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Construction of meaning of “continuous residence” requirement in naturalisation law is overly rigid and unworkable

By: Colm Scott Byrne BL

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Court of Appeal: (i) allows appeal and overturns decision of High Court that the requirement for "continuous residence" specified in the legislation governing naturalisation should be construed as meaning that a person must remain in Ireland  for a period of 12 months unbroken or uninterrupted and prevents the applicant from leaving the State for any period of time, on the grounds that: (a) such a construction is unworkable, overly literal, unduly rigid and gives rise to an absurdity; and (b) such a construction was plainly erroneous and reflects a construction of the legislation not advanced by either party at the hearing in the High Court and amounts to an interpretative absurdity; and (ii) save for aforesaid, dismisses appeal of a decision of the High Court and upholds the refusal to grant an order of certiorari quashing the decision of the Minister which had deemed ineligible the appellant’s application for a Certificate of Naturalisation, on the grounds that: (a) the Minister did not improperly fetter the competence conferred on him by the legislation as the policy adopted was a reasonable policy primarily directed at ameliorating the potential harshness and rigidity of the requirement of continuous residence; (b) the criteria identified by the Minister in connection with establishing “continuous residence” were reasonable and balanced and have regard to societal norms regarding foreign travel as at the date of the submission of appellant’s application; and (c) the trial judge correctly concluded that the Minister’s ‘finding’ was neither materially wrong nor irrational.

Whelan J (nem diss): Asylum and immigration - judicial review - The Irish Nationality and Citizenship Acts, 1956-2004 - construction of one of the statutory prerequisites to be established before an applicant is eligible to be considered for naturalisation pursuant to the Citizenship Acts - 15(1)(c) of the Irish Nationality and Citizenship Act, 1956 (as amended) - construction of the requirement of "continuous residence" - appellant is an Australian citizen who applied to the Minister for a Certificate of Naturalisation pursuant to the Citizenship Acts - had resided and been in full time employment in the State since October 2011 - the Minister gave notice deeming ineligible the appellant’s application on the basis that the one years’ continuous residence in the State immediately preceding the date of his application had not been met - appellant instituted judicial review proceedings challenging the decision - appellant had been outside the State for approximately 90 days in the year prior to his application - Minister operated a clearly communicated practice or policy of allowing applicants six weeks’ absence from the State, for work and other reasons, and more time in exceptional circumstances - whether trial judge's interpretation of continuous residence meant that an applicant could not leave the State for any time during the year prior to their application for naturalisation - such a construction gave rise to an absurdity - this construction was overturned - whether the Minister had improperly fettered his discretion in adopting the policy - the established policy of the Minister was ameliorative in nature and mitigated the potential harshness of the requirement for continuous residence - whether the Minister's finding was materially wrong or irrational - appeal dismissed - order of certiorari refused.

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