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CLIENT OF BERKELEY SOLICITORS GRANTED CERTIFICATE OF NATIONALITY FOR THEIR MINOR STATELESS CHILD

We at Berkeley Solicitors are delighted for our clients and their minor child who was granted a certificate of nationality pursuant to Section 28 of the Irish Nationality and Citizenship Act 1956.

This is the second client of our office that has been issued with a certificate of nationality under the 1956 Act.

The applicant was a stateless child born to parents who have no nationality and who are recognised by the relevant foreign government as stateless. Our client was born in Ireland but was not entitled to citizenship by birth pursuant to Section 6A of the 1956 Act, as amended as their parents had not acquired three years reckonable residence prior to their birth.

There is currently no official system for the recognition of statelessness in these circumstances nor is a formal procedure in respect of the acquisition of citizenship pursuant to Section 6 (3) of the Irish Nationality and Citizenship Act 1956 as amended which states:

“A person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country.”

The granting of this application follows that our client is now recognised as an Irish citizen by birth on the basis that they are not entitled to any other nationality.

This is another significant decision for stateless persons who may have a baby born in Ireland who is not entitled to any citizenship from another country, and it has become clear to us that this it is entirely possible for the Minister to issue certificates of nationality pursuant to Section 6(3) of the 1965 Act where appropriate.

We at Berkeley Solicitors would be happy to advise any clients in similar situations and would encourage you or any family members in such positions to contact our office.

MINISTER FOR JUSTICE ANNOUNCES CHANGES TO REQUIREMENTS FOR CHILDREN APPLYING FOR IRISH CITIZENSHIP

On 23rd March 2021, the Minister for Justice, Helen McEntee, announced that she will make it easier for children born here, whose parents are not Irish citizens and who are not entitled to citizenship at birth, to gain Irish citizenship themselves.

The current policy is that a child born in the State, but who is not entitled to citizenship by birth, needs to be resident in Ireland for five of the previous eight years before they can apply for citizenship.

Minister McEntee announced that she intends to reduce the residency requirements for such children from five years to three years.

These changes will be contained in the upcoming Civil Law (Miscellaneous Provisions) Bill 2021, which is expected to be submitted to Government in the coming weeks.

Once this legislation comes into force, the number of years a minor must be resident in Ireland will now be two years out of the previous eight, in addition to the requirement to have one year’s continuous residence immediately prior to their citizenship application.

Announcing this step, the Minister for Justice commented:

“The granting of Irish citizenship is a privilege and an honour which is recognised by the thousands of people who apply every year. It is my hope that reducing the amount of time children of non-Irish nationals born in Ireland have to wait before being eligible for citizenship will provide comfort and reassurance to many families across the country.

 This amendment provides increased security for children where a parent subsequently falls out of permission as the child will be entitled to Irish citizenship and will therefore be an EU citizen with the right to remain in the State with a non-EEA national guardian or parent.

However, it will not broaden the categories of children who are entitled to citizenship and this amendment will only apply to the children of those parents who are legally resident in the State. Children born here to non-national parents who have three years prior residency will continue to be Irish citizens from birth.”

This is a welcome development which will allow children who are currently on a pathway to citizenship to attain this status at a much earlier stage.

The full announcement can be read here.

If you or a family member have any queries about applying for Irish citizenship, please contact our office.

REVOCATION OF IRISH CITIZENSHIP – IRISH SUPREME COURT DECLARES SECTIONS OF THE IRISH NATIONALITY AND CITIZENSHIP ACT ARE UNCONSTITUTIONAL FOLLOWING JUDGEMENT IN DAMACHE V MINISTER FOR JUSTICE

On 14th October 2020, the Supreme Court found that the system in place for the revocation of Irish citizenship by way of naturalisation, as set out in section 19 of the Irish Nationality and Citizenship Act 1956, was unconstitutional.

Under the provisions of Section 19 the Minister for Justice is required to notify a person that she intends to revoke their certificate of naturalisation. The affected person can then apply for an inquiry as to the reasons for revocation, and this application is referred to an independent committee of inquiry appointed by the Minister.

The Supreme Court held that this process does not meet the high standards of natural justice applicable to a person facing the severe consequence of losing their Irish citizenship. Central to this decision was the fact that the Minister for Justice is not bound by the findings of the independent committee, and that there is no right of appeal from the Minister’s decision.

Ultimately, the revocation process under Section 19 resulted in a situation where the same person who initiated the revocation process (the Minister), and whose representatives make the case for revocation before the committee, also makes the final decision to revoke.

The Supreme Court therefore found that Section 19 of the 1956 Act was unconstitutional. However, it deferred making its final orders until it had heard further submissions from the parties and the Irish Human Rights and Equality Commission, who acted as amicus curiae in the proceedings, as to whether any aspects of Section 19 should be upheld, or whether Section 19 should be struck down in its entirety.

The Supreme Court heard these additional submissions on 21st January 2021.

On Wednesday 10th February 2021, the Court granted declarations that Sections 19(2) and 19(3) be struck down in their entirety but found that it was not necessary to strike down section 19(1), which contains the ministerial power to revoke and the grounds for such revocation.

As a result of these declarations, new statutory provisions for the revocation of certificates of naturalisation will have to be implemented. Until this occurs, the Minister for Justice cannot exercise her statutory power to revoke a certificate of naturalisation.

As reported by the Irish Times, Ms Justice Dunne said it is “inconceivable” that the Minister for Justice could revoke a grant of citizenship until a new process is in place with safeguards to meet natural justice requirements.

The full judgement of the Supreme Court can be read here (https://www.courts.ie/acc/alfresco/9f6e2c6d-eb77-4c9f-ad57-fffe7ffc65f6/2020_IESC_63.pdf/pdf) and the Irish Times article can be read here (https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-ruling-to-require-new-rules-for-revoking-citizenship-1.4481073)

Berkeley Solicitors will post further updates on the ever-evolving law surrounding revocation of Irish citizenship as it become available.

If you or a family member have queries about the naturalisation process, please contact our office.

MINISTER FOR JUSTICE ANNOUNCES NEW TEMPORARY PROCESS FOR GRANTING CITIZENSHIP DURING COVID-19 RESTRICTIONS

On 18th January 2021, the Minister for Justice Helen McEntee announced a new temporary process for the granting of citizenship during Covid-19 restrictions.

In normal circumstances, successful applicants are required to attend a citizenship ceremony in order to obtain a certificate of nationality.

However, citizenship ceremonies have been suspended since March 2020 due to the Covid-19 pandemic.

Under the new temporary system, qualifying applicants will be asked to complete a statutory declaration that will be emailed to them by the Citizenship Division of the Department of Justice. They will be required to bring the statutory declaration to one of the listed designated officials who will witness the applicant sign the statutory declaration.

The applicant must then send the signed statutory declaration, the appropriate fee and any other requested documentation to the Department’s Citizenship Division. A certificate of naturalisation signed by the Minister for Justice will then be sent to the applicant.

This new system is in place from 18th January 2021.

Commenting on the new system, the Minister stated Minister McEntee said:

“The granting of Irish citizenship through naturalisation is a privilege and an honour which is recognised by the thousands of people who apply every year. I am pleased that we can now bring some certainty to the people whose applications have effectively been on hold during the pandemic.

Approximately 4,000 applicants have not been able to receive a certificate of naturalisation due to the temporary suspension of citizenship ceremonies. The process I am opening today means that certificates can now be granted again, once the signed and witnessed statutory declaration and relevant fee has been received by my Department.”

The Department of Justice will be in contact with qualifying applicants regarding the requirements on a phased basis over the next few months until in-person citizenship ceremonies are able to recommence.

The Department stated that the 4,000 applicants currently waiting on naturalisation will have been provided with an opportunity to gain citizenship by the end of March.

The Minister also commented that in-person ceremonies are provisionally scheduled to resume in December 2021.

In addition to this, Minister McEntee outlined some additional digital measures that she intends to implement in order to simplify the naturalisation process:

“I am putting the Justice Sector on a Digital First footing and will move our services away from old, paper-based systems.

Plans for the digitalisation of the naturalisation process are well advanced, through increased digital and ICT investment. As part of this process, eTax-clearance for citizenship applicants has been introduced. Online payments have been trialled for applications from minors and the process is currently being rolled out to adult applications on a phased basis.”

If you have any queries about the naturalisation process, please do not hesitate to contact our office.

STATELESS CHILD BORN IN IRELAND GRANTED A CERTIFICATE OF NATIONALITY

We at Berkeley Solicitors would like to extend our warmest congratulations to our client and their minor child who was recently granted a certificate of nationality pursuant to Section 28 of the Irish Nationality and Citizenship Act 1956.

The case involved a minor child whose parents hold “Aliens” passports, and do not have citizenship of any country.

Our client is therefore a stateless minor child who was born in Ireland but was not entitled to Irish citizenship by birth pursuant to Section 6A of the Irish National and Citizenship Act 1956, as amended because neither of their parents has acquired three years reckonable residence prior to the birth of their child.

Section 6 (3) of the Irish Nationality and Citizenship Act 1956 as amended, which states as follows.

“A person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country.”

In order for our client to have her right to Irish citizenship recognised under this provision, we applied to the Minister for a Certificate of Nationality pursuant to Section 28 of the 1956 Act which states as follows:

“(1) Any person who claims to be an Irish citizen, other than a naturalised Irish citizen, may apply to the Minister or, if resident outside Ireland, to any Irish diplomatic officer or consular officer for a certificate of nationality stating that the applicant is, at the date of the certificate, an Irish citizen; and the Minister or officer, if satisfied that-

(a) the applicant is an Irish citizen, and

(b) the issue of the certificate is necessary in all the circumstances of the case,
may issue a certificate of nationality to him accordingly.”

The granting of this application now means that our client is recognised as an Irish citizen by birth on the basis that she is not entitled to citizenship in any other country. Our clients can now apply for an Irish passport for their minor child, which is a wonderful conclusion to their case.

This is a significant decision for other stateless persons who may have a baby born in Ireland who is not entitled to any citizenship from another country. We at Berkeley Solicitors would be happy to advise any clients in similar situations and would encourage you or any family members in such positions to contact our office.

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 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.

CLIENT OF BERKELEY SOLICITORS RECENTLY HAD THEIR STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

Berkeley Solicitors recently received a very successful and significant decision in which our client was granted naturalisation having been on Stamp 0 for a period of over five years preceding the application.

This is an exceptional decision given the Department’s suggestions that stamp 0 residence permission is a low-level immigration status which is not intended to be reckonable for Citizenship and is granted for a limited and specific stay in Ireland.

The INIS website clarifies that:

“Stamp 0 indicates permission to stay in Ireland for a temporary period, subject to conditions.

Summary of conditions:

You must be of independent means, ie fully financially self-sufficient. Alternatively, your sponsor in Ireland must be of independent means and can support you fully.

You cannot receive any benefits or use publicly funded services, eg be treated at a public hospital. You must have private medical insurance.

You must not work or engage in any business, trade or profession unless specified in a letter of permission from INIS.”

There are three main types of persons eligible for Stamp 0:

  1. Elderly dependent relatives
  2. Persons of independent means (financial threshold is considered in an around 50,000 with access to a lump sum of money in the event of unforeseen major expenses).
  3. Visiting academics working here for less than nine months.

Our client met all the conditions of Stamp 0 permission. Stamp 0 permission means that a person cannot work in the State, engage in self-employment, access State benefits or rely on State resources. Therefore, an individual on Stamp 0 must be wholly and totally self-sufficient or dependent. The individual is also required to reside continuously in the State.

Reckonable residence is the duration of a person’s residence when assessing an application for naturalisation.

This is the first case we are aware of where Stamp 0 has been accepted as reckonable residence for the purpose of naturalising.

Although acquiring citizenship is a privilege and not a right and is subject to the Minister’s absolute discretion, the Minister must act within the confines of the statutory definition of reckonable residence as defined at Section 16 A of the the Irish Nationality and Citizenship Act 1956, as amended.

This is a very hopeful outcome for individuals who are resident on stamp 0 permission, and they have made Ireland their permanent home but have concerns regarding their reckonable residence in the State for the purposes of naturalization.

We at Berkeley Solicitors welcome this very encouraging development surrounding reckonable residence and are happy to advise any clients wishing to pursue their naturalization application.