High Court: Minister does not have discretion to allow six-week absence period in citizenship cases



High Court
High Court

A man whose application for citizenship was rejected because he spent 100 days outside the State in the year prior to his application has lost an application for judicial review of the decision in the High Court.

Finding that the requirement for “one year’s continuous residence in the State immediately before the date of the application” should be applied with reference to the dictionary definition of “continuous”, Mr Justice Max Barrett said that the Minister for Justice and Equality arrived at the correct conclusion in rejecting the application, but added that in that considering a “discretionary absence period” of six weeks, the Minister sought to exercise a discretion he did not possess.

Background

In 2017, Roderick Jones, an Australian national, applied to become a naturalised Irish citizen. Pursuant to s.15(1)(c) of the Irish Nationality and Citizenship Act 1956, the Minister for Justice and Equality 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”.

Between 1 September 2016 and 31 August 2017, the applicable one-year period in Mr Jones’ case, Mr Jones was out of out of Ireland for 100 days – 97 on holiday and three for work reasons.

In a letter dated 11 October 2018, the Minister informed Mr Jones that he was ineligible to be considered for naturalisation because he was absent for a period of the “discretionary absence period of 6 weeks + possibly more in exceptional or unavoidable circumstances” that the Minister had been prepared to tolerate when deciding whether a person “has had a period of one year’s continuous residence”.

High Court

In the High Court, Mr Jones contended that the Minister:

  1. erred in law by applying the requirement for one year’s continuous residence in an overly literal manner and by failing to make reasonable allowance for temporary absences from the State for valid reasons;
  2. erred in law by having a policy that the requirement for one year’s continuous residence cannot be satisfied if the applicant is absent from the state for over six weeks without wholly exceptional circumstances, and by failing to approach consideration of this requirement as a question of fact rather than discretion;
  3. is materially wrong in fact and irrational in the legal sense, in finding that due to absences from the State the applicant has not had one year’s continuous residence in the State immediately before the date of his application

Mr Justice Barrett noted that the word “continuous” in s.15(1)(c) of the Irish Nationality and Citizenship Act 1956 bears its ordinary English-language meaning: “unbroken, uninterrupted, connected throughout in space or time” (per The Concise Oxford Dictionary of Current English (2011)).

Mr Justice Barrett said that the Minister had been “excessively generous” in his approach to section 15(1)(c), constructing an approach which was “inconsistent with a (proper) literal reading of that provision” in that applying a “discretionary absence period” the Minister sought to exercise a discretion he did not possess. Mr Justice Barrett said the absence of such discretion combined with the dictionary definition of “continuous” had the result that it was not open to the Minister to make allowance for “temporary absences”.

Mr Justice Barrett also said that the Minister’s “finding” was neither materially wrong nor irrational, but that the Minister’s means of getting to that “finding” rested on legal error in that there is no basis in s.15(1)(c) for the application of a discretionary absence period, the word “continuous in s.15(1)(c) bears its ordinary English meaning, and no matter how Mr Jones’ residence history for the applicable one-year period immediately prior to his application, punctuated by 100 days’ absence from the State, it could not be said that it was “unbroken, uninterrupted, connected throughout in space or time”. Mr Justice Barrett said a literal reading of the section did not yield an absurdity requiring the court to move on to an alternative reading of s.15(1)(c), and that as a result of the foregoing, Mr Jones was ineligible to be granted a certificate of naturalisation.

Mr Justice Barrett said that there was no difference to the conclusions reached in his judgment if he was to consider “continuous residence” rather than just the word “continuous”. He said that where a person’s period of residence in Ireland has been punctuated by absences abroad and is therefore not “unbroken, uninterrupted, connected throughout in space or time” – it is not “continuous residence”.

Refusing all of the reliefs sought, Mr Justice Barrett said that in a world where many people regularly travel abroad for work; where many people take foreign breaks more than once a year; and where there are walks of life such as the university sector in which Mr Jones works where staff enjoy longer vacation periods and/or may have a higher-than-average international travel dimension to their labours – it may seem unfair for s.15(1)(c) to require one year’s continuous residence in the State immediately before the date of application which must be “unbroken, uninterrupted, connected throughout in space or time”.

However, Mr Justice Barrett said this was what the section required, and the cure for any perceived unfairness lay “in the gift of the legislature” and not in the law-courts.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2020



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