Home
English VersionIrish Version
Search for Click to Search
Advanced Search
Printable Version
All SectionsPractice DirectionsCourt Rules Terms & Sittings
Legal Diary Offices & Maps Judgments & Determinations

Judgment
Title:
P -v- Minister for Justice and Equality
Neutral Citation:
[2019] IESC 47
Supreme Court Record Number:
74/18
Court of Appeal Record Number:
411/2016
High Court Record Number:
2014 610 JR
Date of Delivery:
05/31/2019
Court:
Supreme Court
Judgment by:
O'Donnell Donal J.
Status:
Approved
Result:
Appeal allowed
Judgments by
Link to Judgment
Concurring
Clarke C.J.
O'Donnell Donal J., Dunne J., O'Malley Iseult J.
O'Donnell Donal J.
Clarke C.J., Dunne J., O'Malley Iseult J., Finlay Geoghegan J.



AN CHÚIRT UACHTARACH

THE SUPREME COURT



[S:AP:IE:2018:000074]

Clarke C.J.
O’Donnell J.
Dunne J.
O’Malley J.
Finlay Geoghegan J.

      Between/
A.P.
Applicant/Appellant


AND


The Minister for Justice and Equality
Respondent

Judgment of O’Donnell J. delivered the 31st day of May, 2019.


Introduction

1 Under s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended) (“the 1956 Act”), the Minister for Justice and Equality (“the Minister”) may, in his or her absolute discretion, grant a certificate of naturalisation to a person if satisfied that the applicant complies with certain statutory conditions, any of which may be waived by the Minister in circumstances themselves set out in the statute. The satisfaction of the statutory conditions (or satisfaction subject to waiver of some or all of the conditions) does not give rise to an obligation on the Minister to grant any application. Rather, satisfaction of the conditions or permitted waiver allows the Minister to exercise the absolute discretion conferred by statute as to whether or not to grant the certificate of naturalisation.

2 The origin of the procedure, and the extremely broad discretion conferred upon the Minister, lies in some fundamental conceptions of sovereignty. It is a basic attribute of an independent nation that it determines the persons entitled to its citizenship. A decision in relation to the conferral of citizenship not only confers the entire range of constitutional rights upon such a person, but also imposes obligations on the State, both internally in relation to the citizen, and externally in its relations with other states.

3 This case raises a very difficult issue, which is by no means unique to this jurisdiction, in that it is sought to challenge a decision to refuse naturalisation where the information relied upon is subject to a valid claim of privilege, and, moreover, where the reason given for the decision is that it was based upon information which it is not possible to disclose. It is apparent that the issue raised is one of real difficulty, and may also arise outside the field of citizenship. It has been encountered in other jurisdictions in criminal prosecutions, in challenges to arrests or the issuance of warrants, in deportation decisions, and in cases in which orders are made restricting a person’s movement within a state, where such restriction is permitted by law. It can also arise in employment decisions and in other civil claims. A wide range of arguments drawing on materials from variants of all legal systems in the Western world, along with the case law of the European Court of Human Rights and the Court of Justice of the European Union, were addressed by both parties. No consensus can be identified, and no rule of universal application has emerged. In those circumstances, it is, in my view, a counsel of prudence to proceed cautiously and incrementally, and to consider the matter solely within the already difficult and somewhat unique legal context in which it properly arises for decision in this case: that is, the nature of the obligation to give reasons in cases where a certificate of naturalisation is refused under the provisions of the 1956 Act. It is obvious that a consideration of these issues may raise further questions about other closely related issues, such as the obligation to disclose information in advance of a decision being made, or claims that documents can be withheld for disclosure or production in legal proceedings on grounds that their disclosure would damage the legitimate interests of the State. However, these are strong currents running in a direction which is not easy to chart, and in such circumstances, there is much wisdom in the Chinese advice to ford the river by feeling the stones.


The facts and proceedings to date

4 Mr. P. (referred to hereinafter, where convenient, as the applicant), is an Iranian national who arrived in the State in October 1989 and was granted refugee status in December 2001. He has resided in the State since then, and has two children born in Ireland, who are Irish citizens. Prior to the application the subject of these proceedings, he had made four previous applications for a certificate of naturalisation, all of which had been refused.

5 The most recent application was made by Mr. P. on 23 August 2011. Eventually, on 30 April 2013, the Minister issued a decision refusing to grant him a certificate of naturalisation. The Minister provided no reason for the refusal of the application, relying in this regard on certain provisions of the Freedom of Information Act 1997 (as amended) (“the 1997 Act”) for so doing.

6 The decision of the Minister was made shortly after the delivery of the unanimous decision of this court in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, where the Minister had refused an application for naturalisation, and had equally refused to provide reasons for that decision, contending he was not obliged to do so in law. That contention was upheld in the High Court, and but reversed by this court. The Supreme Court held that, notwithstanding the fact that the Minister was entitled to make a decision in his or her absolute discretion, that did not mean that he or she was not obliged to give a reason. It was said that the rule of law required all decision-makers to act fairly and rationally, meaning that they must not make decisions without providing reasons.

7 As already noted, in the decision of 30 April 2013, the Minister sought to rely on the provisions of the 1997 Act to refuse to provide more detailed reasons. This decision was challenged in the High Court by way of judicial review seeking an order of certiorari quashing the Minister’s decision, and an order of mandamus requiring the Minister to provide reasons for his decision. In the course of those proceedings, an affidavit was filed on behalf of the Minister by Mr. John Kelly, an assistant principal officer in the citizenship section of the Department of Justice and Equality (“the Department”), referring to the existence of certain confidential documents concerning the application and Mr. P’s background, which were described, respectively, as documents A, B and C. It was acknowledged that those documents, over which the Minister asserted public interest privilege, formed the basis for the Minister’s refusal to grant a certificate of naturalisation. That privilege was challenged on behalf of Mr. P.

8 In a judgment delivered by McDermott J. on 17 January 2014 (see [2014] IEHC 17), the documentation on which the Minister relied was reviewed and inspected by the judge and the claim of public interest privilege examined. It was held that document A should be disclosed in full, document B should be disclosed in redacted form, and it was in the public interest that the Minister’s claim of privilege over document C should be upheld in its entirety. This decision was not appealed in those proceedings. The disclosed documents indicated that a recommendation had been made to the Minister that Mr. P. should not be granted a certificate of naturalisation on grounds that the Minister could not be satisfied that he met the good character requirements in s. 15(1)(b) of the 1956 Act.

9 Thereafter, there was a hearing of the substantive judicial review proceedings by the same judge. In a careful judgment delivered on 2 May 2014 (see [2014] IEHC 241) it was held that the decision of the Minister should be quashed on the basis that the citation of the provisions of the 1997 Act did not sufficiently assist in providing an understanding of the decision-making process for the refusal of the application. The judgment made extensive reference to the recent decision of this court in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, and in particular para. 79 of the judgment, which referred to the possibility that the Minister could either give notice of his or her concerns to an applicant or “continue to refuse to disclose his reasons but provide justification for doing so”. McDermott J. considered, in the first place, that there was no reason why the Minister could not in this case furnish a reason for the refusal of the certificate “namely the failure on the part of the applicant to fulfil the ‘good character’ condition”. The difficulty for the Minister, the judge observed, was that he did not wish to disclose the information upon which that recommendation or conclusion was based. At para. 28 of the judgement, McDermott J. observed “in those circumstances, he was obliged, having regard to para. 79 of the Mallak decision, to provide a justification for not doing so. Any challenge to the conclusion reached in respect of “good character” or any justification proffered for refusing to give reasons for that justification may then be the subject of challenge, if that is considered appropriate”.

10 Paragraphs 29 and 31 of the judgment set out how the learned High Court judge considered the matter should proceed thereafter. Having observed that the decision of the Minister could be challenged, he continued, at para. 29:-

      “This is without prejudice to the entitlement of the respondent when justifying the withholding of reasons as to why the conclusion as to good character was reached, to rely upon any appropriate privilege of the type asserted in this case. However, the court is satisfied that the utmost transparency is required in such cases, and that the respondent should have firstly, informed the applicant that the reason for the refusal of the certificate was that he had failed to fulfil the condition of “good character” under s. 15(1)(b) of the Act. Secondly, if it was considered appropriate to refuse to give any further reasons, a justification should have been furnished in that regard based on the fact that the recommendation was made on the basis of information which was properly the subject of privilege: a cryptic general reference to provisions of the Freedom of Information Act 1997 was, in this case, insufficient. In that way, the applicant would be furnished with some understanding at the earliest possible opportunity and to the extent practicable, of the reason for the refusal and/or the justification, if any, for the withholding of the basis for that reason. It is important in this respect that each case is considered on its own merits and that all relevant matters are considered by the [Minister] at the time the decision is made. The court does not consider it to be appropriate that the reason for refusal of the certificate and/or the reasons for refusing to disclose the underlying basis for that decision were revealed for the first time after the initiation of judicial review proceedings. The limited but important information ultimately disclosed in Mr. Kelly’s affidavit ought properly to have been furnished in the letter of 30th April together with the material which was the subject of the disclosure order.”

11 Accordingly, McDermott J. considered that it was appropriate to make an order of certiorari quashing the decision of the Minister. At para. 31, he considered how the matter should then proceed:-

      “It is important that this matter be reconsidered in accordance with these legal principles. The refusal of a certificate of naturalisation on the basis of “good character” is a matter of considerable importance to the applicant in any future application. It is essential that he be given to understand as fully as possible the precise basis and context of that refusal. It is common case between the parties that the applicant has no prior convictions. He is the father of two Irish citizen children born in 1994 and 1997. He has resided for 23 years in the State and has made five applications for naturalisation, all of which have been refused in 1997, 2004, 2008, 2010 and 2013. He is now 48 years old. It is important in any future application that he be given the opportunity to address as far as possible the reasons for the refusal if he is to make a meaningful application. I do not consider that the respondent adequately complied with the obligation to furnish the reason for the refusal in this case notwithstanding the exigencies under which the respondent must operate. The respondent is, of course, entitled to withhold material on the basis of public policy as recognised in Mallak and this court’s decision on the disclosure application, but should make the earliest possible disclosure of reasons underlying the decision consistent with that duty. It may well be that a letter setting out the factors of which the court is now aware following the initiation of these proceedings would be sufficient to meet the case but it is essential to the fairness of the process that the withholding or furnishing of reasons is determined carefully with due regard to the facts and requirements of each case.”

12 There was no appeal against this decision, or indeed the judge’s prior decision on the disclosure of the underlying documentation. It was not suggested in this case that the judgment was in any way in error, or that its terms should be qualified. I should say, I consider it was a careful and indeed rigorous application of the existing law with a view to ensuring that the utmost transparency that was possible should be afforded to the applicant. The following principles emerge from the judgment:-

      (i) That, in this case, the applicant should have been informed that the reason for the refusal of the certificate was that it was considered he failed to fulfil the condition of good character under s. 15 of the 1956 Act;

      (ii) That, if it was considered appropriate to refuse to give further reasons, a justification should have been provided, namely that the recommendation was made on the basis of information properly the subject of privilege, and a cryptic general reference to the provisions of the 1997 Act was insufficient;

      (iii) That this information should be provided at the time the decision is made known to the applicant; that it should not have required the initiation of judicial review proceedings in order to be revealed; and that the material which it was now accepted was not covered by privilege ought to have been furnished with the letter of 30 April 2013;

      (iv) In any reconsideration, the Minister would be entitled to withhold material on the basis of public policy but should make the earliest possible disclosure of reasons underlying the decision consistent with such duty to withhold the material;

      (v) A letter setting out the factors which had emerged in the course of the proceedings (that the decision was based on the good character ground, and that the underlying reasons were the subject of a valid claim to public interest privilege) may well be sufficient to meet the case.

13 Subsequent to the decision of McDermott J. in the High Court, the application of August 2011 was submitted for reconsideration, together with further submissions on the part of Mr. P. On 1 September 2014, the Minister issued a decision refusing to grant a certificate of naturalisation. The letter which issued to Mr. P.’s solicitors notified them that the Minister had considered their client’s application, and had decided not to grant a certificate of naturalisation. The letter enclosed a copy of the submission which had been prepared for the Minister with the decision annotated thereon. The letter also informed the solicitors that there was no appeals process, but that there could be a further application for a certificate of naturalisation at any time, and any such application would be considered taking into account all statutory and administrative conditions applicable at the time of the application.

14 It is particularly important in the light of the decision of McDermott J. and the challenge now raised to the decision notified in the letter of 1 September 2014, to set out in some detail the terms of the submission which it is apparent the Minister accepted.

15 The recommendation recites the name of the applicant, the file references, his date of birth, marital status, and nationality, and his date of entry into the State. It records the relevant legal provisions, namely, that under the 1956 Act, the Minister may in her absolute discretion grant an application for a certificate of naturalisation, if satisfied that the applicant fulfils the statutory provisions, and, pursuant to s. 16, may do so even when the conditions for naturalisation (or any of them) are not complied with where, among other things, the applicant is of Irish decent or has Irish associations, or is a refugee. The submission then states:-

Comments:

A.P. arrived into the State in October 1989 on a visitor’s visa. He applied for refugee status, which was granted in December 2001. He has resided in the State since then and fulfils the statutory conditions regarding residency. He has 2 children born in the State in 1994 and 1997 who are Irish citizens. The Garda Vetting Unit has confirmed that there are no convictions recorded against Mr. P. and have cleared him to work with children and vulnerable persons.

Mr. P. has made 4 previous applications for a certificate of naturalisation, all of which resulted in a refusal of the applications.

There are national security/international relations considerations in this case. Please see attached report, which contains information received on a strictly confidential basis regarding this applicant. This information is of concern to the State. The Ministerial Decisions Unit has also been issued with a copy of the confidential report. However, at present no restrictions, in the interests of national security or public policy, have been placed upon Mr. P.’s rights as a refugee, as provided for under section 17(2) of [the 1996 Act]. The fact that restrictions have not been placed upon Mr. P.’s rights as a refugee does not mean the Minister is therefore precluded from taking into consideration any matters that relate to national security or come within the sphere of public policy considerations in a naturalisation context in making her decision.

Quite clearly it is one thing for a person granted refugee status in the State to travel abroad on a travel document issued by the State and quite another for a person to travel abroad using an Irish passport, with holders of the latter being extended welcome without any visa requirements in many countries. The applicant has stated in submissions he has made in support of his application that he wants his application granted in order to be recognised as being from Ireland, as a person who has become Irish and to be able to travel freely to other countries with his daughters, including not being segregated from them and subjected to separate treatment at border controls.

Please see attached file, which contains submissions on behalf of the applicant. The fact that the applicant has resided for so long in the State as a refugee without obtaining Irish citizenship has caused some to question why that would be. Mr. P. has stated that employers seem surprised that he is not an Irish citizen and when he explains that he has been refused Irish citizenship this inevitably raises suspicions. He states that he has missed valuable postgraduate studying opportunities in Amsterdam, Barcelona, and Sweden as the difference in fees for EU students and non-EU students is significant and the fees are consequentially prohibitive for him.

The applicant asserts that he is of good character and that if the reason for peoples’ refusal is based on an adverse finding in respect of his character, then that finding is based on incorrect information.

Mr. P. has been resident in the State for what is now a significant proportion of his life and has Irish associations of 2 Irish citizen children. Mr. P. appears to be well regarded in his community as attested by the 9 references in support that he recently submitted. Some have provided their opinion of his character as being very good or excellent.

Recommendation:

It is essential that the Minister on behalf of the State, has confidence in the declaration of fidelity to the Irish nation and loyalty to the State and the undertaking to faithfully observe the laws of the State and protect its democratic values made by new Irish citizens. Having carefully considered the case and taken into account the applicant’s submissions and references, I am of the view that the Minister cannot have such confidence in this case, nor be satisfied that the applicant meets the condition of good character as specified in section 15(1)(b) of [the 1956 Act], and I would not recommend that the Minister, in her absolute discretion, waive the good character condition for naturalisation under section 16 of that Act. I therefore recommend that the Minister refuse Mr. P.’s 5th application for a certificate of naturalisation.

It is established law that applicants for a certificate of naturalisation are entitled to know the reasons for the decision on their application, or where the provision of reasons is being refused, be provided with a justification for not providing them. This is because if the reasons for a decision to refuse an application are not provided to an applicant then they will not know if the decision is unlawful or if there are matters that they might be able to address or mitigate in any future application.

The context and basis for the recommendation have been outlined as far as possible in this submission without disclosing the privileged information and the submission should be provided to Mr. P. to inform to the fullest extent possible the reasons for the decision in this case. The State’s interests in protecting its security in international relations must in this case outweigh the applicant’s interest in knowing the Minister’s specific basis for refusing him this privilege.

Not recommended. For the Minister’s decision please.”

16 The submission is signed by an identified individual in the Further Processing LSR team of the Department, and by an assistant principal officer. Subsequently it is directed on its face to the then Director General of the Department, who set out his conclusion in handwriting on the submission as follows:-

      “Minister, having considered the submission and attached papers, I support the negative recommendation in this case.”

17 Finally, the letter also contains the handwritten signature of the then Minister dated 25 August 2014, signifying her approval. It is, I think, clear that the Minister and the Department have sought to comply with the judgment of McDermott J. in this case. All the matters that ought to be considered in favour of Mr. P. are fairly set out in the submission. The reason for the submission is set out: that is, that the departmental office and the Minister are of the view that the Minister cannot have confidence in the applicant’s declaration of fidelity and loyalty and the undertaking to faithfully observe the laws of the State, and cannot be satisfied the applicant meets the condition of good character. The submission also recommends that the Minister does not waive the good character condition under s. 16 of the 1956 Act. The submission also addresses the fact that applicants are entitled to know the reasons for the decision on their application, and where the provision of reasons is being refused, to be given a justification for not providing them. The reason for such a requirement is also set out. It is stated that the context and basis of the recommendation have been outlined “as far as possible in this submission without disclosing the privileged information” but that the submission should be provided to Mr. P. to inform him “to the fullest extent possible” of the reasons for the decision in the case. It is then specifically concluded that the State’s interest in protecting its security and international relations must outweigh the applicant’s interest in knowing the Minister’s specific basis for refusing him. It has not been suggested that the information set out discloses any other basis for challenging the decision, or that there has been any failure to comply with what was contemplated by the decision of McDermott J. in the High Court.

18 The applicant challenged this decision in these proceedings. The High Court upheld the approach of the Minister by judgment of Stewart J. of 19 July 2016 (see [2016] IEHC 408), stating that the “applicant has failed to discharge the burden of proving that there was an error in the decision-making process engaged in by the respondent in this case.” On appeal to the Court of Appeal (Peart, Hogan and Gilligan JJ.) (see [2018] IECA 112) the judgment of the High Court was upheld in the judgment of Gilligan J. In a separate judgment, Hogan J. considered that the nature of the public interest in security was such that immunity could properly be claimed; and that consequently no claim could be made that the decision of the Minister was contrary to law despite the absence of an opportunity for the applicant to contest any material put forward for ministerial decision.


The appeal to this court

19 These proceedings were commenced by way of judicial review seeking to quash the Minister’s decision. While the applicant challenged the lawfulness of the decision generally, the arguments made were somewhat diffuse, and it must also be acknowledged that the grounds upon which leave was granted for appeal to this court are both broad and more general than the case which was raised and considered in the High Court and the Court of Appeal.

20 It is important to keep clearly in mind the three possible ways in which the issue of confidential and privileged material may arise. First, it is possible in theory to challenge the procedure before the Minister on the ground that the Minister relied upon information which was not made available in advance to the person the subject matter of the decision for the purposes of submission and comment or rebuttal. Second, it is possible to challenge the adequacy of the reasons given for the refusal of a certificate of naturalisation. Finally, it is possible the court might have to consider the question of whether a document is privileged from inspection and production during the course of any litigation challenging either the decision-making process, or the reasons given. In each case, the information involved is exactly the same. It is the information contained in document C which was the basis of the submission to the Minister before she made her decision, and the information which it was considered could not be provided to substantiate the reasons for the refusal. It is also the self-same information in respect of which privilege was upheld in the proceedings before McDermott J.

21 It is, however, important to maintain the distinction set out above. This is because Irish law distinguishes sharply between the applicable law and procedures in each case. Since Murphy v. Corporation of Dublin [1972] I.R. 215, it is well established that a court may inspect the documentation in respect of which public interest is claimed with a view to satisfying itself, if necessary, that such privilege is properly claimed and is sufficient to override the interest in making available all relevant evidence in the particular case. This will require consideration of the interests involved in the particular circumstances of the case, and the significance of the document concerned. Although this is a difficult area that can give rise to acute problems in individual cases, the law is by now well established, and the procedures broadly familiar. Irish courts have not, however, had to address the difficult and controversial issue which has arisen in other jurisdictions where it is suggested that a court may proceed to determine the substance of a case on evidence that was not available to both parties or their chosen representatives because of the sensitivity of the information concerned. That issue does not arise in this case, nor does the court have to consider the validity of any administrative or quasi-judicial decision arrived at on information which has not been disclosed in advance to the person or party affected by the decision. This case, as I understand it, is a challenge made to the decision of the Minister on the grounds that the reasons given are inadequate. This conclusion can also be seen to follow from the fact that the decision notified to Mr. P. on 1 September 2014 which is sought to be challenged in this case was itself a reconsideration of the application made in 2011, in respect of which the decision of the 30 April 2013 had been quashed by McDermott J. on the ground that the reasons given at that point were inadequate.


The applicant’s position

22 The applicant, as I understand it, now contends that the reasons given are even now insufficient, that it ought to have been possible to offer to provide the gist of the information relied upon, and, if necessary, a special advocate procedure ought to have been adopted.

23 Reference to a special advocate procedure invokes by analogy the procedures adopted in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings. These procedures mean that decision-makers, and sometimes courts, will, in private hearing, consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it. The procedures can be invoked at each stage of the decision-making process, including in relation to the question of disclosure of information to the party concerned and his or her chosen representatives; in testing evidence and making submissions on the decision; and, as I understand it, when the decision is being reviewed by a court, if appropriate.

24 No provision has been made by statute in this jurisdiction for any such procedure, whether by way of closed material hearings by decision-makers or courts, or for the appointment of special advocates. I do not wish to express any view on whether any such procedure would be possible or consistent with the Constitution, and if so, the limitations of any such process.

25 It appears that the origin of the procedure was in ad hoc steps taken in the course of proceedings such as R. (Malik) v. Manchester Crown Court [2008] 4 All E.R. 403 in the United Kingdom, and in New Zealand after the Zaoui case (see John Ip, ‘The Adoption of the Special Advocate Procedure in New Zealand’s Immigration Bill’ (2009) N.Z.L. Rev. 207). However, in those jurisdictions and others, there is now a detailed statutory regime and provision for oversight and review. In The People (Director of Public Prosecutions) v. Kelly [2006] IESC 20, [2006] 3 I.R. 115, Fennelly J. stated at p. 145:-

      “The solution of special advocates appears to have been firmly rejected in this jurisdiction (see Burke v. Central Independent Television plc. [1994] 2 I.R. 61 and Director of Public Prosecutions v. Special Criminal Court [1999] 1 I.R. 60). Our courts have preferred to resolve conflicts between the conflicting imperatives of a fair trial and the protection of public confidential information by asking the responsible court itself to examine the material. This, as I have already mentioned was suggested by Keane C.J. in the case of Director of Public Prosecutions v. Mulligan (Unreported, Court of Criminal Appeal, 17th May, 2004) and was specifically ordained by this court in Director of Public Prosecutions v. Special Criminal Court [1999] 1 I.R. 60.”

26 It is perhaps useful to observe that the Irish cases referred to by Fennelly J. relate to the question of disclosure, where there is already a well-established procedure for scrutiny by the court of documents over which public interest privilege is claimed, if a court considers it necessary to do so for the purposes of litigation before the court. While the courts have shown a degree of flexibility as to the method by which competing interests may be reconciled in the context of litigation, it is fair to say that the decisions to date have shown a preference for seeking to resolve matters such as this through the existing procedures of the court, and, in particular, through the possibility of court determination (and if necessary inspection) which has been well established since Murphy v. Corporation of Dublin [1972] I.R. 215, where, if necessary, submissions may be made in open court by the parties at a hearing at which the individual would be represented by lawyers of his or choice, in the normal way. I express no view here on whether there are any circumstances in which a court would consider it appropriate to request the appointment of a special advocate to make submissions on the question of production of documents in respect of which privilege was claimed. It is sufficient for present purposes to observe that the issue has not yet arisen, and does not arise here.

27 Until now, it had not been sought in Irish law to provide for any procedure which would permit evidence to be given in proceedings which would not be available to one of the parties. Instead, the law, through the medium of the decided cases, sought a variety of ad hoc measures to try to achieve a difficult balance between the competing interests, while maintaining the principle that, in any court decision, the administration of justice cannot be based on evidence which is not disclosed to the parties. Until now, no court had to consider directly the validity of administrative or non-judicial decisions reached on the basis of information which is not disclosed in advance, or which is not the subject of a reasoned decision.

28 The applicant also argued that the Minister should at a minimum be obliged to provide the “gist” of the information which led to the Minister’s decision. To some extent, the applicant’s arguments shuttled between points relating to disclosure, the requirement to give reasons, the provision of the gist of the information, or some combination of all three, without identifying precisely what it is suggested was required by Irish law. As I understand it, the applicant maintains that the reasons given are inadequate, either because it was possible to provide the gist of the information or that a special advocate ought to have been provided with access to the documentation to argue on behalf of the applicant for the disclosure of the information, or the gist of it, in the Minister’s decision.


The Minister’s response

29 A very detailed replying affidavit was sworn by Mr. Kelly, an assistant principal officer in the Department. The affidavit sought to set out fully the sequence of events. It confirmed that the report referred to in the submission to the Minister was the same document as document C which McDermott J. had held was privileged from disclosure. It was also recorded that the Minister had accepted fully the judgment of McDermott J., so that even in a case where information could not be revealed, it was accepted the Minister was obliged to furnish the general nature of the reasons for the refusal of the certificate of naturalisation, and to provide a justification for the refusal to give any more detailed reasons.

30 Mr. Kelly also addressed the contention that a more limited version of the information contained in document C could be provided to the applicant and said that it was not possible for the applicant to disclose the “gist” or précis of the information contained in document C, as doing so would undermine the State’s interest justifying the assertion of privilege, which was upheld by McDermott J. The affidavit also sought to explain that the Minister could not provide a précis of the information, or explain the source of the information which she relied on in making the decision. At para. 16 of the affidavit he said:-

      “In the course of carrying out these investigations, the respondent sometimes receives information on a strictly confidential basis from external sources. This is information the State would not otherwise be able to obtain through its own resources and hence the respondent is dependent on the good will of the external agencies which currently provide this information. Consequently, in order to ensure that similar information will be available in the future, the respondent must respect that confidentiality and not disclose it to an applicant whose application may be refused as a result.”

31 Later, Mr. Kelly also adverted to the difficulty that disclosure of a précis of the information could create beyond the context of the specific application. There is a risk of confirmation to a person who was a potential security threat that he or she is known to intelligent services either in this State or elsewhere. The disclosure of information may give rise to a danger to sources, and furthermore, where information comes from external sources, the provision of a précis would compromise the Minister’s ability to obtain such information in future cases, as external sources would not be willing to share information which might ultimately be disclosed to the person who is the subject of the intelligence. These are weighty considerations, and they have not been challenged or sought to be contradicted.

32 The law relating to the provision of reasons for administrative decisions has been closely connected to the law relating to the review of decisions of naturalisation. In one of the earliest cases, Pok Sun Shum v. Ireland [1986] I.L.R.M. 593, Costello J. considered that the grant of citizenship was a privilege, there was an absolute discretion, and that there was no obligation to provide reasons for a refusal. However, subsequently the courts accepted that the decision to refuse on a stated ground such as good character could at least require the provisions of reasons. The question was subject to comprehensive review in the decision of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297. In that case, the Minister had relied solely on the absolute discretion provided for under the 1956 Act, and had refused an application for naturalisation without providing reasons. In the High Court, Cooke J. had dismissed the application for certiorari. The Supreme Court unanimously reversed that decision.

33 The sole judgment was delivered by Fennelly J., with whom the other members of the court agreed. The judgment reviewed carefully the development of administrative law in Ireland and other jurisdictions, and indeed the progress of legislative changes, all of which he considered could be seen as converging in a general principle that reasons were required for a decision. The conclusion is to be found at paras. 68 to 70 of the judgment, as follows:-

      “[68] In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.

      [69] Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.

      [70] It has to be regarded as significant that s. 18(1) of the Freedom of Information Act, 1997, though principally concerned with the provision of information to the public, envisages that public bodies will give reasons for their decisions at the request of an affected person.”

34 While Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297 is undoubtedly a significant landmark decision of this court, it is noteworthy that it is carefully and cautiously expressed. In the first place, it is clear that the basis of the decision was fair procedures. It is not suggested that any constitutional right was involved, or any question of balance or proportionality. It was a matter of administrative law, and the fundamental question was to establish the general fairness of the procedures involved. In the event, the decision in that case was quashed simply on the grounds that no reasons for the Minister’s decision had been provided, and thus the decision did not accord with fair procedures. There was no formal rule, and it was a question of fairness rather than form. It was a general but not absolute approach which leaves open the possibility of exceptions and qualifications.

35 It is important to note that the case dealt with the decision taken on the basis of the Minister’s discretion and without any suggestion of State security interests. Indeed, the Minister in this case submitted, correctly in my view, that the judgment contemplates circumstances in which it may not be possible to give the reasons, or at least the detailed reasons which might normally expected in which case the decision-maker would be obliged to justify the refusal. This is apparent from a number of passages in the judgment. At para. 77 it is noted that “No reasons related to the public interest have been disclosed even in the most general terms”. At para. 76 it is said:-

      “In the absence of any reasons, it is simply not possible for the applicant to make a judgment as to whether he has a ground for applying for a judicial review of the substance of the decision and, for the same reason, for the court to exercise its power. At the very least, the decision-maker must be able to justify the refusal. No attempt has been made to do so in the present case and I believe it would be wrong to speculate about cases in which the courts might be persuaded to accept such justification” (emphasis added).

36 Having concluded that it was appropriate to make an order for certiorari, Fennelly J. turned at para. 79 to what followed from the making of such an order:-

      “Following the making of the order, it will be a matter for the Minister to consider the application afresh. It will be a matter for him to decide what procedures to adopt in order to comply with the requirements of fairness. It is not a matter for the court to prescribe whether he will give notice of his concerns to the appellant or disclose information on which they may be based or whether he will continue to refuse to disclose his reasons but to provide justification for doing so. Any question of the adequacy of reasons he may actually decide to provide or any justification provided for declining to disclose them can be considered only when they have been given” (emphasis added).

37 The judgment plainly contemplates, therefore, the possibility that there may be reasons which would, as it were, justify the provision of only limited, or even no reasons for the decision. This is also apparent from some of the authorities and materials relied upon in the judgment. As already observed, Fennelly J. relied upon the provisions of s. 18 of the 1997 Act as an example of a legislative development illustrating a general principle that public bodies will give reasons for their decisions at the request of an affected person. To that extent, the decision in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297 brings the law of judicial review into line with what is already provided for by statute. However, it is of some significance that the 1997 Act, (replaced in the interim by the Freedom of Information Act 2014), permitted under s. 23 an exemption from disclosure, even to the extent of the non-disclosure of the existence of records, where interests of national security are involved. Similarly, it is notable that s. 1(4)(a) of the Data Protection Act 1988 that that Act simply does not apply to personal data which in the opinion of either the Minister for Justice and Equality or the Minister for Defence is kept for the purposes of safeguarding the security of the State.

38 Fennelly J. also referred with approval to the majority decision of the Court of Appeal of England and Wales in R. v. Secretary of State for the Home Department, ex p. Fayed [1998] 1 W.L.R. 763, which also dealt with a challenge to a decision to refuse a naturalisation application, brought in that case by the well-known Fayed brothers. Under the British Nationality Act 1981, it was expressly provided that the Secretary of State had an absolute discretion similar to that provided by the 1956 Act in this jurisdiction, and also provided under s. 44(2) that reasons were not required to be given for any refusal. However, the majority of the Court of Appeal (Lord Woolf M.R. and Phillips L.J.; Kennedy L.J. dissenting) held that in those circumstances, the Secretary of State was obliged, before reaching an adverse decision, to inform the applicants of the nature of the matters weighing against him or her, and to afford him or her an opportunity to address them. The majority of the Court of Appeal considered that this was a case where reasons would have been required at common law, if the provisions of s. 44(2) did not preclude the provision of reasons. In that sense, the Fayed case is the obverse of the case which arose in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, and was of obvious relevance.

39 Again, however, it must be observed that no ground whatever had been identified as a basis for the decision in R. v. Secretary of State for the Home Department, ex p. Fayed [1998] 1 W.L.R. 763, and there was no suggestion in the judgments that the information must nevertheless be provided, if international security was involved. Indeed, the majority appeared to have considered the possibility that in such circumstances such information could be withheld. At pp. 776 to 777 of the report, Lord Woolf M.R. addressed the consequences of the approach adopted as follows:-

      “It does not require the Secretary of State to do more than to identify the subject of his concern in such terms as to enable the applicant to make such submissions as he can. In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who if he wished to do so could challenge the justification for the refusal before the courts. The courts are well capable of determining public interest issues of this sort in a way which balances the interests of the individual against the public interests of the state.”

40 It is plain, therefore, that the decision in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297 did not address, still less resolve, the difficult question which arises where it is said that reasons cannot be provided because of concerns of national security, and where the disclosure of information or even a précis thereof would involve disclosure of material which is otherwise privileged. It follows that the decision in this case is not governed by what was decided in Mallak. Indeed, in that case, insomuch as the issue was addressed, it appears to have been considered that there may be circumstances where a decision-maker may depart from the general obligation to give reasons for his or her decision, but in such a case must justify the refusal. However, by the same token, Mallak clearly did not conclude that this would be sufficient. It was simply a possibility which was prudently considered in addressing the more general question which arose in that case. The precise issue which arises here, therefore, is that which was only touched on in both Mallak and Fayed, namely:-

      (i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and

      (ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?

41 These questions arise for decision, moreover, in the very particular context of an application for citizenship which is subject to review for legality by way of judicial review, but where, nevertheless, the nature of the review is necessarily limited by the very broad discretion which is afforded to the Minister by statute. In addition, while it is asserted on the applicant’s behalf that his constitutional right to a good name is at issue, I do not think that the matter can or should be approached in this way. It was not suggested that the Minister had published her decision to anyone other than the applicant. Moreover, the basis upon which non-citizens may assert rights which the Constitution guarantees in terms in respect of citizens is, in my view, derived from the guarantee of equality before the law under Article 40.1: see N.H.V. v. Minister for Justice [2017] IESC 35, [2018] 1 I.R. 246, at p. 314, where I said that a determination of whether equality demanded that what would be prohibited (or permitted) in respect of citizens was also outlawed (or permitted) in respect of non-citizens involved “a consideration of whether the right is in essence social, and tied to the civil society in which citizens live, in the way that it might be said that voting is limited by belonging to the relevant society, or whether the right protects something that goes to the essence of human personality so that to deny it to persons would be to fail to recognise their essential equality as human persons, as mandated by Article 40.1.”

42 There are obvious differences between citizens and non-citizens in relation to the question of acquisition of the status of citizenship, so there is no necessary inequality in treating citizens and non-citizens differently in relation to the acquisition of citizenship. The procedures under the 1956 Act are a clear example of this, since, by definition, they apply only to non-citizens seeking naturalisation. That decision relates to status, and does not, at least directly, engage other rights. There is no doubt, however, that fair procedures must be applied to any such decision. Accordingly, I would approach this question as it was approached in in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297: that is, as a question of fair procedures in administrative law. It is apparent, without in any way depreciating the significant concerns that arise in this case from the point of view of Mr. P., that nevertheless different considerations may be involved where a decision can be said to directly affect constitutionally protected rights. It may also be the case that different considerations will apply where it is sought to withhold information in the context of the procedures leading to a substantive decision, or where an application is made for disclosure of information in the course of court proceedings perhaps challenging the substantive decision. The focus of this case is solely on the question whether reasons should be provided for a decision refusing to grant citizenship.

43 The applicant is critical of the approach that the Minister takes in these proceedings, and accuses the Minister of adopting a position which has “launched an outright attack on the rule of law”. In my view, that criticism is misplaced. It is very clear from the evidence in this case that the Minister went to some lengths to seek to comply with what she understood to be the decision of the High Court and the interpretation adopted in that case of the decision of this court in Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297. It remains to be determined whether what was done here accords with the requirements of fair procedures.


Discussion

44 I return, therefore, to the central question whether it can be said that the Minister has justified the limited reasons given, and the withholding of more detailed information. In that regard, a number important features of this case should be recognised. At the time of the notification of the negative decision, the applicant was furnished with the detailed submission that was submitted to the Minister, and accordingly shown the decision-making chain and the reasoning involved. The submission set out both that it was not considered possible to disclose the information, and, furthermore, that consideration had been given to whether it was possible to provide any more information by way of reasons. Furthermore, the basis of the decision was identified as document C (which had been inspected by a judge of the High Court), together with the claim that the national interest would be damaged by the disclosure of the contents of that document. The Minister’s view that such interest outweighed the interests of the applicant in having access to the document for the purpose of proceedings had been upheld by a judge of the High Court who had inspected the document concerned. That decision was, moreover, open to appeal, if the applicant considered it struck the wrong balance.

45 The submission was prepared by an identified official and submitted to an assistant principal officer in the Department, who, in addition, swore a very comprehensive affidavit setting out the relevant background. This submission was reviewed and was the subject of advice by the then secretary general to the Department, and submitted to the Minister for personal approval. This process is a substantial guarantee that the concerns raised were genuine, and that the withholding of information did not involve arbitrariness or abuse of power. Furthermore, the assistant principal officer swore an affidavit stating specifically that it was not possible to provide any further information or the gist of the material relied upon. Since that affidavit was sworn in the course of these proceedings, the officer in question could have been the subject of cross-examination, and any claim to privilege made in respect of any answer to any question posed would of necessity have to be ruled upon by the trial judge in the presence of both parties, and after hearing submissions.

46 These are all substantial matters. Furthermore, Irish law more generally contemplates clearly a point at which the circle of decision and challenge must end. There are many situations in which cases must proceed to judgment where claims to privilege are upheld, and where by definition, therefore, one side may not have access to potentially helpful evidence. Similarly, criminal proceedings can and do proceed to a decision without the disclosure of material upon which privilege is properly claimed. There is also a limit to what can be expected by way of the provision of information in every case. The position was helpfully summarised in the judgment delivered by Lord Mance in the United Kingdome Supreme Court in the decision of R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, at para. 62:-

      “On the other hand, it is established by decisions of both the European Court of Human Rights and the Supreme Court that there are circumstances where it may in the public interest be legitimate to withhold even the gist of the material relied on for a decision which a person affected wishes to challenge. The relevant case law is analysed in Tariq v. Home Office [2012] 1 A.C. 452, paras 27 to 37. This approach has been applied in the European Court of Human Rights to material allegedly making a person a security risk unsuitable for permanent employment which would entail him having access to a naval base (Leander v. Sweden (1987) 9 E.H.R.R. 433), to security material allegedly making a person unsuitable for employment with the central office of information (Esbester v. United Kingdom (1994) 18 EHRR CD72), and to material explaining the meaning of a statement by the Investigatory Powers Tribunal that “no determination had been made in his favour” in relation to a complainant in respect of complaints that his communications were being wrongly intercepted – a statement which could mean either that there had been no interceptions or that any interceptions taking place had been lawful (Kennedy v. United Kingdom (2010) 52 E.H.R.R. 4). The approach in these cases was applied domestically by the Supreme Court in Tariq v. Home Office [2012] 1 A.C. 452. The complainant’s security clearance was withdrawn and he was suspended from his work as a Home Office immigration officer, after the arrest of close family members in the course of a suspected terrorism investigation. A closed material procedure was held, with a special advocate, under rule 54 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I. 2004/1861). The majority concluded that there was no invariable rule that gisting must always occur. It depended on balancing the nature and weight of the circumstances on each side: see in particular para. 25.”

47 Again, these are considerations to which due weight must be given. If national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. It is worth noting, however, that in R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state. Furthermore, it must be recognised that fundamental issues are involved if it is contended that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld. The saga in the United Kingdom of decisions in relation to refusals of naturalisations on grounds of security, which commenced with R. (A.H.K.) v. Secretary of State for the Home Department [2012] EWHC 1117 (Admin), and came to a less than clear cut conclusion in R. (K.) v. Secretary of State for the Home Department [2014] EWCA Civ 151, vividly illustrates the difficulties in this area. The problem is compounded in this jurisdiction because there is no legislation dealing with the closed material procedure or any special advocate procedure, or any other method of addressing the difficult problem which arises not just in the area of naturalisation, but in many areas of the law.

48 I agree with Hogan J. in the Court of Appeal, and with the Chief Justice in this court, that it does not appear possible for the court to devise a complete procedure, cut from whole cloth, which is capable of being applicable in all of the many different and difficult situations where the issue of disclosure of information arises, and where it is resisted on the grounds of public interest. I do not rule out the possibility that in certain circumstances, ad hoc solutions might be sought. This, after all, is what has occurred in the field of discovery and disclosure, and the somewhat different techniques adopted to permit disclosure of some information while maintaining confidentiality, which are discussed in the judgment of the Chief Justice. Indeed, to some extent, that approach is what is urged in this case. I also agree that there are, to put it at its lowest, serious doubts that it would be permissible to provide that, certainly in respect of court proceedings, a court could proceed upon material which was not available to be considered or challenged by or on behalf of one party. While the special advocate and closed material procedures were introduced to address obvious problems of fairness, it is apparent that, as a solution, it has not been universally welcomed. The procedure is necessarily limited, since the special advocate is restricted in the extent to which he or she can challenge material without receiving instructions on it. To that extent, the procedure has been memorably described by Lord Bingham in R. (Roberts) v. Parole Board [2005] 2 A.C. 738, at p. 754 (quoting Lord Hewart L.C.J. in Coles v. Odhams Press Ltd. [1936] 1 K.B. 416) as taking blind shots at a hidden target. On the other hand, concerns have been expressed that the very availability of the procedure has led to more use of the procedure, and more closed hearings, than might have been anticipated, or is in principle desirable. The primary objective should be to seek the maximum disclosure that is possible, and to ensure that, in so far as possible, any restriction on disclosure of reasons is demonstrably the least that is necessary.

49 For this reason, I agree with the approach set out at para. 5.18 of the judgment of the Chief Justice that, “in principle, it would at least be possible to put in place an enhanced process by which an independent assessment could be made as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”. Such a process of advice from an independent person with access to the information, which in this case has, after all, been seen already by a judge of the High Court, would itself also enhance confidence in any decision made. In these circumstances, I have come to the conclusion that it cannot be said that the decision not to disclose further reasons has been justified, with the result that the appeal should be allowed, and the decision of 1 September 2014 must be quashed. This, of course, does not mean that Mr. P. is entitled to citizenship, or that he would necessarily receive more by way of reasons. I recognise that this is frustrating for him, as it no doubt is for the Minister and the departmental officials who have sought to comply with the law as it then stood. However, this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases. In such circumstances, it is perhaps unavoidable that any answers are limited, contingent, and not clear cut.

50 This decision, as observed at the outset, is limited to the narrow question of reasons. It does not directly address any question which might arise in a challenge to the procedures adopted before a decision is made, and applies still less to the questions which might arise if it were sought to rely on undisclosed material in circumstances in which constitutional rights were even more directly affected. It is clear that difficult issues may arise, and the courts may no doubt be required to consider the issues further. Finally, I should say that I agree with the Chief Justice that the issue in this case is a matter to be determined according to domestic law, and does not raise an issue of the law of the European Union.











Back to top of document