Ireland: Applying for Irish Citizenship? Do you need to cancel that break to chase the final summer sun?

Section 15 of the Irish Nationality and Citizenship Act 1956 (“the Act”) states that “upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant - … has had a period of one year’s continuous residence in the State immediately before the date of the application.”

However, in practice, the Minister for Justice and Equality operated a policy which permitted a discretionary absence period of six weeks (and possibly more in exceptional and unavoidable circumstances). This allowed for a degree flexibility which the High Court recognised and referred to as “the realities of modern life in which multiple work/holiday absences may be possible in any one year."

Mr Jones is an Australian national employed in Dublin University who applied to become a naturalised Irish citizen. His application was refused because he had been out of the country for 100 days in the year before his application; 97 of which were annual leave.

In refusing the application, the Minister noted that Mr Jones' 100 day absence exceeded the "discretionary absence period of six weeks and possibly more in exceptional or unavoidable circumstances”.

Justice Barrett agreed with the Minister’s decision to refuse Mr Jones application but decided that the reasoning for the decision was flawed. Adopting a literal interpretation, he stated the Act does not confer a discretionary power on the Minister to allow for any absences in the year preceding an application and that the Minister had gone beyond what is legally permissible under the Act. He considered the meaning of the word ‘continuous’ to have its ordinary dictionary meaning of “unbroken, uninterrupted, connected throughout in space or time”. He found Mr Jones’ argument - that the Minister’s application of the legislation was overly literal - was incorrect. Instead, he noted that the Minister was in fact being ‘excessively generous”.

The Department of Justice and Equality is required to adjudicate on citizenship application by applying the law as set out in this judgment, which now requires individuals to have one year’s residence without leaving Ireland at all during the year before their application. Although the Department has chosen not to refuse applications outright, the situation is obviously very unsatisfactory for many individuals who have submitted application and who have now had their applications placed on hold. The timing could also not be worse for those wishing to chase some final summer sun or who had planned business trips.

In the immediate public furore following the decision, the Minister for Justice and Equality, Charlie Flanagan, obtained Cabinet approval for a proposed Bill, seeking to amend the law. The Minister stated that his intention is to work with the Office of the Attorney General and instruct the Office of Parliamentary Counsel to have a Bill drafted on an urgent basis which would be before the Houses of the Oireachtas for consideration in mid-September as soon as the summer recess ends. For some, this may not be soon enough as they remain in limbo with their application.

In the meantime, the Irish Naturalisation and Immigration Service have advised people who are planning to apply for citizenship to continue to collect all the necessary proofs that support their application and to submit a comprehensive application form. If any additional documentation is required at a later date, applicants will be contacted as part of the application process.

No Bill has yet been published, so it is currently unclear whether the proposed law will exactly match the previously existing policy. The statements made by the Irish Naturalisation and Immigration Service and the Minister do imply that the position will be rectified so that travel outside the State won’t impact citizenship applications in the coming year. Unfortunately because of the uncertainty the most cautious approach is for those who are within the year before they become eligible to apply for citizenship to avoid travel in the coming weeks until the new law has been passed. This may lead to employees looking to cancel business trips causing significant operational issues for employers. We will continue to provide updates as they arise.