Controversial High Court citizenship ruling being appealed

An appeal has been initiated over a controversial High Court decision, with far-reaching implications, that applicants for citizenship must have “unbroken” residence here for a year prior to their application.

The Court of Appeal on Thursday fixed October 8th as the hearing date for the appeal.

The president of the court, Mr Justice George Birmingham, said that date is subject to the court having a promised six extra judges.

If the additional judges are not appointed by then, the pressure on the appeal court’s lists meant it would be October 2021 before the appeal could be heard, he said.

Feichín McDonagh SC, with David Leonard BL, for Roderick Jones, an Australian man who challenged a refusal of his citizenship application, and Sara Moorhead SC, for the Minister for Justice, had sought an early hearing.

The appeal concerns a decision earlier this month by the High Court’s Mr Justice Max Barrett dismissing Mr Jones’ challenge over being refused citizenship. While the appeal is being taken by Mr Jones, the fact of an appeal means the Minister can ask the appeal court to find against Mr Jones on a different basis than the High Court did.

When opposing Mr Jones’ challenge to the refusal of citizenship, the Minister had not argued the words “continuous residence” in section 15.1.c of the Irish Nationality and Citizenship Act 2015 means an applicant for citizenship must have unbroken residence in the State for a year.

The Minister in late 2018 dismissed the application by Mr Jones, who works in the university sector here, because he was out of the State for 100 days - 97 days on holiday and three days for work reasons - in the year before he applied.

In finding against Mr Jones, Mr Justice Barrett said the Minister’s discretionary practice of allowing applicants six weeks out of the country, for holiday or other reasons, and more time in exceptional circumstances, is not permitted by law.

He noted section 15.1 provides, 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”.

The judge found section 15.1 allows the Minister no discretion in relation to the “continuous residence” requirement. According to the Oxford Dictionary of Current English, “continuous” means “unbroken, uninterrupted, connected throughout in space or time”.

While disagreeing with how the Minister concluded Mr Jones is ineligible at this time for citizenship under section 15.1, the refusal conclusion was still correct, he found.

There was thus no point in granting Mr Jones the reliefs sought because of the court’s interpretation of the word “continuous” in section 15.1.

While his decision “might seem unfair” in a world where many people travel abroad for work and take foreign breaks more than once a year, it is what the relevant law requires, the judge said.

The cure for any such unfairness “lies in the gift of the legislature”, he added.