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'Unworkable' and 'unduly rigid' High Court finding on citizenship application overturned

Last May’s High Court decision caused controversy and massive uncertainty.
Nov 14th 2019, 5:55 PM 18,766 8

THE COURT OF Appeal has overturned an “unduly rigid” and “unworkable” High Court decision that Irish citizenship applicants must have “unbroken” residence in the State in the year before they apply. 

Last July’s High Court decision caused controversy and uncertainty after Justice Max Barrett made his finding, leading to calls for immediate legislative change. 

Justice Barrett ruled in the Jones case that foreign nationals applying to become Irish citizens on the basis of their residence “must show a one-year period of residence in Ireland that is ‘unbroken, uninterrupted, connected throughout space or time’”. 

It threw the application process into chaos with applicants who travelled abroad in the last year – including crossing the border into Northern Ireland – worrying their applications are not eligible. 

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”.

The Court of Appeal today overturned the finding on appeal, taken by Australian man Roderick Jones, who was refused citizenship after being out of the country for 100 days in the year before he applied. 

The Court also ruled, however, that the Minister for Justice Charlie Flanagan’s approach to one year’s continuous residence requirement in the year before they apply, is “reasonable” and not rigid, inflexible or unlawful.

The Minister’s approach facilitates “flexibility, clarity and certainty” in operating the relevant law – section 15.1.c of the Irish Nationality and Citizenship Act 2015 – and assists applicants in establishing with certainty how the criterion of “one year’s continuous residence in the State” is to be satisfied for naturalisation purposes, it said. 

In a statement, Minister Flanagan said that “while the full judgement will need to be studied in its entirety over the coming days, I very much welcome today’s decision of the Court of Appeal with regard to citizenship applications.

“I understand that, for applicants, their families and their friends, the past few months will have been quite stressful.

Today, the Court has provided legal clarity, and upheld the lawfulness of our residency rules governing citizenship through naturalisation.   

Said Flanagan: “As I stated on various occasions since July, the processing of applications has continued.

I have now asked my officials to do everything possible to organise a Citizenship Ceremony to take place in December. Further ceremonies will take place early in 2020.

“I want to assure applicants that my Department will provide at least 4 weeks’ notice in advance of ceremonies to allow applicants to make any necessary arrangements.

Details will be published on the Department of Justice and Equality website over the coming weeks, Flanagan added. 

Reacting to today’s Court ruling, Sinnott Solicitors – representing Mr Jones – said: “The court importantly pointed out that it is in the public interest that there is clarity so that someone like Mr Jones knows how he can meet the condition to apply for citizenship in the future.”

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Cónal Thomas

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