Appeal No. 339/2011

IpsofactoJ.com: International Cases [2012] Part 12 Case 9 [SCIre]


SUPREME COURT OF IRELAND

Coram

Ghandi Nawaf Mallak

- vs -

The Minister for Justice,

Equality & Law Reform

Denham CJ

Murray J

Fennelly J

O’Donnell J

McKechnie J

6 DECEMBER 2012


Judgment

Justice Fennelly

  1. The phenomenon that is the modern law of judicial review, though rooted in history, has witnessed extraordinary development over the past thirty years. At its heart it insists that, to adapt the language of this Court in The State (Lynch) v Cooney [1982] I.R. 337, any administrative decision, in that case an opinion of a Minister which enabled him to make an order prohibiting broadcasts, must be “bona fide held and factually sustainable and not unreasonable.” The underlying principles of judicial review are universal. Courts of the common law have developed and expanded the historic rules of natural justice, in more recent imes with inspiration from international human-rights instruments such as the European Convention on Human Rights and, in this jurisdiction, from the Constitution. The Court of Justice of the European Union speaks of a “complete system of legal remedies.”(Case 294/83 Parti écologiste “Les Verts” v European Parliament [1986] ECR 1339, paragraph 23). The rules are composed of a number of inter-related features, the underlying fundamental presumption being that those to whom discretionary powers are entrusted will exercise them fairly insofar as they may affect individuals. Where fairness can be shown to be lacking, the law provides a remedy. The right of access to the courts is an indispensable cornerstone of a State governed by the rule of law.

  2. The particular issue for decision on this appeal is the extent to which decision-makers are obliged to disclose the reasons for which they are made. This question is, of its nature, closely related to other features of the rules of natural justice compendiously covered by the broad principle of audi alteram partem, which may include the giving of prior notice of impending decisions, of the matters which the decision-maker will take into account and, in appropriate cases, the disclosure of information and even, in some cases, the holding of a hearing.

  3. While our courts have extensively considered the adequacy of reasons when they have actually been given, there has been no principled consideration of the question whether a general obligation to furnish reasons exists at all or, if it does not, in what cases reasons should be given and why. There is a persistent view, as evidenced by the High Court judgment in the present case, that there is no general obligation at common law to give reasons for administrative decisions. There must be a close relationship between the process of giving prior notice and giving reasons after the event.

  4. The issue presents itself in a particularly clear-cut way in the present appeal. The appellant is a Syrian national. Having applied successfully for asylum and being declared to be a refugee by the respondent Minister, he applied for a certificate of naturalization, but was refused. The Minister relied on his absolute discretion and declined to provide any reason for his decision. He insisted and continues to insist that he is not obliged to explain his decision.

    The facts

  5. The appellant is a national of Syria. He arrived in Ireland in the company of his wife in 2002. They both applied for and were granted refugee status on 22nd November 2002, by formal declarations of the Minister. That declaration informed the appellant that he had, inter alia, the following rights:

  6. The appellant is qualified as a lawyer in Syria. He has worked in the construction industry in Ireland.

  7. He made at least one application for naturalisation prior to the one at issue in these proceedings. He says that he was refused on the ground of an insufficient period of residency in the State. It should also be noted that the Minister informed the appellant early on that applications were placed in chronological order and that it would take a year to a year and half before his own application would be examined.

  8. On the 9th December 2005, the appellant made a new application to the respondent, (hereinafter “the Minister”) for a certificate of naturalisation with a view to obtaining citizenship pursuant to s. 15 of the Irish Nationality and Citizenship Act 1956, as amended (hereinafter the “Act of 1956”). In September 2008, he wrote complaining about the delay which had then elapsed of more than two and a half years in dealing with his application. He received a reply stating that no decision had yet been made. The Minister notified the appellant in a letter dated 20th November 2008 that he was refusing his application. The appellant’s wife, however, was granted a certificate of naturalisation in October 2008 and is now an Irish Citizen.

  9. The Minister’s letter of 20th November 2008 stated:

  10. The Minister has considered your application under the provisions of the Irish Nationality and Citizenship Acts 1956 and 1986, as amended and has decided not to grant a certificate of naturalisation.

    In reaching this decision, the Minister has exercised his absolute discretion, as provided for by the Irish Nationality and Citizenship Acts 1956 and 1986 as amended. There is no appeals process provided under this legislation. However, you should be aware that you may reapply for the grant of a certificate of naturalisation at any time. Having said this, any further application will be considered taking into account all statutory and administrative conditions applicable at the time of the application.

  11. The appellant’s solicitor wrote to the Minister requesting access to documents pursuant to the Freedom of Information Acts, 1997 and 2003. Some documents were provided, but the solicitors then applied pursuant to s. 18 of the Act of 1997 for a statement of the reasons for the refusal of his application for naturalisation. Section 18(1) imposes a general obligation on every head of a public body, on application by any person affected by any of its acts, to provide a written statement of reasons for the act. The Minister responded in a letter dated 26th January 2009, declining the request “in accordance with Section 18(2)) of the Act.” It was later explained that it had been intended to refer to s. 18(2)(b). That provision refers to a situation where “the non-disclosure of [the record’s] existence or non-existence is required by this Act.” The effect of this response, as later explained, was that the Minister was not obliged to provide a statement of reasons. The Office of the Information Commissioner informed the appellant’s solicitors, by letter dated 17th December 2009, that he was satisfied that the Minister’s decision to refuse to provide reasons for the decision to refuse his request for naturalisation was “in line with section 18(2)” of the Act and was correct. A good explanation of the scope of this ground for refusal is contained in the decision of the Senior Investigator of 9th February 2010:

  12. The FOI Act requires a public body not to disclose whether or not a record exists in circumstances where to do so would cause the harms envisaged in particular exemptions in the Act. For example, section 27(4) of the FOI Act provides that a public body shall not disclose the existence or non-existence of a record if to do so would prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates (section 27(1)(c). Similar provisions are contained in sections 23, 24, 26 and 28 of the FOI Act.

    Given the nature of the application, the Senior Investigator said that he was “unfortunately not in a position to elaborate further....” That decision was affirmed on appeal and review pursuant to the provisions of the Freedom of Information Acts.

  13. It is fair to add, however, that, by letter dated 11th January 2010, the Office of the Information Commissioner acknowledged that the circumstances were such that the appellant was left none the wiser as to why his naturalisation request and subsequent request for reasons were refused. As was pointed out, it would have been open to the appellant to pursue the matter pursuant to the Acts by way of appeal on a point of law to the High Court. The present appeal is not concerned with the operation of procedures pursuant to those Acts.

  14. The appellant pursued, in parallel, his desire to obtain access to material adverse to him which he believed was held in the Department of Justice, Equality and Law Reform by means of requests under the Data Protection Acts. Following further correspondence, the Department provided a schedule of records which included a "Garda Report" and a "Garda Request Form." The appellant maintains that these documents had never previously been disclosed to him and that he had never had an opportunity to meet any adverse findings contained in them. He speculates that these "must be the documents which were deemed to be exempt records under the Freedom of Information Act."

    Procedural Background

  15. By order dated 11th May 2009 the applicant was granted leave to apply for judicial review by the High Court (by Peart J.) of the decision communicated by the Minister on 20th November 2008. The grounds for the application were that the appellant did not know the reasons why his application for naturalisation had been refused. The appellant claimed that he had a legitimate expectation that he would be granted naturalisation in a manner consistent with the Minister’s obligations under the Geneva Convention relating to the Status of Refugees and that it was unfair and unreasonable to deny him those reasons. Furthermore, the failure to provide reasons hindered any future applications that he might make for naturalisation.

  16. While the appellant’s application for judicial review was pending, Clark J. on 1st July 2010 in Abuissa v Minister for Justice, Equality and Law Reform [2011] 1 I.R.123 held that the discretion of the Minister in considering applications for certificates of naturalisation is absolute and rejected a submission that the Minister is obliged to furnish reasons. In the light of this decision, the appellant applied on motion for leave from the High Court to amend his grounds of judicial review on 9th December 2010. The effect of the amendments was to add grounds which may be summarised as follows:

    1. That the provisions of the Act of 1956 were unconstitutional insofar as they ousted the jurisdiction of the court to exercise its full original jurisdiction to review decisions of the Minister;

    2. The said provisions have the effect of conferring power on the Minister to deprive the applicant of access to citizenship of the European Union without any obligation to state reasons and, for that reason, the provisions infringe Article 41(2), paragraph 3, of the Charter of Fundamental Rights of the European Union.

    In short, the appellant, in addition to complaining that the Minister’s decision was invalid because of his refusal to give reasons for it, was now claiming that the Act of 1956 was unconstitutional insofar as it permitted him to refuse and, in addition, that the failure to give reasons infringed the Charter of Fundamental Rights of the European Union. The latter point depends on the Minister being engaged in the implementation of EU law when he refuses an application for Irish citizenship and hence citizenship of the Union.

    Legal provisions

  17. Section 3(1) of the Refugee Act 1996 provides that, subject to section 17(2), a refugee in relation to whom a declaration is in force shall be entitled to the same rights and privileges as those conferred by law on persons generally who are not Irish citizens. Section 3(2) sets out a list of rights for a refugee in relation to whom a declaration is in force. Section 17(2) confers power on the Minister, if he “considers that in the interest of national security or public policy it is necessary to do so” to restrict or limit the rights of a person declared to be a refugee. The Minister acknowledges that he has not exercised this power in the case of the appellant.

  18. The Geneva Convention of 1951 relating to the Status of Refugees is scheduled to the Refugee Act 1996. The long title to the Act declares that its intention is to give effect to the Convention. Article 34 of the Convention provides that:

  19. The Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.

  20. Section 14 of the Irish Nationality and Citizenship Act, 1956, as amended by s. 8(a) of the Irish Nationality and Citizenship Act 2001 provides:

  21. Irish citizenship may be conferred on a non-national by means of a certificate of naturalisation granted by the Minister.

  22. Section 15 of the Act, as substituted in full by s. 4 of the Irish Nationality and Citizenship Act, 1986 and amended by s. 8(a) and (b) of the Irish Nationality and Citizenship Act 2004 and s. 33(b)(i) and (ii) of the Civil Law (Miscellaneous Provisions) Act 2011 provides:

  23. (1)

    Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant–

    (a)

    (i)

    is of full age, or

    (ii)

    is a minor born in the State;

    (b)

    is of good character;

    (c)

    has had a period of one year's continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years;

    (d)

    intends in good faith to continue to reside in the State after naturalisation; and

    (e)

    has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows–

    (i)

    made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and

    (ii)

    undertaken to faithfully observe the laws of the State and to respect its democratic values.

    (2)

    The conditions specified in paragraphs (a) to (e) of subsection (1) are referred to in this Act as conditions for naturalisation.

    (3)

    In this section ‘applicant’ means, in relation to an application for a certificate of naturalisation by a minor, the parent or guardian of, or person who is in loco parentis to, the minor.

    (4)

    In this section and section 15A, ‘citizenship ceremony’ means a ceremony, held before a judge, or a retired judge, of the District Court, Circuit Court, High Court or Supreme Court, or such other person as may be designated for that purpose by the Minister, at a place and in a form approved by the Minister, at which the applicant has made the declaration and undertaking referred to in subsection (1)(e) or section 15A(1)(h).

  24. Section 16 of the Act of 1956, as amended, provides that the Minister may “in his absolute discretion, grant an application for a certificate of naturalisation” in certain cases “although the conditions for naturalisation (or any of them) are not complied ....” One of the cases is “where the applicant is a person who is a refugee ....”

  25. Section 15A, inserted by s. 5 of the Irish Nationality and Citizenship Act, 2001, provides that “the Minister may, in his or her absolute discretion, grant an application for a certificate of naturalisation to the non-national spouse or civil partner of an Irish citizen ....” if he or she is satisfied that certain conditions have been met. It would appear to have been possible for the appellant to make such an application once his wife had been granted a certificate of naturalisation. However, that is not a matter now before the Court.

  26. Since the appellant also invoked the machinery of the Freedom of Information Acts, it is material to note that s. 18(1) of the Freedom of Information Act 1997 provides:

  27. The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person–

    (a)

    of the reasons for the act, and

    (b)

    of any findings on any material issues of fact made for the purposes of the act.

    High Court judgment

  28. Cooke J. heard the appellant’s application for judicial review. Based on the written and oral submissions of the parties, the learned judge identified the issues before the court in terms which can be summarised as follows:

    1. Whether the Minister, notwithstanding the wording of s. 15 of the Act of 1956, can be compelled in law to state reasons for a refusal to grant a certificate of naturalisation;

    2. in the event that the first question is answered in the negative, whether the relevant provisions of the Act of 1956, in particular s. 15, are incompatible with the Constitution;

    3. whether, in considering an application for a certificate of naturalisation and, thus, access to citizenship of the European Union the Minister is obliged to take into account any provisions or principles of European Union law.

  29. The learned judge, in a careful analysis of the issues, rejected the contention that the Minister was obliged to accompany his decision by a statement of reasons. There were two essential reasons for that conclusion.

  30. Firstly, whether the Minister would decide to grant or refuse a certificate of naturalisation was one which was, in the words of the section, within his or her absolute discretion. This meant, the learned judge held, “quite literally that the Minister does not need to have or to give any reason for refusing an application for a certificate.” Thus, he continued, if the Minister “does have a reason he is not obliged to divulge it to a disappointed applicant.” Consequently, “it would clearly fly in the face of the unambiguous intention of the Oireachtas as thus expressed for this Court to attempt to hold otherwise.” He pointed out that “under the Act of 1956, no obligation is imposed on the Minister to give reasons for a refusal decision.” In his view, “as the Act gives no right of appeal against the exercise of the absolute discretion when a refusal decision is made, it is not possible to imply any entitlement to a statement of reasons.”

  31. In support of these propositions, the learned judge cited extensively from the decision of Costello J. in Pok Sun Shum v Ireland [1986] I.L.R.M. 593, noting, in particular, the view of Costello J that: “There is no general rule of natural justice that reasons for the decisions of an administrative authority must be given.”

  32. The second major consideration referred to by the learned judge, again on the authority of Pok Sun Shum v Ireland, was that the appellant, in applying for a certificate of naturalisation and thus for access to Irish citizenship, was not seeking a decision relating to anything to which he had a right: what he sought in his application was a benefit or privilege to which he had no legal right. The learned judge reasoned as follows:

  33. While it might be said that the evolution of the principle of fair procedures and the obligation to state reasons over the last 25 years would have reduced the occasions when neither obligation arose in respect of a decision with adverse consequences, it remains the position, in the view of this Court, that the principle of fair procedures and the requirement to state reasons can have no application where an administrative decision is wholly devoid of any detrimental or disadvantageous consequence for its addressee.

  34. Responding to counsel’s argument that the procedures adopted by the Minister were unfair and failed to provide the appellant with an effective remedy, particularly in the light of Article 13 of the European Convention on Human Rights, the learned judge held that “the need for an effective remedy only arises where there is some wrong to be made good.” This was because “the refusal of the certificate in no way alters the position or status of the applicant.” In summary, the learned judge held:

  35. .... the refusal of the certificate of naturalisation is a refusal to accord a privilege in respect of which there is no right or entitlement to qualify. It has no effect upon the personal status in law or on the legal rights of the disappointed applicant. Thus, neither French nor European law in relation to judicial review of administrative decisions affords any basis for departing from the approach of Costello J. to the entitlement to judicially review a measure devoid of legal effects upon its addressee or to the entitlement to a statement of reasons from the decision-maker for that purpose.

  36. In addition, the learned judge dismissed the argument made on behalf of the appellant in reliance upon the judgment of the Court of Justice in case C-135/08 Rottmann v Freistaat Bayern [2010] E.C.R. I-01449 to the effect that the Minister’s decision whether to grant Irish citizenship also determines whether the appellant becomes a citizen of the European Union, and, consequently, that the Minister must comply with certain general principles of EU law when exercising his discretion. As he observed, “neither the Treaties nor any legislative measures of the Union institutions have sought to encroach in any respect upon the sovereign entitlement of the Member States to determine the basis upon which national citizenship will be accorded ....” The Rottmann case did not have the effect that Member States, when deciding whether to admit persons to citizenship, were obliged to observe, in particular, the provisions of Article 41(2), paragraph 3 of the Charter of Fundamental Rights of the European Union, namely the right to good administration including the obligation of the administration to give reasons for its decisions. It is clear from Article 51 of the Charter that its provisions are addressed, in the first instance to the “institutions, bodies, offices and agencies of the Union,” and can apply to the Member States “only when they are implementing Union law.” The learned judge dismissed the application for judicial review.

    The appeal

  37. The appellant presented arguments under three headings:

  38. It was pointed out to counsel that to consider the first of these issues in advance of the second was “to put the cart before the horse.” It is well established in the jurisprudence of this Court that it will not address an issue as to the constitutionality of a law, if the case before it can be resolved without declaring the law to be unconstitutional. In particular, the Court will endeavour to interpret a section of a statute so as to conform with the Constitution and, only if that is not possible, will it consider declaring the provision incompatible with the Constitution. In somewhat similar vein, the Court is not obliged to refer a question of interpretation to the Court of Justice for preliminary ruling unless a decision on that question is necessary for it to reach a decision on the case.

  39. For these reasons, it is appropriate to consider, in the first instance, the submissions of the party on the second issue. If the appellant obtains an order of certiorari of the Minister’s decision by reason of its failure to state reasons, it will be unnecessary to consider the constitutionality of the section or to refer any question for preliminary ruling to the Court of Justice.

  40. The appellant complains that the Minister’s decision refusing him a certificate of naturalisation has significant adverse consequences for a person declared to be a refugee. He says that he is left effectively stateless, though he retains Syrian nationality, that he is unable to obtain a passport, and is severely restricted in free movement and travel and that he is denied full integration in the State, despite the fact that it has become, of necessity, his new home and his wife is a citizen. The appellants explained various adverse consequences for him as a declared refugee who is not able to acquire Irish nationality, and claims that, in the light of Article 34 of the Refugee Convention, naturalisation ought to be granted to him

  41. Although the Minister has told him, in the letter notifying him of his decision refusing to grant him naturalisation, which he “may reapply for the grant of a certificate of naturalisation at any time,” it is impossible for him to exercise that right effectively so long as he is ignorant of the reasons for the decision. He suggests that it is quite likely that the Minister’s refusal was based on a misunderstanding of the relevant facts, which Mr. Mallak could easily have corrected, if he had been told what they were. Furthermore, where the Minister refuses to give any reason, or to indicate in any way the basis of his decision, he can in effect insulate his decision from all review.

  42. The appellant draws attention to three High Court decisions in which orders were made quashing decisions refusing to grant certificates of naturalisation, namely Mishra v Minister for Justice [1996] 1 IR 189 (Kelly J.), L.G.H. v Minister for Justice, Equality and Law Reform, 31st January 2009 (Edwards J.), and Hussain v Minister for Justice, Equality and Law Reform, [2011] IEHC 171 (per Hogan J.) In each of these, he argues, the Minister had provided reasons. In the present case, there were none. The appellant contends that, on the refusal of his application for naturalisation, at least some meaningful reason should have been given, rather than no reason of any kind.

  43. The appellant contests the distinction drawn by the learned trial judge between decisions involving matters of legal right and those where what a person is seeking a benefit or privilege to which he has no legal right. He cites, for example, the decision of this Court in Garvey v Ireland [1981] I.R. 75, where it was held that, although the office of Garda Commissioner was held at the pleasure of the Government, its holder was, nonetheless, entitled to a minimum of fair procedures. The authors of Hogan & Morgan, Administrative Law in Ireland 4th Ed. (Dublin: Round Hall, 2010) are cited for the proposition that Irish courts do not hold the view that the rules of constitutional justice did not apply to privileges.

    The Minister’s submissions

  44. The Minister accepts that a decision to refuse an application for a certificate of naturalisation is in principle amenable to judicial review, referring to decisions concerning the reviewability of decisions of the Director of Public Prosecutions whether or not to prosecute (Eviston v DPP [2002] 3 I.R. 260). He also accepts that such a decision is open to review where it is based on a failure to satisfy the conditions for naturalisation set out in paragraphs (a) to (e) of section 15(1) (A.B. v Minister for Justice (Unreported, [2009] IEHC 449, per Cooke J.); Hussain v Minister for Justice ([2011] IEHC 171 per Hogan J). He also refers to the decision of this Court in The State (Lynch) v Cooney [1982] I.R. 337.

  45. The Minister recognises a development of the duty to give reasons as an aspect of constitutional justice, referring in particular to The State (Daly) v Minister for Agriculture [1987] I.R. 165 as an authority requiring reasons where the power to dismiss a civil servant could only be exercised where the appropriate authority was “satisfied” that the civil servant in question had failed to fulfil certain conditions. He argues that a dictum implying an obligation to give reasons in The State (Creedon) v Criminal Injuries Compensation Tribunal [1988] I.R. 51 was obiter.

  46. The Minister submits, however, that, in cases of absolute discretion, there is no obligation to give reasons. Thus, s. 15 of the Act of 1956 necessarily excludes any duty to give reasons, since such a duty would negate the nature of the discretion conferred. (Pok Sun Shum v Ireland [1986] I.L.R.M. 593.)

  47. Naturalisation is granted by the Minister as a matter of privilege and not of right, as demonstrated by: Pok Sun Shum v Ireland; Mishra v Minister for Justice [1996] 1 I.R. 189, Abuissa v Minister for Justice, already cited; Jiad v Minister for Justice [2010] IESC 187, per Cooke J. The Minister is exercising the executive power of the State. Therefore, it is argued, that, although this does not render the decision immune from judicial review, the High Court has a more limited supervisory jurisdiction because of the very special nature of the discretion conferred on the Minister by s. 15 of the Act of 1956. If there is evidence of capricious, arbitrary or unjust exercise of a power, the Courts will intervene by way of judicial review, but not otherwise.

    Consideration of the issues

  48. The Minister refused to give any reason for refusing the application for a certificate of naturalisation in this case. The reports record many judicial statements to the effect that there is no general or universal rule of natural justice requiring the makers of administrative decisions to give their reasons. On the other hand, there is no shortage of cases in which decisions have been held to be defective for failure to give them. This is the problem here.

  49. Before grappling with that issue, I would like to address two points which are at the forefront of the Minister's submissions and which have recurred in several of the High Court decisions including that in the present case, as grounds for dispensing with the need to give reasons. Firstly, it is said that, where a decision is to be made in the absolute discretion of the decision-maker, it follows necessarily, meaning that it is a simple corollary of that fact, that no reason need be given for it. Secondly, it is argued that the same result flows from the fact that the grant to a non-national of a certificate of naturalisation is a matter of benefit or privilege rather than of right.

  50. Where the decision being made is one which depends on the exercise of the "absolute discretion," of the decision maker, according to the first argument, it follows automatically from the very language used that no reason need be given. As it was put by the learned High Court judge in the present case, “quite literally .... the Minister does not need to have or to give any reason for refusing an application for a certificate.” But there is a difference between having a reason and disclosing it.

  51. It cannot be correct to say that the "absolute discretion" conferred on the Minister necessarily implies or implies at all that he is not obliged to have a reason. That would be the very definition of an arbitrary power. Leaving aside entirely the question of the disclosure of reasons to an affected person, it seems to me axiomatic that the rule of law requires all decision-makers to act fairly and rationally, meaning that they must not make decisions without reasons. As Henchy J. put it, in a celebrated passage in his judgment in State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] I.R. 642 at page 658, “the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”

  52. In similar vein but with slightly different emphasis, Walsh J., in his judgment in East Donegal Co-operative Mart v Attorney General [1970] I.R. 317 at 343-4 said of the powers conferred on a Minister, under consideration in that case, which were exercisable "at his discretion" or "as he shall think proper" or "if he so thinks fit" are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will.”

  53. The fact that a power is to be exercised in the “absolute discretion” of the decision-maker may well be relevant to the extent of the power of the court to review it. In that sense, it would appear potentially relevant principally to questions of the reasonableness of decisions. It could scarcely ever justify a decision-maker in exceeding the limits of his powers under the legislation, in particular, by taking account of a legally irrelevant consideration. It does not follow from the fact that a decision is made at the absolute discretion of the decision-maker, here the Minister, that he has no reason for making it, since that would be to permit him to exercise it arbitrarily or capriciously. Once it is accepted that there must be a reason for a decision, the characterisation of the Minister’s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of such requirements of the rules of natural and constitutional justice as would otherwise apply. In this connection I agree with the following remarks of of Hogan J., regarding the provision under consideration in this case, in his judgment in Hussain v Minister for Justice [2011] IEHC 171;

  54. This description nevertheless cannot mean, for example, that the Minister is freed from the obligations of adherence to the rule of law, which is the very “cornerstone of the Irish legal system”: Maguire v Ardagh [2002] 1 I.R. 385 at 567, per Hardiman J. Nor can these words mean that the Minister is free to act in an autocratic and arbitrary fashion, since this would not only be inconsistent with the rule of law, but it would be at odds with the guarantee of democratic government contained in Article 5 of the Constitution.

  55. So far as the second issue is concerned, it can be accepted that the grant or refusal of a certificate of naturalisation is, at least in one sense, a matter of privilege rather than of right. The appellant is not a person who, by reason of birth in Ireland or by reference to his parentage is entitled, as a matter of right, to Irish citizenship. In the words of s. 14 of the Act, he is a non-national and the grant of the status of citizen upon him is within the discretion of the State. Costello J. said in Pok Sun Shum v Ireland, cited above, regarding the applicant in that case, that it was relevant to bear in mind that “the Minister was conferring a benefit or privilege on the applicant....” That was undoubtedly a major reason for his conclusion that there was no obligation to give reasons. On the other hand, that learned judge was quite clear in stating that the applicant had a right to apply to the court for judicial review. Bearing in mind that the appellant is a non-national, it is instructive to recall the remarks of Keane C.J. concerning the rights of access to the courts of non-citizens, when delivering the opinion of this Court In the Matter of Article 26 of the Constitution and in the Matter of ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 at page 385:

  56. It would be contrary to the very notion of a state founded on the rule of law, as this State is, and one in which, pursuant to Article 34 justice is administered in courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right of access to the courts to enforce their legal rights .... It may be that in certain circumstances a right of access to the courts of non-nationals may be subject to conditions or limitations which would not apply to citizens. However, where the State, or State authorities, make decisions which are legally binding on, and addressed directly to, a particular individual, within the jurisdiction, whether a citizen or non-national, such decisions must be taken in accordance with the law and the Constitution. It follows that the individual legally bound by such a decision must have access to the courts to challenge its validity. Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective.

  57. The mere fact that a person in the position of the appellant is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or to apply to the courts for redress. The Act of 1956 establishes a legal procedure permitting non-nationals, subject to compliance with a number of conditions, to apply for certificates of naturalisation. The appellant enjoys the status of a refugee, because he has been so declared by the Minister. By virtue of s. 3 of the Refugee Act 1996, he enjoys a number of specific legal rights, including the right to reside in and travel to and from the State. Specifically, he has the right of “access to the courts in the like manner and to the like extent in all respects as an Irish citizen..” (s. 3(2)(v)). Relevantly, for the purposes of this case, he enjoys the legal right to apply for a certificate of naturalisation. Article 34 of the Geneva Convention (see par. 16 above) would appear to encourage contracting states to grant naturalisation to those to whom the have granted refugee status. It is not contested that the Minister is obliged, in processing such applications, to act in accordance with the law. The Minister accepts that, in principle, his decisions are open to review and, in certain circumstances, applications for review have been successful in the High Court. A distinction has been made in some of the cases, so far as the power of review is concerned, between cases where the Minister finds that an applicant has failed to comply with one of the statutory conditions in s. 15(1) and what might be called his more general “absolute discretion.”

  58. In A.B. v Minister for Justice [2009] IEHC 449, Cooke J. held that “[w]here the Minister is not relying upon his absolute discretion to refuse an application under s. 15 but is rejecting it upon the basis of non-compliance with one or more of the naturalisation conditions, his refusal is clearly amenable to judicial review and it would .... be one of the circumstances in which fair procedures would require the reason for refusal to be stated ....”

  59. In his judgment in Hussain v Minister for Justice, cited at paragraph 45 for a different reason, Hogan J. held that “the Minister’s assessment of the good character issue [was] plainly subject to judicial review.” Edwards J. in LGH v Minister for Justice, Equality and Law Reform [2009] IEHC 78 held that the Minister had been wrong to take into account the fact that the applicant’s two adult sons had (relatively minor) convictions for motoring offences in concluding that the applicant was not of good character.

  60. It does not appear from these cases that the courts generally regard the mere fact that the a person is applying for an important privilege, Irish citizenship, which he has no legal right to compel the State to grant him, means that he enjoys inferior legal protection when pursuing his application. Nor do I think that a distinction can be drawn for this purpose between compliance with the naturalisation conditions in s. 15(1)(a) to (e) and the broader and more general discretion which the Minister enjoys under the section. On the assumption that the applicant was, in fact, made aware of the Minister’s reason for refusal, there is no good reason why he should be prevented from seeking review of its lawfulness to the same extent as he would be entitled in relation to any alleged failure to comply with any of the statutory conditions.

  61. The extent of the obligation of the Minister to give reasons for his decision must be considered, firstly, in the context of the developing general principles of judicial review and, secondly, by reference to the particular statutory provision.

  62. The general principles of natural and constitutional justice comprise a number of individual aspects of the protection of due process. The obligation to give fair notice and, possibly, to provide access to information or, in some cases, to have a hearing are intimately interrelated and the obligation to give reasons is sometimes merely one part of the process. The overarching principle is that persons affected by administrative decisions should have access to justice, that they should have the right to seek the protection of the courts in order to see that the rule of law has been observed, that fair procedures have been applied and that their rights are not unfairly infringed.

  63. The appellant cites the decision of O’Hanlon J. in the High Court in State (Lynch) v Cooney [1982] I.R. 337 for his conclusion that, if s. 31(1) of the Broadcasting Authority Act 1960 were to be construed as had been proposed by the State in the High Court in that case, “the discretion given to the Minister, once he has formed his opinion, is an absolute discretion and that it is not open to the Court to examine whether there were any reasonable grounds for the formation of such opinion by the Minister,” the provision was, in the view of the learned judge, unconstitutional. The section under consideration in that case did not speak of “absolute discretion.” The Minister was given power to prohibit the broadcasting of material which, in his opinion, would tend to incite crime or undermine the authority of the State. However, it is much more material to the present case to note the different view taken in this Court, to the altered position of the State, as expressed by O'Higgins C.J. at page 361 of the report:

  64. The Court is of the opinion that s. 31, sub-s. 1, of the Act of 1960, as amended, does not confer on the Minister the wide, unfettered and sweeping powers which have been alleged by the prosecutor. The Court is satisfied that the sub-section does not exclude review by the Courts and that any opinion formed by the Minister thereunder must be one which is bona fide held and factually sustainable and not unreasonable.

  65. There have been several High Court decisions considering the question of reasons for administrative decisions. In The State (Daly) v Minister for Agriculture [1987] I.R. 165, a civil servant on probation had his appointment terminated pursuant to s. 7 of the Civil Service Regulation Act 1956. Although, in the words of Barron J, he had “never received even a whisper of reprimand or censure from anyone,” he received a letter terminating his appointment on the stated ground that "the conditions of probation attaching to the probationary position [had] not been satisfied.” In the view of Barron J., the section could not be “construed as giving to the Minister power to act in any manner he pleases.” (p.172). At page 172, echoing the language, just quoted, of O’Higgins C.J. in one of the stronger judicial statements on the question of reasons, he said:

  66. Such powers may only be exercised in conformity with the Constitution. The view of the Minister must be seen to be bona fide held, to be factually sustainable and not unreasonable. If no reasons have been given for the exercise of the power, then this court cannot review the exercise of the power in the light of these criteria.

    The court must ensure that the material upon which the Minister acted is capable of supporting his decision. Since the Minister has failed to disclose the material upon which he acted or the reasons for his action there is no matter from which the court can determine whether or not such material was capable of supporting his decision. Since the Minister continues to refuse to supply this material, it must be presumed that there was no such material.

  67. International Fishing Vessels Ltd. v Minister for the Marine [1989] I.R. 149 concerned the refusal by the respondent Minister to grant licences for two sea-fishing boats, the property of the applicant. Blayney J. held that:

  68. It is common case that the Minister’s decision is reviewable by the court. Accordingly, the applicant has the right to have it reviewed. But in refusing to give his reasons for his decision the Minister places a serious obstacle in the way of the exercise of that right. He deprives the applicant of the material it needs in order to be able to form a view as to whether grounds exist on which the Minister’s decision might be quashed. As a result, the applicant is at a great disadvantage, firstly, in reaching a decision as to whether to challenge the Minister’s decision or not, and secondly, if he does decide to challenge it, in actually doing so, since the absence of reasons would make it very much more difficult to succeed. A procedure which places an applicant at such a disadvantage could not in my opinion be termed a fair procedure, particularly where the decision which the applicant wishes to challenge is of such crucial importance to the applicant in its business .... So the practical result of the Minister’s decision is that the applicant could no longer carry on its business in the State.

    The giving of reasons by the Minister could in one case be of particular importance as it would enable an applicant to meet the grounds on which the licence had been refused and, having done so, re-apply. Sub-section 6(a) of s.222B provides that the Minister may refuse an application where it “relates to a sea-fishing boat which is owned by a body corporate and the Minister is not satisfied that the body corporate is under the control of, beneficially owned by or under the control of and beneficially owned by a person or persons who, or, as may be appropriate, each of whom, is either a qualified individual or a qualified body.” If an application were being refused under this provision, it seems to me that it would be manifestly unfair for the Minister not to make it known because the ground for control could be overcome by making changes in the control or ownership of the corporation, and the party applying should not be deprived of the opportunity of doing this. It seems to me, accordingly, that in any case in which the applicant is a corporation the Minister should be required to give reasons for his decision as otherwise the party applying would not know if the application was being refused under sub-s. 6(a) or for some other reason.

  69. Neither of these decisions was concerned with a decision of the Minister to refuse a certificate of naturalisation. However, although they post-dated the decision of Costello J. in Pok Sun Shum v Ireland, already cited, they, quite correctly, did not treat that case as an authority for the general proposition that a decision-maker is never under a duty to give reasons. Costello J. said:

  70. There is no general rule of natural justice that reasons for the decisions of an administrative authority must be given.

  71. Whether there could be such a duty in the case of exercise of a particular statutory power, he said:

  72. Again, the extent and scope of the rule of natural justice must depend upon the particular statutory function which the Minister or the State department is carrying out. I think it is relevant, in this connection, to bear in mind that under the 1956 Act the Minister was conferring a benefit or a privilege on the applicant and that he was not issuing the licence to which someone having complied with certain conditions, was entitled. This is a case where, even if an applicant complied with certain conditions, the Minister could refuse the certificate. Secondly, in relation to the permission to remain in the State, it seems to me that the State, through its Ministry of Justice, must have very wide powers in the interests of the common good to control aliens, their entry into the State, their departure and their activities within the State. There must be given to the Minister wide discretion in this area. It may be that an obligation to state reasons might be required by the rules of Natural Justice in cases where rights of appeal exist under Statute. It is, of course, true that an application of Judicial Review to the Courts exists, but this right of the courts to review decisions taken by administrative authorities does not, of itself, create an obligation in Natural Justice that reasons be stated for decisions.

  73. Costello J was dealing with a case of a non-national before the enactment of the Refugee Act, 1996 and the vast changes wrought to our legal landscape by refugee and asylum cases. It is only the last two sentences in that passage which address the issue of giving reasons. However, the same learned judge had reason to return to that issue in a different statutory context in McCormack v Garda Síochána Complaints Board [1997] 2 I.R. 489. In that case, the applicant was challenging the decision of the respondent Board to take no further action on his complaint against a member of An Garda Síochána pursuant to s. 7(3) of the Garda Síochána (Complaints) Act 1986. The applicant’s complaint had been accepted by the Board, and an Investigating Officer was appointed. However, the Board subsequently simply informed the applicant that it was of the opinion that neither an offence nor a breach of discipline had been disclosed and that no further action would be taken. Before adverting to the remarks of Costello P. regarding reasons, it is important to note that, at page 498, he said:

  74. The Board arrived at an opinion that neither an offence nor a breach of discipline had been disclosed and having done so made a decision to take no further action in the matter. The reasons for the decision were self-evident; it followed from the opinion of the Board had reached and there was no need for the Board to say so.

  75. Costello P. thought that even in cases where there was no express duty to give reasons, “the failure to give reasons for a decision [might] furnish a ground for challenging an administrative decision.” That would be so, in particular, where the court might infer that no good reason for the decision existed. As already noted, that was the view taken by Barron J. in The State (Daly) v Minister for Agriculture. Costello P. went on to remark that the courts in England did not consider that the common law rules of natural justice included a duty to state reasons, citing Reg. v Gaming Board [1970] 2 Q.B. 417. He then continued:

  76. In this country the Oireachtas has remained inactive in this field. In theory our courts would be free to extend the common law principles of natural justice as they are judge-made rules but it would seem preferable that the existence, scope and nature of the duty to provide reasons for an administrative decision should be considered in the light of the constitutional requirement relating to what the courts have termed "constitutional justice", rather than as an extension of the common law rules of natural justice.

  77. Costello P. distinguished the statutory context of the case before him from that of a number of others, including The State (Daly) v Minister for Agriculture and International Fishing Vessels Ltd. v Minister for the Marine. He thought that the issue should be determined “by considering whether some detriment is suffered by the applicant by the failure of the Board to give reasons ....” (page 501). He noted, firstly, that there was no right to appeal the Board’s decision, and held that reasons were not required to make any such right of appeal effective. Secondly, he considered whether “the failure to state a reason in some way render[ed] ineffectual or otherwise prejudice[d] [the applicant’s] right to apply to the court for an order of certiorari or mandamus.” Since the Board had already informed the applicant of the material on which it had based his opinion, reasons were not necessary to enable the court to exercise its jurisdiction. In reality, he thought that the reasons were being sought merely for the purpose of discovering whether the Board had made an error in carrying out his function.

  78. The only significant relevant decision of this Court is that in The State (Creedon) v Criminal Injuries Compensation Tribunal [1988] I.R. 51, which concerned a decision of the respondent tribunal to reject a claim for compensation under the former non-statutory Scheme of Compensation for Personal Injuries Criminally Inflicted. The applicant’s husband had died while trying to prevent a van in which his infant son was a passenger from crossing a road where children were likely to be playing. Thus, the deceased had been trying to save a human life. Although no contrary evidence had been offered, the Tribunal rejected the claim because it was “not satisfied that the death arose because of or in the course of....attempting to save human life.” The Court held unanimously, applying State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642 that the decision of the Tribunal was at variance with reason and common sense. Finlay C.J. also stated, at page 55:

  79. Once the Courts have a jurisdiction and if that jurisdiction is invoked, an obligation to enquire into and, if necessary, correct the decisions and activities of a tribunal of this description, it would appear necessary for the proper carrying out of that jurisdiction that the Courts should be able to ascertain the reasons by which the tribunal came to its determination. Apart from that, I am satisfied that the requirement which applies to this Tribunal, as it would to a court, that justice should appear to be done, necessitates that the unsuccessful applicant before it should be made aware in general and broad terms of the grounds on which he or she has failed. Merely, as was done in this case, to reject the application and when that rejection was challenged subsequently to maintain a silence as to the reason for it, does not appear to me to be consistent with the proper administration of functions which are of a quasi judicial nature.

  80. The Minister submits that the statement quoted above was an obiter dictum. That may, strictly speaking, be true. The Court first reached its conclusion that the decision of the Tribunal was invalid before making these observations. However, the views of Finlay C.J. on the absence of reasons was logically closely related to the earlier holding of irrationality, which was, in turn, closely connected with the refusal of the Tribunal to elaborate the reason for its decision. That statement was made with the agreement of Walsh and McCarthy JJ and is, in any event, clear, logical and worthy of considerable respect.

  81. This body of cases demonstrates that, over a period approaching thirty years, our courts have recognised a significant range of circumstances in which a failure or refusal by a decision-maker to explain or give reasons for a decision may amount to a ground for quashing it. Costello J. attached importance, quite correctly, to the presence or absence from the statutory scheme of a right of appeal. The absence of a statement of reasons may render such a right nugatory.

  82. In the present case, the applicant points to the effective invitation to the appellant to “reapply for the grant of a certificate of naturalisation at any time.” That statement might reasonably be read as implying that whatever reason the Minister had for refusing the certificate of naturalisation was not of such importance or of such a permanent character as to deprive him of hope that a future application would be successful. While, therefore, the invitation is, to some extent, in ease of the appellant, it is impossible for the appellant to address the Minister’s concerns and thus to make an effective application when he is in complete ignorance of the Minister’s concerns.

  83. More fundamentally, and for the same reason, it is not possible for the appellant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts effectively to exercise their power of judicial review.

  84. 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.

  85. 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.

  86. 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.

  87. Article 296 of the Treaty on the Functioning of the European Union provides that “[l]egal acts shall state the reasons on which they are based ....” Article 41 of the Charter of Fundamental Rights of the European Union provides that every person benefits from what is called in the heading the “Right to Good Administration,” which includes “the obligation of the administration to give reasons for its decisions.” In a judgment delivered as recently as 15th November 2012, the Court of Justice in Case C-417/11 Council v Bamba, the Court explained the purpose of the provision as follows:

  88. The purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of that act.

  89. The decision of the Court of Appeal in England in R. v Secretary of State ex parte Fayed [1998] 1 W.L.R. 763 is of more than passing interest, because it concerned an application for naturalisation, even if under the rather different statutory regime in force in that jurisdiction. The applicants were very well-known, if to some extent controversial, businessmen with substantial commercial interests in the United Kingdom. They had lived in the United Kingdom for a number of years and had been given indefinite leave to remain. They applied in due form for naturalisation, but their applications were refused by the Secretary of State, who, in a decision described as “terse in the extreme,” declined to give his reasons (see Lord Woolf M.R. page 768). In fact, s. 44(2) of the British Nationality Act, 1981 dispensed the Secretary of State from any obligation to “assign any reason for the grant or refusal of any application.” Lord Woolf, who delivered one of the majority judgments remarked on the damaging implications for the Fayeds of the refusal of their application. Before addressing the obviously difficult question of the need for reasons, he remarked, at page 773:

  90. Apart from the damaging effect on their reputations of having their applications refused the refusals have deprived them of the benefits of citizenship. The benefits are substantial. Besides the intangible benefit of being a citizen of a country which is their and their families' home, there are the tangible benefits which include freedom from immigration control, citizenship of the European Union and the rights which accompany that citizenship – the right to vote and the right to stand in parliamentary elections. The decisions of the minister are therefore classically ones which but for section 44(2) would involve an obligation on the minister making the decision to give the Fayeds an opportunity to be heard before that decision was reached.

  91. He commented that “[e]xcept where non-compliance with a formal requirement, other than that of good character, is being relied on, unless the applicant knows the areas of concern which could result in the application being refused in many cases, and especially this case, it will be impossible for him to make out his case.” He thought that the “result could be grossly unfair.” Two notable things about these passages are, firstly, the absence of any suggestion that the applicants were deserving of any diminished standard of review because they were, in effect, seeking the privilege of UK citizenship and, secondly, the unfairness of failing to acquaint the applicants of the Secretary of State’s “areas of concern.”

  92. Lord Woolf dealt with the reasons issue as follows:

  93. I have already indicated that at common law there is no universal obligation to give reasons but despite this I would certainly regard this as a case where reasons should be given but for section 44(2). However in the light of the express prohibition on requiring the Secretary of State to give reasons I would not myself regard this as a case where the need for reasons is so essential that fairness cannot be achieved without reasons as long as an applicant has been given sufficient information as to the subject matter of the decision to make such submissions as he wishes.

  94. Phillips L.J. expressed the view, at page 787, that “the courts have been increasingly ready to find that such a duty [to give reasons] exists.” The court held that the decisions of the Secretary of State had been reached unlawfully and they were quashed.

  95. It might be thought unnecessary to call in aid this parallel development of the law in the United Kingdom. The developing jurisprudence of our own courts provides compelling evidence that, at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons. The reason is obvious. 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.

  96. The Minister has submitted that there are issues of public policy that lean against the giving of reasons. He claims that this is apparent both from the nature of the Minister’s decision and the determination of the Information Commissioner under Section 18(2) of the Freedom of Information Act, 1997. No reasons related to the public interest have been disclosed even in the most general terms. Section 15(1)(b) of the Irish Nationality and Citizenship Act 1956, as amended, entitles to Minister to decline a certificate if he is not satisfied that an applicant complies with the requirement that he be of “good character.” The Minister has not sought to rely on non-compliance with that condition. Since the Minister has provided no reasons in this case, it is not clear whether he takes the position that he is not obliged to disclose reasons relating to character. I would not go so far as Barron J did in The State (Daly) v Minister for Agriculture and infer that the Minister had no reasons. It is notable that the Minister has in the past disclosed reasons relating to the character of the applicant (see Hussain v Minister for Justice and LGH v Minister for Justice, discussed above). The Minister would have had power, pursuant to s. 17(2) of the Refugee Act, 1996 to restrict the rights otherwise enjoyed by the appellant, if, “in the interest of national security or public policy (“ordre public”) it is necessary to do so ....” The Minister has not purported to exercise any of his powers in that respect. It can only be concluded that none of the grounds mentioned in those provisions existed in the appellant’s case.

  97. The result is that the Minister has not suggested that there are any reasons relating to the appellant’s character which could justify refusing him naturalisation and that his rights under the Refugees Act are not restricted in the interest of national security or public policy. Furthermore, the Minister granted a certificate of naturalisation to the appellant’s wife with whom he has the right to live (in company with their children). One can understand the appellant being mystified. In my view, the Minister was under a duty to provide the appellant with the reasons for his decision to refuse his application for naturalisation. His failure to do so deprived the appellant any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds. If reasons had been provided, it might well have been possible for the appellant to make relevant representations when making a new application. That might have rendered the decision fair and made it inappropriate to quash it. In the absence of any reasons, it seems to me that the appropriate order is one of certiorari quashing the decision.

  98. 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. At this stage, I would propose that the court make only the limited decision to quash the Minister’s decision.

  99. In these circumstances, it is unnecessary to consider the constitutionality of the section. Equally, it is not necessary to consider the argument of the appellant to the effect that the section confers power on the Minister to deprive the applicant of access to citizenship of the European Union without any obligation to state reasons, thus infringing Article 41(2)(c), of the Charter of Fundamental Rights of the European Union. Those provisions would apply only to the extent that the State, in deciding on the appellant’s application was, in the words of Article 51 of the Charter “implementing Union law.” The Court does not need to decide if that was the case

  100. For these reasons, I allow the appeal and would grant an order of certiorari quashing the decision of the Minister communicated in his letter of 20th November 2008 refusing the application for a certificate of naturalisation.


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