The Minister for Justice has asked the Court of Appeal to overturn a "very restrictive" High Court finding, saying it means with "very, very few exceptions" that nobody qualifies to apply for Irish citizenship.
Sara Moorhead SC, for the Minister, today urged the three-judge court to overturn last May's finding by Mr Justice Max Barrett that the relevant law means citizenship applicants must have "unbroken" residence here in the year prior to their application.
An appeal concerning the finding was given a priority hearing by the COA because of huge uncertainty for citizenship applicants arising from it, with citizenship ceremonies for some 6,000 people still on hold.
Having heard the appeal on Tuesday, the COA president Mr Justice George Birmingham, sitting with Ms Justice Máire Whelan and Mr Justice Brian McGovern, said the court was reserving judgment.
The appeal is by Roderick Jones, an Australian man working in the university sector here, over being refused citizenship by the Minister in 2018 due to being out of the country for 100 days – 97 on holiday and three for work reasons – in the year before he applied.
The Minister wants the court to uphold that refusal but not on the basis of the High Court view that the words “continuous residence” in section 15.1.c of the Irish Nationality and Citizenship Act 2015 mean an applicant for citizenship must have “unbroken” residence in the State for a year before they apply.
Mr Justice Barrett said the Minister’s discretionary practice of allowing applicants six weeks out of the country, for holidays or other reasons, and more time in exceptional circumstances, is not permitted by section 15.1 and ruled the Minister has no discretion in relation to the “continuous residence” requirement.
Continuous residence
At the COA today, lawyers for Mr Jones and the Minister both argued the High Court erred in how it interpreted “continuous residence” but disagreed on other aspects of the High Court decision.
Feichin McDonagh SC, for Mr Jones, argued the Minister was not entitled to apply a “quantitative six-week bed night test” rather than a “qualitative” test to the concept of continuous residence.
The Minister wrongly applied a “simplistic and administratively convenient” six-week bed night test for which there was no basis in the Act, he argued.
Counsel said Mr Jones has been living and working here for years but comes from Australia, will always want to visit his family and, because of his work, will also be asked to travel abroad. Counsel accepted the travel abroad for work in this case amounted to three days.
The Act requires applicants to demonstrate intent to continue to reside in the State after they get citizenship and does not require they commit not to spend more than six weeks out of the State in the year before they apply, he argued.
The Minister should have recognised Mr Jones’s intent at all times was to continue to reside here, and a test of six weeks of bed nights was not “substantive engagement”.
The test is much more nuanced, asking where a person was, what they were doing, and what connections did they have in Ireland.
Ms Moorhead SC, for the Minister, said neither party had argued for the “very restrictive” interpretation of the words “continuous residence” made by the High Court judge, and that should be set aside.
The High Court wrongly equated “residence” with “presence”, did not assess residence at all and the decision appeared to mean an applicant could not leave the state for an hour in the relevant year. The Minister wanted a more “realistic”, “reasonable” and “rational” interpretation of “continuous residence”.
Other than that particular finding, the COA should uphold the reasonable refusal of Mr Jones’s application, she argued.
‘Test of presence’
Having a house and job here does not equate to continuous residence and the test for residency was a “test of presence”. The Minister was fully cognisant of travel demands on people in the modern world and was entitled to bring in the six-weeks-out-of-the-country criteria, which applied only to the year before application, and was “not absolute”.
Mr Jones was out of the State for 100 days, 97 on holiday, and was effectively saying the Minister was “not generous enough”.
The Minister acted reasonably, knew Mr Jones was out on holidays and deemed him ineligible. If more of the 14 weeks had involved business, the position might have been different, she said.
The Minister is trying to meet a modern-day situation, the position is “not ideal” and there may have to be legislative matters that expand on the requirements of living in a modern country, counsel added.
