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Q&A: What does the controversial High Court decision on citizenship actually mean?

This week’s High Court decision came as a shock – so what does it all actually mean for citizenship?

The High Court decision this week came as a surprise.
The High Court decision this week came as a surprise.
Image: Leah Farrell/RollingNews.ie

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

The judgement, which was handed down by Mr Justice Max Barrett, came as a surprise to many in the legal community and quickly triggered concerns among people applying for Irish citizenship.  

The impact of the judgement is stark and significant for anyone trying to become a naturalised Irish citizen. TheJournal.ie has spoken to lawyers, academics and immigrant rights’ groups to get some answers to the main questions people have about the controversial decision and what it means for Irish citizenship law.  

First off, what happened?

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 a ruling published this week, Mr Justice Max Barrett interpreted “continuous” narrowly and held that “an applicant must show a one-year period of residence in Ireland that is ‘unbroken, uninterrupted, connected throughout in space or time’”.

Basically, this means someone cannot leave the country for even a day within the year leading up to their application. 

 If I’ve just applied for Irish citizenship, what happens to my application?

This is not going to become settled citizenship law in Ireland and no one thinks this new legal situation is desirable. 

So while this ruling has created an unprecedented problem, the government is trying to fix it.

Applications are now likely to be stalled. It remains unclear what exactly the government or the Department of Justice is going to do next.  

Part of the problem is that the citizenship application form no longer meets the legal requirements set down by the High Court decision. By failing to ask if you have left the country for any period of time – not simply the six-week period that the Department of Justice has decided is an accepted absence – the forms are not in compliance with the definition of “continuous” set out in the High Court judgement.  

As immigration lawyer Cathal Malone told TheJournal.ie: “They can’t legally decide any application unless they changed the form.” 

This doesn’t necessarily mean that your application is going to be rejected. The government will not want to encourage people to go to the courts with a rejected application seeking a judicial review and adding further complications to the High Court case.  

So it’s likely your application will now be delayed for several weeks until the government and the Oireachtas solve the problem.  

I’ve recently been made an Irish citizen. Does this decision affect me?

The short answer is no. “People shouldn’t panic,” says immigration lawyer Aoife Gillespie.  

The Irish Naturalisation and Immigration Service (INIS) issued a statement saying: “We do not believe that this ruling has consequences for anyone who has already obtained citizenship under the Act.”

The long answer is a little more complicated. 

There is a legal argument that the High Court decision means that the Minister for Justice never had any authority to confer citizenship because they didn’t legally have discretion to treat a six-week absence from Ireland as commensurate with “continuous” residence.

If that was the case, that would mean thousands of applications could be revoked for being legally void. 

Thankfully, that situation is unlikely to happen. Legally, Trinity College Dublin lecturer and constitutional law expert Dr David Kenny said that typically “you don’t see the unstitching of decisions”. 

“No one would have the standing to argue the department made an unlawful decision” in conferring citizenship, Kenny said.

The courts would likely be very reluctant to retrospectively undo the vast majority of citizenship conferrals since 1956, when the Irish Nationality and Citizenship Act was passed.

The wording of the act would also seem to offer protection to anyone worried about citizenship being retrospectively removed. Section 18 states:

Every person to whom a certificate of naturalisation is granted shall, from the date of issue and so long as the certificate remains unrevoked, be an Irish citizen.

This suggests that, unless formally revoked, anyone who has already been made an Irish citizen has no reason to worry. Additionally, Section 19 of the Irish Nationality and Citizenship Act, which deals with revocation of citizenship, does not include any provisions for revoking citizenship following a mistake by the minister. 

This suggests that the judgement doesn’t need to be interpreted as undoing years of citizenship conferrals. 

Of course, legal arguments are also distinct from political reality. “As a matter of practicality, people are probably safe,” Malone says. 

It is incredibly unlikely that the government would fathom a situation in which thousands of people could have their citizenship revoked. Not only would it look terrible politically, it would also be a gargantuan and perhaps impossible bureaucratic task. 

This means that if you already have Irish citizenship, you really shouldn’t spend too much time fretting.  

Does crossing the border into Northern Ireland count as leaving the country? 

Yes. This very situation was addressed by Justice Barrett in his judgement.  

It is possible for a person, the true focus of whose life is in Ireland, to spend a couple of nights in Belfast, go on a business trip to London, enjoy a couple of weeks in Spain in the summer, spend a month in Australia in the winter, and yet still properly be considered to be ordinarily resident in Ireland. But the problem for Mr Jones is that in none of those instances could a person who goes on any one of those trips in any one year be said to be in “continuous residence” in Ireland during that year. Why? Because that person’s period of residence in Ireland during that year has been punctuated by absences abroad.”

By crossing the border – whether for weeks, days or a matter of minutes – someone is leaving the country and could be seen as having breached the definition of “continuous residence” set down by Barrett.  

If you were simply crossing the border on a bus, say if you were travelling from Dublin to Donegal, it is “up in the air” whether that would count as breaking the legal residency requirement, Gillespie said. 

“But I think you’d have to veer on the side of yes,” she added. 

We can expect government advice to be issued in the coming days. If they say travelling across the border is fine and won’t count against you in a citizenship application, you should feel able to travel into Northern Ireland.

Will this be fixed?

Certainly. We just don’t know when or how. Charlie Flanagan, the Minister for Justice, said the ruling was being dealt with as an “urgent priority” and officials were studying the decision. 

Yesterday evening, the Deputy Secretary General in the Department of Justice Oonagh Buckley wrote on Twitter: “The primary focus of the Minister and the Department is to find a solution. We ask that anyone in the process, or intending to apply, to stay on course and give us a chance to work one out.”

The Immigrant Council of Ireland is asking people to wait and see what happens and what action the government takes. They are not expecting a “quick fix”, a spokesperson told TheJournal.ie

The obvious response, of course, is emergency legislation. The major problem with this is that the Dáil is currently on recess and won’t sit again until the end of September. Once the Dáil does return, however, it is nearly inevitable that legislation will pass to clarify the definition of “continuous”.

The content of that legislation remains unclear until the Department of Justice makes a public statement. Some immigrant rights groups argue that six weeks is too short a period for people applying for residency, so it remains to be seen if the government will take this as an opportunity for a wholesale reform of citizenship law and residency requirements or will simply codify the accepted six-week period. 

There will also be some pressure on the government to include a provision in legislation retrospectively protecting anyone conferred with citizenship before this ruling. 

Regardless of the government’s response, the case will probably be appealed by Roderick Jones’ – the person who brought the case. The Irish Times reported yesterday that the Minister for Justice will not be able to appeal the decision because the state nominally won. While there isn’t a full consensus on this, it is likely that the government will not stand in the way of an appeal, whether to the Court of Appeal or the Supreme Court. 

In this instance, it is likely that the case could “leapfrog” the Court of Appeal and go directly to the Supreme Court.

It is tempting to assume that the Supreme Court will reverse or disagree with the High Court decision. Many lawyers have criticised the decision and suggested that the Justice Barrett did make a mistake in this instance. 

Kenny, for instance, pointed out that the legislation was not particularly badly drafted and instead this was more of an idiosyncratic decision by the judge. 

However, it impossible to predict what exactly the Supreme Court or Court of Appeal will actually decide. And even then, we might not have a decision until November. 

I’m an EU citizen. How does this impact me?

Even if you’re an EU citizen, you will still need to comply with these requirements. Travelling inside the EU will still count as not being continuously resident in Ireland. 

My spouse is an Irish citizen – does this mean I can’t travel with them?

Rules are a little different if your spouse is an Irish citizen. For a spouse or civil partner of an Irish citizen, they must have had “immediately before the date of the application, a period of one year’s continuous residence in the island of Ireland”.  

So if your spouse is an Irish citizen, you should be able to travel across the border. Unfortunately, you will not be able to leave the island of Ireland without violating the definition of “continuous” residence. 

I have already applied and am due to travel. Should I go? 

“I wouldn’t like to see people cancelling holidays,” Gillespie said. 

It is hard to advise either way because the law is up in the air. It is probably not necessary that you should cancel a holiday, but if you do have a holiday booked contact your solicitor, your local TD or the Immigrant Council of Ireland for advice. 

The INIS said: “We are not advising citizenship applicants or future applicants to cancel any current or upcoming travel plans.”

It said that the Citizenship Division is continuing to receive and process applications, and that planning for the next Citizenship Ceremony in September is also underway.

“Our advice for people who are planning to apply for citizenship is to continue to collect  all the necessary proofs that support your application and to submit a comprehensive application form.

Once a solution is in place, if any additional information is required, you will be contacted as part of the processing of your application.

If I’m applying and have spent less than six weeks outside Ireland, can I lie?  

That wouldn’t be advisable. You can be imprisoned or face a fine of up to €50,000 for making false or misleading statements or declarations as part of the citizenship application process  

The Minister for Justice also has the right to revoke citizenship if it was “procured by fraud”.  

So while there is unlikely going to be a rigorous inspection process to see if you did leave the state for a few days, it is not worth the risk. 

It is much better to wait for the inevitable legislative or legal solution.  

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