Tag Archive for: citizenship

ANOTHER IMPORTANT JUDGEMENT ON GOOD CHARACTER ASSESSMENTS IN NATURALISATION APPLICATIONS

The Court of Appeal have delivered another important judgement relating to the Minister’s assessement of “good character” for the purposes of applications for naturalisation in the case of MNN v Minister for Justice and Equality [2020] IECA 187.

Along with the recent judgement of Talla v Minister for Justice and Equality [2020] IECA 135 this judgement is an important ruling with respect to the Minister’s obligations when conducting assessments of “good character” and could see a shift in the way in which applications for naturalisation are to be considered by the Minister.

The applicant in this case applied for naturalisation in October 2013 and received a refusal of his application based on good character grounds.

The applicant declared in his application that he had two convictions for road traffic matters, which occurred in December 2012, namely failure to display road tax and failure to display insurance disc. The applicant had only become aware of these matters in 2013 as the fixed penalty notices and summons had been sent to his former address with his spouse, which he never received.

In early 2016, the Minister sought further information from the applicant in relation to an incident in which he was described in the report as a “witness”, where Section 12 of the Child Care Act had been invoked following a domestic altercation.

The applicant provided a thorough explanation for this matter and had instructed legal representation in September 2017 to make further representations to the Minister. The court described the applicant as providing a “frank and forthright explanation”.

Some four and half years after applying for naturalisation, the applicant’s application was refused in February 2018. The Court examined in detail the “submission” upon which the decision to refuse was based. The Court noted that it was unclear if the decision maker had access to all the relevant information and context, including the applicant’s detailed representations in relation to the incidents.

The Court highlighted that the Minister’s absolute discretion in determining applications for naturalisation does not “relieve the Minister of the obligation to operate within the rule of law”.

The Court goes on to outline a set of principles to be applied in assessing good character and notes that even though naturalisation is a privilege, applicants do not enjoy “inferior legal protection”. Good character is to be assessed “against reasonable standards of civic responsibility” and the connection between character and criminality can only be established when the Minister has all information including “context and mitigating factors”. The Minister must undertake a comprehensive assessment of the person and “all aspects of character”, and “Whether the appellant is a model citizen plays no part in what the Minister has to determine…”.

The Court set out the test for assessing applicants who may have a criminal offence in their past:

“Criminal convictions are relevant to the assessment of character, but they are not, in themselves, determinative thereof. Thus, it is not sufficient for the Minister to have regard only to the fact that an applicant for naturalisation has criminal convictions. What is required is a consideration of ‘all aspects of an applicant’s character’ in deciding whether he or she meets the relevant requirement for the purpose of s. 15 of the Act. The correct test is worth repeating. It is not whether an applicant has previous criminal convictions- it is wider in scope than that. An applicant may be assessed as a person of good character even if he has criminal convictions, perhaps, all the more, so if the convictions in question relate to strict liability offence. Such offences do not depend of personal moral culpability. As noted by Lang J. in Hiri, a person may still be of good character notwithstanding a criminal conviction and a person may not be of good character despite having a clean criminal record.”

The Court reiterates that the Minister is entitled to take into consideration “allegations” or matters that do not result in criminal proceedings, however they should be taken into assessment with “all relevant information”.

The Minster in this case was found to have considered the “alleged incidents” as more than alleged.

The Court emphasised that where the Minister relies on traffic offences to determine that the appellant is not of good character, he must have an understanding of the nature of the offences. Also, the understanding that leads the Minister to conclude that the applicant is not of good character must be stated in reasons that can be understood by the Applicant.

The Court was not satisfied that the Minister had before him all the relevant information to enable him to form a reasonable view as to whether the appellant was of good character. The Court emphasised that there was nothing on the face of the decision to suggest the entire file, including the applicant’s submissions regarding the incidents, were considered by the decision maker.

The decision was therefore held to be unlawful as it was not evident that the Minister had considered the applicant’s submissions in reaching the conclusion that the applicant was not of good character.

The decision making process in itself, was found by the Court to be in breach of natural and constitutional justice.

This is a very significant judgement from the Court of Appeal, because it raises questions regarding the legality of many decisions of the Minister in refusing naturalisation on good character grounds.

If you have been refused naturalisation on the grounds of good character please contact the office to discuss your case with us.

CURRENT DELAYS ON THE PROCESSING OF EU TREATY RIGHTS APPLICATIONS

 

Principal of Berkeley Solicitors, Karen Berkeley, was quoted in The Times on the 6th July 2020 highlighting her concerns regarding the current delays in the processing of EU Treaty Rights applications.

The article referred to the Minister’s recent response to a Parliamentary Question, in which the Minister confirmed as follows:

“There is a significant number of review cases on hand arising from a sustained increase in applications since 2014. Currently, there are 2,283 cases awaiting processing at EU Treaty Rights review stage, of which 1,751 review applications (76%) have been awaiting a decision for over a year, with the oldest cases having been received in May 2017.”

Ms Berkeley indicated her concern regarding these delays which have been creeping up over the last number of years. She stated that the courts have suggested that six months is a reasonable timeframe for the EUTR review applications, and once the timeframe goes beyond six months the Department may potentially be in reach of the EU law.

Ms Berkeley highlighted some clients of her office are waiting up to 18 months for a decision, a clear breach of the EU law. She also confirmed that Berkeley Solicitors are currently taking cases to court for some clients who are experiencing these delays.

The delays are a particular problem for the family members of British citizens currently waiting the outcome of their EU Treaty Rights review applications. After the 31st December 2020, their EU Treaty Rights will cease due to the end of the Brexit transition period. There is no clarity on what will happen to these pending applications

Read the full article here:

https://www.thetimes.co.uk/article/immigration-permits-under-eu-treaty-taking-over-a-year-hn29fv09b

Read the Minister’s response to the Parliamentary Question here:

http://www.justice.ie/en/JELR/Pages/PQ-30-06-2020-287

SUPREME COURT JUDGEMENT ON FAMILY REUNIFICATION FOR NATURALISED REFUGEES: M.A.M. (SOMALIA) AND K.N. (UZBEKISTAN)

Berkeley Solicitors are delighted to congratulate our client who won her appeal in the Supreme Court today in the joint test cases of – M.A.M. (Somalia) v The Minister for Justice and Equality and K.N. (Uzbekistan) and Others v The Minister for Justice. The judgement of Mr Justice McMenamin was a unanimous judgement of the Supreme Court in favour of the appellants, and was delivered on the 19th June 2020.

The judgement is very significant as it affects not just the individual families taking the appeal, but approximately fifty other applicant families who have cases pending in the High Court holding list awaiting the outcome of this Supreme Court appeal.

The case arose from a challenge to the decision of the Minister for Justice to refuse family reunification to our client’s family members under The Refugee Act of 1996 (as amended). The sole reason for the Minister’s decision was the fact that our client had become an Irish citizen by naturalisation prior to her family reunification application, and the Minister held she was not therefore entitled to the family reunification rights as a refugee.

During the course of the proceedings, the Minister accepted that the Department of Justice had previously interpreted Section 18 of the 1996 Refugee Act to permit naturalised refugees to apply for family reunification for their family members, and this favourable scheme was in operation between 2010 and October 2017. The Minister also accepted that in October 2017, following new legal advices, the Minister commenced a new procedure to preclude naturalised refugees from applying for family reunification. This change in policy resulted in many naturalised refugees being refused family reunification during the period of 2017 and 2018, prior to the commencement of the family reunification provisions of the International Protection Act 2015.

The Minister argued that in order for a person to have rights to family reunification under Section 18 of the 1996 Act, not only must they hold a declaration confirming their refugee status, but they must also be a refugee in line with the definition of a refugee in Section 2 of the Act. As this definition requires a person to be outside their “country of nationality” to be a refugee, the Minister’s argument was that a refugee who becomes naturalised is no longer deemed to be a refugee as they are not outside their country of nationality, when that country becomes Ireland.

The Supreme Court disregarded this argument, holding that there was nothing to suggest in the Act that the appellants’ “country of nationality” had altered from Somalia and Uzbekistan to Ireland, as their well-founded fear of persecution remained  in those countries and not Ireland.

The Supreme Court carried out a detailed statutory interpretation exercise in respect of the 1996 Refugee Act, and highlighted the absurdities that would follow if a refugee with a declaration of refugee status would also have to be “deemed” to be a refugee in order to avail of the important rights of family reunification.

The court stated:

“The consequence of the interpretation urged by the Minister would be to create substantial legislative uncertainty when the purpose of the 1996 Act was to achieve clarity. The case advanced would run counter to the legislative aim of the Oireachtas, which was, by a carefully devised procedure defined in the Act, to identify one definitive “mark” of recognition to persons who were entitled to refugee status in this State, which, in turn, would grant them benefits and entitlements.”

In conclusion, the Supreme Court held as follows:

“This judgement concludes that the fact that the appellants became citizens did not deprive them of the right to apply for family reunification under s.18 of the 1996 Act.”

This is a very welcome decision from the Supreme Court, because it gives certainty to the definition of a refugee and the interpretation of the family reunification provisions in the 1996 Refugee Act.

In effect it means that all the decisions issued by the Minister during the period of 2017 and 2018 to refuse applications for family reunification under the 1996 Act because the sponsors were refugees who had naturalised as Irish citizens, were unlawful.

It also means that the decisions granting family reunification to naturalised refugees during the 2010 to 2017 period are lawful, bringing legal certainty to the status of countless families now settled in Ireland.

We would expect that Minister will now agree to withdraw these previous unlawful decisions refusing family reunification, and reconsider and re determine the applications in line with the Supreme Court’s judgement.

We welcome the clarity that this judgement brings and look forward to working with our clients to have the unlawful family reunification decisions withdrawn and re determined.

The full judgement can be read here.

We are happy to advise further to anyone believes they are affected by this judgement.

Berkeley Solicitors

UK GOVERNMENT CONFIRMS PEOPLE BORN IN NORTHERN IRELAND ARE TO BE CONSIDERED EU CITIZENS FOR CERTAIN IMMIGRATION PURPOSES

The UK Government has announced a change to its immigration laws following a landmark court case involving Derry woman Emma De Souza and her US-born husband Jake De Souza.

The case concerned the right of people in Northern Ireland to be considered Irish or British citizens, or both, as per the terms of the 1998 Good Friday Agreement.

Mr De Souza had applied to the UK Home Office for an EEA residence card to live and work in Northern Ireland on the basis of his marriage to Ms De Souza in 2015. The application was rejected on the basis that Ms De Souza was considered a British citizen because she was born in Northern Ireland, and therefore she was not entitled to EU free movement rights. This was despite the fact that Ms De Souza had never held a British passport and identified as an Irish citizen.

The UK Home Office originally argued that people born in Northern Ireland are automatically British citizens according to the 1981 British Nationality Act, even if they identify as Irish. It stated that the only way it could deal with Mr De Souza’s application was if Ms De Souza renounced her status as a British citizen.

Ms De Souza argued that the UK’s immigration laws were incompatible with the right of Northern Irish people to be accepted as Irish or British, or both, under the Good Friday Agreement.

The UK Home Office has now made a change to its immigration laws, confirming that British and Irish citizens born in Northern Ireland will be treated as EU citizens.

This decision has far-reaching consequences in light of the UK’s EU Settlement Scheme, which is open for applications until June 2021. The Scheme allows EU citizens and their family members to apply to reside in the UK post-Brexit. Until now, family members of British or dual British-Irish citizens from Northern Ireland were ineligible to apply for status under the Scheme.

All citizens in Northern Ireland will now have the right to apply for a non-EEA family member to remain in the UK through the Scheme, up until June 2021. This means that British citizens in Northern Ireland now have more rights than their counterparts in England, Wales and Scotland.

Speaking about the announcement, Ms De Souza commented:

“These changes are on the back of years of campaigning for the full recognition of our right to be accepted as Irish or British or both under the Good Friday Agreement.

We have always contended that no-one should be forced to adopt or renounce a citizenship in order to access rights, to do so goes against both the letter and the spirit of the Good Friday Agreement, the Home Office now concedes that point.

These changes will only apply to Northern Ireland and recognise the unique status that the region holds within the United Kingdom. Something that we have longed called for.

We personally know a number of families that will benefit from this change and are filled with joy and relief that these families will not face calls to renounce British citizenship or face years in court like we have.”

RECENT HIGH COURT JUDGMENT UPHOLDS DECISION TO REFUSE IRISH PASSPORT TO CHILD OF SUBSIDIARY PROTECTION HOLDER

COURT OF APPEAL DECISION ON REFUSAL OF NATURALISATION BASED ON GOOD CHARACTER ARISING FROM ROAD TRAFFIC OFFENCES

The Court of Appeal delivered its judgement on 12th May 2020 in the case of Talla v Minister for Justice and Equality [2020] IECA 135.

The case concerned a Kosovan man whose application for naturalisation was refused on the basis that he was not of “good character” due to having previously committed road traffic offences in the State. He had travelled to Ireland in 2002 when he was 14 years old, and has two Irish born children.

The traffic offences in question related to a routine speeding offence in 2011, to which he was fined €380 and a conviction for driving his brother’s car without the appropriate insurance in the same year.  It was noted that the Appellant believed he was covered by insurance and an insurance company had said he was a named driver on his brother’s policy but was not insured on the particular car he was driving. He subsequently paid a fine of €400 for this offence.

In 2016, other charges including failure to produce were struck out and an insurance charge was brought to court in September 2017. It is noted that the Appellant pleaded guilty to this offence but that the District Judge accepted the explanation and plea of mitigation that the insurance policy had not been renewed as a result of a genuine oversight on the part of the Appellant’s brother.

The Appellant applied for naturalisation in 2013 and answered “no” to a series of questions concerning offences and convictions.

When these incidents were brought to the attention of the Appellant and his solicitors in 2014 and in 2017, during the process of his application, explanations were provided to INIS for each of these incidents in considerable detail.

In February 2018, the Minister refused the application for naturalisation. The decision had described the Applicant as having “a history of non-compliance with the laws of the State”.

Delivering the judgement, Mr Justice Haughton, said that that the submission prepared for the Minister which recommended the refusal of his application, failed to refer to any of the explanatory information provided by the Applicant’s solicitors.

The three judge Court of Appeal found that it was not evident that those who had prepared the submission which included an An Garda Siochana report, had considered the exculpatory information presented to INIS.

The Court of Appeal confirmed that the Minister is entitled to take into account a series of infringements of the Road Traffic Acts in assessing whether an applicant is of “good character”.

However, the Court clarified that:

“In the instant case it is “the nature of the offences” that led the Minister to refuse the
application on the grounds that the appellant was not of “good character”. As noted by Faherty J [Zaigham v MJELR [2017] IEHC 630] not all road traffic offences will debar an application. Minor offences do not necessarily reflect on a person’s “good character”, particularly if balanced against other matters in their favour. It is therefore the case that where there are road traffic offences it is the nature of those offences and the circumstances in which they were committed that will demand more attention”. [Para 36]

The Court confirmed that the Minister is entitled to take into consideration “spent convictions” (7 years since effective date of conviction) in considering “good character” for the purpose of assessing naturalisation applications.

Yet, the Court of Appeal reaffirmed in paragraph 37 that:

“While criminal convictions, or the commission of offences, are relevant to
this enquiry and assessment, it is wider in scope than that, and the outline facts and any mitigating circumstances, the period of time that has elapsed since the last conviction, and other factors that may be relevant to character, must all be taken into consideration”.

The Court went on to consider the importance of the Minister providing reasons for a refusal, on the basis of a history of road traffic offences, where the applicant may re-apply in the future. Further, where the Minister relies on the nature of road traffic offences to determine that an applicant is not of good character, the understanding of the nature of offences which led to this conclusion needs to be expressed in reasons that can be understood by the applicant.

The Court of Appeal ultimately overturned the decision of the High Court and found that it could not be concluded that the decision maker- the Director General on behalf of the Minister- had considered all relevant material on file.

The judges opined that a number of concerns arose from the fact that there was no mention in the submission to the Minister of any of the explanations given by the Applicant or his solicitors. The Court found this surprising as they considered them to contain facts of central importance and the lack of such mitigating information therefore created an imbalance.

The Court of Appeal concluded that the Minister had not considered and weighed all relevant considerations before deciding to refuse a certificate for naturalisation and ordered that the decision be quashed and the application be reconsidered in accordance with this judgement.

We at Berkeley Solicitors welcome this very encouraging clarification surrounding road traffic offences and the requirement to be of “good character” in accordance with Section 15A(1) of the Irish Nationality and Citizenship Act 1956.

In our experience road traffic offences are one of the most common reasons for refusal of naturalisation applications, based on good character grounds.

It is very clear from the judgement that the deciding officer’s submission to the Minister regarding such offences must also include a summary of mitigating factors, or otherwise the Minister’s conclusion on good character is not reached in a fair and balanced manner.

We would submit that the time that has elapsed since the minor road traffic offences and the fact an applicant has not had any further offences are mitigating factors that should always be brought to the Minister’s attention, and minor traffic offences should not be held against Applicants indefinitely.

Our office is experienced in the submission of applications for naturalisation as an Irish citizen and do our best to assist our clients through this lengthy application process. If you or your family are impacted by these issues or similar issues, please do not hesitate to contact us to discuss this in more detail.

The judgement can be read in full here.

CURRENT DELAYS IN PROCESSING APPLICATIONS FOR NATURALISATION AS AN IRISH CITIZEN

Many of our clients are currently experiencing considerable delays in the processing and determination of their application for naturalisation based on five years reckonable residency or three years reckonable residency based on the spouse or civil partner of an Irish citizen.

The Irish Naturalisation and Immigration Service proposes to render decisions for naturalisation applications within six months.

Despite the INIS website stating that “in general, it takes 6 months for a straightforward application to be processed from  the date it is received to the date a decision is made”, in the experience of Berkeley Solicitors, many people continue to experience delays well beyond the proposed time frames.

We are aware of an increasing number of applicants who have been waiting more than two years on the determination of their application. We are also aware of a number of applicants waiting up to four years on their determination.

These long and continued delays in the processing of naturalisation applications has been understandably very frustrating for our clients. Many of our clients are not provided with an explanation for these inordinate delays.

We note this issue has previously been reviewed in Dana Salman v Minister for Justice and Equality. This case involved a hearing in order to establish liability of costs in respect of Judicial Review proceedings challenging the Minister’s delay, of three years and nine months, in issuing a decision on an application for naturalisation.

As no reason for the delay had been given by the Minister and no system was in place to ensure to fair processing of such applications, on 16th December 2011, Mr Justice Kearns of the Supreme Court awarded costs to the Applicant.

Further, we would highlight that in June 2011, then Minister for Justice and Equality and Defence, Mr Alan Shatter stated that, upon entering office, he had taken steps to deal with the extensive backlog of citizenship applications and under the new system, those applying for citizenship would receive “a decision on their application within six months”.

Unfortunately, for a large number of clients, this time-frame has not been adhered to.

There are very substantial delays now occurring in the processing of applications for naturalisation and we have noticed an increased number of clients contacting our office in recent weeks, with queries as to what the options available to them are.

Due to these ongoing delays, our office has issued High Court Judicial Review proceedings on behalf of our some clients, to challenge these unlawful delays before the High Court, which are causing severe stress and anxiety to those lawfully resident in Ireland and who meet the requirements under the Irish Nationality and Citizenship Act 1956.

Our office is experienced in the submission of applications for naturalisation as an Irish citizen and do our best to assist our clients through this lengthy application process. If you or your family are impacted by these issues or similar issues, please do not hesitate to contact us to discuss this in more detail.

Supreme Court to make a reference to the CJEU in Subhan and Ali test case

SOCIAL DEPENDENCY IN EU TREATY RIGHTS CASES

Applications for visas and residence cards for family members of EU citizens pursuant to EU Treaty Rights often require proof that the Applicant is dependent on their EU Citizen family member.

The concept of dependency is not defined in the Citizens’ Rights Directive (Directive 2004/38/EC) or the European Communities (Free Movement of Persons) Regulations 2015. However, case law of the Court of Justice of the EU has established that an Applicant must show that they are not in a position to support themselves, having regard to their financial and social conditions.

Thus, while dependency is often assessed in terms of the existence of financial support between the Applicant and the EU Citizen, it can also arise from social, emotional and medical circumstances.

Several recent judgments of the High Court have shed some light on the importance of social dependency in EU Treaty Rights cases.

The case of Chittajallu v The Minister for Justice and Equality, Record Number 2019/28, in which Berkeley Solicitors were acting for the Applicant, involved a British citizen who submitted a visa application for her dependent mother.

In his judgment delivered on 11th July 2019, Mr Justice Barrett highlighted that the Minister had not properly considered the issue of social dependency arising from the Applicant’s medical circumstances in the initial decision.

Berkeley Solicitors also acted for the Applicant in the case of Agha v The Minister for Justice and Equality, Record Number 2019/374, the facts of which similarly involved a British citizen who applied for a visa for his elderly dependent mother who had serious health issues and was not capable of living independently.

In his judgment of 23rd December 2019, Mr Justice Barrett states at paragraph 6:

“There is a further separate error presenting in this regard, viz. that, in breach of European Union law, the Minister did not have any regard to the particular illness of Mr Agha’s mother and how this impacted on dependence…

As is clear from Jia, at para. 37 (as touched upon in Chittajallu v. Minister for Justice & Equality [2019] IEHC 521, at para. 4): “in order to determine whether the relatives in the ascending line…are dependent…the host Member State must assess, whether, having regard to their financial and social conditions, they are not in a position to support themselves” [Emphasis added]. No such analysis was not undertaken here…”

It is clear from the above High Court decisions that a failure to take into account an Applicant’s social dependency on the EU citizen constitutes a breach of EU law. An analysis of the Applicant’s financial dependency alone will not be sufficient.

In both of the above cases, the Court ruled that the initial refusal was unlawful and remitted the matter to the Minister for fresh consideration.

This is a positive development for family members who are dependent on their EU Citizen family member for reasons other than, or in addition to, their financial circumstances.

Social dependency may arise from factors such as an Applicant’s medical circumstances or the nature of the social and emotional relationship between the Applicant and the EU Citizen.

If you or a family member wish to discuss an EU Treaty Rights application, please do not hesitate to contact our office.

The full judgments will be published shortly on the website of the courts, which can be found here.

2,000 PEOPLE FROM OVER 100 COUNTRIES CONFERRED WITH IRISH CITIZENSHIP

Congratulations to the almost 2,000 people who were conferred with Irish citizenship at ceremonies in Co. Kerry on Monday 9th December 2019.

We especially wish to congratulate a number of our clients who have recently received positive naturalisation decisions.

The new citizens are originally from 103 different countries, with over a quarter originating from Poland and the United Kingdom.

The ceremonies took place at the Gleneagle INEC in Killarney and were presided over by retired High Court judge. The Minister for Justice, Charlie Flanagan, and Minister of State for Equality, Immigration and Integration, David Stanton, were also in attendance.

Such ceremonies had been placed on hold following the High Court ruling in the Jones case in July 2019 that anyone applying for citizenship could not spend a day outside Ireland in the 12 months before applying.

Last month the Court of Appeal overturned this ruling, calling it “unduly rigid” and “unworkable”.

Minister Stanton described the ceremony as a major life event for the candidates, stating:

“Ultimately it’s about building a society where we all live in harmony while, at the same time, respecting our cultural and religious differences… The possibilities open to you in Ireland today are almost limitless. You are now beginning a new journey and a new phase in your life by becoming Irish citizens.”

Approximately 127,000 people have received Irish citizenship in the last 18 years. If you or a family member wish to discuss applying for naturalisation, please do not hesitate to contact our office.

 

 

RETROSPECTIVE AMENDMENT OF STAMP 2 A RESIDENCE PERMISSION TO STAMP 3 FOR SPOUSE OF PHD STUDENT, REPRESENTED BY BERKELEY SOLICITORS

Berkeley Solicitors has recently received a significant decision in which the Department of Justice and Equality has agreed to retrospectively amend Stamp 2A permission, incorrectly assigned to our client, to Stamp 3 immigration permission for a number of years.

Our client is the spouse of a PhD student here in Ireland. Our client was dependent on her husband and applied for a visa to Ireland.

She was initially issued Stamp 3 permission; however, she was then issued with stamp 2 A permission at all subsequent registrations.

Stamp 2 A is described as follows on the INIS website:

“Stamp 2 A indicates permission for full time study in Ireland for a course that is not on the official Interim List of Eligible Programmes (ILEP), for a specified period. Stamp 2 A is not reckonable as residence when applying for citizenship by naturalisation.

You may be given Stamp 2A in the following circumstances:

  • Semester abroad (ie at an Irish university/college)
  • Study at a private secondary school in Ireland”

The issuing of stamp 2 A to our client was contrary to the Minister’s policy to issue stamp 3 permission to the spouses of PHD students. Stamp 2 A was at no time appropriate to her circumstance. She had never been a student in the State, and has always resided here as the dependent of her husband.

The wrongful issuing of stamp 2 A permission deprived our client of a number of years of reckonable residence, which she was entitled to by way of the Minister’s policy.

When the couple had a baby, they intended to make an application for an Irish passport. However, in order to obtain Irish citizenship for a child born in Ireland after 1st January 2005, the child’s foreign national parent must be legally resident in Ireland (this includes Northern Ireland) for 3 out of 4 years immediately before the child was born in Ireland.

As Stamp 2 is not reckonable as residence towards citizenship by birth, our clients’ baby was being deprived Irish citizenship because of the Minister’s error to issue stamp 2 A to our client.

Our office applied to the Minister to rectify this mistake by retrospectively amending our client’s previous permissions from stamp 2 A to stamp 3, based on the fact that a mistake was made on each occasion that a Stamp 2 A permission was issued to her.

A decision was recently issued to our clients which confirmed that her permission was retrospectively amended to the appropriate stamp 3 permission spanning over a number of years, thereby rendering the couple’s child eligible for Irish citizenship by birth.

We are delighted for our clients to have resolved their immigration difficulties.

We also think this is an extremely important and highly positive precedent for others who may have been issued the wrong residence permissions and confirms that, if appropriate, the Department of Justice and Equality can back date residence permission retrospectively.

If you or a family member are affected by the issuance of inappropriate immigration permission please do not hesitate to contact our office.

COURT OF APPEAL JUDGEMENT IN THE JONES CASE

The Court of Appeal have delivered their much-awaited judgement today in the case of Jones v Minister for Justice and Equality.

Applications for naturalisation have been on hold since a judgement from the High Court in July 2019. The High Court found that a person is not eligible for naturalisation as an Irish citizen, if he or she had left Ireland at all, even for one day, in the year prior to their application.

The High Court held that an absence of even one day breaks the applicant’s requirements to have one year “continuous residence” in the year immediately prior to the application.

In dealing with the High Court’s finding the Court of Appeal held that this was not a correct interpretation of Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended).

The Court of Appeal held as follows:

The High Court judge erred in law in interpretation of the term “continuous residence” provided by Section 15(1)(c ) of the 1956 Act. The construction is 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.”

The Court found that a person who took a trip to Newry for a number of hours would be ineligible to apply for naturalisation and found that this amounted to an “interpretive” absurdity.

The Court went on to consider the lawfulness of the Minister’s policy with regards to the impact of absences of over six weeks in the year prior to application.

The Court held that the legislative intention of Section 15(1)(c ) was to place a higher degree of importance on physical residence in the State in the year prior to application than in the previous years of reckonable residence. The Court found that there is a difference between “residence” /“ordinary residence” and “continuous residence”.

The Court did not agree with the appellants argument that a person is “continuously resident” in the year prior to application simply by virtue of living in Ireland and not being resident elsewhere. The court found that this would negate the substance of the requirement for “continuous residence” in the year prior to application.

The Court found that the Minister communicated in the decision under challenge in this case, “a clearly communicated practice or policy of allowing applicants six weeks absence from the state for work, or other reasons, and more in exceptional circumstances”.

The Court then went on to consider if this policy or practice was unduly harsh or if in the alternative it alleviated the protentional of a literal interpretation of Section 15(1)(c)’s requirement for “continuous residence”.

The Court held:

“The Minister has not adopted a rigid or inflexible policy in construing compliance with the first part of Section 15(1)(c). It is apparent that the objective of the Minister is to adopt a purposive, reasonable and pragmatic approach to the operation of that part of the sub-section”.

The Court further held that the operation of the minister’s “six-week policy” was for the benefit of applicants, in the interests of good administration and for consistency in decision making.

The Court found 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 criteria of the Minister to establish “continuous residence” was reasonable and balanced and has regard to the societal norms regarding foreign travel.

On the basis of the above the Court held that the appellant did not have a year’s “continuous residence “in the State in the year immediately prior to application and was therefore the decision to refuse his application for naturalisation on this basis was not unlawful.

The Court’s judgement is to be welcomed as it has clarified what is required of an applicant to meet the “continuous residence requirement” in the year prior to application.

However, it is unfortunate for applicants, who were not in fact made aware of the Minister’s policy and practice in advance of making their applications.

To date there remains no published policy on the six-week rule or its operation.

We would submit that that policy should be freely accessible and easy to understand. There is no outline of what constitutes “exceptional circumstances”. There remains no guidance regarding absences from work, whether all are permitted or a certain portion.

It is arguable if a period of six weeks absence is in line with the reality for a lot of persons working in Ireland who are required to travel extensively for work. By way of comparison absences of 90 days are permitted by statute in the United Kingdom.

It remains to be seen if the Minister will continue to enact much needed legislation in this area.