Tag Archive for: Irish Nationality and Citizenship Act 1956

RECENT HIGH COURT JUDGMENT REGARDING ENTITLEMENT OF CHILDREN OF SAME-SEX PARENTS LIVING ABROAD TO IRISH PASSPORTS

RECENT HIGH COURT JUDGMENT REGARDING ENTITLEMENT OF CHILDREN OF SAME-SEX PARENTS LIVING ABROAD TO IRISH PASSPORTS

The High Court has recently delivered a judgment in respect of two families whose children were refused Irish passports in circumstances where they were born abroad to same-sex couples relying on the donor-assisted human reproduction (DAHR) procedure.

The central issue in the case was the interpretation of “parent” under section 7(1) of the Irish Nationality and Citizenship Act 1956. The Minister for Foreign Affairs’ current policy, following the Supreme Court decision in A, B & C v Minister for Foreign Affairs and Trade [2023] IESC 10 is to interpret section 7(1) as meaning that the “parents” of a child born outside the State, are (i) the child’s birth (or gestational) mother and (ii) the child’s biological father.

The Irish citizen parents in these joined cases were neither the gestational mother nor the biological father of their children but were recognised as the legal parent of their children outside of Ireland on their birth certificate from their country of birth. The Irish citizen parent in the Y case was the genetic mother of the child, albeit not the gestational mother. The Irish citizen parent in the X case was neither the genetic nor gestational mother but was a registered parent at the time of birth in Australian law.

It is important to note that provision has not yet been made by law for parental recognition which recognises parentage from birth in the case of children born outside the State following DAHR carried out and recognised in accordance with the law of the child’s domicile. There is provision for recognition for children born via the DAHR procedure in the State. This case is distinguished from the A, B & C v Minister for Foreign Affairs and Trade [2023] IESC 10 Supreme Court decision which concerned surrogacy, not DAHR.

In her judgment, Ms Justice Phelan found in respect of the Y family that the Minister for Foreign Affairs had “erred” in construing the section as excluding the genetic mother of a child recognised as a parent of that child in accordance with the law of their place of domicile. However, she rejected arguments advanced in respect of the X family that section 7(1) could also apply to “non-genetic, non-gestational parents”.

Nonetheless, the judge warned that the court’s “tolerance of legislative delays in providing for recognition of parents and children in a manner which properly respects and vindicates their identity and familial relationships is not infinite” and that “In a different case where evidence of real impact is demonstrated without sufficient justification coupled with ongoing legislative inertia, the balance may well be tipped,”.

Judge Phelan held that she was satisfied that “the absence of a legislative pathway providing for the acquisition of citizenship by the children of an Irish citizen domiciled or habitually resident abroad” constituted a “failure on the part of the State to vindicate constitutional rights”.

You can find the link to the judgement here.

Berkeley Solicitors are available to provide advice in respect of all matters relating to the Irish passport/Foreign Birth Registration application process.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change.

Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

 

CITIZENSHIP CEREMONY UPDATE

MINISTER FOR JUSTICE COMMENCES NEW LEGISLATION ALLOWING FOR REVOCATION OF IRISH CITIZENSHIP BY NATURALISATION

Section 19 of the Irish Nationality and Citizenship Act 1956 empowers the Minister to revoke naturalised Irish citizenship in certain circumstances and sets out the procedure to do so.

Following the decision of the Supreme Court in the case of Damache v Minister for Justice [2021] IESC 6, this procedure could not be utilised as it was found to be unconstitutional.

The Supreme Court held that the process as provided for in Section 19 of the Irish Nationality and Citizenship Act 1956 did not contain sufficient procedural safeguards to meet the high standards of natural justice applicable to a person facing such severe consequences.

The Minister for Justice Jim O’Callaghan has signed an order to recommence legislation allowing for naturalised Irish citizenship to be revoked in serious cases, effective from 7th April 2025.

We refer to our previous blog post on this topic, available here.

In a statement, Minister O’Callaghan outlines that the issues raised in the Supreme Court judgement of Damache have been addressed in the new procedure.

Section 19 of the 1956 Act (as amended) allows the Minister for Justice to revoke a certificate of naturalisation in cases where:

(1) the certificate was procured by fraud, misrepresentation whether innocent or fraudulent, or concealment of material facts or circumstances,

(2) the person has failed in their duty of fidelity to the nation and loyalty to the State,

(3) the person is ordinarily resident outside Ireland for a continuous period of seven years and without reasonable excuse has not annually registered an intention to retain Irish citizenship,

(4) the person is a citizen of another country which is at war with Ireland, or

(5) the person has voluntarily acquired another citizenship.

The new procedure is as follows:

Where the Minister is satisfied that one or more of the above reasons to revoke a certificate of naturalisation exists, the Minister shall issue a notice of intention to revoke the certificate of naturalisation on the person concerned. This notice must inform the affected person of the intention to revoke their certificate of naturalisation, and set out the reasons for this.

The notice can be served on an affected person in numerous ways, including by post or electronically.

Once the notice has been issued, the affected person will have a period of 28 days to respond and make representations regarding the revocation of their citizenship.

The Minister must then notify the affected person of the decision. If the Minister decides to revoke the certificate of naturalisation, the reasons for this decision must be set out.

A person who is the subject of a decision to revoke their certificate of naturalisation will have the right to request that an independent Committee of Inquiry be held to look into the Minister’s decision.

The Committee of Inquiry will consider the Minister’s decision to revoke the certificate of naturalisation and may decide to affirm or set aside the decision.

For further information, please see the press release published by the Irish government here.

Berkeley Solicitors are available to provide support and assistance to any persons affected by the new revocation process.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

RECENT HIGH COURT JUDGMENT UPHOLDS REFUSAL OF APPLICATION FOR NATURALISATION BY IRISH ASSOCIATIONS

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

The High Court has recently delivered a judgement in T.R.I. (A Minor Suing by his Mother and Next Friend L.B.) v The Minister for Foreign Affairs and the Minister for Justice [2024] IEHC 96.

The case concerned a minor child born in Ireland in September of 2019, whose mother holds a declaration of subsidiary protection status.

Subsidiary protection is granted to individuals facing a real risk of suffering serious harm if returned to their country of origin, or their country of former habitual residence.

In August of 2021, the Applicant’s mother applied for an Irish passport on behalf of her child.

Section 6A(1) of the Irish Nationality and Citizenship Act 1956 states that a person born on the island of Ireland “shall not be entitled” to Irish citizenship unless their parent has, during the four years immediately preceding the birth, a period of reckonable residence of not less than three years.

However, Section 6A(2)(d)(i) qualifies that section 6A(1) does not apply to a child born on the island of Ireland if one parent is entitled to reside in the State “without any restriction” on their residence.

As the mother is a subsidiary protection holder, it was argued that she fell within this subsection of persons who are entitled to reside in the State without any restriction on their period of residence. This would mean the child was entitled to Irish citizenship by birth, even though the mother had less than three years’ reckonable residence in the four years immediately prior to the child’s birth.

This application was refused on the 15th of November 2022, on the basis that Section 6A (2)(d)(i) of the 1956 Act does not apply to a person with subsidiary protection.

The Applicant, through his mother, challenged this decision by way of Judicial Review proceedings in the High Court. It was argued that the mother is entitled to reside in the State without restriction, as the relevant law states that her permission “shall” be renewable, and it is not in any way restricted by time.

The Applicants relied on the Court of Appeal decision in AJK v The Minister for Defence [2020] 2 IR 800, where the Court found that subsidiary protection was “in effect an open-ended right of residence.”

Ms Justice Bolger considered the decision in AJK and stated that she did not consider it established an open-ended right of residence for a person with subsidiary protection. She stated that the comments of Donnelly J must be read in context of the entire judgement and highlighted that the case did not concern citizenship.

Ms Justice Bolger stated that although the law states that the subsidiary protection permission “shall be renewable”, its renewal is in fact conditional; firstly on the continuation of the circumstances that justified the grant of subsidiary protection in the first place, and secondly on there being no compelling reasons of national security or public order.

The Judge stated:

“The mother’s right to renew her permission to reside in the State via her grant of subsidiary protection… is and always was for a temporally restricted permission of a period less than three years subject to conditions.”

Ms Justice Bolger therefore upheld the decision of the Respondent to refuse the child’s application for an Irish passport.

The full judgement can be found here.

If you or a family member have any queries regarding Citizenship, please do not hesitate to contact us.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

NEW ACT INTRODUCING SIGNIFICANT CHANGES TO IMMIGRATION AND CITIZENSHIP COMMENCED

The Minister for Justice Helen McEntee has commenced the majority of the provisions of the Courts and Civil Law (Miscellaneous Provisions) Act 2023.
This Act has introduced significant amendments to immigration, citizenship and naturalisation law in Ireland, to take effect from 31st July 2023. The major changes are outlined below:
The Act contains amendments to a number of provisions of the Irish Nationality and Citizenship Acts.
Children born in the State who are not entitled to Irish citizenship by birth, will now be eligible to apply for naturalisation after three years of reckonable residency in the State, reduced from five years……

Read more
EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

UPCOMING CITIZENSHIP CEREMONIES

The Department of Justice has announced that the next citizenship ceremonies will take place on Monday the 19th and Tuesday the 20th of June 2023. The ceremonies are being hosted at the Killarney Convention Centre in Killarney, Co. Kerry.

Invitations will issue in due course to eligible candidates. Candidates are required to produce identity documents, for example a valid passport, on the day of the ceremony for verification purposes. At the ceremony candidates take an oath of fidelity to the nation, receive their certificate of naturalisation and become Irish citizens.

Berkeley Solicitors wishes to congratulate our clients who have recently been approved their applications for a Certificate of Naturalisation, and all who will be attending these ceremonies.

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

REFUSAL OF NATURALISATION APPLICATION ON GOOD CHARACTER GROUNDS OVERTURNED BY HIGH COURT

Mr Justice Garrett Simons of the High Court has recently delivered a judgement in the case of A.J.A v Minister for Justice [2022] IEHC 162 JR.

The case concerned a refusal of an application for naturalisation.

The application was refused on the grounds that the Applicant did not meet the good character criterion under Section 15(1)(b) of the Irish Nationality and Citizenship Act, 1956. The Applicant was found to have submitted a potentially false Somali passport with her application.

The Applicant subsequently issued judicial review proceedings in the High Court to challenge the decision to refuse her application for a certificate of naturalisation. This was the second set of judicial review proceedings issued by the Applicant in respect of her application for naturalisation. The Applicant had issued judicial review proceedings in 2021 challenging the delay in processing her application. These proceedings were struck out of the High Court in January 2022, following the issuance of a decision on the Applicant’s application in December 2021.

The primary issue that was considered in the second set of judicial review proceedings was whether fair procedures had been observed in the Minister’s decision-making process.

The Applicant submitted her application for naturalisation on the 29th May 2017. On the 6th November 2017, the Applicant’s solicitors submitted a letter to the Minister that highlighted the Applicant’s concern as to the genuineness of the passport that she had submitted with her application. On the 10th May 2018, the Applicant’s solicitors sent a further letter to outline attempts made by the Applicant to have a new Somali passport issued. The Respondent then sent a letter in response, confirming that a thorough investigation was required as to the genuineness of the Applicant’s passport.  It was the Applicant herself who proactively contacted the Minister in relation to this issue and confirmed that she had always acted in good faith in respect of her application for a passport and in respect of her application for naturalisation.

The Applicant was ultimately successful in the High Court on the grounds that the Minister’s decision did not consider the Applicant’s explanation nor the exculpatory factors at issue.

Mr Justice Garrett Simons found that submission of the Minister did not meet the prescribed standard of fair procedures as it failed to acknowledge the explanations offered by the Applicant in respect of her passport. Ms Justice Garrett Simons found that, “The omission from the submission/recommendation of an accurate record of the explanation and exculpatory factors is fatal to the validity of the decision made.” The Court further found that the Minister’s decision did not meet the legal test for the adequacy of reasons.

The Court acknowledged that the submission of a false passport is an extremely serious issue and could of course legitimately give rise to a decision to refuse an application for Irish citizenship by way of naturalisation. The Court found that it was the manner in which the decision was made that was problematic, it was not clear whether the Applicant’s explanation that due to the circumstances in Somalia and the lack of Government, she could not confirm if her passport was valid or not,  had been provided to the Minister when the decision to refuse was made. The Court held that “The failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision-maker is regrettable”.

The Minister of Justice’s decision to refuse the Applicant’s naturalisation application was quashed. The Court held:

 

  1. The submission/recommendation in the present case failed to meet the prescribed standard of fair procedures. The principal deficiency is that the submission/recommendation fails to record, even in the most cursory form, the explanations offered by the Applicant, through her solicitors, for the submission of the false passport. There is no reference to the practical difficulties asserted by the Applicant in obtaining a passport from Somalia given what is said to be the absence of a functioning central government there. Nor is there any reference to the efforts made by the Applicant to travel to the Somali Embassy in Belgium for the purpose of obtaining a passport. Although these events occurred after the submission of the false passport, they are, 13 arguably, indicative of the practical difficulties which a Somalia national, who has been long-term resident in the Irish State, faces in obtaining a passport from that country

The full judgement can be found here.

This blog article has been prepared on the basis of current immigration law and policy, which is subject to change. Please keep an eye on our blog and Facebook page where articles relating to updates and changes in immigration law and policy are regularly posted.

CITIZENSHIP CEREMONY UPDATE

UPCOMING CITIZENSHIP CEREMONIES

The Department of Justice has announced that the next citizenship ceremonies will take place on Monday the 5th of December and Tuesday the 6th of December 2022. The ceremonies are being hosted at the Killarney Convention Centre in Killarney, Co. Kerry.

Invitations will issue in due course to eligible candidates. Candidates are required to produce identity documents, for example a valid passport, on the day of the ceremony for verification purposes. At the ceremony candidates take an oath of fidelity to the nation, receive their certificate of naturalisation and become Irish citizens.

Berkeley Solicitors wishes to congratulate our clients who have recently received their Irish Citizenship, and all who will be attending these ceremonies.

RECENT HIGH COURT JUDGMENT UPHOLDS REFUSAL OF APPLICATION FOR NATURALISATION BY IRISH ASSOCIATIONS

MINISTER HELEN MCENTEE ANSWERS PARLIAMENTARY QUESTION REGARDING PROCESSING TIMES FOR NATURALISATION APPLICATIONS IN THE STATE

Minister Helen McEntee recently answered a parliamentary question in relation to the processing times for naturalization applications in the State.

Deputy Bernard J Durkan asked the Minister to confirm the number of naturalization applications that had been received by the Department of Justice during the period of 1st January 2022 to 31st March 2022, how many of those had been granted, and the expected processing time for those that had yet to be determined.

The Minister acknowledged the importance that naturalization applications hold for applicants, and highlighted that the Department of Justice continued to accept applications throughout the Covid-19 pandemic.

Minister McEntee confirmed that 3,706 naturalization applications were received by the Department of Justice between 1st January 2022 and the 31st March 2022, three of which have been approved. She continued to clarify that a further 24 applications from this cohort are “in the final stage of processing”.

Interestingly, Minister McEntee confirmed that the average processing time for naturalization applications is currently 19 months and highlighted that this had been reduced from a previously stated processing time of 23 months. While the reduction of the processing time is a welcome update, it remains far above the pre-pandemic average processing time of 12 months.

Minister McEntee portrayed an awareness of the need for a further reduction in the length of time people are currently being made to wait to have their citizenship applications determined. She highlighted that the Department of Justice is introducing new measures to try and speed up the process, including the assignment of new staff and a number of digitization measures. It remains to be seen if these measures will indeed aide the continued reduction of processing times of naturalization applications in the State.

If you or your family require advice on your eligibility for naturalisation or in respect of your ongoing naturalisation application, please do not hesitate to contact our office.

The full parliamentary question and answer can be read here.

CONGRATULATIONS TO CLIENTS OF BERKELEY SOLICITORS WHO HAVE BEEN RECENTLY APPROVED FOR NATURALISATION

Berkeley Solicitors offers congratulations to a number of our clients who have recently received approval on their naturalisation applications.

This is very welcome news for our clients, many of whom have been waiting in excess of two years to have their applications approved.

The successful applicants have been invited to attend a citizenship ceremony on Monday 13th December 2021, the first in-person ceremony in many months due to Covid-19 restrictions.

Berkeley Solicitors congratulates our clients on receiving this good news after a very long wait.

If you or a family member have queries about the naturalisation process, please do not hesitate to contact our office.

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

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.