On July 7 the High Court of Ireland delivered a judgment that significantly alters the rules for ordinary naturalisation applicants. The judgment could affect thousands of people applying for Irish citizenship on the basis of residence in the country.
The judgment, Jones -v- Minister for Justice and Equality, concerned a review of the government decision that an Australian national was ineligible to become an Irish citizen. In particular, Mr. Jones did not satisfy the continuous residence criteria during the one year immediately prior to his application, as required by the Irish Nationality and Citizenship Act 1956, because he had spent 100 days outside the country. One of the claims put forward by Mr. Jones was that the Minister had applied the Act in an overly literal manner by failing to take account of reasonable temporary absences from the State. However, the Court found that the Minister had in fact been excessively generous by exercising a discretion that did not exist under a literal interpretation of the Act.
Section 15(1) of the Irish Nationality and Citizenship Act 1956 provides, inter alia, that “Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant – …(c) has had a period of one year’s continuous residence in the State immediately before the date of the application”. In the past, 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”.
The Court found that that while the Minister had displayed “real humanity” when applying a discretionary absence period, the Minister did not actually have the power to grant such a discretion under the Act. In assessing whether the Minister had lawfully exercised his discretionary powers, the Court placed particular emphasis on the meaning of the word “continuous”. The Court stated that “the Act of 1956 does not confer any discretionary power on the Minister … Either an applicant has had a period of one year’s continuous residence or he has not”.
Experts criticised this ruling, pointing out that the law on citizenship has never been interpreted so strictly before and that many countries allow up to 90 days of absence, or the equivalent of short-term visa. The Court acknowledged that the approach required by the Act could lead to unfairness in practice “in a world where many people regularly travel abroad for work”. However, the Court suggested that resolving this was a matter for the legislature rather than the judiciary.
The Minister for Justice and Equality stated that his officials are carefully studying the judgment in consultation with the Attorney General’s Office. He has indicated that this will be dealt with urgently as a priority and that he will take any necessary action to resolve it.