CITIZENSHIP APPLICANTS HAVE expressed concern following a High Court ruling 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 have called the ruling “absurd”, pointing out that the law on citizenship has never been interpreted so strictly before and have called for emergency legislation to be enacted.
The Department of Justice & Equality has said it is “studying the decision carefully”. In a statement today, justice minister Charlie Flanagan said: “This issue is being dealt with as an urgent priority and I will take any necessary action to resolve it.”
With the Dáil in summer recess until 17 September, it’s as yet unclear how exactly this issue will be resolved.
Majo Rivas, who is originally from Paraguay and has been living in Cork for four years, has said she was “shocked” by the ruling.
“It’s going to have a domino effect,” Rivas told TheJournal.ie. “People who are waiting are worried.”
‘Perfectly normal reasons’
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”.
Judge Barrett’s ruling says 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’”.
In what was essentially a Test Case for the six-week rule, Judge Barrett interpreted the phrase “continuous residence” to mean no absence from the State meaning the six-week rule can no longer apply.
For Rivas, it means uncertainty and possible delays in receiving her citizenship.
Rivas has been married to her Irish husband for over four years and applied for citizenship last October. “Delays are already existing [in the application process],” she said. “I knew it was going to take some time.”
Rivas has a list of each time she left the country in the last year. She travelled to Spain for one day and visited her sister for holidays. “I left for perfectly normal reasons,” she said. ”Thank God I didn’t have to travel [home] for a funeral.”
Justice Barrett’s ruling casts doubt over when Rivas will receive her citizenship due to her recent absence from the State.
‘Emergency legislation’
Elsewhere, concerns have been raised about what the ruling means for new citizenship applicants, citizenship refusals and how the Department of Justice & Equality will act following the ruling.
Solicitor Simon McGarr has said the ruling is “so significant that an emergency piece of amending legislation is the appropriate response.”
“One which will remove the requirement for “continuous residency” and replaces it with a more flexible requirement allowing for normal travel,” he said.
Personally, I think this is so significant that an emergency piece of amending legislation is the appropriate response. One which will remove the requirement for “continuous residency” and replaces it with a more flexible requirement allowing for normal travel.
— Simon McGarr (@Tupp_Ed) July 17, 2019
Brian Killoran, CEO of The Immigrant Council of Ireland, has called for the Department to issue a temporary freeze on issuing citizenship refusals until this issue is resolved.
Immigration lawyer Aoife Gillespie has 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 TheJournal.ie, 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.
‘Continuous residence’
David Kenny, an Assistant Professor in Law at Trinity College Dublin told TheJournal.ie that emergency piece of legislation is a likely next step for the Department.
“The problem is that the judge has interpreted this very important section [of the Act] in a such way that will change what we thought the process was…that the Minister has been applying this discretionary allowance for how long you could be absent and maintain continuous residence.
“The judge has basically said ‘That’s not what the Act says.”
Justice Barrett made clear in his judgement that it’s up to the legislators to resolve the absence question for citizenship applicants.
The Judge wrote in his decision 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”.
Rivas, who was already planning her citizenship party with friends and family, is now uncertain as to when she’ll receive her Irish citizenship.
Absences from the State, she said, are a fundamental part of being a migrant. “Most of my family are abroad.”
Rivas, her husband and her parents-in-law were planning a trip to Paraguay so they could see where she grew up.
That trip, she said, is far from certain following the High Court ruling.
Speaking today, Second Deputy Secretary at the Justice Department Oonagh Buckley said that “we obviously have to take account of the High Court and make sure that the Minister is appropriately advised on the best approach, legal & administratively.”
“That will take us a wee while. No one should precipitate anything.”
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