Reckonable residence is the duration of an individual’s residence in Ireland considered when examining an application for naturalisation. It is the period of lawful residence in Ireland excluding any time spent as an asylum seeker or on a student visa. To be eligible to apply for naturalisation in Ireland an individual must have acquired five years reckonable residence in Ireland, the Minister may make exceptions and waive a certain period of reckonable residence where the individual is a refugee, stateless or has Irish associations. Section 16A of the Irish Nationality and Citizenship Act 1956 (as amended) deals with the “Calculation of period of residence in relation to application for naturalisation” and makes no provision for such removal of reckonable residence.
Section 16A states as follows:
16A. 41—(1)42 A period of residence in the State shall not be reckoned when calculating a period of residence for the purposes of granting a certificate of naturalisation if—
(a) it is in contravention of section 5(1) of the Act of 2004,
(b) it is in accordance with a permission given to a person under section 4 of the Act of 2004 for the purpose of enabling him or her to engage in a course of education or study in the State, or
(c) it consists of a period during which a person (other than a person who was, during that period, a national of a Member State, an EEA state or the Swiss Confederation) referred to in subsection (2) of section 9 (amended by section 7(c)(i) of the Act of 2003) of the Act of 1996 is entitled to remain in the State in accordance only with the said subsection.
(2) This section does not apply to a person to whom the provisions of the Aliens Act, 1935, do not apply by virtue of an order made under section 10 of that Act.
(3) This section does not apply in the calculation of a period of residence in the State for the purposes of an application for a certificate of naturalisation made before [30 November 2002].
The most recent form for applying for naturalisation as an Irish citizen that was introduced in August 2016 includes a the question, “[h]ave you ever been absent from the State for more than six weeks per annum in any of the past five years?” The form requires that where an individual has been absent for more than six weeks they provide information regarding all absences from Ireland within their application.
We have received a number of recent determinations regarding naturalisation of persons who have reckonable residence in Ireland over the last five years but who have answered this question in the affirmative and provided such detail.
The decisions we have received in such applications appear to reveal a new policy of the Minister to discount absences from the State for over 6 weeks and states that these periods cannot be considered reckonable residency, therefore these periods of absence have been removed from the residency calculations. We submit that this policy is unlawful and has no basis in the legislation governing naturalisation and citizenship. There is no statutory basis for removing periods of absence from the reckonable residency of applicants for naturalisation.
We would submit that the refusal of an application for naturalisation due to a period of absence of over six weeks a year as part of a holiday during reckonable residence is unlawful, as such we submit these decisions are ultra vires or an exercise of authority that the Minister of Justice and Equality does not have.
We submit that persons applying for naturalisation should have been made aware of this policy when receiving their immigration permissions and not have an unhidden policy used against them in circumstances where they did not even know it existed.
Section 15 and 16A of the Irish Nationality and Citizenship Acts 1956 as amended clearly stipulate the only duration that may be excluded when calculating an individual’s reckonable residence is any time they spent on a student visa or while seeking asylum.
If such a time limit has become a policy it ought to be made accessible to the public, particularly to those subject to the provision and applied consistently to all cases, which is currently not being done. Moreover, such a policy would seem to be contrary to article 15.2.1 of the Constitution. As recognised in the case of Cityview Press v An Ceann Comhairle Oiliúna  IR 381, the Constitution permits the Minister to merely fill in the details to give effect to principles and policies in the statute as created by the Oireachtas not to establish new principles and policies. This is a concerning and unlawful trend that seems to be an ultra vires act on behalf of the Minister of Justice and Equality.
Berkeley Solicitors Team