An “unworkable” and “unduly rigid” High Court finding that applicants for Irish citizenship must have “unbroken” residence here in the year before they apply has been overturned by the Court of Appeal.
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.
The man at the centre of the case, Roderick Jones, is Australian-born and has resided and worked in Ireland since October 2011. On 31 August 2017, Mr. Jones applied to the Minister for Justice and Equality, Charles Flanagan, for a Certificate of Naturalisation pursuant to the Irish Nationality and Citizenship Act 2015.
On the 25 November 2017, at the request of the Minister, Mr. Jones had to provide details of all absences from the State between December 2014 and December 2015. Thereafter, the appellant was refused naturalisation, notification of which he received in February 2018.
Rather than submitting a fresh application, on the 28 September 2018 Mr. Jones elected to submit further documentation and to pursue the original application. However, since his application was dated the 31 August 2017, the relevant dates to meet the condition of “one years’ continuous residence” specified in s.15(1)(c) of the Act ran from the 1t September 2016 to the 31 August 2017.
His absences from the State during that period caused much debate between Mr. Jones and the Minister. According to Mr. Jones, his absences abroad for the purposes of of s.15(1)(c) were about ninety days. The Minister contended that he accumulated a hundred days, three of which were for work purposes. Whichever approach, it appears that over ninety percent of Mr. Jones’ absences were unrelated to work.
Mr. Jones brought judicial review proceedings in November 2018. He sought an order of certiorari quashing the Minister’s decision which deemed Mr. Jones ineligible for naturalisation pursuant to the 1956 Act.
Mr. Jones’ legal team sought relief on three grounds: 1. The Minister had interpreted the “one year’s continuous residence” in an overly literal manner, 2. The Minister had erred in law by interpreting the six-week allowable absence period as being a matter of fact rather than discretion, and 3. The Minister’s use of the “one year’s continuous residence” was materially wrong and irrational in the legal sense. The Minister opposed the application and High Court proceedings began in the summertime of 2019.
Justice Max Barrett in the High Court found in favour of the Minister. The Court was ruled that the “one year’s continuous residence” requirement was not a matter of discretion, but a matter of fact: “Either an applicant has had a period of one year’s continuous residence, or he has not”. The presiding judge considered the meaning of “continuous residence” in its ordinary dictionary meaning as being “unbroken, uninterrupted, connected throughout in space or time”. Hence, the fact that Mr. Jones had been absent from the state for a hundred days, three of which for work purposes, did not fit within this definition.
On 14 November 2019, Mr. Jones’ legal team appealed the High Court ruling to the Court of Appeal. They appealed on three grounds: 1. The High Court had erred in law in its interpretation of the term “continuous residence” in that it suggested that even one night’s absence from the State will lead to a failure of the strict requirement, 2. The High Court erred in law in failing to hold the Minister’s six-week absence period as being unlawful, and 3. The High Court failed in viewing the “one year’s continuous residence” period as being a matter of discretion and not fact.
Mr. Jones sought an order setting aside the judgement and order and sought an order of certiorari quashing the decision of the Minister which deemed his application for naturalisation ineligible.
The Court of Appeal did not believe the Minister had erred in his interpretation of the “one year’s continuous residence” requirement of permitting citizenship applications to be six weeks out of the State in the year they apply. The Court considered that the Minister’s approach facilitates “flexibility, clarity and certainty” in operating s.15(1)(c) 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.
The Court dismissed the appeal because Mr. Jones’ period of residence in Ireland during that year had been “punctuated by absences abroad and thus is not “unbroken, uninterrupted, connected throughout in space or time”, i.e. it is not continuous residence”.
However, the Court took the view that the High Court had erred in law in its interpretation of s.15(1)(c). The Court, led by Ms Justice Máire Whelan, condemned the “one year’s continuous residence” requirement as being “unworkable, overly literal, unduly rigid and gives rise to an absurdity”.
She further explained that the “continuous residence” within the meaning of 15(1)(c) did not require uninterrupted presence in the State for the entirety of the relevant year and did not impose a complete ban on extra-territorial travel as the High Court had suggested.
Click here for the decision in Jones v Minister for Justice.
Click here for a previous Bulletin article on the High Court decision.