Changes to citizenship application

Tired Gardener · 17-07-2019 4:40pm #1

Hopefully the Judge is being obtuse to highlight how badly written the law is. It is not unheard of for judges to do this.

If anyone applying for citizenship enters NI they will not be eligible, or even if they have to go to the embassy of their country of origin. Also I am sure that Airports are considered international ground, so if the applicant works at an airport that would instantly disqualify them.

https://www.thejournal.ie/citizenship-high-court-residency-continuous-4728401-Jul2019/#comments

rock22 · 17-07-2019 5:00pm

Tired Gardener wrote: »

Hopefully the Judge is being obtuse to highlight how badly written the law is. It is not unheard of for judges to do this.

If anyone applying for citizenship enters NI they will not be eligible, or even if they have to go to the embassy of their country of origin. Also I am sure that Airports are considered international ground, so if the applicant works at an airport that would instantly disqualify them.

https://www.thejournal.ie/citizenship-high-court-residency-continuous-4728401-Jul2019/#comments

I think you are reading an awful lot into that judgement,wrongly I think

Tired Gardener · 17-07-2019 5:07pm

Pointing to the dictionary definition of “continuous”, the judge held that “an applicant must show a one-year period of residence in Ireland that is ‘unbroken, uninterrupted, connected throughout in space or time’”.

All the things I mentioned above mean leaving the state, so with the judge's very robotic ruling of the term they would jepodise their application.

Peregrinus · 18-07-2019 2:20am

Let's get one bit of nonsense out of the way; airports are not considered "international grounds".

Secondly, there seems to be a bit of scaremongering going on. I haven't read Barrett's judgment, but the requirement in the Act is not twelve months' continuous presence in the State; it's twelve months' continuous residence. Inconveniently, the newspaper report does not give the actual facts of this case - what, exactly, happened that meant that the period of residence was not continuous? - but the suggestion (by a commentator) that "an applicant must literally never leave the State" seems dramatic. None of the actual quotes from Barrett suggest that he said anything about never leaving the State. I can clearly go to Newry for the afternoon while still being, in every meaningful sense, resident in Dublin.

abff · 18-07-2019 12:00pm

Does anyone have a link to the actual wording of the judge's ruling? I don't see how he could interpret continuous residence as requiring not going outside the state for short periods for leisure or business reasons. You don't change residence when you go on holidays.

Thoie · 18-07-2019 12:23pm

https://www.irishtimes.com/news/crime-and-law/courts/high-court/citizenship-applicants-cannot-leave-ireland-for-a-year-before-application-judge-rules-1.3959584

Obviously doesn't give the full wording, but it seems as if "residence" and "presence" are being used interchangeably.

For tax purposes I'm resident in the country if I spend 183 days here in a calendar year. I don't suddenly stop paying taxes if I go on holidays for a few weeks, even though I'm not present in the country. I can't reclaim income tax if my pay day falls while I'm in Santa Ponsa for a week.

All the reports seem to be suggesting that the judge said you can't even leave the country for a day, as he refers to the dictionary definition of "continuous". He said that the minister cannot legally allow the current discretionary 6 weeks absence during the year, and that continuous means unbroken.

Marcusm · 18-07-2019 1:50pm

Peregrinus wrote: »

Let's get one bit of nonsense out of the way; airports are not considered "international grounds".

Secondly, there seems to be a bit of scaremongering going on. I haven't read Barrett's judgment, but the requirement in the Act is not twelve months' continuous presence in the State; it's twelve months' continuous residence. Inconveniently, the newspaper report does not give the actual facts of this case - what, exactly, happened that meant that the period of residence was not continuous? - but the suggestion (by a commentator) that "an applicant must literally never leave the State" seems dramatic. None of the actual quotes from Barrett suggest that he said anything about never leaving the State. I can clearly go to Newry for the afternoon while still being, in every meaningful sense, resident in Dublin.

The judgement still is not online. In the case, the individual had been out of the state for 100 days in the pertinent year so didn’t meet the dept’s 6 week permissible absence rule which is not set out in statute. I can see his construction of “continuous” but cannot understand how he could equate residence with physical presence.. I think the test should be a qualitative one rather than a purely quantitative one. Taking all ties into account, which country is the person resident in? Absences at peripatetic holidays at various hotels being treated differently from holidays at property which the person maintains abroad.

Actually i’ve Found it but not yet read it.

https://www.bailii.org/ie/cases/IEHC/2019/H519.html

Thoie · 18-07-2019 2:50pm

Marcusm wrote: »

The judgement still is not online. In the case, the individual had been out of the state for 100 days in the pertinent year so didn’t meet the dept’s 6 week permissible absence rule which is not set out in statute. I can see his construction of “continuous” but cannot understand how he could equate residence with physical presence.. I think the test should be a qualitative one rather than a purely quantitative one. Taking all ties into account, which country is the person resident in? Absences at peripatetic holidays at various hotels being treated differently from holidays at property which the person maintains abroad.

Actually i’ve Found it but not yet read it.

https://www.bailii.org/ie/cases/IEHC/2019/H519.html

From the judgement:

Lest it be contested that the phrase in s.15(1)(c) is " continuous residence ", not just the word " continuous ", the court does not see that this makes any difference as regards the conclusions that it reaches in this judgment. The court accepts the contention for Mr Jones that circumstances can present in which it is possible to retain one's residence in Ireland despite travelling abroad. So, for example, it is possible for a person, the true focus of whose life is in Ireland, to spend a couple of nights in Belfast, go on a business trip to London, enjoy a couple of weeks in Spain in the summer, spend a month in Australia in the winter, and yet still properly be considered to be ordinarily resident in Ireland. But the problem for Mr Jones is that in none of those instances could a person who goes on any one of those trips in any one year be said to be in " continuous residence" in Ireland during that year. Why? Because that person's period of residence in Ireland during that year has been punctuated by absences abroad and thus is not " unbroken, uninterrupted, connected throughout in space or time ", i.e . it is not "continuous residence "

It looks like he is equating "residence" and "presence".

nuac · 18-07-2019 3:22pm

Seems to require an appeal or amending legislation.

Dáil and Seanad recall?

abff · 18-07-2019 5:36pm

nuac wrote: »

Seems to require an appeal or amending legislation.

That seems to be the judge's view. I don't agree with his interpretation of the legislation, but I'm saying that as a layman who has some experience of interpreting legal documents and I know that common sense rarely comes into play when lawyers start arguing about how many angels can fit on a pinhead.

nuac wrote: »

Dáil and Seanad recall?

Funniest suggestion I've heard in ages!

Peregrinus · 19-07-2019 3:40am

nuac wrote: »

Seems to require an appeal or amending legislation.

I would think there's a good chance that an appeal would sort it. Barret's judgment really doesn't make sense. Not sure, however, if the applicant will appeal merely to have the judgment set aside in so far as it imposes an "even one day" rule; he'll only appeal if he thinks he himself can succeed, despite having been out of the country for 100 days.

What if he doesn't appeal? Then we are looking at a period of confusion, of indeterminate length, until another case raising the same issue can be heard and appealed. Or, amending legislation.

Probably amending legislation sooner rather than later, is my guess. But, obviously, not the kind of thing for which the Oireachtas would be recalled.

Marcusm · 19-07-2019 10:43am

Peregrinus wrote: »

I would think there's a good chance that an appeal would sort it. Barret's judgment really doesn't make sense. Not sure, however, if the applicant will appeal merely to have the judgment set aside in so far as it imposes an "even one day" rule; he'll only appeal if he thinks he himself can succeed, despite having been out of the country for 100 days.

What if he doesn't appeal? Then we are looking at a period of confusion, of indeterminate length, until another case raising the same issue can be heard and appealed. Or, amending legislation.

Probably amending legislation sooner rather than later, is my guess. But, obviously, not the kind of thing for which the Oireachtas would be recalled.

This was a judicial review, wasn’t it? Would the Minister have standing to appeal the position? Presumably not as it was obiter? Dr Barrett seems to have some poor success on appeals. However, it’s hard to see that the executive or legislature can await the outcome of an appeal. There are certs of naturalisation out there and citizenship ceremonies scheduled. It would seem to be fairly urgent to address this to avoid continued uncertainty or the absurdity of holding ceremonies in circumstances where uncertainty continues. Perhaps there’s an avenue for a holder of such a certificate to apply for JR in the event that the Minister cancels the ceremony or excludes certain persons therefrom. There is an element of urgency for some people in this category as presumably their permission to remain in the state lapsed on the putative grant of naturalisation.

Peregrinus · 19-07-2019 10:55am

Existing naturalisations stand unless challenged and struck down, which would be a one-by-one exercise. Even if that were to happen in some cases, the Minister would be under no obligation to take any steps to deport people, and presumably as a matter of policy wouldn't. And even if he were to attempt to do so, without thinking too deeply about it I feel sure there would be grounds for enjoining deportations on the grounds of reasonable expectations induced by the previous actions of the State.

The bigger problem is applications currently on hand. If any of those involve people who have been out of the State during the 12 months before the application (and my guess is the the bulk of them will) I think the Minister will not want to decide those applications until this question has been resolved. In the meantime there may need to be some interim measure to reassure the applicants of their right to remain while their applications are pending. Again, without having thought too deeply I'd expect it is possible to do that without requiring primary legislation.

Good question as to whether the Minister can appeal a judicial review when he has been successful at first instance, and his decision has been affirmed. I rather suspect that he can't. He could, I suppose, invite the unsuccessful applicant to appeal and offer to pay his costs of doing so, on the grounds that there is a point of law of exceptional public importance at stake, but I can see all kinds of complications arising there.

Marcusm · 19-07-2019 8:55pm

The question is what is meant by applications in process. For example, suppose that your application has been approved but you are awaiting a citizenship ceremony to complete the process by swearing fealty. Will the Minister have an obligation to review those “applications” and withdraw the “approval” from those who would fall foul of the HC decision. Or is that too late? I expect it is not as I presume it is ultra vires the Minister to complete that last step where he has been notified at 1 minute to midnight of the defect in the approved application.

This is, frankly, a massive sh1t show.

Marcusm · 19-07-2019 8:56pm

nuac wrote: »

Seems to require an appeal or amending legislation.

Dáil and Seanad recall?

In reality, I think it would require amending legislation to provide the power previously assumed but also an appeal to render void what seems to be a very poor attempt at construction.

Peregrinus · 22-07-2019 1:59am

If the appeal succeeds I don't see that there's any need for legislation. Certainly no urgent need.

Marcusm · 22-07-2019 2:13pm

Peregrinus wrote: »

If the appeal succeeds I don't see that there's any need for legislation. Certainly no urgent need.

The appeal could take what12-18 months? The legislation should not stand unamended during the period of the appeal as it would provide too much uncertainty. It’s not unusual, for example, for tax law to be amended to provide certainty during a period when an adverse/undesirable decision is appealed. In this case, the naturalisation process could not be subject to uncertainty for such a period.

I would be disappointed if the decision was not appealed as I think the decision is so poorly grounded - giving effective primacy to the adjective rather than the noun - that it needs to be obliterated.

Jacovs · 22-07-2019 2:23pm

One of the terms of my reisdency when I first arrived in Ireland.

Should the onus be on the department of Justice to appeal and get this latest judgement changed themselves instead of waiting for a prospective citizen to appeal this? Considering they have been advising people incorrectly.

Caranica · 22-07-2019 4:23pm

Jacovs wrote: »

One of the terms of my reisdency when I first arrived in Ireland.

Should the onus be on the department of Justice to appeal and get this latest judgement changed themselves instead of waiting for a prospective citizen to appeal this? Considering they have been advising people incorrectly.

Technically the ruling was in the favour of the Department of Justice, is it possible for someone to appeal a judgement in their favour?

seamus · 22-07-2019 4:39pm

^^
I guess the question is whether the DoJ is obliged to apply this judgement to all pending applications, or if it can continue to use its old rules?

I suspect not, but the DoJ could take a test case by inviting an applicant to become an appelant by turning their application down on the basis of this ruling and then supporting them in an appeal against it. And in the meantime keeping all pending applications on hold.

Changes to citizenship application

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