Irish citizenship applications disrupted by significant High Court decision
What a Difference a Day Makes - Significant High Court decision disrupts Irish citizenship applications
This week's High Court decision in Roderick Jones v Minister for Justice and Equality (the Judgment) has shone a spotlight on the residency requirements for gaining Irish citizenship by naturalisation. However, the Judgment has led to widespread concern from individuals awaiting decisions on citizenship applications, prospective applicants, and their employers.
The High Court ruled that the literal interpretation of the phrase "continuous residence" as prescribed by the Irish Nationality and Citizenship Act 1956, means that no applicant can be granted citizenship if they have spent even a day outside of Ireland in the year prior to their citizenship application.
As things stand, the Department of Justice is required to adjudicate on citizenship applications by applying the law as set out in the Judgement. The public outcry over the ramifications of the Judgment, however, seems to have been heard by the Department and it remains to be seen how the Department will respond to this Judgment.
The legislation and the policy
Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended) (the 1956 Act) states that the Minister for Justice and Equality may "in his absolute discretion" grant an application for citizenship by naturalisation if, among other things, the applicant:
"has had a period of one year's continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years…"
A policy developed in the Department of Justice and Equality that allowed for approximately 6 weeks of absence from Ireland during the previous year to facilitate normal work trips and holidays. This was colloquially referred to as the "six-week rule."
The existing practice allowed for a degree of leeway in respect of the "continuous residence" requirement in recognition of what the High Court referred to as "the realities of modern life in which multiple work/holiday absences may be possible in any one year".
The facts of the case
In this case, Professor Jones, an Australian national working in a Dublin university, had applied to become a naturalised Irish citizen. His application was refused because he had been out of the country for 100 days in the year before his application. 3 of those days were work related and the rest was annual leave.
In refusing the application, the Minister noted that Mr Jones' 100 day absence exceeded the "discretionary absence period of six weeks and possibly more in exceptional or unavoidable circumstances."
Mr Jones subsequently challenged this decision in the High Court by way of judicial review.
The High Court's decision
Relying on the Oxford English Dictionary's definition of "continuous", the High Court held held that the "one year's continuous residence" prior to the application as required by the 1956 Act must be "unbroken, uninterrupted, connected throughout in space and time".
The Court's view was that the six week rule was "excessively generous" and in any case it is not permissible under a literal interpretation of the legislation to facilitate holidays or work trips - referred to by the Judge as "punctuated absences" – in the year of "continuous residence".
The Court ruled that the Minister's exercise of discretion in relation to the "six week rule" had "gone beyond what is legally permissible", as the Act does not confer any discretionary power on the Minister to allow for such gaps in the 12 month period preceding an application being submitted.
The Court stated that travelling abroad during this period could mean Mr Jones was still "ordinarily resident" in Ireland but that does not equate to the requirement of the drafters of the 1956 Act, which was "continuous residence". While the Court acknowledged the potential unfairness of this decision, it noted that it was the role of the legislature to rectify any such unfairness.
What this could mean for applicants?
This new ruling means that citizenship by naturalisation applications could potentially be refused due to a single day having been spent outside the State in the year before the application. Technically a weekend trip to Belfast would be sufficient to fall foul of the Court's extremely narrow interpretation of the law.
This is obviously of major concern to many individuals with applications already submitted and who are awaiting a decision. Will their formerly eligible applications now be rejected in line with this Judgment? Will the Department of Justice administer the existing rules in relation to existing applications? Or will the entire application process be "stayed" pending an appeal of this decision or a change to 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 are no longer in a position to attend a conference or sales trip in London? Can they attend their family member's wedding in Italy?
Equally, there may be a shadow cast over the validity of any applications granted by the Minister in the past where the six week rule was applied.
From an employer perspective, questions arise as to how they should deal with requests from employees to cancel proposed foreign business trips at potentially short notice. In a climate focused on the recruitment and retention of key talent from a global workforce, the reality is that employees are frequently required to travel in the course of their employment. Requiring individuals to physically reside within the four corners of this island for 365 consecutive days seems impractical and overly rigid.
The Department of Justice and Equality has confirmed that they are "studying the decision carefully and will take any necessary action in consultation with the Attorney General."
It remains to be seen if and how the Oireachtas might respond. Legislation may be passed but this is unlikely until after the Dáil summer recess. From the legal perspective, an appeal of this decision could also be in the pipeline.
The Jones decision potentially renders it impossible to lead a normal life while at the same time wishing to remain eligible for citizenship by naturalisation having lived and worked in the State for the requisite qualifying period.
If the public furore over the last few days is anything to go by, we expect steps will be taken sooner rather than later to mitigate the potentially harsh impact of this Judgment. Watch this space!
For more information please contact Michael Doyle, Ailbhe Dennehy, Ciaran Ahern or any member of the A&L Goodbody Employment team.
Date published: 19 July 2019