Neither here nor there: Residency as a condition for naturalisation

By Bashir Otukoya (University College Dublin), GLOBALCIT collaborator.

Borders, physical or imaginary, are becoming less relevant in a world where cheap flights and international interdependency remain prominent.[1] As a result, there now exists a legal sorcery in the art of being here, whilst at the same time, being somewhere else. In Irish immigration law, the conditions for becoming a citizen through the process of naturalisation demand that the immigrant acquires a reckonable residence of five out of nine years in the State. More specifically, section 15(1)(c) of the Irish Nationality and Citizenship Act, 1956 requires the applicant to have ‘had a period of one year’s continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years’. However, the determination of this residence period poses a problem in establishing which legal concept of residence is required. Legal terminology on residency can be found in different areas of law. You will find ‘lawful residency’ in immigration law, and ‘actual residency’ in taxation law. ‘Normal’ and ‘habitual residency’ are both found in succession law and family law. Depending upon the area of law in which one is engaged, a person may be classified as simultaneously having two different forms of residence.

Some people, for example, ‘temporarily reside’ in Belgium but are ‘habitually resident’ in Brazil. The difference of course is that the former has no real legal benefits, apart from a visa that lets you stay in the country for a limited period of time,[2] whereas the latter comes with a range of legal benefits, including access to employment. Others may ‘lawfully reside’ in Germany whilst ‘normally residing’ in Denmark. ‘Ordinary residence’ is similar to ‘normal residence’ and can be distinguished by the terminology relied upon in each country.[3]

Borrowing from an EU Directive in the tax field, one’s residency can be considered their ‘normal residence’ when it can be determined that the individual has lived in the state for at least 185 days and has established a close and personal relationship with the state, in the presence or absence of occupational ties.[4] In the Irish case of Keller v The Revenue Commissioner,[5] it was noted that where the applicant lives in turn in two or more states, as a result of such person’s occupational ties being in a different place from their personal ties, the normal residence of that person would be the place of their personal ties, once it can be proven that they return frequently.[6] According to this definition, theoretically, normal residency will be recognised by law if the condition of 185 days residence has been met and personal ties with the State have been established, even if the immigrant resides there illegally (undocumented migrants, for example). It is important to note that ‘lawful residence’ is not required in order to satisfy the normal residency test: ‘actual residence’ will suffice.[7]

Actual Residence

A common situation is one in which an individual might, for example, be a ‘citizen’ of Ireland and a ‘national’ of Nigeria, but ‘actually reside’ in the UK. It is well established from cases and legislation in taxation law that ‘actual residence’ connotes physical presence.[8] The earliest Irish case that referred to the concept was in 1929, where in seeking to determine whether the appellant was domiciled in Saorstát Eireann (Irish Free State) or in England for the purpose of income tax assessments, a literal interpretation of the term ‘actual residence’ was applied.[9] The appellant claimed that he had not been a resident nor a citizen of Saorstát Eireann for the years of tax assessment and was therefore exempt from tax payments. In defining residence, the court took their interpretation from ‘ordinary educated speech’:

These latter words, ie residing, being a resident, imply something more than an intention to settle down or than having settled down, and to my mind, import a measure of physical presence. It may well be that in their primary literal sense these words connoted meanings that would be expressed at present by some such phrases as “actually residing” or “in actual residence”.[10]

Of course, evidenced by high levels of global migration, one does not need to be ‘actually resident’ in the State of one’s citizenship or nationality.[11] Yet, being physically present is an absolute necessity in many of the legal residency terms already discussed.

Residency Condition for Naturalisation

The legal conditions attached to a naturalisation process, in most states, acts only as an eligibility filter. The satisfaction of the legal requirements does not presuppose an automatic entitlement to citizenship. The decision to grant naturalisation is made, not necessarily on the basis of the applicant having fulfilled the naturalisation conditions established by statute, but in most cases at the discretion of the decision-maker.

In Ireland, this discretion is operated by the Minister for Justice, Equality, and Law Reform who decides to whom naturalisation should be granted. The discretion allows the Minister to deny citizenship, despite the applicant having satisfied all the legal requirements, or to award citizenship despite the applicant not having met any or all the requirements. This discretion operates despite the conditions for attaining Irish citizenship by naturalisation being clearly set out in Section 15 of the Irish Nationality and Citizenship Act of 1956. This lays out the five naturalisation conditions that one must satisfy in order to be eligible for naturalisation. The applicant must be over 18; must have had five of nine years residency in Ireland; must be of good character; must have an intention to continue to reside in the State after naturalisation and must swear an oath of loyalty and fidelity to the State. These prerequisites pose an obstacle in attaining citizenship, not least because of their ambiguity in interpretation; they lack clarity, certainty, and purpose.

Take the five-year residency requirement for example: immigrants are required to reside in Ireland (the Republic of, excluding Northern Ireland) for a period of five out of nine years before being eligiblefor citizenship.[12] Section 15(1)(c) requests a ‘continuous residence’ of one year as well as a ‘total residence’ of four out of the preceding eight years, without referring to what form this residency ought to take. For example, the requirement does not necessarily mean that the applicant be physically resident in the State in calculating the ‘four out of the preceding eight years’. This is what is referred to as ‘reckonable residence’. In theory, an applicant will have satisfied the residency condition even if, over a period of eight years, the applicant resides in another state and only comes to Ireland when the visa permitting his/her residency in Ireland is due for renewal. However, the naturalisation application form (Form 8) does explicitly demand a physical presence, (requiring evidence of employment, housing, medical appointments, school attendance, etc) though this is not statutorily required.[13]

Though ‘lawfully resident’ in the state for the requisite five years, the applicant only needs to have spent 365 days of consecutive ‘actual’ physical residence in Ireland prior to the application. This is what section 15 of the 1956 Act refers to as ‘continuous residence’. Yet the definition of what it is to be understood as ‘continuous residence’ has recently given rise to problems not envisaged by the drafters of the legislation in 1956.

Continuous Residence

In July 2019, the Irish High Court ruled[14] that the ‘continuous residence’ requirement in Section 15(1)(c) of the 1956 Act required that an applicant for naturalisation must not have any days absence from Ireland in the year prior to their naturalisation application. This was despite the fact that, prior to this judgment, the Minister for Justice, Equality and Law Reform, as a matter of policy, had utilised his discretion to allow for periods of absences of up to six weeks in the year prior to the application and potentially even longer, especially where an applicant could show that they were required to travel for work purposes. Although a six weeks absence is understood to be allowed, no policy statement has been published. The Court found that the Minister had no discretion in this matter and that the literal interpretation of continuous residence is that the residence must be ‘unbroken, uninterrupted, connected throughout in space or time’.

In dealing with the High Court’s finding, the Court of Appeal in November 2019 held that this was not a correct interpretation. It concluded that the High Court’s interpretation of ‘continuous residence’ was:

unworkable, overly literal, unduly rigid and gives rise to an absurdity. “Continuous residence” within the meaning of the sub-section does not require uninterrupted presence in the State throughout the entirety of the relevant year nor does it impose a complete prohibition on extra- territorial travel as the High Court suggests.[15]

The Court of Appeal noted that ‘the term “continuous residence” is wholly distinct and separate from the concept of “ordinary residence” or “residence” per se’, and, whilst not providing an alternative interpretation to ‘continuous residence’, endorsed the Minister’s 6-week absence policy. The Court further held, against the applicant who had sought to argue that the 6-week rule was too strict, that the operation of the policy is not unlawful and does not create a ‘non-statutory barrier’ to naturalisation. The Court found the Minister’s policy and practice was ‘sensible’ and in line with the legislation. The Court found that the criterion applied by the Minister to establish ‘continuous residence’ was reasonable and balanced and has regard to the societal norms regarding foreign travel. In reaching this decision, the Court determined that a literal approach to interpreting the term ‘continuous residence’ was unworkable and instead a harmonious approach (in light of the overall objective of section 15 of the 1956 Act) should be employed.


The underlying problem with the definition of ‘continuous residence’ (or lack thereof), or indeed any adjective attached to the word ‘residence’, is the fact that emphasis is placed on the adjective in neglect of the understanding of the term residency itself. The definition of residency varies, depending on the context it is used, as explained at the outset. Dictionary definitions will explain that it refers to one’s home, or where one lives. Yet as explained above, the common denominator in all these varied forms of residency is physical presence. However, presence does not automatically equate residence. Residence must be construed in light of the adjective preceding it. This adjective usually demands an element of legality, time, affiliation and physicality, though not necessarily all at once.

Accordingly, it seems that the High Court in Jones was not incorrect in its interpretation of the statutory requirement of ‘continuous residence’, since the demand is that the applicant reside in Ireland continuously for one year. That is, that the applicant’s physical presence in the State is ‘unbroken, uninterrupted, [and] connected throughout in space or time’. However, as noted by the Court of Appeal, such a literal approach is unworkable and at odds with the realities of the enjoyment of private life that international mobility forms part. I would argue that the one-year continuous residence requirement as part of the naturalisation conditions still requires reform to bring it into line with the principles related to private life and international mobility.


[1] Though a backlash to this is becoming more apparent in political rhetoric around the world.

[2] European Union citizens (Eurozen) however have an incremental list of rights available to them by virtue of their membership to the union, for example, Article 20 Treaty on the Functioning of the European Union.

[3] Ireland uses the term ‘ordinary resident’. For example, in claiming health benefits, the Health Service Executive will require proof of ordinary residency for at least one year. See Health Service Executive, Medical Card/GP Visit Card National Assessment Guidelines (February 2015) <> accessed 27 October 2017.

[4] Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another [1983] OJ L105/59, article 7: ‘the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties because of personal ties which show close links between that person and the place where he is living’.

[5] Karl Keller v The Revenue Commissioners and Others [1993] 4 ITR 512.

[6] European Communities (Exemption from Import Charges of Certain Vehicles etc Temporarily Imported) Regulations 1983, SI422/1983. Para 9(1) defines ‘normal residence’ in the same manner.

[7] In Sulaimon, lawful residence was interpreted to mean, ‘resident here [in the State] with the permission of the Minister for Justice’. Sulaimon v Minister for Justice, Equality and Law Reform [2012] IESC 63

[8] For example, Hogan v Davis, 243 Ark. 763, 422 S.W.2d 412 (1967) where the Arkansas Supreme Court interpreted the term ‘resident’ as meaning one who ‘actually lived’ in the state for the required period of time. In reaching this interpretation, the Court determined that it was the intentions of the legislature to ensure that the Director of the State Police would have an intimate knowledge of the problems of the State: first-hand knowledge that could only be acquired through physical presence in the State. In South Africa, the South Africa Income Tax Act 1962 defines tax resident as one who is either ordinarily resident in the State or meets the ‘physical presence’ test.

[9] The Earl of Iveagh v The Revenue Commissioners [1993] 1 ITR 259.

[10] ibid 148.

[11] In some States, citizenship can be lost on the grounds of prolonged residency abroad, but only in circumstances where this will not lead to Statelessness.

[12] Irish Nationality and Citizenship Act 1956, s 15(1)(c).

[13] Form 8, Application by a Person of Full Age for Naturalisation as an Irish Citizen (Version 5.7, June 2018) 2 <> accessed 21 January 2020.

[14] Jones v Minister for Justice and Equality [2019] IEHC 519.

[15] Jones v Minister for Justice and Equality [2019] unreported. Appeal no. 2019/344.