High Court of Ireland Decisions

Akram v. Minister for Justice, Equality and Law Reform & Ors [2004] IEHC 33 (5 March 2004)

 
THE HIGH COURT

2001 754 JR

BETWEEN

SOHAIL AKRAM

APPLICANT

AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE MINISTER FOR FOREIGN AFFAIRS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered the 5^th day of March, 2004.

This is a case which concerns the power of the first named respondent under s. 8 of the Irish Nationality and Citizenship Act, 1956 to decide that the applicant herein did not fulfil the statutory requirements for making a declaration of post nuptial citizenship.

On 12^th November 2001 the High Court (O'Neill J.) gave leave to the applicant to apply for the following reliefs:-

(a) an order of certiorari quashing the decision of the respondents communicated by letter dated 27^th June 2001 in which it was indicated that the applicant herein did not fulfil the statutory requirements for making a declaration of post nuptial citizenship as set out in s. 8 of the Irish Nationality and Citizenship Act, 1956 arising from the concerns of the respondent in relation to the applicant's marriage to one Kathleen Kelly, an Irish citizen.

(b) a declaration that the failure on the part of the respondents to advise the applicant of the actual procedure then being employed to arrive at a decision with respect to its citizenship constituted a breach of his right to fair procedures and constitutional and natural justice.

(c) an order of mandamus directing the respondents to issue a passport to the applicant.

The amended statement of grounds in the case sets out much of the history of the matter and the arguments advanced on behalf of the applicant in support of his claims.

The applicant was born in Pakistan on 10^th January 1959. He came to Ireland in 1982 where he married Kathleen Kelly, an Irish citizen, in Dublin on 11^th July 1984. There are no children of this marriage. Some few months after this marriage, the applicant went to Pakistan where he married a second time, on this occasion to one Ansa Butt, a citizen of Pakistan, following which he returned to Ireland where, he contends, he co-habited with Kathleen Kelly until they separated in 1990. He then returned to Pakistan and brought Ansa Butt to Denmark where he presently resides. A son of this union was born on 3^rd May 1993 in Denmark.

The applicant made a post nuptial declaration pursuant to the provisions of the Nationality and Citizenship Act, 1956 on 13^th July 1987 whereby he accepted Irish citizenship. Following the birth of his child in 1993, the applicant applied to the Irish Embassy in Denmark to register the child as an Irish citizen. This application precipitated an inquiry by the Department of Justice as a result of which the applicant's passport was impounded in 1993. As part of that inquiry, contact was made with Kathleen Kelly who provided certain information to the first named respondents by way of statements which were not, however, furnished to the applicant.

On 7^th March 1997, the first named respondent informed the applicant that the acceptance of his declaration of citizenship had been withdrawn and that passport facilities would not be extended to him.

Thereafter the applicant commenced judicial review proceedings (JR 450/1997) wherein on 21^st December 1999 the High Court (Finnegan J.) granted an order of certiorari by virtue of the failure of the respondents to comply with principles of natural and constitutional justice, in particular, in arriving at a decision the respondent had failed to furnish the applicant with a statement from the applicant's Irish wife which said statement had been considered and relied upon the respondent in arriving at the decision in question.

Following the order of the High Court, which was perfected on 12^th January 2001, the applicant on 27^th January 2000 applied for a fresh passport. A considerable period of delay then followed during which there was no decision as to whether or not the applicant was in the opinion of the respondent entitled to a passport. By letter dated 21^st February 2000, Ms. Anne Hopkins from the Citizenship Section of the Department of Justice wrote to the applicant enclosing a statement from his Irish wife, Kathleen Kelly. The applicant's views on her statement were sought as were his views as to whether or not he was entitled to Irish citizenship. It was indicated in the letter that the Minister might not be in position to make a decision on whether or not to issue an Irish passport to the applicant until the completion of all correspondence in relation to the matter.

By letter dated 10^th May 2000, the applicant purported to respond to the said letter. His solicitors wrote a follow up letter on 27^th September, 2000, in the absence of any reply, pointing out that Finnegan J., in granting the order of certiorari in the High Court, had indicated that any future application for a passport should be dealt with expeditiously. By letter dated 2^nd October, 2000, the first named respondent indicated that the application was under active consideration. Further letters were written on behalf of the applicant in October and November arguing that the delay in arriving at a decision was unreasonable.

Ultimately, a second set of judicial review proceedings were brought on behalf of the applicant to compel the respondents to arrive at a decision (JR 88/2001), leave being granted by the High Court on 19^th February, 2001. Ultimately, these proceedings were settled and comprised, the respondents having undertaken on 26^th June, 2001 to give a decision within two weeks and having communicated by letter the respondents decision by letter dated 27^th June, 2001, which was received by the applicant on 29^th June, 2001.

In his said letter dated 27^th June, 2001, the respondents herein indicated that the Minister was not satisfied that the statutory declaration as submitted by Mr. Akram when he originally applied for Irish citizenship was truthful. Further, it was indicated in the said letter that the Minister was not satisfied that the applicant's marriage to Kathleen Kelly satisfied the provisions of s. 8 of the Irish Nationality and Citizenship Act, 1956 (as amended) for a number of reasons, in particular:-

(a) That Ms. Kelly indicated to Ms. Mary Foran of the Department of Foreign Affairs in January 1994 that she was aware at the date of her marriage to Mr. Akram of his intent to marry a Pakistani woman. Further, Ms. Kelly had declared in her statement in September 1993 that although she and Mr. Akram kept living together up to 1989 she considered that a normal marriage did not exist.

(b) The fact that Mr. Akram contracted another marriage to a woman from Pakistan four months after his marriage to Ms. Kathleen Kelly. In the view of the respondent this fact cast a serious doubt over any intention on Mr. Akram's part of having a proper marriage with Ms. Kelly.

It was further indicated that the Minister had noted the applicant's various responses in correspondence and having considered the matter fully he was satisfied that Mr. Akram did not fulfil the statutory requirements for making a declaration of post-nuptial citizenship as set out in s. 8 of the Irish Nationality and Citizenship Act, 1956 as amended. That refusal gave rise to the present judicial review proceedings.

At this hearing, the issues between the parties have essentially netted down to the following:-

(a) that the decision of the respondent was made without jurisdiction given the absence of any express statutory provision in the Irish Nationality and Citizenship Act, 1956 empowering the respondents to withdraw an acceptance of a declaration of post-nuptial citizenship

(b) if such a jurisdiction as that asserted by the respondents exists, then it was incumbent upon the respondents as a pre-condition of the valid and proper exercise of that jurisdiction to promulgate procedures for the exercise of the power and the criteria for the exercise of the power, and that such procedures and criteria should have been notified to the applicant. Further, it is submitted, the applicant was entitled to an oral hearing with legal representation before any such decision could be made. Further, the applicant contends that the onus of proof in relation to the matters in dispute had been wrongly placed on the applicant to prove to some unspecified standard that he was lawfully married to the said Kathleen Kelly. The applicant further contends that the respondents were not entitled to withdraw an acceptance of a declaration of post-nuptial citizenship simply on the basis of a determination that the Minister was not satisfied that the applicant's marriage conformed to the requirements of

s. 8 of the Irish Nationality and Citizenship Act, 1956. The Minister, it is submitted was obliged to determine this issue by a higher and more rigorous standard and having regard to the importance of the matter for the applicant and the personal rights of the applicant, which he failed to do.

These issues may be further reduced and summarised to the following key questions in this case, namely:-

(1) In the absence of a specific statutory provision, does the Minister have power to revisit and withdraw acceptance of a declaration of citizenship made under s. 8 of the 1956 Act?

(2) If so, do the principles of fair procedures require that the applicant be afforded an oral hearing with legal representation prior to the making of any such decision, having regard to the importance of the applicant to the eventual determination?

The respondents defence to the applicant's application may equally be summarised in fairly brief terms at this point. Firstly, it is submitted that the first issue is res judicata, because the self same issue between precisely the same parties was decided by Finnegan J. in the course of his judgment in the first set of judicial review proceedings (JR 450/1997); alternatively, it was open to the applicant to raise the issue that the Minister lacked statutory authority to revisit an application for citizenship under s. 8 of the 1956 Act at the time of the first judicial review application before Finnegan J. and that accordingly, by virtue of the rule in Henderson v. Henderson as approved by the Supreme Court in A(A) v. The Medical Council (unreported decision of the Supreme Court 19^th December, 2003), the applicant is now precluded from raising this point in the current proceedings. In the further alternative, the respondents submit that the Minister does in any event have the power contended for which, it is submitted, is nothing more than a determination by the Minister that the applicant has failed to comply with the statutory requirements contained in s. 8 of the 1956 Act (as amended).

It is further submitted on behalf of the respondents that fair procedures were at all times extended to the applicant, that he had every opportunity to make submissions and respond to queries raised by the respondents, that he had the benefit of an oral hearing at an earlier stage in the proceedings and that there was no requirement for a further oral hearing prior to the making of the ultimate decision herein on 26^th June 2001.

Statutory Background and the Finnegan Ruling

Section 8 of the Irish Nationality and Citizenship Act, 1956 (as substituted by s. 3 of the Irish Nationality and Citizenship Act, 1986) provides:-

"(1) A person who is an alien at the date of that person's marriage to a person who is, or who after the marriage becomes, an Irish citizen (otherwise than by naturalisation or by virtue of this section or s. 12) shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging, not earlier than three years from the date of the marriage or from the date on which the person last mentioned became an Irish citizen (otherwise than as aforesaid), whichever is the later, a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, accepting Irish citizenship as post-nuptial citizenship: provided that –

(a) the marriage is subsisting at the date of the lodgment of the declaration, and

(b) the couple are living together as husband and wife and the spouse who is an Irish citizen submits an affidavit to that effect when the declaration is being lodged.

(2) A person who lodges a declaration under sub-s (1) shall be an Irish citizen from the date of lodgement.

(3) A person who, before the passing of this Act, married a person who was an Irish citizen (otherwise than by naturalisation) and became a naturalised Irish citizen shall be deemed to have lodged a declaration under sub-s (1) on the passing of this Act and thereafter shall be an Irish citizen by virtue thereof and not by naturalisation."

The provisos contained at pars. (a) and (b) were not included in the corresponding section of the 1956 Irish Nationality and Citizenship Act which had the further unusual feature of applying solely to a woman who was an alien and who married an Irish citizen.

As may be seen, s. 8 of the Act as substituted does not contain any express provision for the revocation of citizenship acquired thereunder. This is in contrast to other provisions of the same Act in relation to naturalisation, and in particular s. 19 of the Irish Nationality and Citizenship Act, 1956 which provides:-

(1) "The Minister may revoke a certificate or naturalisation if he is satisfied –

(a) that the issue of the certificate was procured by fraud, misrepresentation whether innocent or fraudulent, or concealment of material facts or circumstances …

(2) 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 the revocation

(3) On application being made in the prescribed manner for an inquiry under sub-s (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 to the Minister.

(4) A certificate of naturalisation granted or deemed under sub-s (4) which have been granted under the Act of 1935 may be revoked in accordance with the provisions of this section and, upon such revocation, the person concerned shall cease to be an Irish citizen

(5) Notice of the revocation of a certificate of naturalisation shall be published in Iris Oifigiúil."

Both sides in the present litigation accept that the power of the Minister for Foreign Affairs to revoke a passport granted pursuant to the provisions of s.8 of the Irish Nationality and Citizenship Act, 1956 was implicitly recognised in the judgment of Barron J. in Kelly v. Ireland [1996] 3 I.R. 537. That was a case where the applicant, a Sudanese citizen by birth, went through a ceremony of marriage to an Irish citizen in London following which she applied for and obtained an Irish passport from the Irish Embassy in London. Subsequently, for reasons with which we are not concerned in the instant case, the applicant was informed by the Irish Embassy in London that the Irish passport had been issued to her unlawfully and that she was not entitled to it. Thereafter the Minister for Foreign Affairs made a decision to impound the applicant's passport and she was declared not to be an Irish citizen. In the subsequent judicial review proceedings before Barron J. no issue arose as to the entitlement of the Minister to do what he did and in the course of his judgment Barron J. found (at p. 541) that:-

"Upon the evidence available to the respondents officials, I consider that steps taken by them were both reasonable and fair."

The power or entitlement of the Minister for Foreign Affairs to revisit a citizenship procured under s. 8 of the 1956 Act was specifically addressed by Finnegan J. (as he then was) in the course of his judgment delivered in the first of the judicial review proceedings in this case on 21^st December 1999. In the course of his judgment, Finnegan J. alluded to the judgment of Barron J. in Kelly v. Ireland, The Minister for Foreign Affairs and the Attorney General [1996] 2 I.L.R.M. 364, stating as follows (at p. 7 of his judgment which is in transcript form):-

"As to the issue of whether the Minister carried out his functions in accordance with fair procedures, Barron J. held that the procedures adopted were both fair and reasonable. Implicit in this judgment is a finding that notwithstanding the absence of any express power being conferred on the Minister by the Act, the Minister nonetheless has power to decide whether a declaration pursuant to s. 8 of the Act is effective to confer upon a spouse Irish citizenship and I am satisfied that this finding is indeed correct. The Minister is not bound to accept upon the sole basis that a declaration pursuant to the Act has been made that Irish citizenship has been acquired. He has the power to investigate the circumstances surrounding the marriage and if satisfied on the evidence, having complied with the requirements of natural and constitutional justice, that the requirements of s. 8 have not been complied with, he may determine that the lodging of his declaration pursuant to s. 8 was ineffective to confer Irish citizenship."

The first issue and consideration of issue estoppel

Leave to bring the first set of judicial review proceedings in this matter (450 JR/1997) was granted by Geoghegan J. on 15^th December 1997.

The very first relief sought in those proceedings was an order of certiorari of the decision of the respondents communicated by letters dated 7^th March, 1997 and 30^th May, 1997 purporting to withdraw acceptance of a declaration made by the applicant on 14^th July, 1987 by virtue of which he had become an Irish citizen.

No want of statutory authority for the Minister to revoke citizenship was expressly relied upon in the grounds upon which relief was then sought, although it is clear that the existence of such a power was accepted by and on behalf of the applicant. That this obviously is the case is clear from sentences in the grounds such as the following:-

"A person should not be deprived of citizenship without being afforded an opportunity of a fair hearing on the issue."

"It is further contended that the State did not have the right to purportedly withdraw its acceptance of the applicant's declaration of acceptance of Irish citizenship simply on the basis of a suspicion that the applicant was not in a valid and subsisting marriage at the relevant time."

"It is further contended that, having granted citizenship the state ought not to be entitled to withdraw it unless they are substantial grounds for so doing …"

The case proceeded to hearing therefore before Finnegan J. essentially on fair procedures grounds, but the question as to the existence of the power or capacity of the Minister under s. 8 of the 1956 Act to do what he did was clearly both canvassed at the hearing before Finnegan J. and was at all material times capable of being put forward as a specific ground for seeking relief at the time of the original proceedings.

The fact that the applicant had at par. (d)(vi) of his Statement to ground the application for judicial review sought a declaration that the applicant "is an Irish citizen entitled to passport facilities" may also be seen as thereby providing a full opportunity for the applicant to argue the point on the statutory powers, or rather the alleged want thereof, available to the Minister to revoke citizenship obtained under s. 8 of the 1956 Act.

The first question, however, that the court must address is whether or not by his judgment Finnegan J. effectively determined the first issue in the instant proceedings. Mr. Callanan S.C. on behalf of the applicant argues that the observations of Finnegan J. are to be seen as obiter dicta only, given that the case was effectively decided in the applicant's favour on a fair procedure point. He contends that Finnegan J., no more than Barron J. in Kelly v. The Minister for Foreign Affairs ever expressly ruled upon the issue of statutory powers and that therefore no question of res judicata can apply.

I think, however, that the resolution of the statutory power point was an integral element in the decision of Finnegan J. He could not have decided the fair procedures issue without first deciding the issue on statutory power. The decision that there had been a want of fair procedures in failing to make certain statements available to the applicant was a finding necessarily premised on the existence of a valid statutory power to act in the first place. Given therefore that precisely the same parties were involved in the proceedings before Finnegan J., it seems to me that the issue of statutory power under s. 8 to revisit the question of citizenship has been effectively decided and is now res judicata.

Even if I am mistaken in this conclusion, I would further hold that the applicant is estopped in these proceedings from raising the issue by virtue of what has been described as the rule in Henderson v. Henderson [1843] 3 Hare 100, where Vice Chancellor Wigram stated:-

"I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time."

This approach received express approval from the Supreme Court in A(A) v. The Medical Council (unreported Supreme Court judgment, delivered 19^th December 2003). In that case, the applicant had sought an order prohibiting the Medical Council from holding an inquiry pursuant to part V of the Medical Practitioners Act, 1978 on the basis that the Medical Council had failed to provide legal aid for the applicant. However, the applicant had brought a prior judicial review application which was effective in restraining the hearing of certain allegations against him, but which had left eight allegations outstanding in respect of which it was determined that there must a hearing. The Supreme Court was clearly of the view that the question of legal aid should and could have been addressed in the first set of judicial review proceedings rather than on the eve of the refixed inquiry. No reason had been advanced, nor did any appear on the evidence, why the points raised in the second set of judicial review proceedings could not have been raised two years previously.

In applying those principles to the facts of the case, Hardiman J. (who delivered the unanimous verdict of the Supreme Court) stated as follows (at p. 31):-

"The issues in relation to legal aid are, therefore, to adapt the language of Henderson, issues 'which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time' of the first proceedings. In the language of Johnson v. Gore Wood [2002] WLR 72 there are issues which might 'sensibly' have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy 'based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do' in the words of Brooke L.J. in the passage cited above".

The reference by Hardiman J. to Brooke L.J. was a reference to that passage in Woodhouse v. Consigna [2002] 2 A.E.R. 737 where Brooke L.J. referred to the public interest in the efficient conduct of litigation and continued:-

"But at least as important is the general need, in the interest of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson v. Henderson that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based upon the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do …"

The facts of the present case convince me that I should follow the course adopted by the Supreme Court in A(A) v. The Medical Council and for precisely the same reasons as those adumbrated by Hardiman J. Apart from his submission that the instant case is one where the issue of statutory power was only for the first time comprehensively argued, Mr. Callanan does not otherwise quarrel with the line of reasoning which underpins the decision of the Supreme Court in A(A) v. The Medical Council. I conclude, therefore that the applicant is estopped from further arguing this particular point in these proceedings.

Fair Procedures

By parity of reasoning, precisely the same considerations arise in respect of all arguments advanced on the applicant's behalf alleging want of fair procedures up to and including the time of the judgment of Finnegan J. on 21^st December 1999. The procedures adopted by the Minister for Justice Equality and Law Reform and indeed the Minster for Foreign Affairs were fully within the knowledge of the applicant in the context of the documentation obtained by the applicant in the first judicial review. The applicant obtained copies of the letters and memoranda passing back and forth between the various civil servants detailing the growing concerns on the part of the Minister in relation to the fact that the applicant had gone through a marriage ceremony in Ireland in 1984, but four months later had returned to Pakistan and married Ms. Ansa Butt, the very person whom he then commenced to live with in Copenhagen in the 1990s. The rule in Henderson v. Henderson applies equally in my view to any failure on the part of the applicant to address any particular aspect of the procedures adopted prior to the judgment of Finnegan J., so that the only issue still extant is whether or not there has been a want of fair procedures since the date of that judgment.

Reverting to the judgment itself, it may at once be seen that Finnegan J. confined any adverse finding against the respondents to a single aspect of fair procedures, namely, the failure by the respondents to supply the applicant with the statement of Kathleen Kelly. At p. 12 of his judgment he stated:-

"In short, I have decided that the applicant here should have been given access to the statement of Kathleen Kelly which would appear to have weighed heavily with the Minister and have been given an opportunity to deal with the same."

In quashing the decisions of the Minister conveyed in the two letters dated 5^th March 1997 and 30^th May 1997, Finnegan J. concluded (at pp. 13/14):-

"It does seem to me that the only other way that the order may be expanded is to direct the Minister to consider his (i.e. the applicant's) application for a passport in accordance with the rules of natural justice … that order I would also be prepared to make. However, really what it is is back to the drawing board for Mr. Akram to satisfy the Minister in the light of the further information he has."

It is to be noted from the foregoing that there is no question in the judgment of Finnegan J. of the Minister having to lay out and advance any elaborate scheme whereby a public or even oral hearing would be mandated. Nor was it suggested that the respondents should promulgate any particular form of procedures for the purpose of complying with fair procedures considerations. Nor was there any appeal from the judgment or order of the court which clearly placed the onus of satisfying the Minister on the applicant.

Accordingly, I am quite satisfied that this court is only concerned to consider events from 21^st December, 1999 and the date of the Minister's decision of 27^th June 2001, which is the only decision impugned in these proceedings.

Those subsequent developments are encapsulated in an exchange of correspondence between the applicant, his solicitors and the Department of Justice, culminating in the letter from Mr. McConnell, Assistant Principal of the Immigration and Citizenship Division on 27^th June 2001.

By letter dated 21^st February, 2000, Ms. Anne Hopkins of the Citizenship Section of the Department of Justice furnished to the applicant copies of a statement made by Kathleen Kelly and dated 18^th September 1993 and a copy of a report of another interview with Kathleen Kelly on 24^th January 1994. The letter continues:-

"You will note that, inter alia, she stated that she did not regard her marriage to you as a proper marriage and that a normal marriage relationship did not exist. She also stated that after one and a half years following her marriage to you that each of you were going your separate ways. In her interview of 24^th January 1994 she stated, inter alia, that she knew you intended to marry a Pakistani woman at the time she married you. I draw these particular points to your attention, but there are several more points of a similar note and importance inner statements referred to above.

These statements give rise to deep concern as to the validity of the marriage ceremony which took place on 11 July 1984. The Minister now requests your observations in regard to all matters of fact contained in the said two documents. Thereafter, consideration will be given as to whether or not you are entitled to hold Irish citizenship and the Minister for Foreign Affairs will consider whether or not you are entitled to hold an Irish passport. It is possible that it may be necessary to write to you again seeking clarification in relation to your comments and observations. The Minister for Foreign Affairs may not be in a position to make a decision on whether or not to issue an Irish passport to you, until the completion of all correspondence in relation to this matter. Your reply should be addressed to the undersigned at this department."

The applicant responded to this letter on 10^th May 2000 stating:-

"In response to the underlined part of Kathleen's statement where she says that she did not see her marriage to be a proper marriage if she said so she never shared those feelings with me while we were living together as 'husband and wife', and I do not understand what she meant by saying that a normal marriage did not exist, of course there are ups and downs in every marriage, but we never separated until the very last day I left Ireland in January 1990. I must have told her that a Muslim under the Muslim law is entitled to have four wives. I do not believe that part of the statement is interpreted correctly that eighteen months after we got married we started going our separate ways because it is true that she liked to go out dancing and I on the other hand was not that keen on dancing so I used to hang out with my friends while she used to go out with her girlfriends, but the fact of the matter is that we lived together as 'husband and wife' until January 1990 and the reason for the breakdown of our marriage was when she told me that she was pregnant with somebody else in late 1989 I wanted to keep the baby. She was never forced (by anybody) to sign an affidavit in 1987 when I applied for Irish citizenship. She did not have to because we were living together.

At the time of lodgment for the application for citizenship we were going to move to 14 Aspen Drive. Therefore the same address was given on the affidavit, but in fact we moved to 92, Rathgar Road after moving from 9, Leinster Place.

My marriage was not a secret one. There were a lot of people who knew that we were living as 'husband and wife'. I am sure that many can testify if needed."

By letter dated 15^th November, 2000, Ms. Hopkins further wrote to the applicant in the following terms:-

"Following on from the ruling of Mr. Justice Finnegan, this department is entitled to query the whole basis of Mr. Akram's claim to citizenship de novo and would appear to be justified in seeking independent evidence to bolster any claims made by either party.

There are several areas of concern to this department which we feel have not been properly addressed by Mr. Akram. These are as follows:-

•    It would appear from Ms. Kelly's statement of 18 September, 1993 to the Garda that she did not ever regard her marriage to Mr. Akram as valid. It would seem that Mr. Akram also did not regard his marriage to Ms. Kelly as valid as he declared himself to be single when he subsequently married in Pakistan. This suggests that this marriage was void ab initio.

•    The date of marriage given on both Mr. Akram's declaration and Ms. Kelly's affidavit is 10 July, 1984, where as the marriage certificate states the ceremony took place on 11 July, 1984. Both the declaration and affidavit state that the couple resided at 14 Aspen Drive, Swords at the relevant time, however, in his letter of 10 May 2000, Mr. Akram claims that he and Ms. Kelly resided at Leinster Road, Rathmines at the time of making his declaration.

•    No clear evidence has been provided that both Mr. Akram and Ms. Kelly resided at the same address on 13 July, 1987, the date upon which the declaration and affidavit were made. In Ms. Kelly's statement of 18^th September, 1993, she says that in her view she and Mr. Akram were not living together as husband and wife by 13 July, 1987 and furthermore that she made her affidavit on the basis of an approach from a third party, not believing the statement she made therein. It is clear from Mr. Akram's conduct that he and Ms. Kelly were not living together as husband and wife on 13 July, 1987, even if they were living together. Mr. Akram's marriage in Pakistan shows that from November 1984 at the latest, he no longer lived with Ms. Kelly as husband and wife within the meaning of Irish law, because from that date his marriage to Ms. Kelly was not monogamous in either intention or fact.

Your comments and observations will be appreciated."

The applicant's solicitors responded to this letter on 22^nd December, 2000 stating, inter alia, that it was not accepted that the statement of Kathleen Kelly made to the Gardaí on 18 September, 1993 either states or suggests that she did not regard her marriage to Mr. Akram as valid. The letter further stated that Kathleen Kelly provided a sworn affidavit in the proceedings taken by the applicant. The affidavit was sworn on 18^th December, 1987 wherein she stated that the marriage was a valid and subsisting marriage when it was entered into and at the date that the applicant made his declaration of Irish citizenship on 14^th July 1987. It was pointed out by the applicant's solicitor that the contents of the affidavit were not challenged in the sense that Kathleen Kelly was not called to be cross examined in relation to this affidavit in the judicial review proceedings. It was further suggested that no real weight could be attached to a discrepancy regarding the date of the marriage. In relation to the address at 14 Aspen Drive, the letter stated that at the time of the making of the declaration it was the applicant's intention to move to that address and therefore that was the address which was provided, but that there was a change of plan in that regard and the couple moved to 92 Rathgar Road instead. Thirdly, the letter queried part of Ms. Kelly's statement of 18^th September, 1993 which was being relied upon to support the contention that Ms. Kelly and Mr. Akram were not living together as husband and wife by the 13^th July, 1987. Reference was made to an affidavit sworn by Mr. Chaudhray Sarwar on 17^th July, 1998, wherein he stated that he visited the applicant and Ms. Kelly in rented accommodation in Rathgar on a number of occasions after they became married and it was apparent to him that they were living together as husband and wife.

The letter concluded by pointing out that there had been considerable delay now in processing Mr. Akram's application.

Thereafter the second set of judicial review proceedings (88 JR/2001) were commenced on 19^th February, 2001, which said proceedings were eventually comprised on foot of the undertaking already referred to. That was an undertaking contained in a letter dated 26^th June, 2001 wherein the Chief State Solicitor undertook on behalf of the Minister for Justice, Equality and Law Reform to make a decision on the applicant's claim to citizenship within two weeks.

The Minister's decision was communicated to the applicant's solicitors by letter dated 27^th June, 2001, the relevant portions of which are as follows:-

"Sohail Akram's declaration of post-nupital citizenship

The Minister is not satisfied that the statutory declaration as submitted by Mr. Akram was truthful. Notwithstanding the fact that it is accepted that Mr. Akram and Ms. Kelly went through a ceremony of marriage on 11^th July, 1984, the fact remains that the date of marriage was misrepresented in both Mr. Akram's declaration and Ms. Kelly's affidavit.

Furthermore, Mr. Akram and Ms. Kelly, by their own admission, were not living as husband and wife at the address given in the declaration (and affidavit). It has been contended by Mr. Akram that the couple had intended to move to 14 Aspen Drive but due to a change of plan, actually moved into 92 Rathgar Road and that he had informed the department about this at the time of the making of the declaration. There was no evidence in the department's files to substantiate this. In addition, Department of Social Welfare records indicate that Ms. Kelly represented herself as single and gave an address at 42 Northcliff, Chapelizod at various stages in the period 1985 to 1990 in her dealings with that Department at a time when she was supposedly living with Mr. Akram.

The Marriage

The Minister is not satisfied that Mr. Akram's marriage to Ms. Kathleen Kelly satisfies the provisions of s. 8 of the Irish Nationality and Citizenship Act, 1956 as amended, for the following reasons:-

•    Ms. Kelly indicated to Ms. Mary Foran of the Department of Foreign Affairs in January 1994 that she was aware, at the date of her marriage to Mr. Akram, of his intent to marry a Pakistani lady. In addition, Ms. Kelly declared in her statement of September 1993 that although she and Mr. Akram kept living together up to 1989, she considered that a normal marriage did not exist.

•    Mr. Akram contracted another marriage to a Pakistani lady (with whom he later had a child) four months after his marriage. In the Minister's view, this fact must cast serious doubt over any intention on Mr. Akram's part of having a proper marriage with Ms. Kelly. Furthermore, Mr. Akram gave no indication when he contracted his marriage in Pakistan that he was already married.

The Minister has noted your client's responses conveyed in your letter and having considered the matter fully, he is satisfied that Mr. Akram did not fulfil the statutory requirements for making a declaration of post-nuptial citizenship as set out in s. 8 of the Irish Nationality and Citizenship Act, 1956 as amended. Consequently, Mr. Akram was not entitled to Irish citizenship and was not entitled to hold an Irish passport."

I have set out fully the relevant portions of the correspondence for the purpose of demonstrating that both the applicant and his solicitors were fully aware that the Minister for Justice was purporting to comply with his obligations on foot of the judgment of Finnegan J. delivered on 21^st December, 1999. Despite some complaints of delay, no objection was taken at any point in the correspondence either with the procedures that were being followed or with regard to any alleged want or lack of transparency in regard thereto. No request was ever made for the promulgation of specific procedures for the further adjudication of the matter. No request was ever made for a public hearing or an oral hearing. No request was ever made to cross examine or challenge any civil servant in relation to the matters under consideration. Other than a protest about delay, there is no suggestion that the procedures which were being adopted and followed were anything other than fair.

Against this background, I cannot see any substance in Mr. Callanan's submissions that there was some want of fair procedures at work in the instant case. While the regime operative in respect of the revocation or non granting of citizenship under s. 8 is in marked contrast to that which relates to revocation of citizenship acquired by naturalisation in respect of which an inquiry as to the reasons for the revocation may, as a matter of statutory entitlement, be sought under s. 19 of the 1956 Act, it does not therefore follow that the procedures adopted in the instant case were automatically flawed or deficient.

As Finnegan J. had pointed out, it was back to the 'drawing-board' insofar as the applicant was concerned and it was 'for Mr. Akram to satisfy the Minister in the light of the further information he has'.

Quite clearly, the applicant has failed to satisfy the Minister that he complies with the two proviso conditions contained in s. 8 of the 1956 Act. He did have the benefit of an oral hearing at an earlier stage in the process when on the 29^th August, 1994, he sought and obtained an interview with officials of the Irish Embassy in Copenhagen. I don't believe the applicant can complain now of not having a further oral hearing when no demand of any sort for same was made by or on his behalf during the final phase of this investigation ushered in by the judgment of Finnegan J. on 21^st December, 1999. Had such a request been made, and been refused, it might have given rise to some grounds for arguing that fair procedures required that such a hearing be held having regard to the gravity of the matter under consideration and having regard also to the fact that analogous statutory provision providing for an inquiry existed in relation to the revocation of citizenship obtained by naturalisation. However, in the absence of any such request at any material time, one can only conclude that the applicant and his advisers saw no value in such an exercise as all material facts were then known. In any event, I think its too late now to raise this point.

I therefore reject the applicant's various submissions to the effect that fair procedures were breached in the instant case.

It follows therefore that the applicant's claim for relief in these proceedings is refused.