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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.

 

 

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.

 

 

 

SUPREME COURT TO HEAR APPEAL ON A DECISION CONCERNING THE DEFINITION OF “CHILD” IN FAMILY REUNIFICATION LAW

The Supreme Court is set to hear an appeal from the State over the definition of “child” as referred to in the International Protection Act 2015.

Section 56 the 2015 International Protection Act sets down the procedure for refugees and the holders of subsidiary protection to make an application for family reunification.

The State’s appeal specifically concerns Section 56.9(d) which provides as follows:

“(9) In this section… “member of a family” means in relation to the sponsor-

(d) a child of the sponsor who, on the date of the application under subsection 1 is under the age of 18 years and is not married.”

In 2018, Mr Justice Barrett ruled that non-biological or adopted children are eligible for family reunification. Delivered in May, the High Court decision involved ‘Mr X’ who held subsidiary protection in Ireland and subsequently applied for family reunification for a 14-year-old boy and 13-year-old girl to whom he was the sole guardian of.

After refusing to undertake a DNA test, as requested by the Minister, the application was refused in 2017. Mr X made a second application which was also refused and therefore brought judicial review proceedings with the aim of quashing the Minister’s refusal.

In his decision, Mr Justice Barrett acknowledged that “there is a “wide diversity” of familial structures and the 2015 Act does not exclude non-biological relationships. He further found that a “cookie cutter” definition of children which only recognised biological children, “would doubtless be easier for the State to police…but it is not what the Act provides”. Mr Justice Barrett’s decision acknowledged that it is not always a straightforward task in defining who is a child of someone. He therefore directed the Minister for reconsideration of the matter.

Chief Justice Frank Clarke, Ms Justice Iseult O’Malley and Ms Justice Mary Irvine have accepted a “leapfrog” appeal by the Minister and State against the High Court decision. This means that the State’s appeal will bypass the Court of Appeal and be directly heard by the Supreme Court.

The judges have emphasised that the definition of “child” in relation to the 2015 Act has the potential to relate to any case regarding non-biological minors who are claimed to be the child of person who has international protection.

The question as to which minors may benefit from family reunification is “a matter of general public importance”, they have underscored.

A hearing date for the appeal has not yet been fixed.

 

UPDATE ON VISA DELAYS – ATIF AND MAHMOOD CASE

UPDATE – A few months ago, we published a blog regarding the considerable delays in the processing of EUTR visas for the family members of EU citizens. In Atif and Mahmood, several applicants challenged the legality of such delays.

In Atif and Mahmood, the High Court in Ireland ruled in favour of the applicants indicating that any delay over six months in processing visa applications was too long. However, the Minister appealed this decision to the Court of Appeals in Ireland. In order to make a decision in this matter, the Court of Appeals referred to the European Court of Justice (ECJ) for guidance.

Specifically, the Court of Appeals sought a preliminary ruling on how to interpret Article 5(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. This article addresses the free movement rights of EU citizens and their families and requires the Member State “to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights.”

The Court of Appeals set forth these questions to the ECJ for preliminary ruling:

  1. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when the delays in processing an application for EUTR visas for the family members of EU citizens exceed 12 months?
  2. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to ensuring that the application is not fraudulent or an abuse of rights, for instance, a marriage of convenience?
  3. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to background and security checks on applicants coming from third world countries for security purposes?
  4. Does a Member State breach the requirement of Article 5(2) of Directive 2004/38/EC when delays in processing are due to a “a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns”?

To the above questions, the ECJ has made a decision regarding this matter.

“Since, however, all of the visa applications at issue in the main proceedings were the subject of negative decisions, which were contested by means of court actions which were not upheld, and since the referring court has noted that the Court’s answer can no longer benefit the applicants in the main proceedings, as is clear from paragraphs 18 and 20 of the present order, the dispute in the main proceedings has become devoid of purpose and, consequently, an answer to the questions referred appears to be no longer necessary.”

Since all of the applications in question had already been determined, the ECJ deferred from making a decision in this matter. Essentially, the ECJ determined that issuing a decision in this case would no longer be beneficial to the applicants and therefore there is no point in pursuing the matter further. Thus, the issue of how to interpret Article 5(2) of Directive 2004/38/EC in regard to visa delays remains unresolved.

Read more about visa delays in our full blog here.

Read the full decision in this matter  here.

FAMILY REUNIFICATION FOR NATURALIZED REFUGEES

On the 26th February 2018, Mr Justice Humphries delivered his judgement in the three test cases concerning the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees.

The cases were chosen to represent a larger number of cases currently in the High Court, all challenging the Minister of Justice and Equality’s recent decisions to refuse family reunification to naturalized refugees. These decisions were issued by the Minister contrast to the former policy to accept that naturalized refugees continued to have the rights to family reunification pursuant to the 1996 Refugee Act. An internal policy change implemented by the Minister, without notice to the applicants, resulted in the refusal of a large number of applications in circumstances where they would have previously been granted family reunification.

The Minister argued that a refugee ceases to be a refugee on acquiring Irish citizenship pursuant the definition of a refugee in national and international law, and a formal statutory provision for the revocation of their refugee status is not required.

The applicants argued that a formal withdrawal or cessation of refugee status is required by statutory provision, and while this is implemented in the International Protection Act 2015, it was not implemented under the Refugee Act 1996 as amended.

Mr Justice Humphries found in favour of the State, indicating that the cessation of refugee status is declaratory in nature, and refugees who become naturalized automatically cease to be a refugee, thus losing their refugee rights to family reunification.

The High Court decision is now the subject of an appeal to the Court of Appeal. We will post further updates on this case when there are any developments in the Court of Appeal.

Berkeley Solicitors