• Aaron Flynn

Citizenship by Irish Association. Court of Appeal rules on strength of association.

Introduction


A recent Court of Appeal decision delivered by Ms. Justice Donnelly has considered a refusal to grant an applicant citizenship following an application based on “Irish associations”, as defined under s.16(2) of the Citizenship Act of 1956. The Court was considering when the Minister does not consider those associations sufficiently strong to warrant the exercise in an applicant's favour of the Minister's absolute discretion to grant a certificate of naturalisation.


The applicant's mother made an application on her behalf to the Minister for naturalisation on the basis of her Irish associations. Her mother and father were Moldovan citizens by birth but her mother had become a naturalised Romanian citizen. The applicant, a minor, lived with her parents in Ireland since August 2012. She claimed Irish association by being the sister of an Irish citizen, who was born on 6 October 2014. At the time of the application for naturalisation, the applicant's sister was aged about twenty-six months.


The law


“16.—(1) The Minister may, in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

(a) where the applicant is of Irish descent or Irish associations.”(2) For the purposes of this section a person is of Irish association if –(a) he or she is related by blood, affinity or adoption to, or is a civil partner of, a person who is an Irish citizen or entitled to be an Irish citizen [...]”


Court findings


1. The use of the words “may” and the phrase “absolute discretion” within the relevant discretion by the Oireachtas (Legislature) section when taken together, do not amount to a prohibition on the Minister considering whether to grant a certificate of naturalisation, even where the particular condition within s.16 is met.


2. The Minister is entitled to consider relative strength of Irish associations. There is no restriction on this power.


3. It was incumbent on the Minister to explain why the strength of her Irish association was insufficient to grant the certificate to the applicant.


4. Where it is uncontested that an applicant has met the statutory condition on its face, the Minister is obliged to clarify with precision the reason why the manner in which the condition has been met meant that the Minister exercised his absolute discretion to refuse to grant citizenship


Conclusion


This is an interesting decision which provides helpful guidance on the obligations of the Minister in considering an application for naturalisation based on Irish associations. It builds on the Mallak reasoning which requires in general that public bodies provide reasons for decisions sufficient to allow a person affected understand the underlying rationale.


[The judgment is DRIANA BORTA (A MINOR)SUING BY HER MOTHER AND NEXT FRIENDNADEJDA BORTA RESPONDENT- AND - MINISTER FOR JUSTICE AND EQUALITY - THE COURT OF APPEAL - Neutral Citation Number: [2019] IECA 255 - Record Number: [2018/130]]

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