explanation of the alleged incident was set out in the context of an acrimonious breakdown of his marriage.
The Applicant then sought the assistance of his legal advisors who wrote to the Minister on the Applicant’s behalf seeking a decision on his application and noting that over three years had elapsed since his application had been initially lodged.
On 12th February 2018, the Applicant’s application for a Certificate of Naturalisation was refused on the basis that the Minister was not satisfied that the Applicant was of good character and the Minister had therefore decided not to grant a Certificate of Naturalisation in his case.
The three Judge Court of Appeal granted the Applicant’s appeal over the High Court’s rejection of his challenge to the Minister’s refusal. Mr. Justice Power of the Court of Appeal said there was no evidence that the Minister had any regard to any exculpatory evidence that was on the Garda file. Mr. Justice Power found that the Trial Judge of the High Court had made an error in law in finding that the Minister did not consider the “alleged incident” as more than alleged. It was noted that no child care proceedings were pursued arising from the report and the Applicant’s ex-wife had withdrawn her allegations. The Applicant had also secured a protection order against her.
The Court found that the Minister’s decision did not provide his rationale for determining that based upon the two road traffic offences and an alleged incident that the Appellant had failed to meet the good character requirement of Section 15 of the Irish Nationality and Citizenship Act. The incidents set out in the Garda Reports were not put to the Applicant in their proper context because the report contained blanket disclosures of allegations arising from a domestic incident without putting the incident and the subsequent strike out order in their proper context. It was clear that the Court could not decipher what view the Minster took of the alleged incident but it was also evident the Minister took some view as otherwise there would have been no need to refer to the nature of the alleged incident when coming to the decision on the Applicant’s character.
The Court found that the Minister’s decision did not take into account all relevant information before reaching a decision not to grant the Applicant a Certificate of Naturalisation. The Court concluded that there was a breach of the rules of natural and constitutional justice. The Court allowed the appeal and ordered that the Minister’s decision refusing the Applicant’s naturalisation be quashed and that the Applicant’s application be readmitted to the Minister for reconsideration in accordance with the rules of natural and constitutional justice.
COURT OF APPEAL ORDER RECONSIDERATION OF CITIZENSHIP REFUSAL BASED ON GOOD CHARACTER FINDINGS DUE TO ROAD TRAFFIC OFFENCES
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 regarding character in citizenship cases, please do not hesitate to contact Sinnott Immigration Solicitors at firstname.lastname@example.org or 003531 4062962