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Saturday 2 December 2023 Dublin: 1°C
Sam Boal/

Shock ruling says citizenship cannot be granted if applicant has spent a day outside Ireland in past year

Experts called the ruling “absurd”, pointing out that the law on citizenship has never been interpreted so strictly before.

THE HIGH COURT has ruled that nobody can be granted Irish citizenship if they have spent a single day outside the country in the past year.

The unexpected judgment, handed down by Mr Justice Max Barrett, could affect thousands of people applying for Irish citizenship on the basis of residence in the country.

Experts called the ruling “absurd”, pointing out that the law on citizenship has never been interpreted so strictly before.

Under the Irish Nationality and Citizenship Act 1956, foreign nationals wishing to naturalise as Irish have to be legally resident in the State for at least five years out of the last nine (or three out of the last five if married to an Irish citizen).

This includes one year of “continuous residence” in the 12 months up to the date of application.

In practice, the Department of Justice and Equality had been allowing citizenship applicants to be out of the country for up to six weeks in that final year, and “possibly more in exceptional or unavoidable circumstances”.

But Mr Justice Max Barrett ruled this six-week rule goes “beyond what is legally permissible in this regard, because… the Act of 1956 does not confer any discretionary power on the Minister”.

Pointing to the dictionary definition of “continuous”, the judge held that “an applicant must show a one-year period of residence in Ireland that is ‘unbroken, uninterrupted, connected throughout in space or time’”.

Immigration lawyer Aoife Gillespie said the effect of the decision is that “an applicant must literally never leave the State [in those 12 months]. Not even for one day. Not even to enter Northern Ireland (an impossibility for many persons living by the border). They must have entirely uninterrupted residence in Ireland”.

She added, “It is absurd to require a person to be detained within the State for an entire year in order to qualify for Irish citizenship.”

Speaking to the, Gillespie said that foreign citizens resident in Ireland should not now apply for citizenship if they have been out of the country even once in the past 12 months – at least until the legal position is resolved.

She added that pending citizenship applications would have to be refused:

Those applications that are sitting on the Department’s desk at the moment, where there is any absence at all, can’t be approved until either the judgment is appealed and overturned or the law changes.

Lawyer Cathal Malone said that the department “may decide to suspend or delay decisions in any case where there’s a short absence” pending an “inevitable” appeal.

Malone, a specialist in immigration and asylum law, told that “the decision will likely bring the entire Citizenship Division to a grinding halt until it’s resolved on appeal. I suspect a leapfrog appeal directly to the Supreme Court is highly likely”.

Gillespie said that the ruling could even raise questions about past grants of Irish citizenship, since the six-week rule has, in the High Court’s view, been unlawful all along.

“There are countless naturalisation certificates that have been granted where the person hasn’t been continuously resident in accordance with this rule. So there’s a question mark over whether previous grants of naturalisation were lawful because the Minister didn’t have the power to grant them.”

Over 8,000 people were granted Irish citizenship in 2017 alone, according to European Union data.

The decision does not affect those applying for Irish passports on the basis that they have an Irish parent or grandparent. There is no residence requirement for citizenship by descent.

Mr Justice Max Barrett wrote that while his judgment “may seem unfair”, it was what the letter of the law required. He said that “the cure for any (if any) such unfairness as is resulting is not to be found in the law-courts; it lies in the gift of the legislature”.

Malone added that there may need to be emergency legislation to amend the 1956 Act.

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