Diniz v Minister for Justice - Immigration Naturalisation Appeal

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  Diniz v Minister for Justice (Approved) [2026] IECA 34 (13 March 2026)

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[2026] IECA 34 | | |
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AN CH?IRT ACHOMHAIRC

THE COURT OF APPEAL

APPROVED - NO REDACTION NEEDED

Court of Appeal Record Number: 2025 111

High Court Record Number: 2023 664 JR

Neutral Citation Number: [2026] IECA 34??

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Whelan J.

Hyland J.

Collins J.

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BETWEEN/

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DANIELLE CAROLINE CORDEIRO SOUSA DINIZ

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APPELLANT/APPLICANT

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- AND -

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MINISTER FOR JUSTICE

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RESPONDENT/RESPONDENT

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JUDGMENT delivered by Mr. Justice Anthony M. Collins on the 13 th day of March 2026

I. Introduction

1. This is an appeal against the judgment and order of the High Court (Heslin J. [2025] IEHC 67) of 6 February 2025 whereby it dismissed the appellant's application for an order of certiorari of the respondent's letter of 15 March 2023 that refused her application for naturalisation pursuant to the Irish Nationality and Citizenship Act 1956, as amended (hereafter 'the Act'), and awarded the respondent costs.? Central to the five issues that the appellant asks this Court to consider is the interpretation of, and the relationship between, ss. 14 to 16 of the Act, which govern the naturalisation of non-nationals.

II. Relevant Statutory Provisions

2. Part III of the Act is entitled " Naturalisation ".? Section 14 thereof provides that Irish citizenship may be conferred on a non-national by means of a certificate of naturalisation granted by the respondent Minister for Justice. Section 15(1) of the Act, headed up " Conditions for issue of certificate ", provides that:

Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant?

(a) is of full age;

(b) is of good character;

(c) has had a period of one year's continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years;

(d) intends in good faith to continue to reside in the State after naturalisation; and

(e) has, in accordance with subsection (1A) or, as the case may be, subsection (1B), and in the prescribed manner?

(i) made a declaration of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and respect its democratic values.

**

3. Section 15(2) of the Act describes the conditions specified in paras. (a) to (e) of sub-s. (1) as " conditions for naturalisation ". So far as is relevant to this appeal, s. 16 of the Act, headed up " Power to dispense with conditions of naturalisation in certain cases ", provides that:

(1) The Minister may, in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

(a) where the applicant is of Irish descent or Irish associations;

(b) where the applicant is a parent or guardian acting on behalf of a minor of Irish descent or Irish associations;

(c) where the applicant is a naturalised Irish citizen acting on behalf of a minor child of the applicant;

...

(2) For the purposes of this section a person is of Irish associations if?

(a) he or she is related by blood, affinity or adoption to, or is the civil partner of, a person who is an Irish citizen or entitled to be an Irish citizen, or

(b) he or she was related by blood, affinity or adoption to, or was the civil partner of, a person who is deceased and who, at the time of his or her death, was an Irish citizen or entitled to be an Irish citizen.

III. Factual background

4. Paragraphs 4 to 36 of the judgment under appeal contain a detailed account of the factual background to these proceedings, the accuracy of which is unchallenged before this Court. ?By way of summary, the appellant was born in the Federative Republic of Brazil (hereafter 'Brazil') in 1995 and is a citizen of that country.? At eleven years of age, she arrived in Ireland on 4 August 2006. Thereafter she lawfully resided in Ireland as a dependent of her father, who acquired Irish citizenship by naturalisation in October 2012. In March 2011, the appellant registered as a resident in the State in her own right and was granted permission to do so until September 2012.?? She returned to Brazil upon completion of her Leaving Certificate in June 2012.

5. The appellant married in January 2017. She visited the State for one month in July and in December of that year gave birth to her first child in Brazil. On 9 October 2018, the appellant visited Ireland under a 90-day non-renewable temporary visitor permission.? Immediately after its expiry, on 7 January 2019 she applied for a temporary extension of her visitor permission to facilitate preparation of an application for long-term residence.? That extension was refused on 15 January 2019. On 18 January 2019, the appellant's solicitors sought permission for her to reside in the State under s. 4(1) of the Immigration Act 2004.? Correspondence ensued in connection with that application, during which time the appellant remained in the State. On 26 July 2019, the appellant's solicitor informed the respondent in writing that she, her husband and their child intended to return to Brazil since she was expecting her second child and her husband was due to sit final university exams there. The appellant returned to Brazil on 14 August 2019 and did not pursue her application to reside in the State.

6. Meanwhile, on 24 January 2019 the appellant applied for naturalisation under the Act by the completion and submission of a Form 8 for that purpose, the receipt of which the respondent acknowledged by letter of 31 January 2019.? The completed Form 8 and the submissions attached thereto accepted that the appellant did not meet the residence requirements in s. 15(1)(c) of the Act.? Her application thus sought to rely upon her " strong Irish associations " and her " very strong " " connections to the State ", in particular, that her father, two paternal uncles, a paternal aunt and two cousins are Irish citizens who reside in the State. On 20 August 2019, the appellant's solicitor informed the respondent in writing that she had left Ireland and wished to pursue her naturalisation application.

7. The correspondence between the appellant's solicitors and the respondent that followed is set out at paras. 40 to 46 of the judgment under appeal. It concluded with the respondent's decision of 15 March 2023, as set out at paras. 47 to 54 of that judgment. That decision consists in a letter from an official in the respondent's department addressed to the appellant's solicitors, to which a five page document detailing the consideration of the application is attached (hereafter 'the impugned decision'). The consideration of the application represents that s. 16 of the Act " ...confers broad discretionary powers on the Minister in the context of granting a certificate of naturalisation. It is Ministerial policy that these powers should be used sparingly and only in exceptional and compelling circumstances, particularly where the predominant pathway to naturalisation under section 15 is unavailable to an applicant under the act, and/or in cases where the applicant will find it difficult to meet the section 15 criteria. "? Having found that the appellant had not met the statutory residency conditions for naturalisation in s. 15(1)(c) of the Act, it acknowledged her reliance on the exercise of the discretion s. 16 confers on the respondent. After a description of the appellant's Irish associations through her paternal family, her immigration history, the fact she did not meet the requirements of s. 15(1)(c) of the Act and that her father could have applied for her naturalisation during her minority, the consideration of the application states that:

Taking all those factors on board, I cannot identify sufficient exceptional and compelling reasons attaching to this case, which would warrant a recommendation that the Minister would waive the statutory conditions under section 15 of the Irish Nationality and Citizenship Act 1956, as amended, and facilitate an application under Section 16.

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8. Paragraph 54 of the judgment under appeal captures the essence of the impugned decision by reference to the following extracts from the consideration of the application:

.... the discretion available to the Minister would be used only in the most exceptional and compelling cases;

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In order for the Minister to use his absolute discretion to waive the s. 15 conditions for naturalisation, under s. 16 of the...1956 Act...there must be exceptional and compelling reasons...;

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All things considered, although the applicant has Irish associations through blood, I do not believe that there are exceptional or compelling circumstances in relation to this application to persuade the Minister to waive the s. 15 conditions in the exercise of his absolute discretion under s. 16.

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IV. Consideration of the Appeal

9. The parties raise five matters to be determined in this appeal:

(a) The nature of the " absolute discretion " ss. 14 to 16 of the Act confer on the respondent;

(b) The legality of the respondent's policy towards the application of those provisions;

(c) The existence of a material difference between the respondent's published policy and that applied to the? application;

(d) The rationality of the impugned decision; and

(e) The adequacy of the reasons given for the impugned decision.

(a) The nature of the respondent's " absolute discretion "

10. The use by the Oireachtas of the words " absolute discretion " might on their face imply that the respondent's decision is so broad as to be effectively unreviewable by the Courts. The respondent does not defend the proceedings on that basis.? The first paragraph of the judgment of O'Donnell J. in A.P. v. Minister for Justice and Equality [2019] IESC 47 summarises the position:

Under s. 15 of the Irish Nationality and Citizenship Act 1956 (as amended) ("the 1956 Act"), the Minister for Justice and Equality ("the Minister") may, in his or her absolute discretion, grant a certificate of naturalisation to a person if satisfied that the applicant complies with certain statutory conditions, any of which may be waived by the Minister in circumstances themselves set out in the statute. The satisfaction of the statutory conditions (or satisfaction subject to waiver of some or all of the conditions) does not give rise to an obligation on the Minister to grant any application. Rather, satisfaction of the conditions or permitted waiver allows the Minister to exercise the absolute discretion conferred by statute as to whether or not to grant the certificate of naturalisation.

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11. The lawful exercise of the power that s. 14 of the Act confers on the respondent to grant a certificate of naturalisation is conditioned by s. 15 thereof, which allows him/her to do so where s/he is satisfied of the matters set out at sub-s. (1) thereof.? Meeting those conditions is a prerequisite to the lawful exercise of the discretion to grant a certificate but confers no entitlement on an applicant to receive it.

12. Section 15(2) of the Act describes the conditions in sub-s. (1) as " conditions for naturalisation ".? That term appears once thereafter in the Act, in s. 16(1) which provides that the respondent may, in his absolute discretion, grant an application for a certificate of naturalisation despite any non-compliance with those conditions.? For the respondent to exercise the absolute discretion under s. 16(1) of the Act s/he must be satisfied that the applicant for naturalisation (a) does not comply with the conditions for naturalisation and (b) comes within one of the cases described in that sub-section.? Non-compliance with the conditions for naturalisation is thus a prerequisite for the respondent to waive the requirements of s. 15 and to grant a certificate of naturalisation under s. 16 of the Act.?

13. The judgment of this Court in Borta v. Minister for Justice and Equality [2019] IECA 255 reaches identical conclusions as to the relationship between ss. 15 and 16 of the Act. Having described the renvoi to s. 15 in s. 16(1), para. 20 of the judgment of Donnelly J. observes that:

The wording of s.15(2) in combination with s.16 establishes in the first place that s.15 is the predominant pathway towards a certificate of naturalisation. That is because s.15 itself sets out the conditions for naturalisation. It is when those conditions are met that the Minister is entitled in his or her absolute discretion to consider whether to grant a certificate of naturalisation. ... Section 16 then goes on to deal with the situation where the conditions for naturalisation set out in s.15(1)(a) - (e) have not been met.? ...

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14. The appellant refers the Court to para. 28 of the judgment in Borta to support an argument that, when it enacted s. 16 of the Act, the Oireachtas intended to provide for a further, alternative, pathway to citizenship not set out in s. 15 thereof.? That interpretation overlooks both paras. 20 and 28 of Borta, the latter of which reads as follows:

...This case concerns the interpretation of a particular section of an Act, namely s.16 of the Act of 1956. That section, together with its subsections, must be construed together as a whole and an interpretation given to it. In so far as it refers back to s.15, that section must be read and interpreted together as a whole. Section 16 is not overlapping with s.15 as it is providing for a further pathway to citizenship not set out in s.15 of the Act of 1956. The discretionary aspects of the Minister's decision making powers are set out by means of the words " may " and " absolute discretion ". They are listed at the beginning of the section and it is that discretion that may be operated where, and it appears only where, certain conditions set out in s.16 are met. This of course takes place in circumstances where the conditions set out in s.15 are not met...

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15. When that paragraph is read in its entirety and in the context of the judgment of which it forms part, it is clear that, contrary to the appellant's contention, Borta is authority for the proposition that ss. 15 and 16 of the Act are to be read and construed together. The " further pathway to citizenship " opens up only where an applicant does not meet the conditions for naturalisation in s. 15(1) and the respondent waives those requirements in the exercise of his/her discretion under s. 16. Section 16 of the Act thus does not provide a pathway to obtain a certificate of naturalisation independent of the issue of compliance with the conditions for naturalisation. The appellant's submission that the respondent acted unlawfully by taking account of non-compliance with the conditions for naturalisation and the reasons therefor in the exercise of the discretion conferred by s. 16 must accordingly be dismissed.

(b) Lawfulness of the respondent's policy

16. The respondent's policy on the application of ss. 14 to 16 of the Act to the appellant's circumstances is set out repeatedly in the consideration of the application attached to the impugned decision.? The following statement in " b) Irish Associations " under the " Reasons for Decision ":

... it is Ministerial policy that the predominant pathway to naturalisation is for applicants to meet the conditions in Section 15 (1). As a result, it is only in rare, exceptional or compelling circumstances that the Minister will waive these conditions under Section 16.

**

17. Under this heading, the appellant appears to contend that the respondent cannot fetter the exercise of the powers granted by s. 16 of the Act by adopting a policy that s/he will waive the conditions for naturalisation only where an applicant exhibits exceptional or compelling reasons why those conditions have not been satisfied.? Put another way, the appellant submits that the respondent is not entitled to adopt a policy to restrict access to the exercise of the discretion in s. 16 of the Act to those exceptional or rare circumstances where an applicant for naturalisation does not meet the conditions for naturalisation under s. 15(1) thereof.

18. Part IV(a), above, explains that ss. 15 and 16 of the Act are to be read together and that a certificate of naturalisation under s. 16 may be granted only once the respondent has determined that the applicant has not met the conditions for naturalisation in s. 15.? The compartmentalisation between ss. 15 and 16 of the Act for which the appellant contends is supported neither by the text of those provisions nor by the case-law that has interpreted them. As this Court correctly concluded in Borta, the Act envisages that the predominant pathway to a certificate of naturalisation is through meeting the conditions for naturalisation.? The issue of a certificate in the exercise of the discretion under s. 16 of the Act requires both that the s.15 pathway to naturalisation is closed off and that the respondent is willing to waive the requirements of that section.???

19. The appellant does not contend the respondent is not entitled to have a policy with regard to the exercise of the absolute discretion ss. 15 and 16 of the Act confers, but that such a policy must be exercised within the four corners of those provisions.? The breadth of the discretion that those two sections confer and the symbiotic relationship between them are capable of justifying the respondent adopting a policy whereby an applicant must furnish exceptional and compelling reasons for non-compliance with the conditions for naturalisation before the respondent is prepared to waive that non-compliance and to exercise his/her discretion under s. 16 of the Act.? It thus cannot be said that those provisions create a legal obstacle to the respondent's adoption of that policy.?? ?

20. Paragraph 46 of the written submissions filed on the appellant's behalf contends that a general policy cannot be based upon proof of exceptional circumstances, as that would mean that no one could argue that they should be treated as an exception to that policy as they could not have exceptional circumstances that went beyond the exceptional circumstances that that policy required. I accept the respondent's submission to the effect that this argument confuses a policy threshold expressed in terms of exceptional circumstances and allowing for exceptions to a policy. A decision-maker is entitled to adopt a policy that exceptional circumstances must be present for it to reach a certain outcome. A decision-maker may nevertheless make an exception to the application of that policy by not requiring proof of exceptional circumstances. It does not follow that an applicant must demonstrate a higher level of exceptionality in order to justify any departure from that policy.

21. In so far as the appellant alleges that the respondent's policy amounts to a fetter on the exercise of his/her discretion, it is clear from the impugned decision that the respondent took care to describe the appellant's personal circumstances accurately and took them into account in the impugned decision. That decision thus does not bear the hallmarks of the application of an unalterable or fixed policy.

22. For these reasons I dismiss the appeal under this heading.

(c) Material difference between published and applied policies

23. By reference to para. 58 of the judgment in K.B. & Ors v. Minister for Justice [2024] IEHC 720, the appellant asserts that the High Court erred in failing to find that it was impermissible for the respondent to apply a materially different policy in the impugned decision, i.e. that an applicant demonstrate exceptional and compelling reasons why she did not, or was unlikely in the future, to meet the conditions for naturalisation, from that which was published on the Department of Justice's website on 20 May 2022 in the terms following:

The fact that the Act provides for use of discretion should not be taken that it is policy to do so on the sole basis of Irish descent or Irish associations. There is no right or entitlement to have any of the statutory conditions waived even where the applicant comes within the certain circumstances defined. It is entirely at the Minister's discretion and this discretion is used very rarely and only under the most compelling and exceptional circumstances. An application under s.16 of the Act that relies on Irish associations and affinity should be supported by substantive documentation supporting the claim, documentation that in the view of the Minister renders the application exceptional and one where the normal pathways to citizenship provided for by the legislation are not appropriate.

24. Bearing in mind that this representation was published for the benefit of the general public and that it does not purport to be an authoritative interpretation of ss. 14 to 16 of the Act, statements to the effect that a matter is determined entirely at the respondent's discretion - which is used very rarely and only under the most compelling and exceptional circumstances - are, in ordinary language, capable of encompassing both the policy the respondent applied to the appellant's case and the approach the respondent has taken in the defence of these proceedings. The contradiction between the policy applied and that described in May 2022 does not, therefore, exist.? That conclusion is sufficient to dispose of this ground of appeal without the necessity of examining whether the respondent was bound by representations published on 20 May 2022 as distinct from the applicable statutory provisions and/or whether the appellant may rely upon a statement of policy published some 41 months prior to the submission of her application for naturalisation.??

(d) Whether the impugned decision was rational

25. The appellant's case under this heading appears to come down to a single point: was it rational for the respondent, in the absence of any evidence or material to support it, to conclude that: " ...far from not being able to meet the Section 15(1)(c) residency conditions in the future, it is in fact the applicant's stated long term plan to live permanently in Ireland and as such she will be able to apply for naturalisation using the predominant Section 15 pathway. "?

26. The first point is that the concluding remarks of the impugned decision record the appellant's stated long-term plan to live permanently in Ireland, which is one of the conditions for naturalisation. That was sufficient material upon which the respondent was rationally entitled to conclude that the appellant could satisfy those conditions in the future. The logic underlying the appellant's approach appears to be that the respondent's rejection of her application for a certificate of naturalisation has the consequence of preventing her from residing in the State which, in the light of her personal circumstances, meant that the only rational decision that could have issued was to grant her request. Not only has that case not been made out on the facts, but it also follows from the considerations at Part IV(a), above, that the respondent is under no obligation either to waive compliance with the conditions for naturalisation or to exercise the absolute discretion under s. 16 of the Act on the grounds that it is the only mechanism whereby an applicant could reside in the State.

27. An argument is also advanced under this rubric according to which the respondent made a material error of fact and/or acted irrationally in miscalculating the duration of the appellant's lawful residence in the State in the light of the guidance published in May 2022.?

28. The impugned decision did no more than calculate the period of the appellant's reckonable residence in the State for the purposes of s. 15(1)(c) of the Act.? It follows that the premise upon which the appellant's submission rests, to the effect that the respondent miscalculated the duration of the appellant's lawful residence in the State by reference to the May 2022 guidance, is incorrect.? Since the respondent lawfully decided not to waive the conditions for naturalisation in the exercise of the absolute discretion in s. 16(1) of the Act, it is unclear why there was any necessity to examine, let alone calculate, the duration of the appellant's lawful residence in the State.? In any event, it is clear from the impugned decision that the respondent accurately recorded all of those periods of lawful residence and took them into account in the assessment of the strength of her connections with Ireland.? They were nonetheless insufficient to amount to an exceptional or a compelling reason why the appellant did not satisfy the conditions for naturalisation.

29. By reason of the foregoing, I propose to dismiss the appeal under this heading.

(e) Whether the impugned decision was adequately reasoned

30. This ground of appeal can be addressed shortly. The impugned decision accurately records the appellant's Irish associations.? It explains why she did not satisfy the requirements of s. 15(1)(c) of the Act.? It represented that the appellant had produced no exceptional justification sufficient to persuade the respondent to exercise his powers under s. 16(1) of the Act and that it was open to her to seek to meet the conditions for naturalisation.? Those reasons are sufficient, in my view, to meet the requirements that the appellant knew in general terms why the decision was made, that she had enough information to consider whether to challenge its validity and to allow the High Court and this Court on appeal to exercise their respective review jurisdictions: Connelly v. An Bord Plean?la [2021] 2 IR 752, 767-768 per Clarke C.J.

V. Conclusion

31. For the reasons set out at Part IV, above, I propose to dismiss the appeal and to affirm the High Court order.

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32. The default position under s. 169(1) of the Legal Services Regulation Act 2015 is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. I am of the provisional view that, having been entirely successful in defending these proceedings, the respondent is entitled to an order against the appellant for the costs incurred in this Court, to include any reserved costs. Should the appellant disagree with that proposed order, she should cause to have filed and served a written submission of not more than 1,000 words within fourteen days of the delivery of this judgment, after which the respondent will have a further period of fourteen days in which to respond by the lodgment and service of a reply of no greater length.

33. Since this judgment is delivered electronically, I am authorised by Whelan and Hyland JJ. to state that they agree with it and with the orders proposed therein.

Result:     Appeal Dismissed

Appearances:

For the Appellant: Rosario Boyle SC and Aoife McMahon, instructed by Thomas Coughlan & Co., Solicitors

For the Respondent: David Leonard, instructed by the Chief State Solicitor

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