The Supreme Court has quashed the Minister for Justice’s refusal to grant Irish citizenship to a man based on “national security” grounds.
In a significant decision, the five-judge court unanimously held the Minister had not justified his failure to give the man, from a non-EU country, any reasons or information concerning the refusal beyond saying it was due to “national security” considerations. It directed the Minister to reconsider the matter via an “enhanced” process in line with the court’s findings.
That process could include an independent assessment as to whether any of the information relied on for refusing naturalisation could be provided to the man. Referred to as Mr P, the man cannot be identified by court order. He has lived here for more than 25 years after securing refugee status.
Represented by Michael Lynn SC, he unsuccessfully applied for naturalisation several times. Following earlier proceedings over being refused naturalisation in 2013 with no reason provided, the High Court ruled in 2014 he was entitled to inspect parts of documents held by the State concerning his background and said the State should provide more detailed reasons for refusing to grant him naturalisation. Mr P then made a fresh application for naturalisation, which was also rejected.
As part of that decision, he was given a report saying his right to specific reasons was outweighed by “national security considerations” in maintaining confidentiality over the information concerned. Mr P, who has no convictions, says he is of good character and has no idea what is being levied against him. He took fresh High Court proceedings aimed at quashing the Minister’s decision but those were dismissed in 2016 and the Court of Appeal upheld that dismissal in 2018.
The Supreme Court agreed to hear a further appeal and all five judges allowed the appeal on Friday. The Chief Justice, Mr Justice Frank Clarke, and Mr Justice Donal O’Donnell, in separate concurring judgments agreed the appeal should be allowed but on the basis of different legal reasoning. They agreed each other’s reasoning was legally sustainable. The Chief Justice said the real issue concerned the extent to which the undoubted difficulties the State would face in obtaining potentially vital intelligence from its own or international agencies can provide a legitimate legal and constitutional justification for the Minister’s approach in this case.
A failure to give more detailed reasons can only be justified if it impairs the entitlement to reasons to the “minimum” extent necessary to protect the legitimate countervailing interests engaged, he said. It is “incumbent” on the Minister to put in place measures which only impair, to the minimum extent necessary to protect legitimate State interests, Mr P’s entitlement to be informed of the reasons for any adverse decision on naturalisation.
There was no reason in principle why an independent person with appropriate security clearance could not be asked to assess the information and give their opinion whether any further information could properly be given. It may be the case it is not possible to disclose even part of the information but that “need not always be so”.
It had not been demonstrated the process followed by the Minister in Mr P’s case minimised his entitlement to reasons to the minimum extent necessary, he held.
On that basis, he would quash the Minister’s decision on purely national law grounds and direct the Minister to reconsider the matter via the “enhanced process” set out by the court.
Given the State interests at stake, the Minister must make the final decision as to what information must be disclosed, subject only to the overriding power of the court, in the discovery process in judicial review proceedings, to decide whether State immunity privilege has been correctly claimed. Because he was quashing the decision on national law grounds, he made no findings whether the court should have regard to the Charter of Fundamental Rights of the EU in assessing the case.
He made some observations in that regard including it is “strongly arguable” the sole competence in relation to granting citizenship remains with the member state.
Mr Justice O’Donnell said it does not appear possible for the court to devise a complete procedure applicable to all the many different situations where the issue of disclosure of information arises and is resisted on grounds of public interest.
In certain circumstances, ad hoc solutions might be found and, to some extent, that approach is urged in this case, he said. The Minister’s decision not to disclose further reasons has not been justified and must be reconsidered, he held. That did not mean Mr P is entitled to citizenship or would necessarily receive more by way of reasons, he stressed.
