A recent High Court decision by Justice Barrett on the requirement for continuous residence in Ireland for the year prior to an application to become a naturalised citizen has created new issues for those who have recently applied – or were about to apply – for Irish citizenship.
In Roderick Jones v Minister for Justice and Equality, Mr Jones, an Australian national, applied to become a naturalised Irish citizen. Mr Jones was refused on the basis that in the year prior to his application, he had been out of the country for 100 days. He challenged the Minister’s decision in the High Court.
The legislation at the heart of the issue is the Irish Nationality and Citizenship Act 1956, as amended, (the “Act”), and specifically section 15. It states 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 – … has had a period of one year’s continuous residence in the State immediately before the date of the application”. In practice, the Minister operates the rule that a discretionary absence period of 6 weeks, and possibly more, in exceptional or unavoidable circumstances will be permitted and an individual can still be granted citizenship. However, Mr Jones’ application was rejected as he had been out of the country for greater than the discretionary 6 week period.
Whilst Justice Barrett agreed with the Minister’s decision that Mr Jones application should have been refused, he outlined, somewhat surprisingly, that the reasoning to get to that decision was flawed. Essentially, the judge stated that the Minister has gone beyond what is legally permissible within the Act by allowing a six week absence from the State in the year prior to the application, as the wording of the Act is clear – there is simply no room for discretion and either an individual has or has not had one year’s continuous residence in the State. He considered the meaning of the word ‘continuous’ to have its ordinary dictionary meaning of “unbroken, uninterrupted, connected throughout in space or time”. He therefore found that Mr Jones’ argument that the Minister’s application of the legislation was overly literal was incorrect and instead he noted that the Minister was in fact being ‘excessively generous”. As such, he explained that the Minister must require individuals to have one year’s continuous residency, without leaving the State at all during that period.
Justice Barrett did highlight that if the lack of discretion to allow individuals to go outside the State at all during the relevant period was perceived to ‘yield unfairness’ then it was for the legislature – and not the courts – to remedy that issues. This has left the area of Irish citizenship in a state of flux, and would mean that even a single day out of the country in the year prior to the application would result in the application being refused. This has particularly been criticised as this could mean that an individual who lives in the State but who has to cross the border to Northern Ireland to work (as many people do) in the year prior to their application would also not be allowed to apply for Irish citizenship.
The Minister, Charlie Flanagan, has said that they are looking at the judgment as a matter of urgency and will take any necessary action to resolve it, so the High Court’s ruling may not be the final word on the matter.
  IEHC 519
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