Judge Barrett delivered this important judgment of the High Court on 11th July 2019 in relation to naturalisation applications.
The applicant brought this application to the High Court based on the fact that his application for Irish naturalisation was deemed ineligible by the Minister for Justice by virtue of S.15(1)(c) of the Irish Nationality and Citizenship Acts 1956 -2004. This section provides 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 – … (c) has had a period of one year’s continuous residence in the State immediately before the date of the application”. During the one-year period before the applicant applied for naturalisation, he had been out of Ireland for 100 days, 97 for holidays and 3 for work purposes.
The Minister deemed the applicant’s naturalisation application ineligible because the applicant had been absent in excess of what Judge Barrett describes as the “discretionary absence period of 6 weeks and possibly more in exceptional or unavoidable circumstances”. Judge Barrett found that, the Minister, when assessing whether an applicant “has had a period of one year’s continuous residence”, is not acting in the realm of discretion. He held that “either the applicant has had a period of one year’s continuous residence, or he has not”. Judge Barrett found that the Minister had gone beyond what is legally permissible in allowing this discretionary period of 6 weeks and possibly more in exceptional circumstances. He found that the 1956 Act does not confer any discretionary power on the Minister in that regard. He said that there is no basis in the 1956 Act for such a discretionary clause.
He held that the word “continuous” bears its ordinary English-language meaning as in The Concise Oxford Dictionary of Current English as “unbroken, uninterrupted, connected through in space or time”. Judge Barrett concluded his judgment by stating that:
“8. It may seem unfair in a world where (i) many people regularly travel abroad for work, (ii) thanks to lower air-fares, many people take foreign breaks more than once a year, and (iii) there are walks of life…where academic staff enjoy longer vacation periods…and/or may have a higher-than-average international travel dimension to their labours, that s.15(1)(c) should require “a period of one year’s continuous residence in the State immediately before the date of the application”, which period, thanks to the dictionary definition of “continuous” must be “unbroken, uninterrupted, connected throughout in space or time.” However, that is what S.15(1)(c) requires. If that is perceived to yield unfairness in practice – and again there may be perfectly legitimate reasons why the Oireachtas used the word ”continuous”…with all the consequences that flow therefrom – the cure for any (if any) such unfairness as is resulting is not to be found in the law-courts; it lies in the gift of legislature.”
The judgment may be appealed to the Court of Appeal or to the Supreme Court. In any case, it will certainly have an impact on applications for naturalisation currently being processed.