The High Court refused Mohamed Samir Salem Omara’s application for judicial review of a decision that his naturalisation application could no longer be processed without further evidence. The court did not decide whether his marriage remained legally subsisting, and it did not grant naturalisation.
Mr Justice David Keane said the Minister had not refused the application on the ground that the marriage had ended. The 20 September 2016 letter said the application could not be processed further because Mr Omara could not provide a sworn affidavit requested by the Minister. The judge said the application had stalled because the evidence required to support it had not been supplied.
Mr Omara, an Egyptian national, applied for naturalisation as the spouse of an Irish citizen in January 2016. The couple married in 2012 and had a daughter born in Belfast in 2014. In August and September 2016, the Irish Naturalisation and Immigration Service wrote that the Minister proposed to grant the application, subject to completion of the process, and invited Mr Omara to a citizenship ceremony.
The invitation was withdrawn after the Minister received an email and letter from a person purporting to be Mr Omara’s spouse, saying they were no longer together and were planning to divorce. The service asked for a sworn affidavit about the marriage. Mr Omara told the service that his spouse would not provide one. He later conceded in court that they were no longer living together. His counsel said, on instructions but without evidence, that the marriage had not been dissolved or annulled.
The judge found that the earlier correspondence did not amount to a final decision granting naturalisation or create a legitimate expectation that a certificate would issue. Under the statutory process, the required declaration of fidelity and loyalty had not been made, so the Minister’s discretion to grant a certificate had not yet become exercisable. The Minister could seek updated evidence before deciding whether the statutory conditions were met.
The court also rejected the claim that fair procedures required the correspondence from the person purporting to be the spouse to be disclosed before the application was halted. The judge noted that Mr Omara had later been apprised of its contents and that the stated reason for stopping further processing was his failure to provide the requested affidavit.
The judge said the law required the Minister to be satisfied that the couple were living together when the decision on naturalisation fell to be made. Since Mr Omara conceded they were no longer living together, the judge said an order quashing the letter would serve no useful purpose, even if a defect had been shown. He refused the judicial review application.
The court directed the parties, particularly the applicant’s legal representatives, to address whether the proceedings were covered by principles concerning wasted costs and whether an order under the Rules of the Superior Courts was appropriate. The judgment did not make such an order.