Certificate of naturalisation could be cancelled and reissued where an error of fact arose by a mistake in the application

Murray J (nem diss): Judicial review - naturalised Irish citizen - date of birth given as 24 September 1975 - application to 'correct' date of birth to 4 October 1982 - whether Minister had power to amend certificate of naturalisation - Irish Citizenship and Nationality Act 1956 - whether Minister had power to cancel certificate and re-issue a new one with correct date of birth - section 19 of 1956 Act - certificate procured by misrepresentation - second judicial review to challenge section 19 procedure - whether appropriate to imply a power to amend a certificate of naturalisation - whether appropriate to grant judicial review of revocation procedure - whether revocation procedure should have been initiated without an evidential basis - Irish Nationality and Citizenship Regulations SI 569 of 2011 - incorrect date of birth on application form - birth certificate recording two dates - Coptic calendar and Gregorian Calendar - Ethiopian passport with Coptic date recorded - right to have identity on birth certificate - power to amend - power to revoke - whether misrepresentation of birth date procured the grant of the certificate - failure of applicant to correct mis-statement of date - s 22(3) of the Interpretation Act 2005 - power to repeal, amend or revoke - whether a 'statutory instrument' included an order, licence or certificate - power to cancel and reissue where the error arose in the issue of the certificate - implied powers - whether appropriate to imply the power into the Act - revocation in case of innocent misrepresentation - no amendment process in the Act - scope of section 19 procedure - discretion of the court - alternative remedy - adequacy of alternative remedy - whether judicial review premature.

"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 identifying information."

"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."

"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 following a quasi-judicial process."

"Nor is the fact that the applicant has not called for an inquiry relevant: she remainsentitled 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 ... The applicant has therefore identified no ‘injustice’ consequent upon her being required toexhaust that process. In fact, all considerations of fairness, economy and efficiency point in the opposite direction."

Power J (concurring): Constitutional right to have ones identity recognised by the State - implied right for their to be a correct record of a person's age - aspects of a person's identity - Article 24(2) of the International Covenant on Civil and Political Rights and Article 7 of the Convention on the Rights of the Child.

"Whilst the Supreme Court has not, as yet, determined the extent to which constitutional rights vest in persons who are non-citizens,one can assert, at least as a general principle, that the most basic of fundamental human rights are not dependent upon the place of one’s birth. They are not the gift of any State. They inhere in the individual on the basis of his or her humanity. Whereas the chance location of one’s place of birth may influence the extent to which fundamental human rights are respected, it cannot and does not determine their existence. The applicant, in this case, however, is an Irish citizen and the fundamental rights in issue in this appeal are related to matters concerning her personal identity. Any citizen whose personal identity details are registered by the State has a right to have such registration recorded, accurately, and in a manner that is factually correct."

" ... I do not consider that it has been established, at this stage of the proceedings, that there has been a deliberate concealment of a material fact or a breach of the duty of full disclosure such as occurred in Butt. It must be recalled that the applicant had enclosed with her application for naturalisation, a letter of 31 May2014 setting out the differences between the Ethiopian and Gregorian calendars and that she had furnished a telephone number at which she could be contacted in the event of any questions. It must also be recalled that it was she who drew the Minister’s attention to what, she claims, is an inaccuracy in the certificate of naturalisation."

"I am led to conclude that a person’s date of birth is a significant aspect of his or herpersonal identity and constitutes an important link to his or her family. The right to have one’s date of birth recognised by the State and recorded accurately must fall within that category of rights which are at what McKechnie J describes as ‘the highest level of our legal order’ (O.R. at para. 393). Consequently, I am satisfied that the trial judge did not err in law in finding that personal identity rights are engaged in the process in issue in this case.”