Habte v Minister for Justice and Equality & Ors [2020] IECA 22

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JUDGMENT of Mr. Justice Murray delivered on the 5th day of February 2020

1. The applicant was born in Ethiopia. She is a naturalised Irish Citizen. The certificate of

naturalisation as issued to her on 23rd January 2015 records her date of birth as 24th

September 1975. This reflects the date she provided when she applied for

naturalisation. For reasons more fully explained below, she believes this date to be

wrong. She has requested the first named respondent (‘the Minister’) to correct the

certificate by the insertion of what she says she now believes to be her correct date of

birth – 4th October 1982. The Minister has adopted the position that pursuant to the

relevant legislation - the Irish Citizenship and Nationality Act 1956 as amended, (‘the

Act’) – he does not have the power to amend the certificate in this way. His consequent

refusal to make the amendment sought by the applicant prompted the first set of

proceedings giving rise to this appeal, in which the Minister was the sole respondent

(2017 126 JR). In those proceedings, the applicant sought an order declaring her date of

birth to be 4th October 1982, together with orders requiring the provision to her by the

Minister of a true and accurate certificate of naturalisation, and an order of certiorari

quashing the decision of the Respondent refusing to amend her certificate of

naturalisation. She also sought with other related declaratory relief. In that first action,

the essential argument advanced by the applicant was that the Minister did enjoy such a

power of amendment, and that he had acted unlawfully in refusing to exercise it.

2. While declining to make a declaration as to the applicant’s date of birth, Humphreys J.

agreed with the applicant’s contention that the Minister had a power – in effect – to

amend a certificate of naturalisation. He adopted the view that this could be done by the

cancellation of the existing certificate and the immediate re-issue thereof with the correct

date of birth. He made certain orders directing how the Minister should consider the

exercise of that power. The Minister has appealed that determination.

3. Following the institution of the first action, the Minister proceeded to initiate the process

described in section 19 of the Act for the revocation of the applicant’s certificate of

naturalisation (‘the section 19 procedure’). The section 19 procedure is operative inter

alia where a certificate of naturalisation has been procured by misrepresentation –

whether fraudulent or innocent. It is the position of the Minister that this is the only

course of action open to him when it comes to his attention that a certificate of

naturalisation has been issued based upon and recording incorrect identifying information,

at least where that information originated with the applicant for the certificate.

4. The initiation of that process prompted the second set of proceedings (2017 569 JR). In

those proceedings, in which the Minister, Ireland and the Attorney General were the

respondents, the applicant contended that the commencement of the section 19

procedure was unlawful on a variety of grounds. It was also contended that section

19(1)(a) of the Act is invalid having regard to the provisions of the Constitution.

Humphreys J. rejected these arguments and refused any of the relief claimed in those

proceedings. He did so without prejudice to the applicant’s right to raise any point in the

event of a challenge being brought to the ultimate decision of the Minister at the

conclusion of that process. The applicant has appealed against this decision. The

respondents have cross appealed parts of the High Court judgment which identified

features of the events giving rise to the revocation process which the trial Judge

5. While a wide range of reliefs were claimed, and issues raised, in the course of these

appeals, it appears to me that the essential questions across both cases (resolved in a

single judgment [2019] IEHC 47) were three-fold. First, whether it is appropriate to imply

into the Act a power on the part of the Minister to amend a certificate of naturalisation.

This issue, as it was addressed in the High Court, presented the question of whether the

applicant enjoyed any constitutional, European Convention on Human Rights or other

European law-based right which grounded an entitlement to have the personal details on

her certificate of naturalisation correctly recorded. Second, whether in the circumstances

that presented themselves in this case it was appropriate for the Court to grant relief by

way of Judicial Review in respect of the initiation of a process that might lead to

revocation of a certificate of naturalisation pursuant to section 19 of the Act. Third,

whether the Minister acted unlawfully in initiating that procedure because (a) there was

no evidential basis on which he could conclude that it was appropriate so to do, (b)

because he failed to afford the applicant fair procedures before so doing, (c) because he

initiated the procedure in the mistaken belief that he did not have the power to amend

the certificate, or (d) because section 19(1)(a) of the Act is invalid having regard to the

6. Naturalisation is applied for by completion and submission of a form known as the Form

8. The form is prescribed by the Irish Nationality and Citizenship Regulations SI 569 of

2011. The contents of the Form 8 must be attested to by the applicant in an

accompanying statutory declaration. The form is headed with a warning that the

information to be supplied must be true and correct. It advises that the provision of false

or misleading information on the form may constitute an offence, and that the certificate

may be revoked if procured by fraud, misrepresentation (innocent or fraudulent) or

concealment of material facts or circumstances. The information notes to the form advise

applicants that a Certificate of Naturalisation cannot be amended once issued. The

detailed guidance on filling out the Form 8 directs applicants to include their date of birth

‘as recorded on your Birth Certificate’. The guidance document also makes it clear that if

the application for a certificate of naturalisation is successful, the certificate will record

inter alia the applicant’s date of birth as stated on the application.

7. The applicant applied for naturalisation as an Irish citizen by application dated and

witnessed on 23rd May 2015. It was received by the Minister on 5th June. The applicant

inserted on the application form her date of birth as ’24/09/75’. Contrary to the

direction on the Form 8 itself, this is not the date appearing on the applicant’s birth

certificate. That certificate contains two dates. Opposite the Amharic words for ‘date of

birth’ on that document, the date ‘24/01/75’ appears. Opposite the English words ‘date

of birth’ the date given is ‘04/10/82’. These two dates reflect differences between the

Ethiopian Coptic calendar (Ge’ez) and the Western Gregorian calendar. The Ethiopian

calendar is approximately seven years behind the Gregorian calendar. It has twelve

months of thirty days each, plus five or six additional days (depending on whether a year

is a leap year). These additional days are added as a thirteenth month each year to match

the calendar to the solar cycle. The first calendar month is ‘Maskaram’. It commences at

approximately the 11th (or in a leap year the 12th) of September according to the

Gregorian calendar. There is, however, no month known as September in that calendar. It

should also be observed that while the applicant avers in one of her affidavits (without

supporting evidence) that ‘Maskaram’ translates to September in the English language,

these months do not run concurrently. The applicant enclosed with her Form 8 a letter

dated 31st May 2014 setting out the differences between the Ethiopian and Gregorian

calendars. At the end of that letter she provided a telephone number at which she could

8. While neither date on the applicant’s birth certificate appeared on the naturalisation

application, the date that was given by her on that document corresponded with the date

of birth appearing on her Ethiopian passport. That passport issued to her on 20th May

2011. It records her date of birth as ’24 Sep 75’. The applicant explains this date on the

basis that ‘24/01/75’ according to the Ethiopian Coptic calendar is reflected as 24

September 1975. She says this because (she avers) September is considered the first

month of the year in the Ge’ez calendar. The applicant claims that she understood that

she should state her date of birth on the Form 8 as it appeared on her supporting home

country identification documentation and that she thus included the date of birth as it

9. On 23rd January 2015, the applicant was granted Irish citizenship on the basis of

residence in the State for five years out of the previous nine years. Her certificate of

naturalisation reflected her date of birth as submitted on her Form 8, 24 September

1975. Thereafter, she applied for an Irish passport. This issued to her on 12th March

2015. This recorded the same date of birth as appeared on her certificate of

10. The applicant did not raise any issue as to the date of birth recorded on her certificate of

naturalisation when she received that document. She thereafter travelled abroad on the

basis of her Irish passport. In her Statement of Grounds (the contents of which were

verified on oath by her) she pleads that while she noted the date of birth recorded on her

certificate of naturalisation and Irish passport were incorrect ‘in relation to the Gregorian

calendar’ she assumed that, having explained the calendar discrepancy to the respondent,

‘the Irish system must require that the date of her Ethiopian passport be used’. She

further pleads that ‘it would not be a difficulty to change the date on her passport in the

future should she need to do so’. She says that she did not make any attempts to remedy

her certificate of naturalisation between 23rd January 2015 and August 2016 in

circumstances where she became pregnant in October 2015 and her daughter was born in

11. She then pleads that when, in August 2016, she decided to obtain a driving licence and

car insurance, she became concerned that she needed to have the correct date of birth on

her identity documents. She corresponded with the Passport Office seeking an

amendment of her passport and was told by the Passport Office that she first needed to

have her certificate of naturalisation amended. This prompted correspondence extending

from 31st August 2016 to 22nd November 2016 between the applicant and thereafter her

solicitors, and the relevant agency of the Department of Justice, the Irish National

Immigration Service (respectively ‘the Department’ and ‘INIS’). The end point of that

correspondence was that the INIS refused the application she made for an amended

certificate of naturalisation. The basis for this position was recorded in a letter of 6th

September 2016. It said, ‘once a certificate of naturalisation has issued it is not our policy

to issue an amended certificate at a later date’. That letter was followed by an e-mail

from the applicant to the INIS in the course of which she said the amendment sought to

her naturalisation certificate was required ‘due to a marital status change’, to which the

response was ‘your query has been already addressed by this office in a letter … dated

6/9/2016’. Subsequent correspondence from INIS to the applicant reiterated the position

12. Leave to seek Judicial Review of the decision refusing to amend the applicant’s certificate

13. By letter dated 22nd June 2017, the applicant was notified of a proposal to revoke her

The Minister intends to revoke your certificate of naturalisation, being satisfied that

the circumstances through which your certificate of naturalisation was obtained do

not satisfy the conditions stated in Section 19(1)(a) of the Irish Nationality and

Citizenship Act 1956, as amended, three months after the date of this notice.

In your naturalisation application you submitted a translated copy of your birth

certificate which records your date of birth as 24/01/1975. This document also

stipulates that your date of birth by the Gregorian calendar is 04/10/1982. With

your citizenship application you also submitted your Ethiopian passport (issued in

May 2011) which records your date of birth as “24Sept1975”. On 23 January 2015

you were granted a certificate of naturalisation, your date of birth, as stated by you

on your application form and evidenced by your Ethiopian Passport, is reflected on

your Certificate of Naturalisation as (24/09/1975). This date of birth was also

provided by you in your immigration registration details and is reflected on your

GNIB card. It is also reflected on your application for an Irish passport, and this

date of 24/09/1975 is reflected on the Irish passport which issued to you on 12th

On 31 August 2016 you contacted the INIS by email stating that the date of birth

on your certificate of naturalisation referred to the Ethiopian calendar date of 24

September 1975 and needed to be amended to reflect the Gregorian calendar date

of 4 October 1982. You were informed by Citizenship Section that it is their policy

From the information you have now provided, it appears that you have submitted

false or misleading information on your application for a certificate of

15. The letter advised the applicant of her right to apply to the Minister for an inquiry under

section 19(2) of the Act. The applicant was advised that in the event that she so applied,

the Minister would not revoke her certificate of naturalisation without first considering the

report of the Committee of Inquiry. The applicant in her response did not seek an inquiry,

the deadline for making an application for which was extended by the respondent in the

course of the action. That period remains extended until the determination of these

16. Following an attempt to amend the then extant Judicial Review proceedings to include a

challenge to that decision, the applicant was on 17th July 2017 granted by way of

separate proceedings leave to seek Judicial Review of the proposal to revoke her

17. In the course of her correspondence with the Minister the applicant produced an undated

letter from the embassy of the Federal Democratic Republic of Ethiopia, which confirmed

the applicant as the ‘holder of Ethiopian passport Ep. 1493975 date of birth 24/011975

(sic) E.C is the same with date of birth 04/10/1982G.C. as per indicated on applicant’s

birth certificate.’ At the trial, she produced in evidence an identity card issued by the

Ethiopian authorities on 30th October 2015, valid for five years. This card states that the

applicant’s date of birth by reference to the Gregorian calendar is 24th September 1975.

18. Two further aspects of the general background should be noted. The Minister explains in

his submissions that each certificate of naturalisation is created with a specific

identification number. This contains five pieces of identifying information – name,

address, place of birth, date of birth and country of previous nationality. The Minister

accepts in his submissions that he has in the past (in what his submissions describe as ‘a

tiny number of cases’) cancelled naturalisation certificates containing errors and issued a

new certificate with a new certificate number. He says that where this has occurred ‘in

nearly all cases’ the certificate has been cancelled before being issued to the applicant.

This is described in those submissions as a ‘policy’ arising where there is a clerical error or

slip which was the fault of the Minister. Where such an error is detected and a fresh

certificate is thereby created, the old cancelled certificate is kept in a safe. In oral

submissions, counsel for the Minister said that the power to do this arose from section 15

of the Act (which contains no such express power). The Minister says that this ‘policy’ is

of no application to the applicant’s position, as she provided the information which is now

19. The Minister also explains that in the period between October 2003 and June 2008 - and

prior to the grant to the applicant of her certificate of naturalisation – the applicant

obtained five visas. Between those visas, they recorded three separate dates of birth –

‘1975’, ‘24/09/75’, ‘24Sept.1975’, ‘10Sept.1975’ and ‘10/09/1975’. The date on her GNIB

card (issued on 27 June 2011 and expiring on 18 May 2016) was ‘20/09/1975’.

20. The applicant has been living and working in Ireland since 2003. She married her

husband in Ethiopia in 2014. Their first child was born on 23rd June 2016, and their

second on 17th October 2018. The applicant’s husband now resides with her in this

jurisdiction. The applicant contends that if her Irish citizenship is revoked she will be

21. Under section 14 of the Act, Irish citizenship may be conferred on a non-national by

means of a certificate of naturalisation granted by the Minister. Under section 18, every

person to whom a certificate of naturalisation is granted shall, from the date of that issue

and for as long as the certificate remains unrevoked, be an Irish citizen.

22. The power to issue such a certificate is conditioned by section 15 of the Act. The section

states that the Minister may, on application, grant such a certificate ‘in his absolute

discretion’ if he is satisfied in respect of six matters. These include the applicant being of

full age, of good character, that he or she 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, and that he or she intends in good faith to continue to reside in the State

after naturalisation. He or she must also make a declaration either before a District

Justice in open Court or in such manner as the Minister allows, of fidelity to the nation

23. Section 17(1) provides that an application for a certificate of naturalisation shall be in the

prescribed form and must be accompanied by such evidence to vouch the application as

the Minister requires. Section 17(2) makes it an offence where a person for the purposes

of or in relation to an application for a certificate of naturalisation:

“… gives or makes to the Minister any statement or information which is to his

24. Section 19(1) provides for the revocation of a certificate of naturalisation. It confers this

power on the Minister where he is satisfied of one of five matters. For the purposes of

these proceedings, the relevant provision is section 19(1)(a). This is operative where:

“… the issue of the certificate was procured by fraud, misrepresentation whether

innocent or fraudulent, or concealment of material facts or circumstances.”

25. Section 19(2) describes the commencement of the process of revocation:

“Before revocation of a certificate of naturalisation the Minister shall give such

notice as may be prescribed to the person to whom the certificate was granted of

his intention to revoke the certificate, stating the grounds therefor and the right of

that person to apply to the Minister for an inquiry as to the reasons for revocation.”

26. Section 19(3) addresses the obligation of the Minister where a request for an inquiry is

made in accordance with subsection (2), and provides the only description of the powers

“On application being made in the prescribed manner for an inquiry under

subsection (2) the Minister shall refer the case to a Committee of Inquiry appointed

by the Minister consisting of a chairman having judicial experience and such other

persons as the Minister may think fit, and the Committee shall report their findings

27. Section 29A renders it an offence for a person to knowingly or recklessly make a

declaration under the Act, or a statement for the purposes of any application under the

28. In the first Judicial Review proceedings, the principal relief sought by the applicant

comprised an order declaring the correct date of birth of the applicant to be 4th October

1982, together with an order of certiorari quashing the refusal of the respondent to

amend the applicant’s certificate of naturalisation to insert that date of birth. An order of

mandamus requiring him to do so, was also sought. The essential grounds on which this

relief was claimed were that the Minister had failed to comply with the provisions of the

1956 Act and Regulations made thereunder; that he acted unlawfully in applying a fixed

policy against amending certificates of naturalisation once they had issued; that by

refusing to amend the certificate on the basis of a blanket policy and having regard to the

nature of the error, he acted irrationally; and that he denied the applicant fair procedures

by failing to consider her application to amend the certificate on an individualised basis.

29. In the second proceedings the principal relief sought was an order of certiorari quashing

‘the decision to form an intention to revoke’ the applicant’s certificate of naturalisation as

communicated in the letter to her of 22nd June 2017. That relief was claimed because it

was said that there were not sufficient facts on the basis of which the Minister could have

concluded that the certificate was procured by misrepresentation, that in commencing the

revocation procedure the Minister had acted irrationally, and that the Minister had

exercised his powers for an improper purpose and in bad faith. Declaratory relief was also

sought to the effect that section 19 of the Act was invalid having regard to the provisions

30. The analysis undertaken by Humphreys J. and the reasoning that led to his conclusion

that the applicant ought to be granted certain relief in respect of the first proceedings,

and refused any relief in respect of the second, can be summarised as follows.

31. First, Humphreys J. determined that the applicant enjoyed a right ‘to have her identity

correctly recognised by the State’ which was ‘so fundamental that it must be recognised

as an unenumerated [right]’ (at para. 43). The trial Judge rooted this conclusion, in part,

in the widespread recognition of the right in international instruments (Article 24(2) of the

International Covenant on Civil and Political Rights, and Article 7 of the Convention on the

Rights of the Child) and the view that this right both necessarily inhered in Article 8 of the

European Convention on Human Rights and was a corollary to the right to protection of

data provided for in Article 8 of the Charter on Fundamental Rights of the European Union

(in which connection the Judge further referred to section 74(3) of the Data Protection Act

2018 and section 9 of the Freedom of Information Act 2014). He said (at para. 44):

“…there is an implied constitutional onus on the State arising from the inherent

dignity of the individual referred to in the Preamble and the personal rights of the

citizen in Article 40.3 of the Constitution to accurately record and represent central

32. Further, he identified a number of rights expressly provided for in the Constitution which

depended on the age of the individual (the rights to vote, and to stand in a general or

presidential election) and that other provisions which presumed a clear record of age

(Article 36.1), all of which involve ‘a necessarily implicit constitutional requirement that

such age is correctly recorded (at para. 45). He upheld the argument advanced by the

applicant that ‘the right to have a correct official record of one’s identity is an aspect of

the personal rights of the citizen’ under the Constitution, Article 40.3, and pursuant to

Article 8 of the European Convention on Human Rights as applied by the European

33. In that regard, Humphreys J. placed some reliance on the decision of Kearns P. in

Caldaras v. An tÁrd Chláraitheoir [2013] 3 IR 310 [2013], IEHC 275 in which, in the

context of an issue as to whether the Registrar General for Births, Marriages and Deaths

enjoyed the power under the Civil Registration Act 2004 to amend a birth certificate so as

to correctly record the name of the applicant on her daughter’s birth certificate, Kearns P.

referred to parent and child enjoying ‘the right to have the correct identity of the parent

recorded on a child’s birth certificate’. While acknowledging that the primary responsibility

of the State relevant to this entitlement is for the recording of information in respect of

persons born within the jurisdiction, and while the primary onus to have recorded the

applicant’s date of birth correctly accordingly fell on the Ethiopian authorities, Humphreys

J. said that this did not absolve the State from recording that date of birth correctly ‘in its

34. In the light of these considerations, the trial Judge proceeded to address the first relief

claimed in the first action for a declaratory order as to the applicant’s date of birth. This

relief was refused because the Court felt that the inquiry process enabled under section

19(3) of the Act was ‘the more appropriate mechanism’ and that any declaratory relief

granted by the Court of this kind would ‘cut across’ that process. He continued (at para.

“… the applicant ought not be left in limbo, so if by the conclusion of the process

the Minister has not clarified what he considers the applicant’s correct date of birth

to be, the basis for my having declined to make a declaration at the request of the

respondents would have been negative, so the applicant would have to be free to

35. From there, the Court addressed the argument that there was an implied power to amend

a certificate of naturalisation. Humphreys J. made it clear in this context that when he

referred to a power to ‘amend’ a certificate of naturalisation, he was referring to the

power to cancel and simultaneously re-issue such a certificate. As I have already noted,

this is the procedure adopted by the Minister where a certificate contains a clerical error

for which the Minister was responsible. In deciding that the Minister did enjoy this power,

Humphreys J. observed the combined effect of section 22(3) of the Interpretation Act

2005 (which stipulates that a power to make a statutory instrument shall be read as

including the power to amend such an instrument) and the definition of statutory

instrument provided for in section 2(1) of that Act (which includes a ‘certificate … issued

by or under an Act ..’). While he held that the power to revoke a certificate save in

accordance with section 19 was implicitly excluded, the power to amend in the sense

defined by him was not. The conclusion that there existed such a power was, the Court

held, reinforced by the double construction rule, and the fact that an interpretation that

did not enable such a power would result in a disproportionate interference with

constitutional rights and with rights secured by the European Convention on Human

36. The Minister’s position as contended for before the Court was that if he had a power to

amend the certificate, he had considered the applicant’s application and addressed it in

accordance with his policy not to grant such amendments where they were necessitated

by the fact that the holder of the certificate had himself or herself provided incorrect

information. Humphreys J. held that the Minister was not entitled to have a policy that did

not respect the applicant’s rights, and in particular to have a policy which resulted in the

Minister not affording due and reasonable consideration to the applicant’s representations

before forming a view as to whether or not he would amend. He determined that, subject

to the revocation procedure having been lawfully commenced, the appropriate course of

action was for the Minister to consider the question of amendment in the context of any

outcome of the deliberations by the committee of inquiry. That being so, he decided that

the appropriate order for the Court to make was one requiring the Minister to consider the

amendment application, albeit that this could be done in the context of the inquiry

process. He based this on the following conclusion (at para. 60):

“The refusal of the application to amend here was unduly influenced by both the

view of the law that incorrectly reads the Minister’s jurisdiction as too narrow, and

also by a view of the Minister’s entitlement to a general policy that does not stand

up as being one that adequately respects the rights of the applicants.”

37. In consequence, the order made in the first proceedings was that the Minister consider, if

appropriate in the light of any report of the committee of inquiry, whether the applicant’s

certificate of naturalisation should be amended in the sense of being cancelled and

38. In respect of the second set of proceedings, Humphreys J. noted what he viewed as the

general approach whereby judicial review would not normally lie in respect of a ‘mere

proposal nor of the decision to initiate a procedure (at paras 61 and 62). Observing that

the existence of an alternative procedure is not an absolute bar to relief and that the

process initiated by the Minister provided a remedy in relation to any infirmities in the

proposed case against the applicant, he felt that the circumstances in which the

continuation of the proposal would be prohibited would be exceptional, arising in

circumstances such as where the proposal was clearly ultra vires or made for an improper

39. Humphreys J. determined that there was no basis for granting relief on either of these

grounds. Insofar as the applicant had pleaded a case based on the process having been

initiated for the improper purpose of preventing continuance of the first set of

proceedings and by way of collateral defence of the judicial review proceedings, this was

determined by the Court on the basis of the evidence of the respondent’s witnesses (who

were cross-examined at the hearing). Having seen and heard those witnesses, the trial

Judge rejected the suggestion that the proposal to revoke was motivated by an improper

purpose. These factual findings of the High Court Judge are not disputed by the applicant

40. Humphreys J. expressed the view that the whole purpose of the second set of

proceedings was ‘to spike the guns of an inquiry that is yet to take place’. He explained

that the contention that the decision to proceed with the inquiry was ultra vires as

advanced in the High Court was essentially based on four propositions (a) the applicant

had not mispresented her date of birth having regard to the fact she had explained the

impact of the Gregorian calendar; (b) the error in her birth certificate was not causative

of the issue of the certificate and, accordingly, it was not ‘procured’ by any such

misrepresentation; (c) the Minister in any event could only exercise his discretion so as

not to revoke because of the impact revocation would have on the applicant; and (d)

insofar as he had a discretion to revoke, it was appropriate that it be exercised in favour

of the applicant. Humphreys J. rejected each of these contentions on the basis (at para.

71) that it was not possible to say a priori and in the abstract before any facts have been

found in the inquiry whether or not any or more of these contentions was bound to

succeed such that the inquiry should be prohibited at this stage. Similarly, he felt that the

issue of whether the committee could recommend that in lieu of revocation the certificate

should be cancelled and reissued did not arise at that stage. He further concluded that the

contention advanced by the applicant that section 19 was unconstitutional because the

provision operated so that error in the submission of information on the Form 8 leads to

revocation, was ill-founded. Error, he said, did not lead inexorably to revocation (at para.

41. The order made in the first proceedings was that ‘the Minister do consider if appropriate

in the light of any report of the committee of inquiry whether the applicant’s certificate of

naturalisation should be amended in the sense of being cancelled and reissued with the

correct date of birth’. In the second proceedings, the reliefs sought by the applicant were

refused, without prejudice to the applicant’s right to raise any point in the event of a

challenge to the ultimate decision of the Minister. The Court nonetheless emphasised a

number of respects in which the applicant had, in the view of the Court, ‘succeeded in

highlighting a number of matters favourable to her that she can presumably anticipate

will be given due weight and consideration’ (at para. 71). These included the fact that it

was the applicant who drew the attention of the Minister to the error in her certificate,

and the fact that nothing in the applicant’s immigration history was suggestive of abuse of

the immigration system. Following a second judgment directed to the question of costs

([2019] IEHC 93), the Court ordered that the costs of the first proceedings be awarded in

favour of the applicant. No order for costs was made in the second judicial review.

42. The Act contains neither an express power of amendment properly so called, nor does it

provide for a power to correct an error on the face of a certificate by its cancellation and

the immediate issue of a new certificate in a corrected form. The issue is thus whether

either such power can be implied. Part of the Minister’s response to the proposition that it

can, depends on section 19 of the Act. That provision, he says, provides the procedure to

be followed where the holder of a certificate asserts that it contains incorrect information.

He says that the express power to revoke for innocent misrepresentation within section

19 is inconsistent with the proposition that there should be implied into the legislation a

43. It follows that the first issue that arises in considering whether there is such an implied

power depends on the nature and extent of the jurisdiction conferred by section 19(1)(a).

Central to this question, having regard to the arguments advanced in the second

proceedings, is whether the Minister has the power to revoke a certificate simply because

a misrepresentation by the applicant for naturalisation as to their identifying information

is established (as the Minister contends) or whether that power is properly limited to

cases in which the Minister is satisfied that there was a causal connection between the

grant of the certificate, and the false information provided (as the applicant contends).

44. There is – at least to some extent - an inverse relationship between the breadth of the

power to revoke, and the strength of the case for an implied power of amendment. The

broader the revocation power the less likely it is that there is a gap in the legislation that

requires the implication of a power. If the legislation enables revocation for any innocent

misstatement by an applicant for citizenship of their identifying information irrespective of

whether the error contributed to the issuing of the certificate, this strengthens the

argument that the legislature intended all such errors to be addressed within the

revocation process. If, however, the revocation power is narrower, this means that the

Act provides no express mechanism for correcting all errors made by an applicant for such

a certificate, rendering the case for an implied power to that effect stronger. It follows

that the question of whether there is such an implied power cannot be resolved without

45. The first relevant power to revoke a certificate of naturalisation appeared in section 7 of

the British Nationality and Status of Aliens Act 1914. That provision was amended by the

British Nationality and Status of Aliens Act 1918. The section as so amended was similar

in a number of respects to the procedure now provided for in this jurisdiction in the 1956

Act. The facility to revoke (which following amendment in 1918 was expressed as an

obligation rather than a power) arose where the Secretary of State was satisfied that inter

alia a certificate had been ‘obtained’ by ‘false representation or fraud, or by concealment

of material circumstances’. The amendments effected by the 1918 Act enabled the holder

of the certificate to be notified prior to the exercise of that function, and to require the

case to be referred to an inquiry under the auspices of a person who holds or held “high

46. Although the Irish Nationality and Citizenship Act 1935 reserved whether these Acts ever

applied in Saorstat Eireann (section 33), that legislation broadly reflected the grounds for

revocation contained in the English legislation. Section 10(2) of that Act inter alia

mandated the Minister to revoke a certificate of naturalisation when satisfied of one of a

number of matters. One of these arose where there had been misrepresentation.

However, the legislation differed from the Acts of 1914 and 1918 by expressly providing

that an innocent misrepresentation could ground revocation, referring to

‘misrepresentation whether innocent or fraudulent’ rather than ‘false representation’, and

by vesting in the Minister (in section 10(1)) an absolute discretion to revoke a certificate

of naturalisation for unspecified cause. The process of inquiry which had in practice

proven an important part of the earlier English legislation was not included in the 1935

Act. It was, as noted above, revived in the 1956 Act, although that Act defined the scope

of the inquiry (‘as to the reasons for the revocation’) and made provision for reporting its

findings in a manner not provided for in the older legislation. The 1956 Act maintained the

specific grounds as provided for in section 10(2) of the 1935 Act, while removing the

‘former arbitrary discretion of the Minister to revoke naturalisation for unspecified cause’

(see Parry “Nationality and Citizenship Laws of the Commonwealth and Ireland”

47. The experience in the United Kingdom (explained in an article helpfully submitted by the

applicant – Weil and Handler Revocation of Citizenship and Rule of Law: How Judicial

Review Defeated Britain’s First Denaturalisation Regime (2018) 36 Law and History

Review 295) underlines a key issue of interpretation. While originally adopting the view

that the legislation mandated the withdrawal of citizenship when the subject had provided

false information even if this was done honestly, the Inquiry Committee provided for

under that legislation had, by the early 1930s, decided that before citizenship could be

revoked in cases of dishonesty, the Home Office had to establish that it would have

refused naturalisation but for the dishonesty (see pp. 327-328). When the British

Nationality and Citizenship Act 1948 maintained the power of revocation for fraud, the

post war experience in that jurisdiction maintained the high standard for the operation of

“[N]o action to deprive a person of his citizenship under the [fraud] subsection

would be contemplated unless the facts suppressed or misrepresented would

undoubtedly have led to refusal of naturalisation, and unless it is reasonable to

suppose that the applicant was aware that disclosure of the true position would

(Home Office Deprivation of Citizenship of the United Kingdom and Colonies: A

digest of Home Office Practices S. 4(a)(i) (1961) quoted in Weil and Handler at p.

48. It should be emphasised that this summary identifies two issues, one of which (the

requirement that the applicant for naturalisation knows that disclosure is false) is now

expressly addressed in the Irish legislation, but the second of which (the need for a causal

connection between the falsity of the statement and the grant of the certificate) was not.

49. It is arguable, as the Minister contends, that where an applicant for naturalisation

furnishes key identifying information as required by the Minister, the naturalisation

certificate is ‘procured’ by that information, in the sense that the information given is

material (because it is identifying information) and on the basis that had the information

not been given the Minister would not have issued the certificate. However, I do not

believe it can be said that this means that the issue of a certificate on foot of information

provided by an applicant which is incorrect has for that reason alone been ‘procured ... by

misrepresentation’ in the sense in which the phrase is used in section 19(1).

50. The Minister’s contention depends upon the construct that if information required is

material (in the sense that had the information not been given, the certificate would not

have been granted), and if that material information is incorrect in any respect, the

certificate has been ‘procured … by misrepresentation.’ This is not the obvious import of

the conjunction of these words, which implies not that the certificate has been issued in

response to information subsequently shown to be false, but that the falsity of that

information has influenced the decision whether or not to grant the certificate.

51. That construction reflects the approach adopted in the interpretation of section 21(1)(h)

of the Refugee Act 1996, pursuant to which a declaration of refugee status may be

revoked where that declaration ‘has been given on the basis of information … which was

false or misleading in a material particular’. In Gashi v. The Minister for Justice Equality

and Law Reform [2010] IEHC 436, the test to be applied in operating this provision was

described in terms of ‘whether the application for protection would have been determined

differently had the information not been misrepresented.’. In NzN v. The Minister for

Justice and Equality [2014] IEHC 31, this was described as requiring that the false

information provided be ‘instrumental in her recognition as a refugee’ (at para. 34). Of

course, these decisions are concerned with a different legal regime, and with the conferral

of a different status. What they do reflect is a sensible interpretation of similar language

operating in a not entirely dissimilar (but obviously different) context enabling the

revocation of a declaration of status issued by the Executive on the basis of information

furnished by the applicant. Indeed, it is to be noted that this reflects the role of causation

in other areas of the law of misrepresentation, with the case law positing a general ‘but

for’ analysis of the relationship between misstatement and consequence (see Carey v.

Independent Newspapers Ltd. [2004] 3 IR 52, 70). Had it been intended to displace the

ordinary meaning of the words ‘procured by … misrepresentation’ and the common

understanding of the role of causation in determining the effect of a misrepresentation so

as to allow the Minister to revoke a certificate simply because some or all of the

information provided by an applicant was incorrect, it would have been easy to so provide

in those terms. In that event, the section would confer upon the Minister the power to

revoke as an automatic consequence of the provision of erroneous identifying information.

52. Some other features of the provision support this view. Reading section 19(2) in its

entirety, it is not without significance that the provision not merely demands that the

Minister be satisfied that the issue of the document was procured by the

misrepresentation, but does so in a context where it is made clear that the independent

basis for revocation arising where there is a concealment of facts or circumstances is

limited to the non-disclosure of that which is ‘material’. The express requirement of

materiality in this part of the subsection implies that the concealment be in some way

operative (see Sleiman v. Secretary of State [2017] UKUT 367 at para. 60). I do believe it

likely that such a requirement of materiality is imposed in respect of concealment, without

a similar quality being required of a positive misrepresentation.

53. It is also relevant that the 1956 Act clearly limited the broader untrammelled power

previously vested in the Minister under section 10(1) of the 1935 legislation. From 1956,

the Minister could no longer revoke a certificate for any reason. He was confined to the

specific grounds identified in the legislation. Having so confined him, there is no reason to

believe that the Oireachtas intended that the words defining that power should be

afforded a construction broader than their plain terms suggest. To divorce the

misrepresentation from the reasons the certificate was issued is to render revocation a

penalty for misstatement. To do so in a context where the consequence for the citizen of

revocation is of considerable moment, would require clear expression (see Delaney v.

54. Although obviously not in any sense determinative of the proper construction in its own

terms of the Irish legislation, it is of both note and assistance that this approach reflects

that adopted in the United Kingdom. Section 40 of the British Nationality Act 1981

enables the revocation of citizenship status resulting from registration or naturalisation if

the Secretary of State is satisfied that the registration or naturalisation was ‘obtained by

55. In Sleiman v. Secretary of State [2017] UKUT 367, the appellant misrepresented his date

of birth when (unsuccessfully) claiming asylum. Had the information he provided been

correct, the date of birth he tendered would have rendered him a minor at that time. In

fact, he was two years older. The same date of birth was subsequently relied upon in

granting British Citizenship. His correct date of birth having become evident when he

produced his Lebanese passport while seeking emergency travel documents, a decision

was made to deprive him of citizenship on the basis that it had been obtained fraudulently

(the decision, in fact, not making it clear whether it was fraud, false representation or

concealment of a material fact that prompted the conclusion). The reasoning of the

respondent (accepted at first instance but not on appeal) was that the misstatement of

age justified revocation of citizenship because the applicant was only in a position to

make an application for naturalisation by reason of that misstatement. Had he disclosed

his true age at the time of the asylum application, the reasoning went, he would not have

been treated as a minor and would likely have been returned to Lebanon when his asylum

56. In allowing the appeal, the Upper Tribunal concluded that ‘there must be some causative

link between the action(s) or omission of the appellant and the obtaining of citizenship’

(at para. 57). Referring to the decision of the Court of Appeal in Hysaj and ors v.

Secretary of State [2015] EWCA Civ 1195 (a case concerned not with the statutory

ground for revocation, but with the circumstances in which fraud will vitiate a grant of

citizenship ab initio and irrespective of the statutory power of revocation), the Court

referenced ‘a direct link’ and ‘causative relevance of the original fraudulent impersonation’

(at para. 57). Referring to language used in the Respondent’s internal instructions

governing the application of the English provision, Kopieczek J. said (at paras. 60 and

“The phrase ‘direct bearing’ suggests that in cases where the fraud etc. only has an

indirect bearing on the grant of citizenship, deprivation action would not be

appropriate. This, it seems to me, is consistent with the phrase ‘by means of’ in

On the basis of the above…the impugned behaviour must be directly material to the

57. The same approach is evident in R(KV) v. Secretary of State [2018] EWCA Civ 2483 at

para. 19, where the Court referred in a similar context to the establishment not merely of

deception, but ‘that without it, the certificate of naturalisation would not have been

58. There are important points of distinction between the regimes in this jurisdiction and in

the United Kingdom. The Court in Sleiman was clearly affected in its conclusion by the

respondent’s own guidelines, and the decision in Hysai was subsequently reversed on

appeal on consent (see [2017] UKSC 82). However, the former merely explain the

operation of the provision in line with the text of the section, as was held by the Court,

and the vacating by the UK Supreme Court of the decision in Hysai does not affect the

construction of the statute (see in particular [2017] UKSC 82 at para. 17). More

importantly, the United Kingdom legislation uses the term ‘by means of’ (which the Irish

legislation does not) and the Irish legislation expressly refers to innocent

misrepresentation (which the other legislation does not). However, I do not see these

distinctions as affecting the conclusion. There is no relevant difference between the

concept of obtaining ‘by means of’ and that implied by ‘procured by ...’ and the

interpolation of the adjective ‘innocent’ goes to the character of the misrepresentation,

not its effect. I find the reasoning of the Upper Tribunal in its own terms, persuasive in

construing section 19(1) of the Act. The differences in the legislative schemes and context

59. However, it must be emphasised that it is quite possible that an innocent misstatement as

to the date of birth of an applicant for citizenship would in an appropriate case, meet the

requirement that the application for naturalisation would have been determined

60. This could be so not merely where the discrepancy between the represented and actual

date of birth of an applicant was material to the factors brought to bear on a

consideration of whether citizenship should be granted, but also where the discrepancies,

although seemingly minor, could have led the Minister to a train of inquiry in relation to

an applicant which might have resulted in a refusal of citizenship. For this reason, the

applicant’s assertion that this is not a case in which the preconditions for the exercise of

section 19 exist, because ‘as a matter of logic’ the alleged misrepresentation did not

61. Dates of birth, as observed by the respondent in the course of submissions, are a crucial

piece of identifying information, utilised inter alia in conducting background checks on an

applicant. Misstatement by an applicant for a certificate of naturalisation of their date of

birth – and a failure to take timely steps to correct such a misstatement when it becomes

apparent to the applicant – is a potentially very significant matter. The inability of an

applicant for a certificate of naturalisation to proffer a consistent account of their date of

birth may, depending upon the reasons for not doing so, have been a relevant factor in

the decision to grant naturalisation in the first place. The realisation that the birth

certificate and passport of an applicant for naturalisation disclosed different dates of birth

and that the applicant had chosen to proffer only the latter as her date of birth on the

Form 8, may – again depending on the facts as ultimately determined – have affected

how the Minister addressed that application for naturalisation. These are all clearly

matters which the Minister is entitled to have investigated and are all clearly matters

which, in an appropriate case and having regard to the construction of the provision as I

have outlined it above, could potentially give rise to revocation of the certificate.

62. Humphreys J. based his finding that the Minister could without express statutory authority

to that end revoke and issue a new certificate, on the provisions of section 22(3) of the

Interpretation Act 2005. Insofar as he relied upon this provision, I disagree with his

“A power conferred by an enactment to make a statutory instrument shall be read

as including a power, exercisable in the like manner and subject to the like consent

and conditions (if any), to repeal or amend a statutory instrument made under that

power and (where required) to make another statutory instrument in place of the

64. ‘Repeal’ for the purposes of the 2005 Act as a whole, includes ‘revoke, rescind, abrogate

or cancel’ (section 2(1)). However, the term ‘repeal’ is consistently referenced in the Act

in accordance with its general usage, as connoting the revocation of a measure having

the effect of law (see sections 26 and 27). There is nothing in section 22 to displace the

inference that the term should be construed in accordance with that usual meaning.

65. This is important, because section 22 (the effect which may of course be displaced where

the contrary appears in the legislation – see section 4(1) of the 2005 Act) has a surprising

breadth of application. This is a consequence of the wide definition of statutory

“‘statutory instrument’ means an order, regulation, rule, bye-law, warrant, licence,

certificate, direction, notice, guideline or other like document made, issued, granted

or otherwise created by or under an Act, and references to ‘made’ or to ‘made

under’ include references to made, issued, granted or otherwise created by or

66. There can be no serious dispute but that a certificate of naturalisation issued under the

Act falls within this definition. However, having so determined the trial Judge did not in

fact find that the Minister had the power to ‘amend’ a certificate of naturalisation once so

issued. What he found instead was that there was an implied power to cancel the original

certificate, and to simultaneously replace it with a fresh and differently numbered

certificate. This is not the same as ‘amendment’ as that term is ordinarily understood. An

‘amendment’ occurs when an instrument as originally issued remains in force but is, after

its issue, changed in some respect. It is the same instrument after the amendment as

before the amendment, albeit with an alteration effected to it. The cancellation of an old

certificate and issue of a new certificate by way of replacement, in contrast, involves the

67. The distinction is reflected in section 22(3) itself which acknowledges that a statutory

instrument may be amended, or it may be repealed and replaced. I do not believe that

that power as envisaged in section 22(3) – to repeal and replace the instrument with

another – is applicable to a document of the kind in issue here. Although noting that

‘repeal’ includes ‘revoke’ and while the certificate is a ‘statutory instrument’ for the

purposes of this legislation, the expansion of neither definition changes the usual function

of ‘repeal’ as a term generally addressed to legislative instruments. The definition of

‘repeal’ in section 2(1) elaborates on how a repeal can be achieved, but does not purport

to expand the scope of what it is can be repealed. Indeed, section 12(3) of the

Interpretation Act 1923 (which implied a the same power but only in relation to rules,

regulations or by laws) used very similar language (‘rescind, revoke …’). The expansion of

the scope of section 22(3) following the unorthodox definition of statutory instrument in

the Act (see for example the definition in section 1(1) of the Statutory Instruments Act

1947) should not be extended any further than its language requires.

68. The proper effect of section 22(3), therefore, is that (subject to the legislative context not

being inconsistent with such implication) a power to make any statutory instrument as

defined in section 2(1) implies a power to amend that instrument. Where, the instrument

is legislative, it may be repealed (and to that extent, revoked, rescinded, abrogated or

cancelled). However, section 22(3) does not imply a power to cancel and reissue a

certificate of the kind in issue here. To determine whether there is such a power, resort

69. As I have noted, insofar as the issue of ‘amendment’ as that term is used in section 22 is

concerned, when the provision speaks of ‘amendment’ in this context, it is concerned with

the alteration of an instrument by a mechanism which does not cancel the original

instrument but allows it to be changed by subsequent act. By making it clear that this can

be done as a matter of implication, section 22(3) travels in tandem with section 22(1),

which creates a presumption that the first exercise of a power does not prevent its

subsequent exercise. However, section 22(3) only implies a power to amend in this sense

where such an amendment is consistent with the statutory scheme as a whole. This

follows from section 4(1) of the 2005 Act, which subordinates the provisions of that

legislation to any contrary intention appearing in an enactment to which it is sought to

apply those provisions. That assumes that an amendment of the kind suggested can only

70. The applicant in this case (who did not cross appeal or seek to vary the decision of the

High Court insofar as it refused to imply a power of amendment in this conventional

sense) has not established that amendment thus understood could ever be operated in

connection with a certificate of naturalisation. The certificate once issued operates to

grant citizenship to the person described in it. That person is the person with the name,

date of birth and other identifying information contained in the certificate. It is that

person upon whom nationality has been conferred. To change one of these pieces of

identifying information, is, obviously, to confer citizenship on a person with different

identifying information. It is impossible to see how, without legislative regulation, this

could be done on the basis of an amended version of the same certificate while the earlier

iteration of that certificate as issued (conferring citizenship on a person defined by

reference to different identifying features) remains in some form of undefined but

suspended animation. None of this would be consistent with need for absolute clarity and

certainty around the person’s citizenship. Thus, the Minister – in my view correctly –

adopts the position that where he addresses a clerical error of his own, he does so by

cancellation of the old certificate, and issue of a new one rather than by amendment. He

does this in order (as recorded in the Minister’s affidavit evidence) to ‘protect the integrity

71. These features of an instrument conferring citizenship mean that the amendment of the

certificate in the sense ordinarily understood cannot by virtue of section 23(2) be

interpolated into the Act. The only viable mechanism for addressing the concerns of the

applicant here is that determined by the trial Judge – cancellation of the old certificate

combined with the simultaneous reissue of a new certificate containing the correct

72. The question of whether the Minister has a power to cancel a certificate of naturalisation

as issued by him, and to replace it with a new one, accordingly falls to be resolved by

reference to the general principles governing the implication of powers, rather than

pursuant to section 22(3). The proposition that there is such a power does not suffer from

the same difficulties as the proposition that the extant certificate be simply amended.

Were cancellation and reissue enabled by an implied power, the old certificate would

cease to have effect, and a fresh certificate would now represent the basis for the

73. The Interpretation Act 2005 is not irrelevant to that exercise. Section 23(1), to which I

A power conferred by an enactment may be exercised from time to time as

74. Reference to the predecessors of that provision (sections 12(1) of the Interpretation Act

1923 and section 15 of the Interpretation Act 1937) would have changed the outcome of

the one decision I have been able to identify addressing an asserted implied power to

revoke and reissue statutory certificates. In Minister for Agriculture v. Gallagher [1941] IR

278, the High Court found that the plaintiff acted ultra vires when, having issued

certificates which determined sums due by the defendant under the Slaughter of Cattle

and Sheep Act 1934, he revoked those certificates and purported to issue new

instruments certifying different sums due. The power to issue the certificate having been

exercised (the Court held), it was spent and accordingly a new certificate could not be

issued recording different information ([1941] IR at 283). Had it been understood that the

power was not spent, the conclusion of the Court that the legislation would have to

express that power, would have been different. As I have observed, the decision, was

seemingly made in ignorance of the effect of the Interpretation Act 1937 (see Hogan,

Morgan and Daly, “Administrative Law in Ireland” 5th Ed. (2019 at para. 12-66 fn. 149).

What is important for present purposes is that the section identifies as a starting point the

proposition that the power to issue a certificate of naturalisation in respect of the

75. The test for the implication of powers is neither complex, nor in dispute. A statutory body

will be found to enjoy such powers as are incidental to or consequential on the powers

and duties expressly provided for by the Oireachtas. While this remains the core test

applicable to the question (McCarron v. Kearney [2010] IESC 28 [2010] 3 IR 302 at para.

39) it falls to be applied having regard to whether the power thus implied is be justified

by the statutory context as a whole, and to its not being inconsistent with any express

provisions within the relevant statutory scheme. The implication of a power is thus but

one component of the overall process of interpretation of a statute conferring public law

functions and must be gauged according to standard principles of construction. The

implication of powers should accordingly function so as to avoid absurdity, advance the

effectiveness of the legislation and implement the intention of the Oireachtas as deduced

from the language in the relevant provisions viewed in the light of the statutory scheme

as a whole. At the same time, the Court in determining whether to imply a power must

caution itself against legislating which, if the test is applied as formulated, it will not be

76. Ultimately, in determining whether such a power should be discerned from the Act, the

Court is concerned to determine whether it can be said that the Oireachtas so clearly

intended the statutory body to enjoy the power that it was reasonable to conclude it did

not feel it necessary to express it. It is for this reason that it is sometimes said that if the

power it is suggested should be implied is of a kind one would, in the ordinary course,

expect to see expressed, it is not appropriate to impose that power by implication (see

Magee v. Murray and anor. [2008] IEHC 371 at para. 29). However, this should not be

overstated: the fact that a power is of a kind that appears expressed in other legislation is

not a basis for refusing to imply one if it is otherwise appropriate to do so.

77. In this case, the fact that the Minister is compelled to accept that he has the power to

cancel a certificate of naturalisation containing a misstatement caused by the Minister’s

own error, and to reissue in that circumstance a new corrected document, renders it

impossible to deny such a power where the error arises due to a mistake on the part of

the applicant for the certificate. The Minister either has the power to cancel a certificate of

naturalisation and issue a new one to the same holder with different information on it, or

he does not. A power qualified by reference to the cause of the error is precisely the type

of measure one would expect to see expressed in the legislation, the limitations on the

78. The basis for that distinction relied upon by the Minister – the fact that section 19 enables

revocation in a case of innocent misrepresentation – does not justify it. As I have

explained earlier in this judgment, section 19(1)(a) properly construed entails a test of

causation. It functions only where the application for naturalisation would have been

determined differently had the information not been misrepresented. Therefore, it

operates only in respect of a sub-category of misstatements by an applicant. If the

Minister is correct in his contention that there is no power to cancel and reissue a

certificate where there has been an error which was not causative of the grant of

naturalisation, it means that the citizen holding the certificate is compelled to operate

with a certificate which he or she knows to be in error. This is not merely injurious to the

citizen, but creates a situation in which the naturalisation process itself is compromised

with citizens presenting to the world at large a naturalisation certificate which they – and

potentially the State – know to contain false information. It makes no more sense that

the Oireachtas would so provide, than it would for the Oireachtas to preclude revocation

and issue of a new certificate containing a mistake originating with the Minister himself.

Such a power in both forms is required to render the legislation effective: in itself, this

points strongly to the implication (see An Blascoid Mor v. Commissioners of Public Works

79. This very point emerges with some force from the memorandum concerning the issue of a

notice of intention to revoke the applicant’s certificate of naturalisation prepared by the

Minister’s officials and dated 6th June 2017. There, they observed as follows:

“It is essential for the effective operation of the State’s immigration system, which

is fundamental to the State’s national and international interests, that persons who

have misrepresented their identity to the State cannot continue to avail of that

identity, and that the State is not legitimising that identity when travelling to other

80. Given that it is not possible to revoke a certificate of naturalisation other than where the

Minister is satisfied that the misrepresentation procured the grant of the certificate in the

sense in which I have explained that requirement, in the absence of a power to cancel

and reissue such a certificate in cases where it contains a misstatement but section

19(1)(a) is not engaged, the significant concerns so identified by the Department cannot

81. I am conscious that it might be said that the correct resolution of this dilemma lies not in

implying a power to revoke with a view to re-issue of a new certificate, but in expanding

the scope of the phrase ‘procured by’ so as to give it the meaning contended for by the

82. In that way, the legislation would address the mischief without the necessity for

implication of a power which could have been, but was not, stipulated by the Oireachtas.

To that one might add the not insignificant consideration that it could be contended that a

power to amend of the kind contended for by the applicant would in the normal course be

accompanied by some procedure to enable the amendment process to operate in a

structured way and, in particular, for the determination of facts in the course of that

83. That proposition suffers from two overwhelming difficulties. The first is that the text of the

section does not, on a literal interpretation, bear that meaning. The implication of the

constitutional entitlements of the applicant as explained by Power J. in her separate

judgment render it inappropriate to expand the provision beyond that literal meaning. The

second is that if this interpretation is correct, the consequence is that the price of an

innocent error by an applicant for naturalisation is deprivation of her citizenship

(potentially rendering at least some naturalised citizens stateless) without any legally

enforceable expectation that a new certificate will be issued. On these bases alone, the

correct resolution of the question lies in giving section 19(1)(a) its actual meaning and

implying a power to cancel and simultaneously reissuing a certificate, rather than

expanding the scope of the provision, which is what I believe the Minister’s contention

84. However, subtending both of these factors is a more fundamental infirmity attending the

argument. For this contention to be well placed it could only be made so by importing a

purpose into the revocation power which its own terms – and history – defy.

85. In addressing the injustice to the naturalised citizen and the potential compromise of the

naturalisation process that would arise where a certificate contains information innocently

provided by an applicant which subsequently proves to be false, the Minister must say

one of two things. He must either (a) say that in this circumstance the only remedy is for

the certificate to be revoked, with the holder of the certificate forever losing citizenship

because of that innocent error, or (b) he must adopt the position that the power to

revoke under section 19 can be exercised with a view to conferring citizenship again

where the facts disclose that the error was innocent and in all the circumstances there is

no reason to deny it. Option (a) would be a self evidently unjust outcome – even for a

86. But if the true position were (b), this could only be the case if it could be said that section

19 was intended by the Oireachtas to provide the mechanism for addressing the obvious

injustice that would arise where an applicant for naturalisation through no fault of their

own provides incorrect identifying information by effectively enabling cancellation with a

view to eventual reissue. In this regard it is hard not to notice that in the memorandum

dated June 6th 2017 to which I have referred, the officials specifically counselled that ‘[i]f

the Minister revokes this certificate of naturalisation it would be open to [the applicant] to

apply for a certificate of naturalisation again using her now stated date of birth’.

87. It appears to me that this would be to propose using section 19(1)(a) for a purpose not

envisaged by the provision at all. The intention behind the section - and in this regard its

history is of importance - is to enable revocation, not to provide a mechanism for

compensating for the absence of a power of amendment, by revocation with a view to an

application being made by the holder for a new certificate. Nothing in the legislation

supports the proposition that it was intended that section 19 fulfil this purpose. Yet this is

the purpose that must be attributed to the provision if it is to be decided that section

19(1)(a) provides the vehicle for resolving the dilemma presented by this case. In my

view, the only tenable conclusion is that the power to cancel and simultaneously reissue is

different and independent of that provided for in section 19. Therefore, section 19(1)(a) is

not relevant to the question of whether this fundamentally different power should be

88. The Minister advances a number of further arguments in support of his claim that a power

of this nature cannot be implied. First, he says that once the details on the certificate

correspond with details on the Form 8, the certificate cannot be changed. Second, he

observes that if a person submits information on that form and then says that this was

wrong, this requires ‘very serious investigation and the naturalised person’s identity must

be thrown into doubt’. Third, it is contended that the consequence of the decision of

Humphreys J. is that ‘in effect, the statutory provision was amended by the Court’.

Fourth, it is said that had the Oireachtas intended such a power of amendment, this

89. I do not believe any of these arguments withstand analysis. The first proposition is

reductive. No sustainable reason has been advanced why an error of the Minister enables

the cancellation of an issued certificate, but an innocent error by an applicant for a

certificate of naturalisation does not. This is not, I should state to conclude that the

applicant’s error was ‘innocent’. This is a matter to be determined in accordance with the

relevant statutory processes. It is, however, to say that it is difficult to believe that the

Oireachtas intended that a person who did find themselves with a certificate of

naturalisation recording information that subsequently proved to be false, is required to

simply accept that fact. As I have already observed, such a state of affairs would be in the

interests of neither the naturalised citizen, nor the State’s own interests in ensuring the

integrity of its naturalisation processes and the corresponding accuracy of the information

contained in the official certification generated in the course of that process.

90. The second point will almost certainly be correct in many cases in which a discrepancy

between the Form 8 and the actual facts is identified. However, as I explain later in this

judgment, where this is so the Minister is entirely free to commence the section 19

procedure. Where the Minister determines that the commencement of the that procedure

is not appropriate, he is free to conduct such investigations as he believes are necessary

to determine whether an amendment should be granted. The Courts have had little

difficulty in implying the appropriate statutory procedures where required to give effect to

an implied power (as evidenced by the decision in Dellway and ors. v. National Asset

Management Agency [2011] 4 IR 1). The important point is that where, having exhausted

whichever process he believes appropriate, the Minister decides that the case for an

amendment has been made out, but the case for revocation has not, he may proceed to

amend in the manner described above. To construe the legislation in this way is no more

an amendment of an Act of the Oireachtas than is the decision of the Minister to operate

a power to revoke and reissue certificates containing error. The final proposition advanced

by the Minister is a feature of every case in which an implied power is contended for and

91. I have reached this conclusion independently of the question of whether the applicant

enjoyed a right to require a correct record of her personal identity, whether pursuant to

the Constitution, the Convention or the Charter, so that the double construction rule

would require this implication. However, I do not believe that the Minister is correct in the

submission he makes to the effect that it was not necessary to determine this issue. In

interpreting the statute, the High Court judge was correct to address this aspect of the

applicant’s argument (which was contained in her legal submissions to that Court). In

particular, I cannot accept the Minister’s argument that because there is at this point a

lack of clarity as to what the applicant’s date of birth actually is, the issue of whether

there is a right to have one’s date of birth formally recognised by the State is irrelevant.

That issue is relevant to whether the legislation should be construed as to incorporate a

gateway through which an amendment can be effected where an error is established. As

to the substantive question thus arising, I agree with the separate judgment on this

question delivered by Power J. and, in particular, with her treatment of the decision in

Caldaras v. An tArd Chlaraitheoir [2013] IEHC 275 [2013] 3 IR 310.

(4) Final Observations on power to Cancel and Issue New Certificate:

92. The power to cancel and reissue as determined by Humphreys J. was limited to ‘mistakes

of such a character as would not result in a positive decision to revoke in a given case’.

While certainly limited to mistakes I do not believe that the power is otherwise qualified.

The Minister has a power of revocation, operative in the circumstances defined in section

19. He also has a power to cancel and reissue a certificate of naturalisation to correct an

error in the certificate. The fact that the section 19 procedure is expressed in the

legislation while the power to cancel and reissue is not, does not entail any inconsistency.

As I have explained above, the powers are fundamentally different. Where the Minister

revokes under section 19, he is under no obligation to reissue a new certificate. Indeed, it

must be likely that in many circumstances in which he has revoked a certificate for

misrepresentation, he would not countenance issuing a new one. Where the Minister

exercises the implied power, the object is not the revocation, but the issue of a new

certificate with the correct information. There is, therefore, no reason in principle why

both powers cannot co-exist without the implied power being conditioned by the

applicability of section 19(1)(a). They are directed to different ends.

93. In this regard it is important to underline that the Minister, upon being presented with a

request to amend the certificate by cancellation and the issue of a new certificate, is

perfectly entitled to refuse to amend in this way because he believes it appropriate to

embark upon the section 19 procedure. At the conclusion of that procedure, the Minister

is not mandated to revoke, even if the criterion in section 19(1)(a) are established. In

that circumstance, he remains free to revoke, or to refuse to revoke and/or (where the

issue arises) to amend in the sense to which I have referred. Where, following that

procedure, the case is found not to come within section 19(1)(a), the Minister can so

amend if he deems it appropriate to do so. While it must be highly unlikely that where

presented with a significant misstatement in a certificate arising from information

provided by the applicant for naturalisation the Minister would without an investigation of

some kind accede to an application to cancel and simultaneously reissue a certificate,

there is no limitation on his power of amendment so understood of the kind suggested by

94. As explained further below, the applicant’s situation presents one in which the Minister

was fully entitled even when armed with a power to cancel and re-issue the certificate, to

embark upon the section 19 procedure. To that extent, the point of conclusion reached by

the trial Judge and this judgment may in practice be the same. However, the legal route

95. It follows from the foregoing that the immediate consequence for the applicant of the

power of amendment so understood depends on whether the initiation of the section 19

process was unlawful. I will return to that consequence, in the light of my conclusions in

96. I agree with the observation of the learned trial Judge (at para. 61) that it is not, in

general, appropriate to grant Judicial Review directed to a mere proposal or, as he later

put it (at para. 62), ‘the decision to initiate a procedure is not liable to judicial review in

the same way as the outcome of the procedure’. Usually, as Humphreys J. observed (at

para. 62) judicial review is directed to an act that must affect some legally enforceable

right of an applicant. He expressed the view that a decision to initiate a process is only

97. Cutting across that inquiry in the case of multi-stage decision making process, is the

related question of whether an applicant for judicial review has available to him or her an

alternative remedy: even if there is a ‘decision’ made that is in theory amenable to

judicial review, the Court may refuse to accede to an application for that relief where

there exists an alternative remedy. Where a process is initiated by a decision amenable to

judicial review, with an entitlement thereafter for an affected person to make

representations in advance of the final determination of that process, there is available to

that person another remedy which, in an appropriate case, may be held to debar him or

her from obtaining relief by way of Judicial Review. It may also be said that the

proceedings are premature. However, it is important to keep all of these issues distinct.

Prematurity and the availability of an alternative remedy, while they may often overlap,

are not always the same thing. A case may be premature because there is at the time of

the institution of the proceedings no properly developed factual context in which the Court

can adjudicate on the issues presented by the case, without there necessarily being any

adequate alternative remedy available (see Lewis, “Judicial Remedies in Public Law”, 5th

Ed. (London, 2015) at paras 12.05 to 12.016. Both of these issues usually present

questions for the discretion vested in the Court in determining whether to grant a remedy

by way of judicial review. The question of whether there is a ‘decision’, in contrast, goes

98. In this case, I do not think it can be said that the formation by the Minister of an intention

for the purposes of section 19(2) of the Act is other than a decision capable of giving rise

to judicial review. The trial Judge clearly adopted the same position, insofar as he held

that it could be reviewed on the basis of improper purposes, or where it was clearly ultra

vires. The action is taken under statute and brings the applicant into an arena where she

must either engage with an inquiry, undertake the process of making representations

directly to the Minister, or risk revocation of her naturalisation (and see Lewis “Judicial

Remedies in Public Law” 5th Ed. 2015 at para. 4-020). Similar characteristics have been

held to render interlocutory orders in the course of various inquiry processes to be

reviewed (see in particular Borges v. Fitness to Practice Committee of the Medical Council

[2004] 1 IR 103, at p. 110). The critical questions that do present themselves relate to

whether some or all of the grounds on which the applicant seeks such review arise at this

point in time, whether the Court’s discretion is properly applied now to enable review to

take place given that there is a statutory process available to her in the course of which

she can make her case prior to a final decision and (in the event that the answer to the

preceding two questions is in the affirmative) whether she has made out any basis for

99. Each of these questions, however, depend on the process envisaged by section 19 itself.

In my view, none can be properly resolved without defining the scope of that process. In

that regard, six features of the statutory scheme merit emphasis.

100. First, and as I have noted earlier, unlike section 10(2) of the 1935 Act, section 19(1)

confers a discretionary power on the Minister, its predecessor being framed in mandatory

terms. In contrast to the scheme in place under the 1935 Act, the Minister’s power of

revocation under the 1956 legislation is bounded. Further, by expressly extending the

scope of misrepresentation to include both fraudulent and the innocent

misrepresentations, the draftsman has left no room for debate around the irrelevance to

the statutory criteria of the intent of the applicant for naturalisation, although this may be

relevant to the exercise by the Minister of his discretion in a particular case.

101. Second, the section as a whole clearly envisages that the ultimate decision made by the

Minister in respect of a person who disputes a proposed revocation, arises only after the

holding of an inquiry and therefore, necessarily, when the Minister has considered the

‘findings’ of that inquiry. Obviously, therefore, the Minister is in no sense bound by his

initial intention. Even if no inquiry is requested, it must follow that the Minister can review

that intention in the light of any further information he receives in advance of making a

final decision on the issue. As the Minister says in his submissions to this Court (at para.

29), the applicant is free to make such representations as she sees fit prior to the making

of a final decision even though section 19 entitles her to request an Inquiry before an

independent Committee. As the Minister also says (at para. 37), he cannot make a final

decision without both hearing what the applicant has to say and, if she requests an

Inquiry, considering the findings of the independent Committee. I should state in this

regard of the statement in the Minister’s submissions to this Court (at para. 41) that

‘[i]nsofar as the Applicant contends that … the Notice of Intention … will take effect if she

does not seek a Committee of Inquiry … this is accepted’, that if this is not made in error,

it is inconsistent with the propositions to which I have just referred in paragraphs 29 and

37 of those submissions and is incorrect. While the Oireachtas has put in place a

procedure for an inquiry where an applicant wishes to avail of such a process, there is

nothing to indicate that the general power to receive and obligation to consider

representations made by a person in advance of a final decision affecting their rights, has

102. For these reasons, the contention advanced by the applicant throughout her submissions

that there was a substantive decision, or indeed that the proposal communicated in the

Minister’s letter ‘will take automatic effect’ is misconceived. Thus, it is not (as the

applicant has suggested) the fact that the Minister has extended the time for requesting

an inquiry that disentitles the applicant to relief, it is the fact that the Minister has not

made any final decision to revoke the applicant’s naturalisation certificate – with or

without an inquiry. This is why, it should be said, the applicant is wrong to rely on the

decision in Stefan v. The Minister for Justice [2001] 4 IR 203. In Stefan there was a

decision to deport, which could be appealed and if not appealed could be acted upon.

Here, there is a decision to initiate a process which, without a further decision by the

103. Third, the scope of the inquiry is framed broadly (‘as to the reasons for the revocation’)

and must be construed so as to enable the holder of the certificate to agitate fully all

issues of fact and law relevant to those reasons. I see no reason to give the jurisdiction of

the committee as so described a narrow construction. Contrary to the suggestion

advanced by the applicant in her submissions, the reasons for revocation cannot be

disentangled from the merits of revocation. Questions around whether revocation would

be a disproportionate interference with the rights of the holder of the certificate, the issue

of whether the admitted misstatement in the applicant’s Form 8 ‘procured’ the certificate

of naturalisation, and indeed any issue properly relevant to the question of whether

revocation should or should not take place, are within the committee’s remit. For this

reason, the applicant’s reliance on the comments in Rowland v. An Post [2017] 1 IR 355

at pp. 360-361 is misplaced: there is no process here that has ‘gone irremediably wrong’

and therefore no basis for intervention by the Courts at this point on the grounds that it

has. The applicant has a full entitlement to make, and the Minister a consequent

obligation to take account of, all and any submissions relevant to the question of whether

her certificate of naturalisation should be revoked which the applicant chooses to advance

104. In the course of his submissions, the Minister says that the trial Judge erred insofar as his

judgment was predicated on an assumption that the Minister, in considering the accuracy

of information on a naturalisation certificate, has a wider jurisdiction to investigate

‘difficult issues of identity’. The Minister says that in exercising his powers under section

19, he is confined to the issues the subject of that provision and does not enjoy any

broader jurisdiction. If it is sought to thus suggest that the Minister does not have the

power to reach conclusions in accordance with the evidence before him as to the

applicant’s date of birth, this is mistaken. Necessarily, in deciding whether there has been

a misrepresentation such as to justify the exercise of the power of revocation arising from

the manner in which the applicant described her date of birth, the Minister must address

the question, based on the information before him, of what the evidence discloses her

date of birth as having actually been. It appears to me that the proposition that the

Minister could decide that there had been a misrepresentation without (as the trial Judge

put it) ‘forming some view as to what the correct factual position is’ lacks reality. As the

trial Judge said ‘a finding that correct position was not accurately represented appears to

presuppose some understanding of what the correct position in fact is’ (at para. 56).

While the Minister submits that this is illogical, because once the applicant asserts that

the information in the Form 8 is erroneous there has by definition been a

misrepresentation, I do not accept that the Minister is entitled to revoke the certificate

without addressing any evidence adduced by the holder of a certificate as to what their

age actually is. The actual age of the applicant is relevant to materiality, it is potentially

relevant to whether the certificate has been ‘procured’ by misrepresentation and it is, one

would have thought, potentially relevant to the exercise by the Minister of his discretion.

It must be unlikely that the Minister would exercise his discretion to revoke a certificate

without at least forming an opinion as to whether that representation was made

fraudulently or innocently, and the applicant’s actual date of birth (if it is possible for the

Minister to determine same) may be relevant to that decision. This is not to say that the

Minister must determine irrespective of the quality of the evidence before him what the

date of birth of the applicant is. He could well decide that the evidence he has is

insufficiently reliable to allow him to do this. What he must do is address the issue based

on the materials he has and if those materials enable a decision as to the date of birth of

105. Section 19 properly construed allows the Minister to do this if such a determination is

necessary to the discharge of his functions under that provision: in Moke v. Refugee

Applications Commissioner [2005] IEHC 317 [2006] 1 IR 476, it was determined that

implicit in the legislative provisions governing the processing of claims for asylum, was

the power of the respondent Commissioner to determine an applicant’s age. This, it was

held, followed from the function of advising the Health Service Executive of the arrival of

an unaccompanied minor. Similar considerations apply here. Insofar as the Minister’s

function is dependent on there being a misrepresentation, he necessarily has the power in

the course of the section 19 procedure to determine the age of a certificate holder, where

this is germane to his decision. The same logic dictates that he has this power where he

considers an application to amend a certificate of naturalisation.

106. Fourth, one would expect the ‘findings’ of the Inquiry to address the contentions thus

raised by the holder of the certificate insofar as these are viewed by the Committee as

relevant to the entitlement of the Minister to revoke the certificate. To the extent that the

inquiry is directed to the ‘reasons for the revocation’ (and depending of course on the

precise case advanced to it) the Committee can express its opinion whether in the light of

its view of the issues of fact and of law agitated before it, those reasons are sustained by

the evidence, or sustainable by reference to any applicable legal principles. The Minister is

not required to adopt or accept those conclusions, but he pleads in his Statement of

Opposition, as clearly must be the case, that findings of fact made by the Committee will

be considered by the Minister prior to making any final decision to revoke a certificate of

naturalisation. The same applies to any conclusions of law reached by the Committee

(which it will be noted must include as its chair a person with judicial experience). While it

was suggested in the course of oral argument that the term ‘findings’ implied a limitation

on the jurisdiction of the Committee to reach only determinations of fact, this is not

correct. The inquiry is into the reasons for the revocation, and where those reasons

present legal issues the Committee has the power to address them and present their

107. Fifth, while section 19(2) speaks of the Minister forming an ‘intention’ to revoke and

advising the holder of the certificate to that end, that ‘intention’ must be understood in

the light of the inquiry procedure and section as a whole. It follows from its context that

the Minister’s ‘intention’ is both preliminary to a final decision, and contingent upon the

outcome of any inquiry, any further representations the holder of the certificate may

make to him or any information he otherwise obtains prior to the making of a final

decision. This follows from the very fact that there is facility for an ‘inquiry’ (a term

implying investigation as much as adjudication), the requirement that the inquiry take

place under the aegis of a chairman with judicial experience, the fact that the Minister

may, following the inquiry, determine not to proceed with revocation, the fact that the

Minister may similarly decide not to revoke even if the holder of the certificate does not

seek an inquiry and indeed the fact that even if the grounds in section 19(1)(a) are made

out, the Minister does not have to revoke. It is correctly described – as it was by Ms.

Stack SC for the Minister throughout these proceedings – as the formulation of a

‘proposal’. The statement in the notice of intention that the Minister was ‘satisfied’ that

the circumstances in which the certificate was obtained ‘satisfy’ the conditions of section

19(1)(a) (a formulation which while prescribed in the Irish Nationality and Citizenship

Regulations SI 569/2011 and employed as the basis for a decision to revoke in section

19(1), does not appear in section 19(2) of the Act) has to be viewed in that light.

108. It follows that the applicant falls into error when she seeks to present the formation by

the Minister of an intention in accordance with section 19(2) as being a decision which in

itself results in revocation. This contention ignores the preliminary and contingent nature

of the intention required to trigger the provision, as it does the fact that what the

legislation has expressly mandated at this initial stage is the formation of an ‘intention’

109. In my view it is likely that any misstatement by an applicant for a certificate of

naturalisation of the key identifying information required by the Minister in the application

process would merit (but of course would not require) the formation by the Minister of

that preliminary and contingent intention, the commencement of the section 19

procedure, the initiation of an inquiry if requested by the holder of the certificate, and an

ultimate decision by the Minister whether or not to revoke based on the outcome of such

an inquiry or of information otherwise obtained by him following the formation of his

intention. That is sufficient to justify the Minister triggering commencement of the

process. For reasons I explain later, it is not necessary in this case to determine whether

(as the applicant contends) the Minister is under an obligation when initiating the section

19 procedure to decide that there is a prima facie case that the certificate has been

‘procured’ by the misrepresentation in the sense of being satisfied that there is evidence

that the application for naturalisation would have been determined differently had the

information not been misrepresented. However, insofar as there is an obligation to form

any opinion at this point in respect of the procurement issue, the fact that the holder of

the certificate has been responsible for a misrepresentation of a material fact central to

their own identity following which misrepresentation the certificate issued, satisfies any

such prima facie standard and, in this case, the particular peculiarities attending the

documentation of the variety of dates submitted as the applicant’s date of birth, leave no

doubt but that there was a basis for forming the view that the notice of intention should

issue. The Minister’s obligation to finally decide the potentially involved issue of whether

the facts establish that the certificate was procured by misrepresentation in the sense I

have defined it, does not arise until after an inquiry and/or any representations by the

110. Finally, and following on from this, the burden on an applicant seeking to quash the

formation of such an opinion and the halting of the section 19 procedure is substantial.

Where it is accepted that the information provided by the holder of a certificate was false,

the Minister must be fully entitled to begin the process that will enable such an inquiry

(should the holder of the certificate request it). He is entitled to inform himself fully of the

reasons for and context of the misrepresentation, and of its effect, and based on the

outcome of that process to determine whether to revoke. The issue of when the Court

should intervene so as to arrest that procedure must be viewed in the light of the

overriding consideration that this is the arena determined by the Oireachtas as the proper

location for the resolution of the issues touching on revocation.

111. The starting point in the application of the discretion of the Court to refuse relief by way

of Judicial Review at the instance of an applicant who has available to him or her an

alternative remedy, is that such relief should be refused unless that remedy is not in fact

adequate or there is a particular exigency in the interests of justice which requires

otherwise (Byrne v. Minister for Defence [2019] IECA 338 at para. 62). Thus, the

requirement to exhaust such remedies represents the default position, where there is

such a remedy. Those cases in which review is permitted in that circumstance being

‘exceptional to the general rule’ (EMI Records (Ireland) Ltd. v. Data Protection

112. It follows that the onus is on the party seeking relief by way of Judicial Review to

establish either that the alternative remedy is not adequate, or that there is a particular

exigency which renders it unjust that it should have to be exhausted. This requirement

may be met where the ground of challenge includes a case based on fair procedures: in

that circumstance an appeal or review of a procedurally unfair process may not reinstate

the applicant to the position he would have been in had the process been conducted

regularly in the first instance (Stefan v. Minister for Justice [2001] 4 IR 203). Review

might also be enabled notwithstanding the existence of an alternative remedy where the

issue is jurisdictional (Leng v. Minister for Justice [2015] IEHC 681 at para. 36) or where

the case presents a net issue of law so that judicial review is particularly appropriate, or

where there is a legitimate basis for perceiving an unfairness in forcing the applicant to

proceed within the statutory scheme (Tomlinson v. Criminal Injuries Compensation

Tribunal [2005] 1 ILRM 394, at pp. 399 to 400). At the same time, it is clear that where

an issue is heavily dependent on a factual assessment, the presumption in favour of

requiring the applicant to exhaust the statutory process, is particularly strong (see Nova

Colour Graphic Supplies Ltd. v. Employment Appeals Tribunal [1987] IR 426).

113. While I will address each of the grounds of review maintained by the applicant before this

Court in the next section of this judgment, no basis has been disclosed in this case for

displacing the default position in relation to any of these objections. In this case, the

applicant must allow the statutory procedure to be concluded before proceeding to seek

judicial review of any decision of the Minister relating to revocation. She has identified no

net issue of law, and no single issue of jurisdiction, which would bring the case within any

of the established circumstances in which judicial review is enabled notwithstanding the

availability of a procedure designed to enable the determination of the relevant facts

114. The arguments the applicant seeks to advance in relation to fair procedures do not arise

at this stage of the process at all. While she says that there is an unfairness because the

Minister is the person who both issues the letter recording his intention to revoke, and

then decides following any inquiry procedure whether to proceed with revocation, this

argument misunderstands the preliminary and contingent nature of the Minister’s initial

determination. It also ignores his obligation to take account of the inquiry findings or of

115. Nor is the fact that the applicant has not called for an inquiry relevant: she remains

entitled to do so. Even if that were not the case, what the applicant does not enjoy is the

option, at least on the facts of this case, of both refusing to engage in the inquiry process

and proceeding to litigate her complaints by way of judicial review before the Minister has

actually made any decision to revoke (see AB v. The Minister for Justice [2016] IECA 48).

The applicant has therefore identified no ‘injustice’ consequent upon her being required to

exhaust that process. In fact, all considerations of fairness, economy and efficiency point

116. All of this comes into focus when the individual grounds sought to be agitated by the

applicant are analysed. The written submissions filed by the applicant in this Court

117. First, it is said that because the exercise of the power under section 19(1)(a) is

dependent on the existence of a preliminary factual scenario - that the certificate was

‘procured by’ misrepresentation – there must be ‘sufficient evidence on which the Minister

can conclude that their jurisdictional requirements have been satisfied’. It follows from

the analysis earlier in this judgment that some of the predicates of this submission are

well founded: revocation can only occur where the application for naturalisation would

have been determined differently had the information not been misrepresented. Further,

while the Minister’s notice of intention to revoke as delivered to the applicant refers to his

being of the view that the conditions in section 19(1)(a) were satisfied, it makes no

reference to his believing at the time of issuing that notice, that the misrepresentation did

procure, in the sense I have defined that term, the certificate. Indeed, it is unlikely that

the Minister addressed his mind to this issue, given his position that the section does not

118. However, for two reasons, I do not believe that it is appropriate to grant relief on this

basis. For a start, even if this is characterised as a jurisdictional issue, the applicant will

have a full opportunity to make the point that the certificate was not procured by

misrepresentation either in the inquiry process, or if she persists in her refusal to engage

in that process, in any representations she chooses to make to the Minister. The Minister

cannot revoke the certificate without satisfying himself that the misrepresentation has

procured the grant of the certificate in the sense in which I have explained this

requirement. That issue is in all cases one of fact, but in this case it is an issue of fact

which arises in a peculiarly involved – and uncertain – context. Therefore, in applying the

Court’s discretion, and having regard to the considerations I have outlined in the

preceding section of this judgment it is not appropriate for the Court to intervene at this

point. The correct point at which such a review should occur is after the relevant facts

have been found and a decision to revoke is made under section 19(1)(a).

119. Further, I have explained earlier in this judgment why, in my view, it is sufficient to

commence the process that the holder of the certificate of naturalisation has adopted the

position that she has mis-stated a key piece of identifying information and that following

that misstatement the certificate was issued. This all the more so given the consideration

that as of now there are significant unanswered questions surrounding the admitted

misrepresentation which has grounded the Minister’s notice of intention. Because that

misrepresentation was of key identifying information provided by the applicant, the

reason the applicant misstated her date of birth and the context in which she did so are

plainly relevant to the question of what the Minister would have done had he known all of

the facts relating to these issues when the certificate was originally applied for.

(i) While it is the applicant’s case that she inserted in her Form 8 her date of birth

according to the Ethiopian calendar rather than the Irish calendar, this presents a

sequence of as yet unresolved issues. The date inserted by her, 24th September

1975, is unknown in the Ethiopian calendar, in which it is either 24th Maskaram or

24/01/1975. Because the months under the two calendars are not aligned, 24th

Maskaram is not 24th September, but 4th October. In consequence there remains

(at the very least) an issue as to how precisely the Western date of 24 September

1975 (which is not the applicant’s date of birth under either calendar) came to be

on the applicant’s Ethiopian passport and her Ethiopian identity card. In itself the

fact that the applicant is the holder of an Ethiopian birth certificate and an Ethiopian

passport which record different birth dates presents a consideration which satisfies

any burden on the Minister to establish a prima facie basis on which it could be

concluded that the certificate was procured by the misrepresentation. Those facts

alone, had the discrepancies been identified at the time of the grant of

naturalisation, could have affected the decision of the Minister and, at the very

(ii) It is not disputed that the applicant failed to comply with the clear direction on the

detailed guidance on filling out the Form 8 that she provide her date of birth in

accordance with that on her birth certificate. The Minister is fully entitled to

interrogate her explanation for this – that she believed it was appropriate to use

the date on her passport. The position as pleaded and averred to by her that,

notwithstanding the direction contained on the Form 8, ‘the Irish system’ required

that the date of her Ethiopian passport be used, raises its own questions. In this

regard it is relevant that while the applicant furnished a letter together with her

application for naturalisation explaining the differences between the two calendars,

and while she provided a copy of her birth certificate with that application, she did

not relate her explanation to the date of birth she was actually inserting.

(iii) The Minister is entitled to examine and take account of the explanations provided

by the applicant for both travelling on an Irish passport recording what she

contends to be an incorrect date of birth as contained in her certificate of

naturalisation, and failing at the same time to take any steps to have her certificate

corrected. She was issued with the certificate in January 2015 and took her first

steps to have it corrected in August 2016. Her explanation is that she became

pregnant in October 2015 and gave birth in June 2016. It is not immediately

obvious how this explains her failure to address the issue for the calendar year

2015. Similar considerations arise from the various dates provided for the purposes

121. The next argument advanced by the applicant is that that there was an absence of fair

procedures because she was not informed of the intention to make a proposal to revoke

her citizenship nor given an opportunity to make representations in advance of the issuing

of such a proposal. This does not ground a basis for Judicial Review of the Minister’s

decision. The issue of when fair procedures operate in multi-stage decision making

processes has been addressed in some detail in Crayden Fishing Co. Ltd. v. Sea Fisheries

Protection Authority [2017] IESC 74, [2017] 3 IR 785. This decision confirms that the

default position is that a person conducting a preliminary investigation, which itself does

not lead directly in law to a binding and adverse decision, is not normally under an

obligation to comply with the requirement of a fair hearing ([2017] 3 IR at 805, para. 32).

The Minister in forming an intention to revoke a certificate of naturalisation within a

context in which the holder of that certificate has an untrammelled right to cause an

independent inquiry to take place at which it must be assumed all of her rights of fair

122. The third ground advanced by the applicant was based on the claim that the Minister in

issuing his proposal based his decision on an incorrect understanding of his power to

amend certificates of naturalisation. As with the first ground advanced by the applicant,

the predicate of this contention is correct. The Minister adopted the view that he had no

power to amend a certificate of naturalisation, he initiated the inquiry in a context where

he believed that this was the appropriate course of action to adopt where an error on the

certificate arising from information furnished by the holder of the certificate was

123. For reasons similar to those identified above in the context of the first ground of

challenge, I would decline to grant any relief arising from these considerations. Again, the

existence of the statutory process engages the exercise of the Court’s discretion not to

enable Judicial Review. Further and aside from this, once it is understood that the Minister

was fully entitled on the facts disclosed in this case to proceed to initiate the section 19

procedure, the fact that he did so while labouring under the mistaken belief that he could

not amend the certificate is irrelevant. The existence of the power to amend does not

preclude the Minister from proceeding to revocation, and the fact that the Minister

considers revocation does not prevent him from thereafter amending in the manner I

have explained. The applicant will have a full opportunity to emphasise the implications of

the fact that the Minister does have a power to amend either in the inquiry process, or if

she persists in her refusal to engage in that process, in any representations she chooses

to make to the Minister. And if all of this is wrong, I would refuse relief on this ground for

the simple reason that I do not believe it would serve any useful purpose. If the Minister

decides in the light of the decision of the Court that he does enjoy a power to cancel the

certificate and to simultaneously issue a new certificate that he does not want to pursue

revocation under section 19, he is free to determine that process. If he wishes to press

ahead with the procedure under section 19, on the basis of the other conclusions I have

reached here he is free to recommence it even if the present process were arrested. I do

not believe that it can be said that had the Minister understood the correct legal position

he would have reached any different decision (see Smith v. Minister for Justice

[2013] IESC 4). For the same reason, I see little point to quashing the decision of the Minister

not to amend in this case. If the Minister determines not to revoke under section

19(1)(a), he must address the applicant’s request that he cancel the existing certificate

and issue a new one. I would not propose interfering with the Order of Humphreys J. to

124. The applicant finally claims that the Minister failed to individually consider the applicant’s

circumstances and the proportionality of the decision, thereby breaching EU law. These

are, quintessentially, issues to be resolved within and following the inquiry when the facts

have been determined and, insofar as they are not addressed within that process and

insofar as the applicant says they ought to have been considered, it is following any

decision to revoke that those grounds of challenge should be agitated.

125. The applicant makes the case that she is entitled at this point to challenge the validity of

section 19 of the Act on the basis that the process of revocation is not conducted with the

benefit of judicial oversight. She points to a sequence of decisions in which challenges to

the validity of constitutional provisions have been enabled before the conclusion of

criminal proceedings where plaintiffs or applicants have been prosecuted on the basis of

the provisions so impugned. Thus, in both Curtis v. Attorney General [1985] IR 458 and

Osmanovic v. Attorney General [2006] 3 IR 504 proceedings challenging the validity of

legislation were entertained based on and following the institution of criminal prosecutions

(but before trial) on the basis that the Plaintiff and applicant respectively were ‘in

imminent danger of a determination affecting…rights’ ([2006] 3 IR 504 at p. 511), and

see also SM v. Ireland (No.2) [2007] IEHC 280 [2007] 4 IR 369 and McNamee v. DPP

126. However, there is at the same time authority suggesting that even a plaintiff with locus

standi to challenge the constitutional validity of legislation may be precluded from doing

so if he is involved in a process which may, ultimately, render irrelevant the issues of

which he complains. These reflect the belief that the power of judicial review of legislation

should be reserved to those cases in which it is ‘imperatively required’ (BG v. Judge

Murphy [2011] 3 IR 748 [2011] IEHC 445 at para. 15). Thus, in Kennedy v. DPP

[2007] IEHC 3, a challenge to the validity of the evidential presumption contained in s.4 of the

Prevention of Corruption (Amendment) Act 2001 was determined to be premature: the

presumption might not be relied on in the trial (see also North East Pylon Pressure

Company Limited v. An Bord Pleanala [2016] IEHC 300). More recently again, the

comments of the Court (Charlton J.) in Sweeney v. Ireland [2019] IESC 39 at paras. 2 to

5, reflect some of the concerns attending pre-emptive legal challenges expressed by

Humphreys J. in both this case, and in North East Pylon Pressure Company Limited. In

Sweeney, the Court was faced with a challenge to the constitutional validity of a statutory

provision pursuant to which the plaintiff had been charged (section 9(1)(b) of the

Offences Against the State (Amendment) Act 1998) but not yet tried. Although compelled

to determine the matter because the High Court had proceeded to strike down the

provision, the Court expressed the gravest of reservations about the launching of a

constitutional challenge before the relevant facts had been established. Osmanovic is not

127. The line of authority reflected in Osmanovic may be capable of distinction on the basis

that the jeopardy of a criminal trial presents a particularly pressing prejudice and indeed

within the cases there may be a valid differentiation between challenges to the provision

on foot of which the plaintiff or applicant is prosecuted, and challenges to evidential

provisions around the prosecution, and there may be potential distinctions between

proceedings in which an established factual matrix is necessary before a challenge can be

properly adjudicated upon, and those in which it is not (see the comments of Charlton J.

in Sweeney at para. 5). However, leaving to one side the question of whether decisions

such as Kennedy are, as the authors of “Kelly: The Irish Constitution” (Hogan et al. 5th

Ed. (Dublin, 2018)) at para. 6.2.196 believe, properly characterised as ‘discordant’ there

is a certain incongruity highlighted by allowing a pre-emptive constitutional challenge of

the kind presented in this case to proceed. If the holder of a certificate of naturalisation

challenged a revocation decision after the fact and in the course of that challenge

succeeded in his or her claim on non-constitutional grounds, the Court would on

conventional principle, decline to hear the constitutional claim (Murphy v. Roche

[1987] IR 106). It seems strange that the Court would at the same time entertain that challenge

before the same process which might at its conclusion preclude the Court from

considering the constitutional issues, has progressed beyond its initial stages.

128. Whether or not the appellant is entitled to advance this case (described by Mr. Harty SC

for the applicant in oral submissions as ‘peripheral’) at this point in time, the underlying

argument is, in my view, weak and it can and should be disposed of now. The only

argument recorded in the applicant’s submissions in this Court directed to the validity of

section 19, is based on a statement in Kelly: The Irish Constitution Hogan at para. 3.3.09.

There, addressing the power in section 19(1)(b) of the Act to revoke citizenship where a

naturalised citizen has by overt act shown himself to have failed in his duty of fidelity to

“The constitutionality of this provision seems highly questionable, partly because of

the drastic nature of revocation of citizenship and the consequent question whether

anyone other than a judge in a court could order it, and partly because the criterion

here set up is so vague that it invites an unpredictable, subjective application of a

kind hostile to the concept of ‘due process’ or ‘due course of law.’”

129. Noting that the second of these propositions does not arise in this case, the suggestion

that the single fact that a decision is ‘drastic’ requires that it be made by a judge is

misconceived as a matter of law. Were the position otherwise, it would present an

expansion of the judicial function beyond all recognition. There is, of course, a category of

process which falls within the ambit of the administration of justice which (unless it can

be brought within the terms of Article 37 of the Constitution) can only be conducted

before a Court. The grant or revocation of citizenship does not on any version of fact or

law fall within that description. Apart from everything else, a significant feature of the test

for whether a decision falls within the administration of justice as articulated by the Court

in McDonald v. Bord na gCon No. 2 [1965] IR 217 requires attention to whether a process

is, as a matter of history, productive of an order characteristic of courts in the State (see

Keady v. Garda Commissioner [1992] 2 IR 197 at p. 205 (McCarthy J.) at pp. 210 to 211

(O’Flaherty J.)). More recent case law reinforces the central importance of this question

(O’Connell v, The Turf Club [2015] IESC 57, [2017] 2 IR 43 at para 94). As explained

earlier, since at least the early twentieth century revocation of citizenship has been an

Executive function. Apart from the option of a reference to the High Court provided for

under the 1918 Act (a choice vested in the Executive, not the holder of the certificate of

naturalisation), from a judicial presence on the committee of inquiry provided for under

that legislation (whose decisions do not bind the Minister), or from the overhanging

jurisdiction of the Courts by way of judicial review of any revocation decision, the Courts

have historically had no role in the decision to revoke citizenship. That is consistent with

the general role of the Executive in relation to the entry, residence and exit of foreign

nationals (Bode v. Minister for Justice [2008] 3 IR 663). There is nothing in the text or

interpretation of the Constitution to suggest that any aspect of this function, ‘drastic’ in its

130. While some of the decisions in dealing with the supervision of professional misconduct –

in particular Re The Solicitors Act 1954 [1960] IR 239 – attach significance to the

importance and impact of a decision for an affected person in determining whether the

decision comprised the administration of justice, none purport to suggest that the issue is

resolved by simply placing the decision on a scale of impact, shorn of any analysis of the

type of order in issue, its relationship to the normal business of the Courts, the extent to

which it can be enforced in the same way as a judgment of a Court or of the connection

between the subject matter of the process in question and the constitutional function of

other arms of the State. It would be remarkable if it did, rendering the critical definition of

judicial power under the Constitution centrally dependent upon a value laden inquiry into

the significance of the effect entailed by a decision, and creating a controversy around the

constitutional consignment of every determination of the State having a substantial

131. The logic of the foregoing analysis is that the other reliefs claimed in both proceedings

should be refused. The fact that there is, as I have determined, an express statutory

process which will enable the Minister to decide whether to revoke the applicant’s

certificate of naturalisation, and an implied power to adjudicate upon her application to

have her certificate of naturalisation cancelled and a new certificate reissued render it

inappropriate for the Court to grant the applicant any declaratory relief as to her date of

birth. For reasons I have explained above, the Minister is likely to have to address the

issue of the applicant’s correct date of birth within those processes. I do not see any basis

on which the Court should pre-empt those procedures by making declaratory relief as to

what the date of birth of the applicant is. This, I should say, is aside from the fact that

based on the evidence before this Court at this point in time, I do not see any basis on

which that issue could be satisfactorily addressed on appeal. The applicant, it is to be

noted, was not cross examined in the course of the trial. In consequence of the foregoing,

the claim for damages and injunctive relief will also be refused.

132. Insofar as the Minister in the first action complains of the trial Judge’s identification of

features of the chronology he thought might be viewed as favourable to the applicant, I

cannot see how the expression by the trial Judge of the views he recorded in this part of

his ruling give rise to any basis for an appeal. It is quite clear from his judgment that the

trial Judge was assiduous in avoiding any pre-emption of the statutory processes and his

observations (which he was fully entitled to make) neither precluded nor purported to

preclude the committee (should the applicant seek an inquiry) from adopting whatever

view of the facts it sees as appropriate based on the evidence and submissions made to

133. At various points in the papers and hearing, a series of other arguments were raised.

Many of these were not seriously pursued. Thus, it was suggested that the applicant had

a claim in the second action based on the proposition that the initiation of the section 19

procedure was unlawful because it interfered with the then pending first action. This is not

a valid basis for complaint. The fact of an extant legal action does not, in itself, freeze

public administration to the extent of precluding any action by the State which might

impact on those proceedings, whether by rendering them moot or otherwise (see Gorman

v. Minister for the Environment (No.1) [2001] 2 IR 414). Such an action is only prohibited

by constitutional principle where the substantial effect of the legislative or executive

measure in question was such that the pending justiciable controversy was purportedly

determined by either of those bodies, or where the court was purportedly required by

such action to dismiss a claim or appeal without hearing (Buckley and ors. v. Attorney

134. Finally, it will be noted that one of the grounds on which the trial Judge relied, was the

existence of an entitlement to have personal information corrected pursuant to the

General Data Protection Regulation, and the Data Protection Act 2015. The applicant

having neither pleaded nor made any submission based on these provisions before the

High Court, I do not believe the question of the extent of application of these measures

was before the Court, and they form no part of the reasoning in this judgment.

135. The conclusions I have reached in respect of the issues presented by both sets of

136. First, the Minister does enjoy an implied power to cancel an existing, and simultaneously

issue a new and corrected, certificate of naturalisation where such a certificate contains a

material error of fact, irrespective of the source of that error, and irrespective of whether

on the facts of a particular case that certificate is amenable to revocation under section

137. Second, where an application is made to the Minister to thus cancel a certificate of

naturalisation and issue a new certificate and the Minister believes that on the facts as

they appear to him there are grounds for revocation of that certificate, the Minister is fully

entitled to proceed to commence the section 19 procedure rather than to first determine

the application to cancel the existing certificate and issue a new one.

138. Third, upon service by the Minister of the notice of intention which initiates that process,

the holder of the certificate of naturalisation is free to call for an inquiry, to make

representations directly to the Minister or to do nothing. In the first event, the holder of

the certificate can make any case to the committee of inquiry relevant to the grounds of

revocation he or she believes appropriate, and the Minister must take account of the

findings of that committee prior to making any final decision. In neither of the other two

events does a revocation follow automatically from the service of the notice of intention to

revoke. If submissions are made to him, the Minister must consider them and if they are

not the Minister is not obliged to implement the intention he has expressed.

139. Fourth, where there is to be a revocation based upon section 19(1)(a), before revoking

the Minister must be satisfied not merely that there has been a misrepresentation, but

that the application for naturalisation would have been determined differently had the

140. Fifth, at the conclusion of the section 19 process, the Minister may revoke the certificate

or he may decline to revoke it under section 19(1)(a). Where he declines to revoke and

he has received a request from the holder of the certificate to cancel it and issue a new

corrected certificate, the Minister must (if he has not already adjudicated upon the

matter) determine whether to accede to the application to cancel and reissue the

certificate. In so deciding, the Minister may have regard to all the relevant circumstances,

including the evidence adduced in the course of the section 19 procedure and, if

appropriate, any finding of the committee of inquiry touching on any matter relevant to

141. Sixth, it follows from the foregoing, that the applicant’s essential contention in the first

proceedings – that the Minister is empowered to cancel a certificate of naturalisation and

issue a new certificate so as to correct an error on that certificate – is well placed. The

142. Seventh, for the reasons stated earlier in this judgment, it is not appropriate to grant to

the applicant an order declaring her date of birth or quashing the refusal of the

respondent to amend the certificate of naturalisation, or the other declaratory relief

143. Eighth, the circumstances surrounding the admitted error on the face of the applicant’s

certificate of naturalisation were such as to entitle the Minister to form the view that there

was a case for revocation of the certificate, and he was entitled to initiate that process

accordingly. Neither the claim that there was no prima facie case that the certificate had

been procured by misrepresentation, the fact that he believed at time of the initiation of

the process that revocation was the appropriate mechanism for addressing an error

arising from information provided by the holder of the certificate nor the fact that he did

not solicit the applicant’s views prior to initiating the process, disclose any grounds of

legal complaint. If they did, this would be a case in which the discretion of the Court

should be exercised against the grant of relief by way of judicial review, having regard to

the availability of an adequate – and more appropriate – statutory process for the

144. Ninth, section 19(1)(a) of the Act is not invalid having regard to the provisions of the

145. It follows that the applicant has not made out a basis for any of the relief sought in the

146. Therefore, the Court will make an order dismissing both appeals, but will make in addition

to the Order made by Humphreys J. in the first set of proceedings, an Order as follows:

“A Declaration that pursuant to the provisions of the Irish Nationality and

Citizenship Act 1956 as amended, the respondent is empowered to cancel a

certificate of naturalisation and issue a new such certificate where satisfied that the

147. Finally, I was greatly assisted in navigating the very wide range of issues arising in this

case by the helpful submissions of counsel, Mr. Harty SC and Ms. Maher (for the

applicant) and Ms. Stack SC and Mr. Caffrey (for the respondents).

Result: Dismiss appeals.

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Habte v Minister for Justice and Equality & Ors [2020] IECA 22_1 (05 February 2020) URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA22_1.html Cite as: [2020] IECA 22_1

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