JUDGMENT of Mr. Justice Fennelly delivered the 12th day of July 2011.
1. Acquisition of citizenship on marriage or “post-nuptial citizenship,” was permitted by section 8 if the Irish Nationality and Citizenship Act, 1956 as amended by section 3 of the Act of the same name of 1986. Section 4 of the Act of 2001 repealed the procedure subject to a transitional provision for existing cases. To that extent, the present case deals with the application of a section of merely historic interest.
2. In the present case, the first-named appellant (whom I will call “the Minister”) rejected the declaration of post-nuptial citizenship made by the first-named respondent on the ground that the couple were not living together as man and wife for the required three years.
3. Hanna J, in an ex tempore judgment of 11th October 2005, held that the Minister had not observed fair procedures. The Minister now appeals against that judgment.
4. Section 8 of the Act of 1956, as amended in 1986, provided:
5. Sub-section 3 of the section is not relevant.
Appellants’ marriage and declaration
6. The first-named appellant is a citizen of Nigeria. The second-named appellant is an Irish citizen. The appellants were married to each other at the Hendon Register Office in the London Borough of Barnet on 3rd March 1999.
7. On 28th April 2002, the first-named appellant made a declaration of that marriage on a prescribed form. The declaration was, as required, supported by an affidavit sworn by the second-named appellant in which she swore that the appellants were then living together as husband and wife, that their marriage was subsisting and that no proceedings for divorce or annulment of the marriage had been or were about to be commenced.
8. The first-named appellant applied to the Minister for Irish citizenship on the basis of that declaration on 15th May 2002.
9. Following a lengthy period of correspondence, Mr Gerry McConnell, Assistant Principal of the Immigrant and Citizenship Division of the Department of Justice Equality and Law Reform gave notice on behalf of the Minister on 14th November 2003 to the first-named appellant that he was refusing his application. He stated that he was not satisfied that the appellants were living together as husband and wife on 28th April 2002, notwithstanding the fact that their marriage was subsisting at that time. The reasons for that conclusion are set out in the letter and will be considered later.
The proceedings
10. The appellants applied, by way of judicial review, for an order of certiorari of the Minister’s decision of 14th November 2003, thus conveyed, and a declaration that the first-named appellant is entitled to a declaration of post-nuptial citizenship.
11. The Statement required to Ground an Application for Judicial Review of 15th of December 2003 sought an order of certiorari of the Minister's decision setting forth 12 grounds which can be summarised as follows:
12. By order sated 20th May 2004, the High Court (O’Caoimh J) granted leave to apply for judicial review on the grounds advanced.
13. The appellants claimed before the High Court that the Minister’s decision was flawed because:
i) there was no, or no sufficient evidence before the Minister that the appellants were not living together as husband and wife;
ii) the Minister had granted residency permits to the first-named appellant accepting that the first-named appellant was resident at the home of the second-named appellant for most of all of the relevant three year period;
iii) the Minister had failed to observe fair procedures in not disclosing to the appellants evidence which was taken into consideration in determining the application;
iv) the Minister imposed an incorrect burden of proof.
14. Hanna J decided the application on the single basis that the Minister had not observed fair procedures. He noted that the Minister's decision was founded on a disbelief in the truthfulness of the appellants. This was particularly serious for the first-named appellant, since he is a solicitor. The learned judge thought that no effort had been made to confront him in any meaningful way and to enable the appellants to challenge the evidence offered against them. They should have been allowed an opportunity to cross-examine members of An Garda Síochána. The appellants had not, therefore, been afforded fair procedures.
15. In so far as the deciding officer had, at one point in the correspondence, indicated a requirement that he should be satisfied beyond reasonable doubt, Hanna J found that he had been corrected in this view and that he did not apply an inappropriate burden of proof. The learned judge was not satisfied, on the evidence, that there was any evidence of bias shown on behalf of the deciding officer.
16. In short, the learned judge was particularly concerned that the decision of the Minister amounted to a finding that the appellants were untruthful and that the Minister had not attached sufficient weight to the potential criminality thereby implied.
Consideration by the Minister
17. The Minister, in the form of Mr McConnell’s letter of 14th November 2003, gave the following reasons for his conclusion that the appellants were not living together as husband and wife:
(i) In June 2002, enquiries with the local Gardaí at Clara revealed that Ms Allen was living with Mr Billy Fitzpatrick at that time (some 6 weeks after the lodgement of the declaration). The Clara gardai were aware that Ms Allen had married a Nigerian national but were of the opinion that this person was not residing at the address in Clara;
(ii) On four occasions between September and November 2002, members of the Garda Síochána made unannounced visits to 30 Silverdale Estate, Clara Co Offaly. The appellant was not present on any occasion;
(iii) On 29th September 2002, the then Immigration Officer attached to Tullamore Garda Station formed the opinion, having spoken to Ms Elizabeth Allen, that the appellant and Ms Allen were not living together as husband and wife;
(iv) During the course of an interview with members of the Garda Síochána on 17 November 2002, Ms Elizabeth Allen stated that she and the appellant had lived together on and off for about a year after the marriage. She further stated that the appellant lived in Clara for about 3 months in 1999 and then went to the UK for 6 weeks after which he lived mainly in Dublin setting up his business. She went on to state that he and she had not been living together as husband and wife and that she was in a relationship with another man, Billy Fitzpatrick. Mr Fitzpatrick's home address, as recorded by the Gardai on 28 August 2002, was 30 Silverdale, Clara;
(v) The appellant’s two children, Christian and Cecilia (Chinenye), who commenced school in Dublin in September and October 2002, are registered with their schools as living at 5 Ballyowen Drive, Lucan, Co Dublin. This address is the home address of Celia Otubu, whom the appellant informed the Gardai was his “life” and business partner. When the appellant’s daughter Cecilia entered the State in June 2002, he stated to the Garda Síochána that she would live in Clara and attend school there. He stated in his letter of 25 June 2003, and confirmed over the telephone recently, that he had enquired about a place in school in Clara but that there were no places available. The letter have confirmed with Ard Scoil Chiarain in Clara, the one secondary school located in Clara for both girls and boys, that there was no admissions problem during the course of 2002 nor is there a recollection of an enquiry about a case for a Nigerian child for the 2002 -- 2003 school year.
(vi) Enquiries with the Department of Social and Family Affairs have revealed that Ms Elizabeth Allen has made a number of claims in the period 1999 to date: [These were set out and addressed to the appellant as follows:]
“9 April 1999
Only a matter of weeks after your marriage in the UK Ms Allen lodged a claim for one parent family allowance. This claim was supported by a declaration by your wife that if she went back to live with her spouse or if she married or started living with another person as husband and wife she would inform the Department. This claim was subsequently withdrawn.
“13 April 1999
Ms Allen made a claim for unemployment benefit. The claim was supported by a declaration to the effect that all details were true and complete. The relevant form required her to specify "spouse/partner.” She stated that her “spouse/partner” was Anthony Allen (from whom separated) and that he resided in England. She made no reference to her marriage to you.
“6 June 2001
Ms Allen made another claim for unemployment benefit supported by a similar type declaration. Similar type information was supplied but she stated that she did not know where Mr Allen was residing.
“21 May 2003
Ms Allen made a repeat application for unemployment benefit. On this occasion, she stated that Mr Fitzpatrick was her partner, that she was living with him and was dependent on him. Once again, she did not mention her marriage to you.”
18. The history of the Minister's consideration of the application of the first-named appellant for post-nuptial citizenship commences with the submission in May 2002 of the declaration of the first-named appellant, supported by the affidavit of the second-named appellant.
19. There is, however, a certain amount of relevant background. The first-named appellant says that he intended to reside with his wife at her home at 30 Silverdale Estate, Clara Co Offaly. However, at the time of the marriage in 1999, he was studying to become a solicitor in London. He says that he resided in London as well as in Clara from the period from September 2000 to January 2002. He completed his solicitor’s articles in London on 15 January 2002. He then returned to Clara. From that time, it appears that the local immigration officer registered him as resident there under the Aliens Order for successive periods, usually of a year, from 7 April 1999. He qualified as a solicitor in this jurisdiction on 20th March 2002. He set up his own firm and commenced practice principally in the area of immigration.
20. On 17 December 2002, a letter was written to the first-named appellant informing him that the Citizenship Section of the Department was "carrying out investigations concerning [his] entitlement to lodge a declaration of Post Nuptial Citizenship and that [his] file [would] not be processed until these investigations have been completed.” To that end the Garda National Immigration Bureau (GNIB) were asked to conduct enquiries which included the making of unannounced calls to the address at number 30 Silverdale Estate. On 1st April 2003, Mr McConnell wrote informing the first-named appellant that he did not propose, at that time, to go into the nature of the investigations that were being carried out. He confirmed that, where appropriate, the Department asks the Gardai from time to time to carry out investigations on its behalf.
21. Although it does not finally form part of the subject matter of the High Court judgment and will not be necessary to discuss further, it is right to point out that, at this time, the first-named appellant was making wide ranging accusations of racist abuse and harassment against a number of members of An Garda Síochána. In particular, he accused one female member of endeavouring to frustrate his quest for citizenship. No less than six members of the force have sworn affidavits denying these accusations. They appeared to have been the foundation of the allegation of bias. The learned High Court judge found that claim unproven. I do not propose to make further reference to it.
22. The first-named appellant objected to the Minister carrying out any investigation. He maintained, in correspondence, that his entitlement to Irish citizenship was not discretionary but automatic upon meeting the statutory requirements, which he claimed to have met.
23. On 9th June 2003, Mr McConnell wrote to the first-named appellant saying that some matters had been brought to his "attention which raised questions about whether yourself and your wife were living together as husband and wife in a subsisting marriage at the time of your declaration i.e. 29th of April 2002.” Among these matters were the following:
“Despite unannounced visits by the Gardai to your address in Clara on four occasions in September and November 2002, you were not present in the house.
“Your two children Christian and Cecelia (Chinenye), who commenced school in Dublin in September and October 2002, are registered with their schools as living at 5 Ballyowen Drive, Lucan, Co Dublin. 5 Ballyowen Drive is the home address given by Celia Otubu, whom you informed Gardai was your life and business partner on several visa applications for her children and mother. You also informed Gardai on 15 June 2002, in relation to Cecelia, that she would be living permanently with your wife in Clara.
“Your wife, Ms Elizabeth Allen was unemployed for the period between June 2001 and January 2002 and received unemployment benefit. She informed the Department of Social and Family Affairs at that time that she was separated.
“During the course of an interview with members of the Garda National Immigration Bureau on 17 November 2002, Elizabeth Allen stated that you and she were not living together and (sic) husband and wife and had not then. She stated that she was in a relationship with another man, who was present in the house at that time.
“During the course of a telephone conversation with the undersigned you stated that yourself and Ms Allen are living together as husband and wife. Legislation governing post-nuptial citizenship requires that you and Ms Allen be living together as husband and wife in a subsisting marriage at the date of declaration i.e. 29th April 2002. Based on the information that has been given to me, I have strong doubts that you and Ms Allen are living together as husband and wife at the present time or that you fulfilled the aforementioned statutory requirement. In order to clarify the matters which I have outlined above, and to satisfy myself beyond reasonable doubt that you met the criteria set out in the Act, I would like yourself and Ms Allen to attend at this office on a mutually acceptable date for the purpose of being interviewed separately by myself and a member of the Garda National Immigration Bureau in relation to our concerns and any matters which we feel might finalise this matter.”
24. The letter concluded by providing a telephone number where the first-named appellant could telephone Mr McConnell if the arrangements outlined were to be unacceptable. It also invited him to respond in writing to any of the matters outlined.
25. The first-named appellant replied by letter of 25 June 2003. With regard to the visits to the house in Clara, he accused the Gardai in question, one in particular, of threatening to frustrate his application for citizenship. He accused her of blatant bias and prejudice as well as racist abuse. It is only fair to say that the Garda officer in question denies that she was present at the house on any of these occasions and says that she had never met the first-named appellant. He explained his own absence by saying that, on two occasions, he was out of the country on a business trip and on a third that he was staying in Dublin having worked late into the early hours at Dublin airport and on a third that he was engaged in distributing literature at churches in Dublin.
26. He said that his wife and he had never been separated, and claimed that he had himself voluntarily mentioned the presence at 30 Silverdale Estate of his "wife's friend Billy [who] was staying with us temporarily because he lost his home." He gave reasons for keeping his own African-born children at school in Dublin.
27. He said that his wife was entitled to make a claim for social welfare benefit and denied that she said that they were separated.
28. The letter concluded by saying that, if Mr McConnell wished to interview the appellants, they would attend provided they were both interviewed together in the presence of a legal practitioner and that the interview be recorded in writing or by electronic means. The reason he gave for this was "the climate of intimidation, mistrust and prejudice that has permeated the entire matter."
29. Mr McConnell replied on 8th August 2003. He gave his view that interviewing the appellants together would be of little usefulness and declined to proceed on that basis. He shared concern at the length of time the matter had taken but said that there seemed to him to be very little evidence that the first-named appellant had lived in Clara for any appreciable time and invited him to show his presence in Clara. He suggested that first-named appellant might provide evidence of attempts to register any of his children at school in Clara, any documentary evidence or verifiable written statements from residents of Clara that he was living there with the second-named appellant. He suggested evidence regarding a bank account showing regular transactions.
30. The first-named appellant replied on 22nd August 2003 providing some 50 documents and letters which he had managed to assemble tending to prove his residence at 30 Silverdale Estate. He demanded a decision without further delay and threatened judicial review.
31. Mr McConnell wrote on the 28th October referring to continuing inquiries and saying that he would write as soon as there were completed. On 14th November, he wrote conveying the Minister’s decision already quoted.
