The Irish High Court has ruled that ‘continuous residence’ in citizenship applications requires that applicants for naturalisation must have one year of “unbroken” residence in the State prior to the date of their application. In practice, this means the Minister for Justice can reject an application for naturalisation where an applicant has left the state for even a day in the year prior to making their application.
The case concerned Mr Jones, an Australian national, whose application for naturalisation was rejected by the Minister for Justice on the basis that he did not have continuous residence in the year preceding his application as he had been absent from the state for more than the discretionary absence period of six weeks. In Mr Jones’ case, the applicable one-year period ran from September 1st 2016 to August 31st 2017 and he had been outside the State for 100 days – 97 for holidays and 3 for work.
The Minister’s refusal contained reference to the ‘continuous residence’ requirement under Section 15(1)(c) of the Irish Nationality and Citizenship Act 1956, which provides that on receipt of an application for a certificate of naturalisation the Minister “may, in his absolute discretion, grant the application if satisfied that the applicant has had a period of one year’s continuous residence in the State immediately before the date of the application”.
Mr Jones sought judicial review of the negative decision, challenging the policy applied by the Minister that a person cannot be outside of the State for more than 6 weeks during the 12-month period prior to the application.
In his judgement, Justice Max Barrett favored a literal interpretation of the term ‘continuous’, under Section 15(1)(c) of the Irish Nationality and Citizenship Act 1956 (as amended) and held that the Minister’s discretionary practice of allowing applicants spend up to six weeks out of the country, for holiday or other reasons – and more time in exceptional circumstances – was not permitted by law.
He stated that any potential unfairness which may result from such a literal interpretation of the law was not for the court to remedy and that such a remedy “lies in the gift of the legislature.”
Justice Barrett rejected the applicant’s challenge, holding that the wording of Section 15(1)(c) did not provide the Minister with any discretionary powers in the making of his decision. He stated that an applicant either “has had a period of one year’s continuous residence” or he has not. He held that the Minister in applying a discretionary absence period of 6 weeks or more in exceptional or unavoidable circumstances had gone beyond what is legally permissible under the 1956 Act. Although, he recognised the introduction of the discretionary absence period as an attempt by the Minister to “nuance” the “very clear” wording and effect of Section 15(1)(c) of the Act to allow for the realities of modern life in which multiple work or holiday absences may be possible in any one year.
In reaching the above conclusion Justice Barrett utilised the definition in the Concise Oxford Dictionary of English Language of ‘continuous’ stating that it meant “unbroken, uninterrupted, connected throughout in space or time”. He held that on the basis of this definition, in Mr Jones’ case, one could not properly say a one-year period of residence punctuated by 97 days of holiday absence and three days of work absence is “unbroken, uninterrupted, connected throughout in space or time”.
Justice Barrett stated that while there was no evidence before him as to why the one year ‘continuous’ residence period was imposed by the Oireachtas in the 1956 Act, he nevertheless proffered several reasons including that it may have been to ensure that citizens enjoy “a concrete connection” with the State, or to ensure that applicants are attuned to the way of life in Ireland at the time of naturalisation. However, he held that regardless of what the intention of the Oireachtas may have been, he did not see that a literal reading of the word ‘continuous’ yielded an absurdity that would require the court to utilise an alternative teleological reading of the Section 15(1)(c) as required by Section 5(1)(b) of the Interpretation Act 2005.
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."
Click here for the decision in Jones v Minister for Justice & Equality.
Click here for the press release from legal representation for Mr Jones, Sinnott Solicitors.
Click here for the state from the Minister for Justice on the decision.