Tag Archive for: irish naturalisation

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

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

The High Court has recently delivered a judgement in DD v the Minister for Justice [2025] IEHC 67 upholding the refusal of a decision to refuse an application for naturalisation.  

The case concerned an application for naturalisation made pursuant to Section 16 of the Irish Nationality and Citizenship Act 1956.

Section 15(1) of the 1956 Act provides for criteria to be met to be eligible for naturalisation as an Irish citizen.

Section 16 of the 1956 Act provides that the Minister may, in his absolute discretion, grant an application for naturalisation in certain circumstances, despite the Applicant not strictly meeting any or all of the criteria set out in Section 15.

Section 16(1)(a) of the Act states that an application may be approved where the applicant is of Irish descent or Irish associations.

Section 16(2) of the Act states that a person is of Irish associations in the following cases:

  • he or she is related by blood, affinity or adoption to, or is the civil partner of, a person who is an Irish citizen or entitled to be an Irish citizen, or
  • he or she was related by blood, affinity or adoption to, or was the civil partner of, a person who is deceased and who, at the time of his or her death, was an Irish citizen or entitled to be an Irish citizen.”

However, the fact that the Act provides for the use of discretion should not be taken that it is policy to do so on the sole basis of Irish descent or Irish associations. It is entirely at the Minister’s discretion and this discretion is used very rarely and only under exceptional circumstances.

This case involved a national of Brazil who first came to Ireland in 2006. She resided in Ireland from 2006 as the dependent of her father who held a work permit in Ireland. Her father naturalised as an Irish citizen in 2012. The applicant’s uncles, aunt and two cousins were also all Irish citizens who resided in Ireland.

The applicant lived in Ireland continuously for 6 years. She then returned to Brazil in 2012 after completing her Leaving Certificate.

The applicant lived in Brazil from 2012 onwards and visited Ireland for a short period in 2017.

She entered Ireland again in October 2018 on a visitor permission and then made an application for an extension of her visitor permission in January of 2019. This was refused and she was asked to make arrangements to leave Ireland on or before the expiration of her visitor permission.

On 24th January 2019, the applicant made an application for naturalisation. This application was made on the basis that she did not meet the ‘reckonable residence’ requirements to have a year’s continuous residence in Ireland immediately prior to applying, with an additional four years of residence in the previous eight years. She therefore made the application under Section 16 of the Act, as a person of Irish associations, for the Minister to grant the application notwithstanding that she did not meet the ‘reckonable residence’ requirements.

The applicant then became pregnant and decided to return to Brazil before receiving a decision on her application. Her solicitors notified the Minister of her intention to return to Brazil and she was then issued with a proposal to deport her. She then returned voluntarily to Brazil in August of 2019.

By letter dated 15th March 2023, the application for naturalisation was refused. The decision letter stated that the application was refused due to a “lack of exceptional and compelling reasons for the applicant not being able to meet the residency condition.” Therefore, the Minister was “not persuaded to grant waiver of this condition under Section 16.”

The decision letter stated that it was accepted that the applicant had strong Irish associations, however this is not sufficient in and of itself to guarantee a waiver of the conditions for naturalisation.

The Applicant challenged this decision by way of Judicial Review proceedings in the High Court.

Mr Justice Heslin held that the Minister has an absolute discretion to grant naturalisation. As Section 16 of the Act refers specifically to the conditions of naturalisation laid out in Section 15 of the Act, Heslin J held that it was not unlawful for the Minister to consider which of the conditions for naturalisation were not complied with, and the reasons why.

It was also noted that the applicant could have applied for naturalisation as a minor once her father had naturalised and had not done so, and that no explanation was provided as to why she did not apply at that time.

Mr Justice Heslin noted that the Act provides that as a matter of policy, a section 16 applicant must have an exceptional and compelling case for a favourable decision. Mr Justice Heslin found that the applicant was asking the Minister to make an exception to grant naturalisation even though she did not meet the conditions set out in Section 15 of the Act regarding residency, and it was therefore rational for the Minister to expect exceptional reasons to be given for why these conditions were not satisfied.

As no exceptional reasons were provided, he held that it was rational that the application was refused. The applicant’s challenge was therefore dismissed.

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.

UPCOMING CITIZENSHIP CEREMONY

NEW REVOCATION PROCEDURE FOR NATURALISED IRISH CITIZENS

The Court, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024 has passed through both Houses of the Oireachtas and is now awaiting being signed into law by the President. Once enacted, the Bill will insert new provisions into the Irish Nationality and Citizenship Act 1956 (as amended) that deals with the revocation of citizenship for naturalised Irish citizens. The previous system for revocation was struck down by the Supreme Court four years ago in the Supreme Court case of Damache v Minister for Justice [2020] IESC 63 for failing to meet the “high standards of natural justice” which the Court held must apply to the process of revocation of certificates of naturalisation. The Supreme Court held that any such process must comply with fair procedures and contain adequate safeguards for persons facing the revocation of their citizenship.

Section 19 of the Irish Nationality and Citizenship Act 1956 (as amended) currently 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. These reasons for revocation are unchanged by the new Bill. The Supreme Court case of Damache struck down the process the Minister had previously used to revoke naturalisation, and therefore there was and remains no pathway for the Minister to revoke naturalisation, until such time as the new Bill is signed into law by the President.

 

Berkeley Solicitors has reviewed the Court, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024 with a view to advising clients who may be issued with notices of intention of revocation of citizenship. The new Bill raises concerns in respect of short timeframes for naturalised citizens facing the revocation process to engage (as little as six weeks in total from proposal to revocation pursuant to sections s.19(IC) and (IJ)), the requirement to only use one method to serve of the notice of intention to revoke, the level of independence afforded to the Committee of Inquiry in circumstances where the Minister will prescribe their procedures and the availability of oral hearings, and the exception to the requirement to give reasons to a naturalised citizen facing the revocation process when issues of national security are raised (s.19(1O)).

 

There are also concerns about the ambiguous nature of some of the listed reasons for revocation, in particular, in what circumstances a person can be deemed to have failed in their duty of fidelity to the nation and loyalty to the State. On this point, Minister McEntee has stated:

“This power is used sparingly and has been used less than ten times in total from 1956 to-date. The revocation of Irish citizenship is only undertaken in the most serious of circumstances, including on grounds of fraud, deception and national security.”

 

For further information, please see the press release published by the Irish government: https://www.gov.ie/en/press-release/e7e2f-ministers-mcentee-and-browne-welcome-passage-of-the-courts-civil-law-criminal-law-and-superannuation-misc-provisions-bill/

A copy of the Court, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024 as passed by Dáil Éireann is available at: https://data.oireachtas.ie/ie/oireachtas/bill/2024/48/eng/ver_a/b48a24s.pdf

 

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.

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.

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.

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.