Monday 16 September 2019

Shock at court ruling on meaning of citizenship application law

Mr Justice Max Barrett. Photo: Tom Burke
Mr Justice Max Barrett. Photo: Tom Burke
Irish passport (Brian Lawless/PA)
Shane Phelan

Shane Phelan

Thousands of people seeking Irish citizenship could be affected by a High Court ruling which means they must be continuously present in the State for a year before seeking naturalisation.

The ruling suggests that even an absence of a single day would be enough to derail an application for citizenship.

The judgment by Mr Justice Max Barrett, which was published yesterday, has been greeted with shock by immigration lawyers, some of whom have described it as “absurd” and contrary to the realities of modern life.

Department of Justice officials are studying the decision and it is feared thousands of citizenship applications will have to be put on hold until a solution – either through new legislation or an appeal – is found.

Irish passport (Brian Lawless/PA)

Last year over 10,000 people gained Irish citizenship through the naturalisation process.

The key issue in the ruling was the judge’s interpretation of the word “continuous” in Section 15(1)(c) of the Irish Nationality and Citizenship Act.

The section says the Justice Minister can grant applications for naturalisation where he is satisfied 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 Department of Justice has operated a discretionary policy where a person can be absent for up to six weeks in the previous year and still make a successful application.

Effectively what the judgment means that if the department wanted to it could penalise a person for being out of the country for just one day. Solicitor Carol Sinnott

A decision to refuse a citizenship application was challenged by Dr Roderick Jones, an Australian senior research fellow at UCD.

His bid for citizenship was refused after he was out of Ireland for 100 days, 97 on holidays and three for work reasons, in the year before making his application in August 2017.

Dr Jones argues the minister failed to make any reasonable allowance for temporary absences from the State for valid reasons such as reasonable holidays.

But in a ruling which neither side in the case was expecting, the judge found that the minister came “to the right conclusion by the wrong route”.

Mr Justice Barrett said the minister “has manifested very real humanity” by applying a discretionary period of absence of up to six weeks.

But the judge found the minister had “gone beyond what is legally permissible” under the act, which did not confer any discretionary powers.

Mr Justice Barrett said the ordinary meaning of the word “continuous” in the Oxford Dictionary was “unbroken, uninterrupted, connected throughout in space and time”.

In his judgment, he said he did not see that a literal reading of the word “continuous” was an absurdity that required him to give an alternative interpretation of Section 15(1)(c).

The judge also said while there was no evidence before him as to why the one-year period was imposed, it may have been to ensure that citizens-to-be enjoy “a concrete connection with the State”.

He said his ruling may seem unfair in a world where many people regularly travel abroad for work or take foreign breaks more than once a year.

But he said “the cure” for any such unfairness was not to be found in the courts but in the legislature.

Dr Jones’s solicitor, Carol Sinnott, told her client was considering appealing the judgment.

“In all likelihood it will be appealed or challenged, whether it is by him or somebody else,” she said.

The solicitor said she believed the decision would be overturned by the Court of Appeal.

“Effectively what the judgment means is that if the department wanted to it could penalise a person for being out of the country for just one day,” she said.

The ruling would have repercussions for many applicants, particularly those who have to travel outside the country for work, said Ms Sinnott.

She added that other problems would arise if the consideration of applications has to be put on hold while a solution is sought.

As an example she cited foreign doctors who are unable to undertake certain types of training if they are not EU citizens.

Aoife Gillespie, a senior associate at Philip Lee Solicitors, which was not involved in the case, described the outcome as “absurd”.

She said the decision would significantly impact on family life and disrupt business operations.

Ms Gillespie said it had created “panic and shock” among the immigration lawyers and the migrant community.

In a statement, the Department of Justice said it was “studying the decision carefully” and would take “any necessary action in consultation with the Attorney General”.

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