Citizenship applicants cannot leave Ireland for a year before application, judge rules
Posted on 17th July 2019 at 22:13
Practice of allowing applicants six weeks for holiday or other reasons ‘not permitted by law’
A High Court judge, in a significant decision, has ruled the “continuous residence” requirement in citizenship applications means an applicant for naturalisation must have “unbroken” residence in the State for an entire year immediately before the date of their application.
The Minister for Justice’s discretionary practice of allowing applicants six weeks out of the country, for holiday or other reasons, and more time in exceptional circumstances, is not permitted by law, Mr Justice Max Barrett ruled.
That “might seem unfair” in a world where many people travel abroad for work and take foreign breaks more than once a year but it is what the relevant law requires, he said.
The cure for any such unfairness is not to be found in the courts, it “lies in the gift of the legislature”, he added.
He made the findings when rejecting a challenge by Roderick Jones, from Australia, to the Minister’s refusal of his application to become a naturalised Irish citizen.
The case concerned interpretation of Section 15.1.c of the Irish Nationality and Citizenship Act 2015.
It provides, on receipt of an application for a certificate of naturalisation, the Minister “may, in his absolute discretion, grant the application if satisfied that the applicant.. has had a period of one year’s continuous residence in the State immediately before the date of the application”.
In Mr Jones’ case, the applicable one year period ran from September 1st 2016 to August 31st 2017.
During that time, Mr Jones, who works in the university sector here, was out of Ireland for 100 days, 97 on holiday and three for work reasons.
The Minister, in a decision of November 2018, refused Mr Jones’ application because he was out of the country for more than the discretionary absence period of six weeks.
Mr Jones challenged that refusal in judicial review proceedings.
In a recently published judgment, Mr Justice Barrett rejected the challenge on foot of findings section 15.1.c allows the Minister no discretion in relation to the “continuous” residence requirement.
Either an applicant has had a period of one year’s continuous residence or they have not, he said.
According to the Oxford Dictionary of Current English, “continuous” means “unbroken, uninterrupted, connected throughout in space or time”.
Although the Minister has manifested “very real humanity” in trying to “nuance” the “very clear” wording and effect of section 15.1.c of the Act by applying a discretionary absence period to allow for the realities of modern life in which multiple work/holiday absences may be possible in any one year, the Minister has “unfortunately gone beyond what is legally permissible”, he ruled.
In Mr Jones’ case, one cannot properly say a one year period of residence punctuated by 97 days of holiday absence and three days of work absence is “unbroken, uninterrupted, connected throughout in space or time”.
There was no evidence why the one year “continuous” residence period was imposed by the Oireachtas in the 1956 Act but it may have been to ensure citizens enjoy “a concrete connection” with the State.
Whatever the reason, he did not consider a literal reading of “continuous” yielded an “absurdity” requiring the court to move on to an alternative reading of section 15.1.c.
While the court did not agree with how the Minister concluded Mr Jones is ineligible at this time for a certificate of naturalisation under section 15.1, the refusal conclusion was still correct.
The Minister’s refusal was because Mr Jones had gone outside the discretionary period but the Minister cannot apply such a discretion under the Act, he said.
The Minister’s decision Mr Jones had not had one year’s continuous residence in the applicable period was neither wrong nor irrational but his means of getting to that “finding”” was based on legal error. Although the Minister had come to the right conclusion by the wrong route, there was no point in granting Mr Jones the reliefs sought because of the court’s interpretation of the word “continuous” in this case.
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