Citizenship process in limbo pending new legislation

Last year more than 10,000 people were granted Irish citizenship. In light of developments in the High Court in the past two weeks, many of these people may count themselves lucky. In the recent and unexpected decision of Jones v Minister for Justice and Equality, the High Court severely curtailed an applicant's prospects of successfully securing Irish citizenship, which has resulted in major disruption and uncertainty for many. However, in a move that has been universally welcomed, the Minister for Justice and Equality announced this week his intention to enact urgent legislation to address the implications of this High Court decision.

In order to be eligible for Irish citizenship via "naturalisation", an applicant must be able to demonstrate they have lawfully resided in Ireland for a defined period of time.  Generally speaking, anyone who has resided in Ireland for five of the eight years preceding their application (including "one year's continuous residence" immediately prior to applying) may apply for Irish citizenship and, in turn, an Irish passport.

The hullabaloo following the recent High Court decision related to the requirement to be continuously resident in Ireland for a full year prior to the application being lodged. While the Irish Nationality and Citizenship Act 1956 requires "continuous residence" in that final year, the Department of Justice and Equality had permitted absences from Ireland of up to six weeks per year to enable applicants travel abroad for work and recreational purposes, without scuppering their ability to subsequently secure Irish citizenship.  The High Court decision has however brought that practical flexibility to a shuddering halt. Perhaps unsurprisingly, an appeal to the Court of Appeal was lodged within a matter of days.

The High Court controversially applied a very literal interpretation of the phrase "continuous residence", concluding that no applicant could be granted citizenship where they had spent even a single day outside of Ireland in the year preceding their application. This judgment understandably caused widespread concern, not only from individuals awaiting decisions on their own citizenship applications, but from those planning to apply. The primary and valid concern is that this decision renders it extremely difficult, if not impossible, for applicants to lead a "normal" life, in that it serves as an effective ban on all foreign travel, regardless of the reason or duration.

As things stand, the Department of Justice and Equality must determine citizenship applications in line with this decision. But how feasible is this in practice? Does this mean a stag weekend to Belfast or a business trip to London in that final year renders a subsequent citizenship application doomed to fail?

Questions that need answers

Following the High Court decision immigration lawyers have been grappling with the numerous issues raised, from "known knowns" to "unknown unknowns". Will formerly eligible applications now be rejected in line with this decision? Will the Department of Justice continue to apply its well-established practice of permitting applicants to have engaged in ad hoc travel abroad or fall in line with the High Court's interpretation of a law that is over 60 years old? Or is it possible that the entire citizenship decision making process will be paused pending the outcome of the appeal  or a change in legislation?

Similar questions are being raised by individuals intending to submit applications in the coming 12 months. Do they need to cancel any foreign holidays? Should they advise their employers that they can no longer attend a conference or sales trip to New York?

From an employer's perspective, will employees need to cancel proposed business trips at potentially short notice? Are employers entitled to take disciplinary action against employees who fail to carry out their duties due to being "grounded" in Ireland?  

Certain sectors of our economy rely on the recruitment and retention of key talent from a global workforce. Do we want to run the risk of potentially deterring such individuals from choosing to come to Ireland for work due to concerns over an overly rigid pathway to citizenship?

What happens next?

It appears that the Government agrees that the requirement for citizenship applicants to physically reside within the 26 counties for 365 consecutive days is impractical and overly rigid. The Department has this week confirmed plans to introduce urgent legislation to "resolve the issue" when the Oireachtas reconvenes in September.

It remains to be seen exactly what form the new legislation will take. The requirement for residence to be "continuous" might be removed or the Department could also legislate for the flexibility it previously applied in practice. Either way, the Department must ensure that normal business and personal travel does not disentitle anyone to Irish citizenship.

The silver lining is that it is clear that the Department does not intend for this decision to adversely impact past, current or future naturalisation applications. Notably, the Department is advising individuals to continue to submit applications in the normal course without explicitly stating that applications will be ruled ineligible if an applicant has been out of Ireland in the preceding year. 

While the Oireachtas summer recess will unfortunately delay the introduction of amending legislation, the Department is sending strong signals of support for pending citizenship applicants.  For that reason, applicants should operate on the basis of business as usual when it comes to making citizenship applications, and not to expect undue disruption to the processing of applications pending the expected legislative clarity in the autumn. 

This article first appeared in The Sunday Independent on 4 August 2019.

For more information please contact Ciaran Ahern or any member of the A&L Goodbody Employment team.

Date published: 6 August 2019