There has been much debate and discussion over the last week with Mr Justice Max Barrett's latest decision on immigration in the case of Roderick Jones v Minister for Justice and Equality.
The case concerned an Australian citizen who challenged the Minister's decision to refuse his naturalization application on the basis he had been out of the country for 100 days in the year immediately preceding his application. The Minister's policy prior to this decision, was that while any individual applying for naturalization must have been in Ireland for a continuous period of 1 year prior to the application, this continuous period could be broken so long as the person was not absent for more than 6 weeks in total. On occasion, further discretion could be exercised to allow for unforeseen circumstances that might require an individual to be out of the country in excess of the 6 weeks. For example, this might have occurred where a family member was ill or work demands required excessive work commitments.
However, Judge Barrett in the Jones decision has taken a literal interpretation to the Citizenship Act 1956 (the Act) which governs naturalisation applications when determining what the word "continuous" means at section 15(c). He has ruled that no individual can leave Ireland for one year immediately preceding any application for naturalisation. In doing so Judge Barrett has held that the Minister was wrong in exercising its discretion by implementing this 6 + week rule when determining whether an applicant has continuous service.
While section 15(c) of the Act does not make any reference to a 6 week time period, or indeed any time period at all, the Minister was taking a pragmatic and realistic approach to an individual's lifestyle that would most certainly require him/her to leave the country for at least a limited period of time in any given year.
It is understood that pending and new applications for naturalisation will be under strict scrutiny and anyone who has left the country, even to the UK for one day, will now have their application rejected.
We will have to wait and see whether the decision will be appealed, but in any event it would seem that new legislation is urgently required to remedy this issue. The legislation should either give the Minister discretion to facilitate a break in service or to provide a specific timeframe which any applicant can leave the country for, in the one year immediately preceding making their naturalisation application.
A High Court judge, in a significant decision, has ruled the “continuous residence” requirement in citizenship applications means an applicant for naturalisation must have “unbroken” residence in the State for an entire year immediately before the date of their application. The Minister for Justice’s discretionary practice of allowing applicants six weeks out of the country, for holiday or other reasons, and more time in exceptional circumstances, is not permitted by law, Mr Justice Max Barrett ruled.