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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.

 

 

COURT OF APPEAL JUDGEMENT IN THE JONES CASE

The Court of Appeal have delivered their much-awaited judgement today in the case of Jones v Minister for Justice and Equality.

Applications for naturalisation have been on hold since a judgement from the High Court in July 2019. The High Court found that a person is not eligible for naturalisation as an Irish citizen, if he or she had left Ireland at all, even for one day, in the year prior to their application.

The High Court held that an absence of even one day breaks the applicant’s requirements to have one year “continuous residence” in the year immediately prior to the application.

In dealing with the High Court’s finding the Court of Appeal held that this was not a correct interpretation of Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended).

The Court of Appeal held as follows:

The High Court judge erred in law in interpretation of the term “continuous residence” provided by Section 15(1)(c ) of the 1956 Act. The construction is unworkable, overly literal, unduly rigid and gives rise to an absurdity. “Continuous residence” within the meaning of the sub-section does not require uninterrupted presence in the State throughout the entirety of the relevant year nor does it impose a complete prohibition on extra- territorial travel as the High Court suggests.”

The Court found that a person who took a trip to Newry for a number of hours would be ineligible to apply for naturalisation and found that this amounted to an “interpretive” absurdity.

The Court went on to consider the lawfulness of the Minister’s policy with regards to the impact of absences of over six weeks in the year prior to application.

The Court held that the legislative intention of Section 15(1)(c ) was to place a higher degree of importance on physical residence in the State in the year prior to application than in the previous years of reckonable residence. The Court found that there is a difference between “residence” /“ordinary residence” and “continuous residence”.

The Court did not agree with the appellants argument that a person is “continuously resident” in the year prior to application simply by virtue of living in Ireland and not being resident elsewhere. The court found that this would negate the substance of the requirement for “continuous residence” in the year prior to application.

The Court found that the Minister communicated in the decision under challenge in this case, “a clearly communicated practice or policy of allowing applicants six weeks absence from the state for work, or other reasons, and more in exceptional circumstances”.

The Court then went on to consider if this policy or practice was unduly harsh or if in the alternative it alleviated the protentional of a literal interpretation of Section 15(1)(c)’s requirement for “continuous residence”.

The Court held:

“The Minister has not adopted a rigid or inflexible policy in construing compliance with the first part of Section 15(1)(c). It is apparent that the objective of the Minister is to adopt a purposive, reasonable and pragmatic approach to the operation of that part of the sub-section”.

The Court further held that the operation of the minister’s “six-week policy” was for the benefit of applicants, in the interests of good administration and for consistency in decision making.

The Court found that the operation of the policy is not unlawful and does not create a “non-statutory barrier” to naturalisation. The Court found the Minister’s policy and practice was “sensible” and in line with the legislation. The Court found that the criteria of the Minister to establish “continuous residence” was reasonable and balanced and has regard to the societal norms regarding foreign travel.

On the basis of the above the Court held that the appellant did not have a year’s “continuous residence “in the State in the year immediately prior to application and was therefore the decision to refuse his application for naturalisation on this basis was not unlawful.

The Court’s judgement is to be welcomed as it has clarified what is required of an applicant to meet the “continuous residence requirement” in the year prior to application.

However, it is unfortunate for applicants, who were not in fact made aware of the Minister’s policy and practice in advance of making their applications.

To date there remains no published policy on the six-week rule or its operation.

We would submit that that policy should be freely accessible and easy to understand. There is no outline of what constitutes “exceptional circumstances”. There remains no guidance regarding absences from work, whether all are permitted or a certain portion.

It is arguable if a period of six weeks absence is in line with the reality for a lot of persons working in Ireland who are required to travel extensively for work. By way of comparison absences of 90 days are permitted by statute in the United Kingdom.

It remains to be seen if the Minister will continue to enact much needed legislation in this area.

 

 

 

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.

 

 

 

 

SUPREME COURT DELIVER JUDGEMENT IN P -v- MINISTER FOR JUSTICE AND EQUALITY [2019] IESC 47

An important judgement has been delivered by the Supreme Court in the case of P -v- Minister for Justice and Equality [2019] IESC 47.

The Courts highlighted that this is a difficult and novel area of law. O’Donnell J in his judgement noted: “this is a very difficult area, with competing considerations, an absence of legislative structure, and little by way of guidance from the decided cases.” 

The applicant in his proceedings contended that the reasons provided to him in the refusal of his application for naturalisation remained insufficient and that it ought to have been possible for the Minister to offer to provide “the gist” of the information relied upon.

The applicant contended that if necessary, a special advocate procedure ought to have been adopted.

There is a special advocate procedure in place in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings.

Two judgements were issued in this matter, by Mr Justice Clarke C.J. and Mr Justice O’Donnell which reach the same conclusion on slightly different legal bases.

Clarke C.J.’s judgement found that it is possible to put in place an “enhanced process” by which an “independent assessment” could be made, “as to whether any version of the information could be provided in a way which would not affect State interests to the extent that disclosure should not be required at all”.

Clarke C.J. also noted that such a process of advice from an independent person would also enhance confidence in any decision made.
O’Donnell J’s discusses “special advocate procedures” stating:

“During these procedures decision-makers, and sometimes courts will consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it.”

There is currently no provision for such procedures in Ireland.

In his judgment O’Donnell J found that the case of Mallak v. Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, a case which strongly affirmed the “duty to give reasons” did not govern this particular case.

O Donnell J held that the issue in this particular case was:

“(i) what by way of fair procedures is required where it is said that the basis for the refusal of citizenship is contained in information which cannot be disclosed by way of reasons for the decision, and
(ii) if it is possible to justify the refusal to give reasons, what is required by way of fair procedures to constitute such justification, so that a decision which did not provide reasons, would nevertheless be valid and not liable to be quashed?”

O’ Donnell J found that if national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security. The judge also highlighted, however that it must be recognised that fundamental issues are involved in this case- that a person can be the subject of an adverse decision on a matter of significance to them based upon materials not disclosed to them, and where the reasons for that decision are similarly withheld from them.

The judge referred to a case of the UK courts, R. (Haralambous) v. St. Alban’s Crown Court [2018] UKSC 1, [2018] A.C. 236, in that case, the restrictions on providing the gist of material occurred after there had been a limited closed materials procedure in which the information concerned was subject to some scrutiny independent of the state.

We welcome the Supreme Court’s determination in this case and hope that an “enhanced process” or “special advocate procedure” is introduced by the Minister as soon as possible. An application for citizenship is a hugely important matter for an applicant, who has made their home in Ireland. A fair and balanced system with an element of independence is to be welcomed and will assist both the applicant and the Minister to deal with these particular matters.

The full judgement of O’Donnell J. can be read here and the full judgement of Clarke C.J. can be read here.

RECENT DEVELOPMENTS ON CITIZENSHIP FOR CHILDREN BORN IN IRELAND

Until 2004, citizenship in Ireland was acquired purely by being born in Ireland, or “jus soli”. In 2004 a referendum was held an passed which meant that citizenship could only acquired for a child born in Ireland if one or more if their parents was a citizen of Ireland or had lawful residence for a certain period, otherwise known as “jus sanguinis”. This referendum came in the wake of the case L.O. v Minister for Justice, in which it was held that the Minister for Justice had the power to deport the parents of Irish citizen children where there are “grave and substantial reasons associated with the common good to do so”.

Recent high profile cases of children who have been born in Ireland, or who have lived most of their lives in Ireland, being issued with deportation orders have raised new concerns over the result of the 2004 referendum. The case of Eric Zhi Ying Mei Xue gave rise to massive outcry within both his community and around the country- Eric had been born in Ireland to a Chinese national mother, and a deportation order was issued proposing to return him to a country where he had never lived. Similarly, in the case of P.O. v Minister for Justice, a deportation was issued against a nine year old boy who had been born in Ireland, who tragically passed away as a result of sickle cell anaemia during the appeal of his case to the Supreme Court.

These cases likely represent a small fraction of the children born in Ireland who have been issued with deportation orders since the 2004 amendment and subsequent legislation. Department of Justice figures show that since 2013 approximately 134 children under the age of 18 have been deported from Ireland. At present within the department there are 285 minors who have live deportation orders against them.  From these figures it is unclear how many of these children were born in Ireland, or who have spent most of their lives in Ireland.

As a result of cases like the boy in PO and Eric Zhi Ying Mei, there has been considerable public disagreement with the current regime. A recent Irish Times opinion poll has indicated that up to 71% of respondents to their survey are in favour of birth right citizenship. This is a stark change from the referendum result in 2004, in which 79% of voters agreed with the removal of birth right citizenship. Campaigns for the removal of the amendment or the introduction of amending legislation have been proposed, with the Labour party putting forward a bill which proposed to provide citizenship rights to children of non-national parents if they are born in Ireland and have lived in the State for more than three years. The bill was decried as “bad law” by the Minister for Justice Charlie Flanagan, but it appears that this bill is reflective of a changed view by the Irish public in birth right citizenship. The bill was rejected by government, but with the shifting public opinion it remains to be seen if the government will consider any legislative changes of their own.

REGISTRATION WITH THE IRISH NATURALISATION AND IMMIGRATION SERVICE

If you are not an-EU/EEA and non-Swiss citizen and you wish to stay in Ireland for a period longer than 90 days you must apply for immigration permission and if successful register. For those who do not know there are a variety of categories under which immigration permission can be requested. The most common of which being to study, to work or to live with your spouse, partner, child or family member.