Commission as Amicus Curiae Welcomes Court’s Focus on Fair Procedures
The Supreme Court has today ordered that two specific provisions of the law which sets out how naturalised Irish citizens can be stripped of their Irish citizenship are unconstitutional, and need to be replaced by the Minister with the approval of the Oireachtas.
The Court ruled that sections 19(2) and (3) of the Irish Nationality and Citizenship Act 1956 are invalid, having regard to the Constitution. Following today’s ruling, before any revocation of citizenship can take place, it will be necessary to introduce a new process which meets the requirements of natural justice.
In October 2020, the Court ruled on the high-profile Ali Charaf Damache v the Minister for Justice and Equality. The Court found that that the scheme in section 19 of Act for the revocation of naturalised citizenship was unconstitutional. The Court then invited submissions from parties, and from the Irish Human Rights and Equality Commission in its role as amicus curiae, on what order it should make following this ruling.
The Commission argued before the Court that it was essential that naturalised Irish citizens facing possible revocation of their citizenship were afforded fair procedures in that process as a matter of human rights law.
The Commission expressed its view that the appropriate order from the Supreme Court would be one striking down section 19 of the 1956 Act in its entirety. It would then fall to the Oireachtas to enact legislation providing for the revocation of naturalisation including a procedure that meets the standards set out by the Court in its October judgment.
Addressing the issue of whether section 19(1) – the power to revoke naturalised citizenship – should be retained or declared unconstitutional Ms. Justice Dunne stated: “I understand the concerns expressed by the appellant and IHREC about leaving in place section 19(1) without appropriate safeguards being in place. However, I think this concern can be met by the granting of the appropriate declarations striking down the offending parts of the legislation. Given that it is clear from the principal judgment that there has to be a process which complies with fair procedures before a certificate of naturalisation can be revoked, it would be necessary to have such a process in being before any further step could be taken to revoke the appellant’s certificate of naturalisation”.
She went on to state that ”[i]t is inconceivable that any contested revocation of a certificate of naturalisation would take place without appropriate safeguards having been put in place”.
Ms. Justice Dunne went on to say “it would be appropriate for the Oireachtas to determine the basis of any proposed scheme to replace that which has been found wanting”.
Accordingly she ruled that that the Minister may not establish an administrative scheme to exercise the power to revoke citizenship under the remaining parts of section 19 without statutory authority.
Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission, stated:
“We welcome today’s Supreme Court’s reiteration of the need for appropriate human rights safeguards to be in place before naturalised citizenship can be revoked.
“A roadmap has now been set out for the introduction of any replacement scheme, including the involvement of the Oireachtas.
“It is now for the Minister for Justice and the Oireachtas to legislate to put in place a new scheme, which achieves the necessary balance and human rights protections.”
ENDS/
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Editor’s Note
The Commission’s written submissions to the Supreme Court are available at the following link:
The amicus curiae function of the Irish Human Rights and Equality Commission
The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (‘friend of the court’) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.
Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function:
“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.