‘Unworkable’ High Court finding on citizenship applications overturned

Controversial decision last May caused huge uncertainty concerning applications

During the appeal, both sides disputed the High Court’s construction of the words ‘continuous residence’. Photograph: Chris Maddaloni/Collins

During the appeal, both sides disputed the High Court’s construction of the words ‘continuous residence’. Photograph: Chris Maddaloni/Collins

 

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 on appeal.

The Court of Appeal also ruled that the Minister for Justice Charlie Flanagan’s approach to the one year’s continuous residence requirement of permitting citizenship applicants to be six weeks out of the country, and more in some circumstances, in the year before they apply, is “reasonable” and not rigid, inflexible or unlawful.

The Minister’s approach facilitates “flexibility, clarity and certainty” in operating the relevant law – section 15.1.c of the Irish Nationality and Citizenship Act 2015 – 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” it said.

Having applied that policy, the Minister was entitled in 2018 to refuse a citizenship application by an Australian man, Roderick Jones, it ruled. There is no limit to the number of such applications Mr Jones can bring, it noted

Uncertainty caused

The controversial High Court decision last May caused huge uncertainty concerning citizenship applications and also prompted calls for legislative change.

Mr Justice Max Barrett made the finding in the case of Mr Jones.

He works in the university sector here and has lived here since October 2011. He was refused citizenship due to being out of the country for 100 days – 97 on holiday and three for work reasons – in the year before he applied.

Mr Justice Barrett upheld the Minister’s refusal but also 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 section 15.1.c.

Neither side had argued for that interpretation of section 15.1.c in the High Court and, when Mr Jones brought an appeal, it got a priority hearing last month because of the uncertainty caused.

During the appeal, both sides disputed the High Court’s construction of the words “continuous residence”.

Sara Moorhead SC, for the Minister, argued Mr Jones’ appeal should otherwise be dismissed and disputed arguments by Feichín McDonagh, for Mr Jones, that the Minister’s six week discretionary policy is unlawful.

Giving the Court of Appeals judgment, Ms Justice Máire Whelan, with whom the Court of Appeal president, Mr Justice George Birmingham and Mr Justice Brian McGovern agreed, said the High Court erred in law in how it interpreted “continuous residence” in section 15.1.c.

That construction was “unworkable, overly literal, unduly rigid and gives rise to an absurdity”, she said.

Continuous residence within the meaning of section 15.1.c does not require uninterrupted presence in the State for the entirety of the relevant year and does not impose a complete ban on extra-territorial travel as the High Court suggests, she said.

‘Interpretative absurdity’

To consider that an applicant could be deemed ineligible because they took a day trip to Newry before submitting their application was accepted by both sides as “plainly erroneous” and reflected an “interpretative absurdity”.

Such an approach introduced a significant obstacle which most applicants would find “impossible to meet”.

The words continuous residence should be interpreted harmoniously and do not prevent an applicant leaving the jurisdiction at any time during the relevant year, she said.

However, it is clear that “significant importance” is attached to physical presence in the State during the relevant year, she stressed.

The Minister’s approach to construction of “one year’s continuous residence” was to operate a clearly communicated practice or policy of allowing applicants six weeks absence from the State, and more in exceptional circumstances, for work and other reasons.

An applicant must otherwise be generally physically present here and may be refused for significant absences.

The Minister’s approach did not involve him improperly fettering the competence conferred on him by section 15.1 or an inflexible and rigid policy, she held.

The Minister’s objective was to adopt a “purposive, reasonable and pragmatic” approach to the operation of the law and Mr Jones was aware from the outset, and was legally advised, of the conditions he had to meet for his application.

It was a “material” consideration that just three days of Mr Jones’ absences were for work reasons, she said.