High Court rules on Continuous Residence

Last week the High Court ruled that naturalisation applicants are not allowed to leave Ireland at all in the 12 months leading up to their application.

Why did this happen?

An Australian citizen applied for Irish citizenship in 2017 and had their application rejected because they were absent from Ireland for 100 days (97 days of holiday and 3 days or business travel) in the year prior to application. They then decided to challenge the rejection in the High Court, and lost.

The Irish Nationality and Citizenship Act 1956 states that the applicant must have “had a period of one year’s continuous residence in the State immediately before the date of the application“.

Until now the Department of Justice has allowed people to be absent for a discretionary period of up to 6 weeks, and still be considered in ‘continuous residence’. However the judge in the High Court has rules that there is no provision in the law for this discretionary period, and has also interpreted ‘continuous residence’ as ‘continuous presence’ – meaning that applicants cannot leave Ireland for even an hour during the year prior to application.

What’s going to happen now?

This could potentially impact all naturalisation applicants in Ireland. Many will have travelled outside the state during the year prior to application, and thus – according to this ruling – their application is now invalid.

The Minister of Justice has promised that “This issue is being dealt with as an urgent priority and I will take any necessary action to resolve it.” However the Dáil is currently in summer recess until the 17th September, and if legislation is required to ‘fix’ this issue, then it won’t happen for a least a few months.

My best guess is that:

  • INIS will most likely continue to process citizenship applications, but nobody will be notified their application has been successful until this mess is sorted out.
  • The citizenship ceremony scheduled for 30th September will probably not happen, as there’s not enough time to enact new legislation before then.
  • The number of people applying for citizenship will drop off until the uncertainty is resolved. This may be of some benefit to applicants already going though the process, as INIS will have fewer applications to deal with.
  • A small amendment to the legislation to clarify the 6 week discretionary period will be passed some time in the autumn; at which time applications will then start to be approved again.

What about those who didn’t leave Ireland during the 12 months?

I doubt that INIS have the resources or the means to establish when applicants have crossed the border – and even if they did, there’d be no record of people crossing the border into Northern Ireland.

The current naturalisation form specifically asks the question:

5.6 Have you been absent from the State for more than 6 weeks per annum in any of the past 5 years?

FORM 8 – IRISH NATIONALITY AND CITIZENSHIP ACT 1956 , Version 5.7

However there’s nothing on the form that asks about absences of up to 6 weeks. And without that declaration from candidates, there’s no way for INIS to know either way.

What should citizenship applicants do?

Some people are advocating contacting TDs to try and escalate the issue, but I’m sceptical about whether this will deliver any benefit. I think that people just have to hold on for the next few months, and wait for the Department of Justice to find a solution.

I’d instead advise people to hold on and see what happens over the next few months. Legal situations are never resolved quickly, so don’t expect updates about this on a regular basis.

For myself, I’ve been waiting 16 months for my application to be processed, and I guess I’m going to carry on waiting another indeterminate amount of time!