Tag Archive for: DEPARTMENT OF JUSTICE AND EQUALITY

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

COURT OF APPEAL JUDGMENT ON MEMBERSHIP OF THE SAME HOUSEHOLD IN EU TREATY RIGHTS CASES

On the 19th December 2019, the Court of Appeal delivered its judgment in the case of Subhan and Ali v the Minister for Justice and Equality, in which Berkeley Solicitors acted for the Applicants.

The decision is significant for family members of EU citizens who have applications, or are considering making applications, for visas or residence cards based on the fact that they are members of the same household of an EU citizen family member under Directive 2004/38/EC on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, (‘the Citizens Directive’).

The case concerned the refusal of an EU Fam residence card to the cousin of a British citizen, who had lived as the member of his household for many years in the United Kingdom prior to moving to Ireland.

The central issue before the Court of Appeal was the meaning of the term ‘household of the Union Citizen’  for the purposes of the Citizens’ Directive.

The Applicants argued that the household of the Union citizen consists of those persons who are family members and who reside in the same dwelling as the Union citizen. The Respondent argued that what is to be established is that the household concerned is that of the Union citizen, and that the centrality of the Union citizen in the family living arrangements is to be assessed.

The Applicants also put forward submissions regarding other language versions of the term ‘membership of the same household’ and found that there was no ‘head of the household’  test in those versions.

Ms Justice Baker ultimately upheld the decision of the High Court in finding that the criterion of ‘membership of the same household’ is not simply established where family members live under the same roof. Rather, members of the household of the Union citizen must be those persons who are some way central to the family life of the Union citizen.

The Court held:

“68. It may be more useful to consider the notion of household by reference to what it is not. Persons living under the same roof are not necessarily members of the same household and they may well be what we colloquially call housemates. An element of sharing that is necessary in a household may well be met in that the persons living together may agree on a distribution of household tasks and a proportionate contribution towards household expenses. But because, for the purpose of the Citizens Directive, one must focus on the living arrangements of the Union citizen, the members of the household of the Union citizen must, on the facts, be persons who are in some way central to his or her family life, that those family members are an integral part of the core family life of the Union citizen, and are envisaged to continue to be such for the foreseeable or reasonably foreseeable future. The defining characteristic is that the members of the group intend co-living arrangement to continue indefinitely, that the link has become the norm and is envisaged as ongoing and is part of the fabric of the personal life of each of them.

69. It is not a test of with whom the Union citizen would choose to live, but rather, with whom he or she expects to be permitted or facilitated to live in order that his or her family unit would continue in being, and the loss of whom in the family unit is a material factor that might impede the Union citizen choosing to or being able to exercise free movement rights. That second element, it seems to me, properly reflects the core principle intended to be protected by the Citizens Directive.

70. It may be dangerous to give an example, and I do so by way of illustration only. A family member who had resided in the same house as a Union citizen for many years before free movement rights were exercised might well have become a member of the family with whom there has developed a degree of emotional closeness such that the person is integral to the family life of the Union citizen. That person could be a member of a household because the living arrangements display connecting factors that might, in an individual case, be termed a “household”. If the rights of free movement of a Union citizen within the group are likely to be impaired by the fact of that living arrangement, whether for reasons of the moral duty owed to the other members of the group or otherwise, then the rights under the Citizens Directive fall for consideration.”

The Court found that the EU Citizen’s Free Movement rights where not impeded or restricted by refusing a right of residence to his family member in this case.

The full judgment has been published on the website of the courts and can be found here.

IMMIGRATION IN IRELAND STATISTICS MID-TERM REVIEW

FURTHER DECISION ISSUED IN WHICH MINISTER RETROSPECTIVELY AMENDS STAMP 2 A PERMISSION TO STAMP 3 FOR SPOUSE OF PHD STUDENT

Berkeley Solicitors has received a second decision within two months 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 spanning over a period of two years.

In November 2019, we posted a blog on this issue which can be read in full here.

Our client is the spouse of a PhD student in Ireland and prior to being issued with Stamp 2 A, our client held Stamp 3 permission for a number of years.

Our client was never provided with an explanation for the change in permission nor was she provided with any information regarding the impact or consequences of this change of status.

Given that it is the practice for the Minister to issue Stamp 3 permission to Spouses of PhD Students, the significant decision to retrospectively amend our client’s permission is particularly encouraging.

We highlight that this decision provides our client with further years of reckonable residence, which she was deprived of through the wrongful issuance of Stamp 2 A. Our client is now able to proceed with an application for naturalisation.

We are delighted to see requests for the retrospective amendment of a person’s registration or permission being facilitated and it has become clear to us that this it is entirely possible for the Minister to issue such decisions where appropriate.

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

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.

 

 

UPDATE TO ELIGIBILTY REQUIREMENTS FOR STAMP 4

INIS RELEASES 2018 ANNUAL REPORT: “IMMIGRATION IN IRELAND STATISTICS”

On the 26th September 2019, the Irish Naturalisation and Immigration Service of the Department of Justice released its annual report for the year 2018 detailing immigration trends in Ireland through statistics.

In the report, INIS found that there was a total of 140,533 visa applications in 2018. The report further clarifies that in 2018, 121,220 persons received positive visa decisions from INIS in 2018 while 16,568 received a negative decision.

This annual release has once again highlighted the concerning increase in refusals of leave to land. INIS reports that 4797 persons were refused leave to land in the State meaning individuals were refused entry at the airport/border. This is an increase from the 3,746 persons refused entry into the state in 2017.

This is a very large number of persons refused leave to land with the top countries to have people rejected being:

  • Albania (622)
  • Brazil (524)
  • South Africa (359)
  • United States of America (232)

Leave to land is governed by Section 4 of the Immigration Act 2004 (as amended) which provides for limited and specific circumstances to which persons can be refused leave to land. Under Section 4(3), an immigration officer retains a right to refuse permission to a non-national where they are satisfied:

“(a) that the non-national is not in a position to support himself or herself and any accompanying dependents;

(b) that the non-national intends to take up employment in the State, but is not in possession of a valid employment permit

(c) that a non-national suffers from a condition set out in first schedule

(d) that the non-national has been convicted of an offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe penalty

(e) that a non-national, not being exempt, is not the holder of a valid Irish visa;

(f) that the non-national is the subject of- (i) a deportation order, (ii) an exclusion order or (iii) a determination by the minister that it is conducive to the public good that he or she remain outside the State;

(g) that the non-national is not in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality;

(h) that the non-national- (i) intends to travel (whether immediately or not) to Great Britain or Northern Ireland and (ii) would not qualify for admission to Great Britain or Northern Ireland if he or she arrived there from a place other than the State;

(i) that the non-national, having arrived in the State in the course of employment as a seaman, has remained in the State without the leave of an immigration officer after the departure of the ship in which he or she so arrived;

(j) that the non-national’s entry into, or presence in, the State could pose a threat to national security or be contrary to public policy;

(k) that there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national”.

There remain serious deficiencies in our immigration system with respect to fairness and the right to have legal representation as a person presenting at the Irish border requesting leave to land.

The absence of legal representation is especially concerning given the seriousness of the decision being made. Refusals of leave to land remains a serious incident in a person’s immigration history. It must be declared for all future visa applications and may be negatively considered in any future immigration matter. Needless to say, being refused leave to enter Ireland at the border can be extremely distressing and traumatising for individuals and in some cases has resulted in persons being detained in Irish prisons!

The increase in the number of persons refused leave to land may be unsurprising given that in 2017, INIS highlighted that enhancing border security was a priority stating that amendments to immigration over last number of years “will allow for arresting, detaining and removing non-nationals who are subject to a deportation order and people who are refused leave to land”, however it is no less alarming.

Although specific, the potentially very wide-ranging power of immigration officers must be exercised in a cautious and restricted manner. Unfortunately, it appears that leave to land refusals are continuing to increase.

As of the 31st December 2018, 142,924 individuals had permission to remain in the State with 2757 being under 18. The Residence Division of INIS received over 14,600 such applications in 2017.

In 2018 there were over 5200 EU Treaty Rights Applications made. The report shed light into trends relating to EU Treaty Rights Reviews stating that 1092 review applications were submitted in 2018 with 134 review cases being granted.

The report also addressed citizenship applications confirming that, similar to the 2017 figures, 8225 persons received Citizenship Certificates in 2018, with 1183 of those being minors.

Of the 984 Family Reunification applications received in 2018, 527 were Syrian nationals. However, only 211 applications were determined favourably with just 133 minors at time of decision receiving positive decisions.

 

The 2018 Annual INIS Report can be read in full here.

 

NEW ONLINE IMMIGRATION RENEWAL SYSTEM FOR DUBLIN-BASED STUDENTS

In order to support the increasing number of non-EEA students, a new online renewal immigration registration system has been established.

Starting 26th August 2019, Dublin-based students from outside of Europe will be able to renew their immigration registration online without any additional fees. Nearly 8,000 students are expected to use the new online renewal system in the coming months.

Currently, the immigration registration renewal system requires Dublin based non-EEA students to have an in-person appointment with INIS at Burgh Quay Registration – which usually means long queues especially toward the beginning of a new academic term.

However, this new online registration system should mitigate the long queues saving time for students and opening up appointment times for other customers at the INIS office.

As of now, the online renewal immigration registration system is only available to Dublin based non-EEA students, who have previously registered with INIS and are registering for at least their second year of study. However, depending on the success of the online immigration registration renewal system in Dublin, INIS will consider expanding it other areas and customers as well.

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.

MINISTER RULED TO HAVE BEEN INCORRECTLY APPLYING EU LAW RELATING TO MEMBERSHIP OF THE SAME HOUSEHOLD

The High Court has issued a very important ruling in Shishu & anor -v- The Minister for Justice and Equality [2019] IEHC 566, which provides that the Minister for Justice has incorrectly applied EU law as it relates to the issue of residence cards to dependent family members and members of the same household of an EU citizen who is exercising his or her right to free movement in the State.

This case was brought by two brothers, the first, a naturalised British citizen living and working in Ireland and the second, a citizen of Bangladesh who claims that he lived with and as a dependant of his EU citizen brother in the UK before his brother moved to Ireland to live and work and he travelled to join him in the State.

An application had been made to the Minister for a residence card to be issued to the second brother on the basis that he is the dependant of and a member of the household of the first within the meaning of Regulation 5.1 of the European Communities (Free Movement of Persons) Regulations 2015, which states the following:

Permission for permitted family member to enter State

  1. (1) This paragraph applies to a person who—

(a) irrespective of his or her nationality, is a member of the family (other than a qualifying family member) of a Union citizen to whom paragraph (2) applies and who in the country from which the person has come—

(i) is a dependant of the Union citizen,

(ii) is a member of the household of the Union citizen, or

(iii) on the basis of serious health grounds strictly requires the personal care of the Union citizen, or

(b) is the partner with whom a Union citizen has a durable relationship, duly attested.

This application was refused in October 2018, with the Minister citing insufficient documentation evidencing the applicant’s dependency on his brother and his membership of the same household in the UK prior to the applicant’s travel to Ireland.

The Judge however found that in this case the documentary evidence provided as to membership of the same household in the initial application was ‘strikingly comprehensive’ stating:

(ii) the court has never previously seen an application of the type now in issue in which such an abundance of evidence was provided as to a particular point.

The Judge went on to state that the Minister in his finding that the applicant had provided insufficient evidence regarding other tenants living at their UK address, the relationship between the applicant and other tenants and as to the length of time the brothers had been living at this address, seemed to go beyond the requirements of the applicable legislation.

Mr Justice Barrett ruled that in the Minister’s decision determining that insufficient documentary evidence had been provided establishing dependency and membership of the same household, the Minister had erred in law in his application of the subsections of section 5 above and had acted unreasonably and/or in breach of EU law and/or the Regulations.

The Judge also ruled that the Minister had acted unreasonably and/or in breach of fair procedures by refusing the application without having outlined the type of documents his office required in evidence of the applicant’s dependency and membership of the same household. The judge criticised the lack of transparency inherent in the ‘closeted’ way in which the Minister is operating the application and decision-making process, one which he found leaves applicants ‘in the blind’ when it comes to trying to satisfy the Minister’s standards of proof.

In this regard the judgment states:

  1. (3) Did the Respondent act unreasonably and/or in breach of fair procedures in concluding that the second applicant had failed to submit satisfactory evidence that he was a dependent of the first applicant and/or a member of his household, without adopting procedures which would have enabled the second applicant to know what evidence he was required to adduce in order to establish same?

  2. Yes. The court does not consider that a approach by a decision-maker which amounts, in effect, to ‘Put in an application, I will not tell you even at the most general level, not even by way of non-binding guidance, what type of material I am looking for, but I will let you know if I do not see it’ is reasonable or entails fairness of procedure. It is unreasonable and unfair that the Minister should know what, at a general level, he is looking for when it comes to assessing applications generally, but will give no sense to applicants as to what it is that he is looking for, i.e. the unreasonableness/unfairness flows not from the Directive or the Regulations per se but from the closeted manner in which the Minister has elected to discharge his obligations to the detriment of applicants who, as a consequence of his approach, are unfailingly operating to some extent ‘in the blind’ when making an application such as that at issue here.

On the issue of membership of the same household, the Judge highlighted that Ireland, as an EU member state, is obliged under Directive 2004/38/EC to facilitate the entry and lawful residence of members of the household of an EU Citizen exercising his or her right to free movement in the State.

Article 3 of Directive 2004/38/EC provides the following:

Beneficiaries

  1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
  2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

The Judge on this point noted that the term ‘household’ is not defined in the 2004 Directive or the 2015 Regulations and that it is therefore required to be given its ordinary meaning in the English language and be applied uniformly by EU members states. The Judge however, in reference to an observation of the Court of Justice of the EU, goes on to state that within the context of Article 3.2 of the 2004 Directive it in fact seems that a wider meaning is attributed to the term ‘household’ than that of its ordinary English language meaning.

The Judge held that the Minister in his decision in this case seemed to interpret ‘household’ as referring to a single person/group regularly residing together in the same accommodation and sharing catering arrangements, and did not consider the term to apply to a single dwelling which may contain multiple households not sharing living spaces or catering arrangements.

The judgment states in this regard:

(vi) even if one has regard solely to the English language meaning of “household”, that term is typically understood to embrace [a] a single person or group of people who regularly reside together in the same accommodation and who share the same catering arrangements; However, [b] it is of course possible for a single dwelling to contain multiple households if meals or living spaces are not shared. It seems to the court, with respect, that the Minister in his reasoning has had regard solely to conception [a] of what comprises a household and no regard to conception [b].

The Judge cancelled the Minister’s refusal of the application as a result of the court’s findings and directed that the application be reconsidered by the Minister.

The full judgment can be read here.

UPDATE ON CITIZENSHIP APPLICATIONS FOLLOWING THE JONES RULING

Further to our recent blog on the High Court’s findings in the case of Jones v The Minister for Justice and Equality, which can be read in full here, the Irish Naturalisation and Immigration Service of the Department of Justice have published a notice addressing the judgment and the concerns it has raised.

The Court had found in Jones that the law governing eligibility for naturalization as an Irish citizen requires ‘continuous residence’ in the year prior to application and that ‘continuous residence’ is defined as per the generally accepted understanding and dictionary definition of ‘continuous’, with the implication, therefore, that even one day’s absence from Ireland in the year prior to application will break the continuous residence requirement and render a person ineligible to apply for naturalization.

This judgment has understandably caused deep concern and worry for many and in response the INIS has now issued a statement providing the following:

“We are aware that the judgment in this case has given cause for concern and may have been upsetting for many people who are in the citizenship process. We want to assure you that we are taking all appropriate steps to remedy the situation as quickly as possible. The best interests of applicants and future applicants are foremost in our considerations.”

For those planning on submitting an application or who already have an application pending, the Department goes on to confirm that it is continuing to receive and process applications as usual and it emphasises that that they are not advising current applicants or future applicants to cancel any current or future travel plans in light of the judgment.

The Department advises that anyone who is planning on applying for naturalization continue preparing their application, collecting the necessary documentation and submit this together with a complete application form, stating that once they have formulated a solution to address the implications of the ruling they will be in touch with applicants should any further information be required.

The Department confirm that preparations are still going ahead as planned for the upcoming Citizenship Ceremony in September.

Importantly, the Department also state that they “do not believe that this ruling has consequences for anyone who has already obtained citizenship under the Act”. This will hopefully come as a reassurance to many who are concerned that their citizenship may be in question following this judgment.

Finally, the Department confirms that they are working to find a solution to address the ruling as a matter of urgent priority and that they will post on their website as updates occur.

We will be posting about any further developments from the Department as they arise and should you have concerns about your case in the meantime please do not hesitate to contact us.

The INIS statement can be read in full here.

IMPORTANT HIGH COURT RULING DEEMS REFUSAL OF FAMILY REUNIFICATION TO SPOUSES/CIVIL PARTNERS OF REFUGEES/SUBSIDIARY PROTECTION HOLDERS UNCONSTITUTIONAL

The recent High Court judgment of Mr Justice Barrett in the joined cases of A. vs The Minister for Justice and Equality and S. and S. vs. The Minister for Justice and Equality has held as unconstitutional the statutory provision excluding family reunification rights to the spouses and civil partners of refugees whose marriage took place after the granting of refugee status.

This is a very favorable development for the holders of refugee status or subsidiary protection who wish to apply for family reunification for their spouse/civil partner but who were not married at the time that they made their application for protection in the State.

These joined cases raised the question, as to whether s. 56(9)(a) of the International Protection Act 2015 is unconstitutional and/or incompatible with the European Convention of Human Rights.

The context of this judgements is that previously, under the Refugee Act 1996, now repealed, refugees were  eligible for family reunification with their spouse whether or not they had been married at the time at which they made their application for protection in the State.

Under the more recent International Protection Act 2015, section 56(9)(a) and (b) provides that holders of refugee status and subsidiary protection are only eligible for family reunification with their spouse where their marriage took place prior to the date of their application for protection in the State.

In his judgment, Mr Justice Barrett declared that Section 56(9)(a) is “repugnant to the provisions of the Constitution” and is therefore “invalid and does not have the force of law.”

The Court found that there was no objective and reasonable justification in this context for a differentiation in treatment between couples married pre-flight to those married post-flight, referring to the European Court of Human Rights case Hode and Abdi v. UK, in which that Court had objected to differentiation in treatment on the basis of the time of marriage.

The Judge went on to state that although it was no longer necessary as the section had already been declared unconstitutional, the court would also have declared that Section 56(9)(a) is incompatible with the State’s obligation under Article 14 ECHR read together with Article 8 ECHR, the latter protecting the rights to family and private life.

The Court in this ruling has notably departed from the judgment of RC or VB v. The Minister for Justice [2019] IEHC 55, which dealt with a similar question.

This judgment has significant implications for refugees and beneficiaries of subsidiary protection who have applied for their spouse or civil partner to be granted family reunification and who have been refused on the basis that their marriage took place after they made their application for protection in the State.

The judgement also opens to the door for refugees who failed to submit an application for family reunification for their spouse or civil partner under the 2015 Act, on the basis that they believed they were not eligible under Section 56 (9) (a).

If you believe this may affect you please contact the office with your questions and we will seek to assist you in the next steps.

 

THE IMPLICATIONS OF THE JONES CASE FOR ‘RECKONABLE RESIDENCE’ FOR NATURALIZATION APPLICATIONS

Many of our clients have been contacting the office concerned and confused regarding their eligibility for naturalization or the position regarding their pending application for naturalization.

This is as a result of the recent judgement of the High Court, Jones v Minister for Justice record number 2018/921 JR.

The requirements for an applicant to be eligible to apply for naturalization are laid out in statute, the primary act being the Irish Nationality and Citizenship Act 1956.

A fundamental requirement to be eligible to apply for naturalization is that you hold the required “reckonable residence”.

For a standard application the required period of reckonable residence is five years, this is reduced to a period of three years for the spouses and civil partners of Irish Citizens and for refugees.

This period of five years can be made up as a period of four years within the last eight, with one year “continuous residence “ in the year prior to application.

This is 2 years in the last four and one year continuous for those eligible for the reduction to 3 years reckonable residence if applying based on being the spouse of an Irish national or a holder of refugee status.

Reckonable residence is also defined in law as residence which is not in breach of immigration law (unlawful residence ), not for the purpose of study and not for the purpose of seeking international protection.

Therefore a person who is legally resident and does not fall into one of the categories above is resident as per the definition of reckonable residence.

A person does not lose their residence or right to reside in Ireland if they leave for holidays, work purposes and for up to six months per year for holders of EU residence cards. They therefore remain resident in Ireland for immigration purposes. The Court has found that the requirement for continuous residence does not equate with residence for immigration purposes, but with physical residence.

There has been a question on the application form for naturalization for a number of years, namely question 5.6, which asks an applicant if they have been absent from the state for more than six weeks in any year in the last five year period.

An applicant is asked to confirm if they have or have not been so absent and if they have, to explain these absences on a separate sheet.

Many clients have sought our advices on this question including clarity as to whether the calculation should be made based on a calendar year or the year immediately prior. We have been asked to clarify if a person leaves and comes back in one day does this count as an absence?

This question also makes little sense to an applicant applying based on marriage to an Irish citizen where their required three years reckonable residence has been in Northern Ireland. The citizenship acts allow spouses of Irish nationals to rely on residence in Northern Ireland to count as their reckonable residence for the purposes of naturalisation. This does not apply to standard applicants.

Therefore the spouse/civil partner of an Irish national who has resided solely in Northern Ireland and has never lived in Ireland is eligible for naturalization in law, but has been totally physically absent from the Republic of Ireland.

A number of years ago applicants began to be informed that their application for naturisation had been deemed ineligible on the basis of question 5.6 and their absences from the state. This became known as the “six week rule”.

There is no note or information on the application form or the attached guidance note to state that absences from the state over 6 weeks per annum will be discounted from an applicants reckonable residence or that same will count as a break of continuous residence if applicable to the year before application.

An applicant for naturalization is also required to fill in an INIS residence calculator and this calculator is provided online. Applicants are never informed to remove from their calculation any absences or that any absences will be subtracted.

The Minister thereafter appeared to operate a flexible policy where absences from some reasons such as work or employment would not be subtracted but others such as for travel, family reasons would be subtracted. The approach appeared to vary from case to case.

By way of comparison, in the United Kingdom the allowable absences are laid out on law , Section 6(1) of the British Nationality Act 1981 allows for 450 days absence in the five year period and 90 days in the year previous. There is also room for discretion on the part of the decision maker. The Home Office also provide detailed guidance for decision makers regarding the meaning of absence, physical residence and technical absence.

It has been difficult to advise clients as to their eligibility for naturalization due to the lack of clarity regarding absences and their effect on the application.

The recent judgement in Jones has changed matters further.

The Court finds in Jones that the law requires continuous residence in the year prior to application and that continuous residence is defined as per the generally accepted understanding and dictionary definition of continuous. Therefore even one days absence from Ireland in the year prior to application will break the continuous residence requirement and leave a person ineligible to apply for naturalization as an Irish citizen.

The court further found that the Minister has no legal basis for the operation of the six week rule, throwing into question the legal validity of certificates of naturalization already granted to persons who did not meet this strict interpretation of continuous residence.

It is also of note that permission letters held by non EEA nationals often state that a condition of permission is that the holder is continuously reside in the state. The letters go on to state that continuous residence is defined as residence in the State, allowing for absences for travel, holiday and so on. Therefore a person remains continuously resident for the purposes of their immigration permission when traveling for work and holiday purposes, but not for the purposes of naturalization.

Furthermore, persons resident in Ireland under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 rights of residence are not affected by temporary absences of up to six months per year.

It it is yet to be seen how the Minister will approach the judgement of the Court in Jones with respect to pending applications for naturalization.

It will also be of note to see if a statutory amendment to the legislation governing naturalization and reckonable residence requirements is now made.

The position is now very difficult for those who have applied for naturalization or those intending to apply in the near future as their ability to travel or the impact this will have on their application for naturalisation is highly uncertain.

We will be keeping our clients updated as to any further developments in this regard and will post any further updates on this blog.

The full judgement can be found here.