Monday 22 January 2018

Syrian wins appeal over failure to secure Irish citizenship

Tim Healy

A SYRIAN lawyer has won a Supreme Court appeal over a decision to refuse him Irish citizenship.

Ghandi Nawaf Mallak was given no reason for the refusal to grant him citizenship, the court found.

The decision has implications for others in similar positions where administrative unfairness is alleged.

Giving the five-judge court's unanimous decision yesterday, Mr Justice Nial Fennelly observed the developing Irish jurisprudence provides compelling evidence it must be now "unusual" for a decision maker to be permitted refuse to give reasons.

"Where fairness can be shown to be lacking, the law provides a remedy," he said.

Persons affected by administrative decisions should have access to justice and the right to seek court protection to ensure the rule of law has been observed, fair procedures were applied and their rights not unfairly infringed, he said.

Mr Mallak and his wife came here in 2002 and both secured asylum later that year. Both later applied for a certificate of naturalisation as part of the process of seeking Irish citizenship.

Mr Mallak's first application was refused on grounds he was not resident here long enough and he applied again in December 2005.

Almost three years later, in November 2008, the Minister for Justice refused the application without saying why. Ms Mallak's wife secured citizenship.

Mr Mallak's lawyers later sought documents under the Freedom of Information (FOI) Act, including the Minister's reasons but were ultimately told the Minister was not obliged to give a statement of reasons.

The Office of the Information Commissioner (OIC) told Mr Mallak's lawyers the Minister's refusal to give reasons was correct and in line with Section 18 of the FOI Act permitting exemption from disclosure.

The OIC also later acknowledged Mr Mallak was left "none the wiser"

why his application was refused.

Further requests to the Department of Justice led to it disclosing to Mr Mallak a schedule of records entitled "Garda report" and a "Garda Request Form" of which he was previously unaware. He said those documents were never previously disclosed to him, he was given no opportunity to meet any adverse findings in them and speculated they were the documents deemed exempt under the FOI Act.

He later appealed to the Supreme Court against the High Court's rejection of his challenge to the Minister's refusal to give reasons.

In the judgement yesterday, Mr Justice Fennelly said in the absence of any reasons, the court would quash the Minister's refusal.

The Minister should consider the application afresh and any issues about the adequacy of any reasons given by at that stage could be considered after those were given, he added.

*The judgment was welcomed by Denise Charlton, chief executive of the Immigrant Council of Ireland (ICI) who said they had long held the view that the matter of granting citizenship should be exercised in a fair, open and transparent manner.

The ICI, she said, was continuing to call on the Government to ensure that people whose applications are unsuccessful are given the reasons in writing and a right to appeal to an independent body, as well as the courts. It was also unacceptable that the protections of the office of the Ombudsman were not extended to to the citizenship and immigration system, she said.

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