The Court of Appeal delivered judgement in the case of Roderick Jones v Minister for Justice and Equality this afternoon. The decision is of exceptional public importance and provides a welcomed clarification on the law governing absences from the state for persons applying to be granted a Certificate of Naturalisation. Sinnott Solicitors acted for the Applicant Mr Jones in this case.

 

In July 2019 Mr Justice Max Barrett in the High Court ruled  that the discretionary practice of the Minister for Justice in allowing Applicants six weeks out of the country, for holiday or other reasons, and more time in exceptional circumstances, was not permitted by section 15.1.c of the Irish Nationality and Citizenship Act 1956 (as amended)and that that continuous residence required presence in the state uninterrupted by even a single night’s absence over the 365 days of the year.

 

The appeal was primarily concerned with the main finding of the High Court which was the continuous residence finding, and the construction of one of the statutory prerequisites to be established before an Applicant is eligible to be considered eligible to be granted a certificate of naturalisation pursuant to the Citizenship Acts, namely the first part of the condition specified in section 15(1)(c) of the Irish Nationality and Citizenship Act 1956 (as amended) which requires an Applicant to satisfy the Minister for Justice that they have had a period of one year’s continuous residence in the state immediately before the date of the application.

 

The appeal was heard before the President of the Court of Appeal, Mr Justice George Birmingham, Ms Justice Máire Whelan and Mr Justice Brian McGovern on the 8th of October 2019.

 

In a welcomed judgement today, the court overturned the continuous residency finding of the High Court requiring a person’s physical presence in the state, allowing for no absences whatsoever, in the 365-day period prior to an application. The court also found that the policy of the Minister in allowing absences from the state for work, and other reasons, and more time in exceptional circumstances, was not a rigid or inflexible policy and that the policy was reasonable.

 

 

Continuous Residency Finding

 

Looking at the specific findings regarding the unbroken residence in the previous 365 day period, the Court of Appeal ruled as follows:

 

  1. That the High Court judge erred in law in his interpretation of the term “continuous residence” provided in section 15(1)(c) of the 1956 Act. It found that the construction is unworkable, over 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.

 

  1. That such an approach creates an anomaly which defeats one of the fundamental purposed of the legislation by introducing a significant obstacle to compliance with one of the conditions for eligibility to apply for naturalisation which most applicants would find impossible to meet.

 

  1. The construction accorded to the relevant part of s. 15(1) (c) by the High Court have rise to a clear absurdity so as to engage s. 5(1)(b) of the Interpretation Act 2005, allowing an objective assessment of the “plain intention” of the provision.

 

  1. The term “continuous residence” is wholly distinct and separate from the concept of “ordinary residence” or “residence” per se. The term of words ought to be construed harmoniously. The words “continuous residence” in the context in which they appear in s. 15(1)(c) (first part) do not impose an obligation on an applicant that he be wholly precluded from leaving the jurisdiction at any time during the relevant year.

 

  1. The task of ascribing ordinary meaning to the words “continuous residence” requires that they be construed harmoniously. Contrary to the contentions advanced on behalf of the appellant to the effect that the Minister should merely have examined whether the appellant was continuously resident in the State for the previous year “in the sense of continuously having his home here and not being resident elsewhere” as meeting the test of “continuous residence” such an approach does not withstand scrutiny. The concepts of “residence” and “ordinary residence” are materially different from the concept of “continuous residence”. Such an approach would disproportionately elide the weight to be attached to “continuous” and render that word nugatory – a word which does not appear in the second part of s. 15(1) (c).

 

 

  1. In ascertaining the plain intention of the Oireachtas for the purposes of section 5(1)(b) of the Interpretation Act 2005 with respect to the words “one year’s continuous residence” it is to be inferred that the legislature attached significant importance to physical presence within the State during the relevant year.

 

Six Weeks Policy

 

The court found that the Minister is permitted to operate the six weeks absence policy and ruled specifically as follows:

 

  1. The Minister’s approach to the construction of “one year’s continuous residence” in the first part of s.15(1)(c) is to operate a clearly communicated practice or policy of allowing Applicants six weeks absence from the state, for work and other reasons, and more time in exceptional circumstances. An Applicant must otherwise generally be physically present in the State during the particular year and an application may be refused if there are significant absences.

 

  1. The Minister has not adopted a rigid or inflexible policy in construing compliance with the first part of s.15(l)(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. It is to be inferred from the criteria referenced in the decision sought to be impugned that a reasonable level of absences in connection with an applicant’s employment or otherwise is not inconsistent with “continuous residence in the State” during the relevant one year.

 

  1. The non-statutory rule or policy operated by the Minister whereby the requirement in the first part of s.15(1)(c) of “one year’s continuous residence in the State immediately  before the date of his application” could not generally be satisfied in circumstances where the applicant is absent from the State for in excess of six weeks during the relevant year immediately prior to the application in the absence of wholly exceptional circumstances does not amount to a fettering of discretion. Neither does it amount to the imposition of an extra-statutory barrier to naturalisation nor is it unlawful.
  2. The ministerial approach does not fetter discretion but rather facilitates flexibility, clarity and certainty in the operation of the first limb of the sub-section and assists applicants in establishing with certainty how the criterion of “one year’s continuous residence in the State” is to be satisfied for the purposes of eligibility to apply for a Certificate of Naturalisation. The approach is sensible and is within the terms of the legislation and is consonant with the public good having regard to the nature of the decision in question and in particular in circumstances where it pertains to what has been described in the jurisprudence as “the purely gratuitous conferring of a privilege in exercise of the sovereign authority of the State.

 

 

The court concluded that the approach taken in the case of the Applicant himself was “reasonable” and that the Minister for Justice was correct in finding that the Applicant did not satisfy the continuous residency requirement. They found the fact that most of the Applicants absences from the state were not work related was “material” and thereof the Ministers Policy is not unlawful.

 

The decision is welcomed and provides significant clarity on the law however further clarity and reform is still needed in the area particularly in relation to the six-week absence policy, what exceptional circumstances are allowed, and work related travel. The decision today takes us back to the position pre July 2019 where absences of up to six weeks were permitted, with no guidelines related to work or allowable absences in exceptional circumstances.

 

For the moment the decision today is much welcomed by the thousands of people planning to apply for citizenship in the future, those whose applications are pending, or those whose applications have been approved and are waiting to attend a citizenship ceremony where they will finally become Irish citizens. The previously scheduled ceremonies due to take place in September and December were cancelled and it is the responsibility of the Department of Justice to take immediate steps to arrange the new ceremony dates and immediately commence the processing of applications again.

 

If you have any queries on your application for Irish citizenship or wish to discuss any immigration matter, do not hesitate to contact the office of Sinnott Solicitors today on  +35314062862 or info@sinnott.ie.