Damache v The Minister for Justice and Equality & ors (Approved)

Factual and Procedural Background

The case concerns an Applicant who has been involved in multiple legal proceedings in the jurisdiction, including constitutional challenges. The Applicant, originally an Algerian citizen born in 1965, moved to the State in 2000 and applied for asylum, which was refused. He subsequently married an Irish citizen and was naturalised in 2008 after making a declaration of fidelity and loyalty to the State.

In 2009, an Irish criminal investigation commenced into an alleged conspiracy to murder a cartoonist who had depicted the Islamic prophet Muhammad. The Applicant was suspected of involvement, arrested, and charged with sending a menacing message by telephone in 2010. He pleaded guilty in 2013 and received a prison sentence.

Separately, the United States issued a warrant and sought the Applicant’s extradition for alleged terrorist conspiracy activities. The Applicant was arrested in 2013 and ultimately extradited to the U.S. in 2017, where he pleaded guilty in federal court in 2018 to materially assisting an Islamist terrorist conspiracy and was sentenced to 15 years’ imprisonment.

Following this, the Department of Justice and Equality initiated a statutory process to revoke the Applicant’s Irish citizenship under s. 19 of the Irish Nationality and Citizenship Act 1956, on grounds of failure in duty of loyalty and fidelity to the State. The Applicant commenced judicial review proceedings challenging the legislation and the proposed revocation process, seeking various reliefs including certiorari and prohibition.

The court granted leave for judicial review and an ex parte stay on the revocation of citizenship pending determination of the proceedings. The parties filed written and oral submissions, and the Irish Human Rights and Equality Commission, as notice party, did not participate.

Legal Issues Presented

1. Whether the power to revoke citizenship under s. 19 of the 1956 Act constitutes a judicial function or an executive function.
2. Whether the statutory procedure for revocation complies with constitutional requirements, including Articles 34 and 37 of the Constitution.
3. Whether the legislation breaches fair procedures or other constitutional rights.
4. Whether the legislation is compatible with the European Convention on Human Rights (ECHR) and EU law, including the EU Charter of Fundamental Rights.
5. Whether judicial review is available and appropriate at the stage of a mere proposal to revoke citizenship.

Arguments of the Parties

Applicant's Arguments

• The Applicant argued that the revocation power involves a judicial function and thus should be exercised by a court, not the executive.
• The legislation allegedly breaches Articles 34 and 37 of the Constitution by conferring judicial powers on the executive without adequate judicial oversight.
• It was contended that the statute violates fair procedures because the Minister proposes revocation, appoints the inquiry committee, and makes the final decision, thus creating bias.
• The Applicant claimed incompatibility with Articles 6 and 13 of the ECHR, asserting a lack of fair trial and effective remedy.
• The Applicant contended that the terse notice of intention to revoke citizenship was insufficient to allow proper assessment of proportionality.
• The Applicant suggested that the legislation invites arbitrary and subjective application, hostile to due process.
• It was argued that the Applicant was caught in a procedural dilemma, with a stay on revocation but no meaningful opportunity to engage in the inquiry process without prejudicing the judicial review.

Respondents' Arguments

• The Respondents submitted that revocation of citizenship is a core executive function historically and constitutionally, not a judicial one.
• The legislation enjoys a presumption of constitutionality and should be interpreted in conformity with the Constitution, ECHR, and EU law.
• The statutory procedure provides for an independent committee of inquiry chaired by a judicial figure, ensuring fair procedures.
• The Minister’s proposal to revoke citizenship is provisional and subject to inquiry and final decision, thus judicial review is not appropriate at the stage of a mere proposal.
• Claims of bias and unfair procedure misunderstand the nature of the inquiry and decision-making process.
• The Respondents argued that the ECHR Articles 6 and 13 do not apply to administrative decisions such as citizenship revocation, and judicial review provides an effective remedy if an adverse decision is made.
• EU Charter rights alleged to be breached are addressed by judicial review and do not require judicial decision-making at the administrative stage.
• The Respondents emphasized that involvement in terrorism is a legitimate and recognized ground for revocation of citizenship under international law and domestic legislation.
• The Respondents rejected the Applicant’s contention that the legislation is vague or invites arbitrary application.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by situating the revocation of citizenship firmly within the executive function, supported by historical and comparative legal analysis. It rejected the Applicant’s contention that revocation is a judicial function, noting the absence of judicial involvement historically and internationally in making such decisions, with courts typically limited to supervisory review.

The Court emphasized the presumption of constitutionality governing the 1956 Act and the principle of constitutional and conforming interpretation under domestic law, the ECHR, and EU law. It found that the Applicant’s arguments presupposing unlawful future interpretations of the statute were speculative and unconvincing.

Regarding the procedural fairness challenge, the Court held that the Minister’s role in proposing revocation and appointing an independent inquiry committee does not breach fair procedures. The inquiry process provides fair procedures and is advisory, with the Minister making the final decision after considering the committee’s report and representations.

The Court clarified that judicial review is not appropriate at the stage of a mere proposal to revoke citizenship, consistent with established case law limiting review of proposals except in exceptional circumstances. The Applicant’s failure to engage with the inquiry process did not preclude judicial review but meant the time for such an application had lapsed.

The Court addressed the alleged incompatibility with the ECHR, finding that Articles 6 and 13 do not apply to administrative decisions like citizenship revocation, and that judicial review offers an effective remedy if an adverse decision is made. The Court noted that Article 8, although not pleaded, might be engaged in some cases but that no such claim was properly before it.

International law and comparative jurisprudence were examined, confirming that involvement in terrorism is a recognized legitimate ground for revocation of citizenship and that the legislation aligns with international standards, including the 1961 UN Convention on the Reduction of Statelessness.

On EU law, the Court accepted, for argument’s sake, that revocation of nationality affects EU citizenship but found no breach of rights under the EU Charter, with judicial review providing an adequate remedy and no requirement for judicial decision-making at the administrative stage.

Finally, the Court rejected the Applicant’s arguments regarding vagueness, political motivation, and bias, finding these either unpleaded, unsupported by evidence, or misconceived. The Court underscored the importance of separation of powers and cautioned against judicial overreach.

Holding and Implications

The Court DISMISSED the Applicant’s challenge to the legislation and the proposed revocation process.

The Court held that the statutory framework for revocation of citizenship under the 1956 Act is constitutional, complies with fair procedures, and is compatible with the ECHR and EU law as interpreted by the Court. The revocation power is an executive function, and judicial review is the appropriate remedy for any adverse decisions following the inquiry process.

The proceedings were dismissed as premature and lacking merit, with the stay on actual revocation to be extended subject to further directions. The Respondents are released from any obligation to extend time for the Applicant to apply for a committee of inquiry beyond 28 days from the judgment date.

No new legal precedent was established; the decision reinforces existing principles regarding executive powers, judicial review, and the constitutional framework governing citizenship revocation.