Controversial decision by High Court on Irish Naturalization Rules
Anyone that has applied for naturalisation to become an Irish Citizen and awaiting a decision, or is considering now applying should carefully consider the impact of the high court decision released Wednesday in the case of Roderick Jones who brought Judicial review proceedings against a decision of the Minister for Justice.
Under the Irish Nationality and Citizenship Act 1956, nationals applying to naturalise as an Irish citizen must be legally resident in Ireland for at least five years out of the last nine, or in the case of those married to an Irish national they must be resident for three out of the last five.
As part of the residency test, the applicant must also prove they have been in “continuous residence” for the 12 months up to the day of the application being submitted.
Before this ruling, flexibility or ’discretion’ was always afforded to applications of up to 6 weeks absence in that 12 months period, meaning they could take a holiday or short breaks up to 6 weeks in total and it would not affect their application.
Mr Jones had his application rejected as he had been outside of Ireland for a period considerably longer than the unofficial 6 week discretionary period mostly work related travel and some holidays so his application was refused. He brought legal proceedings against the refusal and the outcome has had a significant impact on that previously discretionary period.
This has now dramatically been amended by the court to what appears to be an overtly strict interpretation of the legislation.
Judge Mr Justice Max Barrett has ruled that the definition of “continuous” in his opinion strictly applying the letter of the law as it is written in legislation is that an applicant must show a one-year period of residence in Ireland that is ‘unbroken, uninterrupted, connected throughout in space or time’, therefore he stated the Minister actually has no such ability to have any discretion for any absence.
In short, what he has effectively ruled is that an applicant must be in the state for the full 12 months leading to the application with no absences of any kind or duration. This in practical terms would mean even a short break outside of Ireland such as the annual family holiday to Spain, or even closer to home but sometimes people often overlook is a trip across the border to Northern Ireland to see the goings on in Portrush with the big golf open, possibly even the weekly shopping trip crossing the border could constitute a break in that continuous residence, and upon return you would have to start the clock on building one year residence all over again.
It will be interesting to see how this development will now be impairment and applied to applications, will such short trips across the border count as breaking residence, generally for considering residence it is based on overnight stays, so one view would be that as long as any trip did not involve overnight stay, you were back at home that night then there is no break, another argument could simply mean you break your connection with Ireland once you leave its territory.
As you can see there are many issues that this decision now throws up and there are presently more questions than answers.
It would be easy to possibly criticize the Judge in the case for coming to this decision, that is now going to cause so much difficulty, in fact, many have, but what may seem unfair, the Judge has pointed out he is only applying the law upon reading the legislation.
We are hopeful the decision will be appealed to the Court of Appeal, or potentially if it is not appealed, or is and is unsuccessful, then it will have to be down to lobbying for a change in the law that then does give the Minister discretion.
Our advice is that those with outstanding application that has had any absence in the 12 months to the application will likely have their application placed on hold pending any appeal. This could, unfortunately, mean a significant delay in a decision being made.
A practical tip to those may be to now begin building their 12 months uninterrupted presence in Ireland and if by then there has been no change in the rules consider withdrawing your application and then re-applying as you will then have met the new strict rules of one years residence.
If their application is rejected there is a possibility of pursuing Judicial review proceedings and this is something we have spoken at length with our Barristers about.
For those considering now applying we would suggest you consider how the above ruling now affects you, review the last time you entered the country, count 12 months from that date.
If you are unsure about how this decision may affect you do not hesitate to get in touch with our Immigration team.
Denis McGettigan, Immigration Specialist, Gibson & Associates Solicitors.