Tag Archive for: RECKONABLE RESIDENCE

RECENT COURT OF APPEAL JUDGEMENT RELATING TO REFUSAL OF NATURALISATION APPLICATION FOLLOWING ROAD TRAFFIC OFFENCES

On the 7th of January 2025, the Court of Appeal issued a judgment in the proceedings M and the Minister for Justice refusing to overturn the High Court’s judgement that the Minister’s decision not to grant a naturalisation certificate was lawful.

The facts of the case concerned a South African national, who had been resident in the State since 2001. She had applied for naturalisation in August of 2017, and was issued with a decision on the 28th of October 2022. Her application was refused largely on good character grounds, as she had incurred a number of driving offences in the State over the years. This applicant also had two previous refused naturalisation applications.

The Appellant had been convicted of numerous traffic offences, in 2007, 2012 and 2021. She argued that the initial traffic offences were no longer relevant, and that it was inappropriate to take into account offences that occurred so long ago when assessing her good character for the purposes of naturalisation.

However, referring to case law on the definition of good character, Ms Justice Hyland of the Court of Appeal held that there was no reason “old” traffic offences could not be considered. She noted that it is mandatory to disclose spent convictions when applying for citizenship. It was noted by the trial judge that the appellant’s general disregard for the Road Traffic Acts informed the Minister’s decision, and that this was appropriate. Ms Justice Hyland agreed with this assessment.

Furthermore, it was held that the 2021 conviction must be considered recent; the Minister was entitled to consider all three of the convictions, placing the most weight on the most recent offence.

It was held that the Minister comprehensively assessed the Appellant’s character in coming to her decision. The decision recited the history of the appellant’s naturalisation applications and long-term residency applications, accurately set out details of the appellant’s convictions and penalties, and summarised the explanation given by appellant for same. The decision also referred to her employment since 2001. The judge was satisfied that everything had been considered as a whole, and that ultimately the appellant’s disregard for road traffic laws (in particular, her careless driving) meant that she was deemed not to be of good character for the purposes of naturalisation.

This judgement highlights the significance of minor road traffic offences in the assessment of good character for the purposes of naturalization applications.

To read this judgment in full, please see the below link:

https://www.courts.ie/view/Judgments/a7508764-2b51-4f89-9cc3-43891710d72d/74f0aa0e-16e1-42dd-813b-d7ed17c5af59/2025_IECA_1.pdf/pdf

Berkeley Solicitors is available to provide advice and support for anyone commencing the naturalization 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.

New guidelines for naturalisation through Irish associations

UPDATED GUIDANCE ON APPLYING FOR NATURALISATION THROUGH IRISH ASSOCIATIONS

On the 2nd of April 2025, the Department of Justice published updated guidelines for those looking to apply for Irish citizenship via Irish associations.
The Irish Nationality and Citizenship Act 1956 provides that the Minister for Justice has the discretion to grant a certificate of naturalisation where the applicant is of Irish descent of Irish associations, despite the normal conditions for naturalisation not being met.

For the purposes of this Act, a person is considered to be of Irish associations if they are related through blood, affinity or adoption to, or are the civil partner of:

• a person who is (or is entitled to be) an Irish citizen; or
• a deceased person who was (or was entitled to be) an Irish citizen at the time of their death.

It is not enough for a person to simply establish that they are of Irish associations. The Minister will use his absolute discretion in considering these applications, taking into account the following indicative categories:

• Experiential connection to the State
• Family connections to the State
• Cultural connection to the State
• Establishment in the State.

Applications are assessed under section 16(1)(a) and 16(1)(b) of the Irish Nationality and Citizenship Act 1956 (as amended) on a points basis. Points are awarded for satisfying certain scoring criteria related to the above categories. Applicants will need to achieve a score of at 50% or more in two or more of the above categories in order to qualify.

Notably, 60 points are awarded where the applicant has family members (as defined in section 15C the Act) who are, or were at their time of death, Irish citizens ordinarily resident in Ireland. Please refer to Table 1 in the guidelines for the full indicative scoring criteria.

While this assessment will be used to support officers of the Minister in assessing applications under section 16(1)(a) and 16(1)(b) of the Act, there may be other relevant factors not listed here that may be taken into account depending on the circumstances of an individual’s case. The Minister may exercise their absolute discretion in all cases and decisions will be made on a case-by-case basis.

It should be noted that this is entirely at the Minister’s discretion, and satisfying these guidelines does not guarantee the granting of a certificate of naturalisation. For more information, the new guidelines can be found at https://www.irishimmigration.ie/wp-content/uploads/2025/04/Irish-Association-wording-31032005.pdf.

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.

EMPLOYMENT PERMITS ACT 2024 SIGNED INTO LAW

STAMP 0 PERMISSION ACCEPTED AS RECKONABLE RESIDENCE FOR NATURALISATION

Berkeley Solicitors have recently received a number of successful naturalisation decisions for clients resident on Stamp 0 permission.

In approving the applications for our clients, the Department of Justice have accepted that Stamp 0 is reckonable residence for the purposes of naturalisation.

These decisions are significant given that the Department have previously maintained that Stamp 0 residence permission is a low-level immigration status which is granted for a limited and specific stay in Ireland.

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

 

  1. Elderly dependent relatives
  2. Persons of independent means
  3. Visiting academics

This is very welcome news for individuals resident in the State on Stamp 0 permission, many of whom have made Ireland their permanent home but have concerns regarding their reckonable residence in the State for the purposes of naturalisation.

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 Irish Nationality and Citizenship Act 1956, as amended.

We at Berkeley Solicitors welcome this very encouraging development surrounding reckonable residence and we congratulate our clients on their successful applications.

We are happy to advise any clients wishing to pursue their naturalisation application.

New guidelines for naturalisation through Irish associations

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

NATURALISATION APPLICATIONS AND THE “SIX WEEK RULE”

Berkeley Solicitors has recently received confirmation from the Department of Justice that the day a person leaves and returns to the State are not considered a day absent from the State when calculating absences for naturalisation applications.

For standard naturalisation applications a person is required to have five years reckonable residency in the last nine years. The 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

For those applying as the spouse or civil partner of an Irish citizen, you are required to have a period of three years in the last five years. This can be made up as two years within the last four, with one-year continuous residence in the year prior to the application.

It is the Minister’s current policy that declared refugees can apply for naturalisation after three years’ lawful residence in the State.

All Applicants are required to have one year’s continuous residency in the State in the year immediately preceding their application.

There is a question on the Form 8 naturalisation application, question 5.6, which asks if an Applicant has been absent from the state for more than six weeks in any of the last five years and to declare same if relevant.

It became apparent in recent years that the Minister’s policy was to deem an application ineligible on the basis of their absences from the State which became known as the “six week rule”. This meant that absences of over six weeks in the first four years or two years of reckonable residence would be deducted from a person’s overall reckonable residence and that an application would be deemed ineligible if a person was absent from the State for over six weeks in the year immediately preceding their application.

Following the Court of Appeal judgement findings in Jones v Minister for Justice and Equality, which affirmed the lawfulness of the Minister’s policy regarding the “six-week rule”, many clients have contacted our office seeking clarity regarding their eligibility where they have been absent for more than six weeks in the previous five years.

The court of appeal clarified that the Minister is entitled to operate a policy regarding absences however to date there is no published policy on the six-week rule or its operation.

It is positive to receive confirmation that days of travel are not considered a day absent in the calculation of a person’s residency and has provided much welcomed clarity in this area.

We would submit that a published policy should be accessible to all those who wish to submit applications for naturalisation as there remains no guidance whether absences for work are permissible and there is no clarity on whether the calculation should be based on a calendar year or a rolling year.

If you or a family member have any queries regarding the naturalisation process or your own application for naturalisation, please do not hesitate to contact us

MINISTER FOR JUSTICE ANNOUNCES NEW REGULARISATION SCHEME FOR LONG-TERM UNDOCUMENTED MIGRANTS

On 3rd December 2021, the Minister for Justice announced a new scheme which will enable many undocumented migrants to apply to regularise their residency status.

The scheme will open for online applications in January 2022 and applications will be accepted for six months.

The scheme will include those who do not have a current permission to reside in Ireland, whether they arrived illegally or whether their permission expired or was withdrawn years ago.

In order to be eligible, applicants must have been undocumented for a period of four years, or three years in the case of those with dependent children.

According to a briefing session with Department of Justice officials held on 2nd December  2021, a short period of absence from the State in the undocumented period for those who would otherwise qualify will be disregarded. This will be limited to a max of 60 days absence from the State and the documented period arising from the short-term tourist permission (up to 90 days).

Applicants must meet standards regarding good character, though having convictions for minor offences will not, of itself, result in disqualification.

There will be no requirement for applicants to demonstrate that they would not be a financial burden on the State, as the scheme is aimed at those who may be economically and socially marginalised as a result of their undocumented status.

The scheme will also be open to individuals with expired student permission, those who have been issued with a section 3 notice under the Immigration Act 1999, and those who have received deportation orders.

The scheme is also expected to include international protection applicants who have been in the asylum process for a minimum of 2 years, though full details on this are yet to be announced.

There will be an application fee of €700 for family unit applications, while a fee of €550 will apply to individuals’ applications. Children up to 23 years, living with their parent(s), can be included in a family unit application.

Successful applicants will be granted residence permission which will allow access to the labour market and will provide a pathway to Irish citizenship.

Announcing the scheme, the Minister for Justice Helen McEntee stated:

“I’m delighted that the Government has approved my proposal for this momentous, once-in-a-generation scheme.

Given that those who will benefit from this scheme currently live in the shadows, it is difficult to say how many will be eligible, but we are opening this scheme for six months from January to allow people come forward and regularise their status.

It will bring some much-needed certainty and peace of mind to thousands of people who are already living here and making a valuable contribution to our society and the economy, many of whom may be very vulnerable due to their current immigration circumstances.”

As a result, they may be reluctant to seek medical assistance when ill, assistance from An Garda Síochána when they are the victim of a crime, or a range of other supports designed to assist vulnerable people in their times of need.”

I believe that in opening this scheme, we are demonstrating the same goodwill and generosity of spirit that we ask is shown to the countless Irish people who left this island to build their lives elsewhere.”

The full announcement can be read here.

Studies suggest that there are 17,000 undocumented persons in the State, including up to 3,000 children.

Berkeley Solicitors welcomes the announcement of this scheme, which will allow many undocumented migrants to come forward and apply to regularise their status.

DEPARTMENT OF JUSTICE ANNOUNCES FURTHER EXTENSION OF IMMIGRATION PERMISSIONS

The Department of Justice has announced an additional two-month extension of immigration permissions due to the Covid-19 pandemic.

This temporary extension applies to the following categories:

  • Persons with immigration permissions due to expire between 20th May 2020 and 20th July 2020, including those that were already extended under the previous notice issued on 20th March 2020;
  • Persons awaiting their first registration, having been granted permission to land at a port of entry on condition they register at Burgh Quay or their local registration office within 3 months, but who have not yet done so;
  • Persons resident in Ireland on the basis of Short Stay visas.

The notice confirms that the permissions will be automatically renewed for a two-month period, on the same basis as the existing permission and subject to the same conditions.

The notice also clarifies that international English Language Students can continue to work if they wish but that they must also re-enrol in an online course of study to adhere to the conditions of their permission.

The registration office in Burgh Quay in Dublin will remain closed and will only reopen when it is safe to do so. The normal requirements to register residence permission will not arise until the registration offices can reopen or alternative arrangements are put in place.

Non-nationals can present evidence of their last residence permission, in the form of a formal decision letter and/or the IRP card, together with a copy of the Notice, as evidence of their ongoing permission to remain in the State.

The notice can be accessed here.

If you or a family member are affected by this notice, please contact our office to discuss.

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.

IMMIGRATION APPLICATIONS CAN BE SUBMITTED ELECTRONICALLY UNTIL 20TH MAY 2020

We are happy to see that INIS has issued a new notice on the 15th April 2020 confirming that EU Treaty Rights and Domestic applications can be submitted by email until the 20th May 2020 as a temporary measure.
The notice confirms as follows:
As part of combined efforts to adhere to the Government’s strategy to slow down the spread of the COVID-19 virus and to ensure customer safety, we have taken the decision, as a temporary measure between now and the 20th May 2020, to allow EU Treaty Rights and Domestic applications to be submitted by email together with scanned copies of supporting documentation. EU Treaty Rights will require the original application to be submitted by post in due course

The full notice can be read at the below link:
http://www.inis.gov.ie/
Our office continues to act for many clients who have pending immigration applications, and we are continuing to liaise with INIS on behalf of our clients as normal.
It is good news to see that any clients who wish to commence new immigration application can now do so electronically, without the requirement to submit original documents at this time.
Please contact our office with any queries regarding commencing new applications.

Berkeley Solicitors