Courts and Civil Law (Miscellaneous Provisions) Bill 2021 – Possible Implications for Irish Citizenship and International Protection
The Minister for Justice published the General Scheme of the Courts and Civil Law (Miscellaneous Provisions) Bill 2021 on the 8 June 2021. The proposed Bill contains a number of important changes to the laws governing Irish citizenship and International Protection Applications.
Amendments to Citizenship Rules
Under current legislation, children born on the island of Ireland seeking to apply for Irish citizenship, must have accrued five years of reckonable residency in the State, i.e. be at least five years of age before they can apply for Irish citizenship. The Bill proposes to reduce the waiting period from five years to three years for children born in the State.
Changes to Reckonable Residence Conditions for Citizenship Applications
In recent years there has been much litigation and confusion surrounding the reckonable residence conditions for citizenship applications in the twelve-month period prior to an application.
Ordinarily a person applying for Irish citizenship must have had a period of one year’s continuance residence in the State immediately before the date of the application and during the eight years immediately preceding that period, have had a total residence in the State amounting to four years. During the summer of 2017, the Minister for Justice began to refuse applications for Irish citizenship where applicants had been outside of the State for more than six weeks per annum, and in particular where the absence was during the twelve-month period prior to an application. Sinnott Solicitors have taken many cases before the High Court challenging decisions to refuse citizenship applications on behalf of clients due to absences from the State.
The most important and well known of these challenges is the case of Roderick Jones -v- Minister for Justice which can be read about here, and in which Sinnott solicitors acted on behalf of the Applicant.
In this case the High Court ruled that continuous residence in the State was effected by any type of absence at all from the State, and that any such absence meant that residence had been broken, effectively meaning that if a person left the State even for one day in the twelve month period prior to their application for Irish citizenship, their application could be refused.
In November 2019, the Court of Appeal overturned the continuous residence finding of the High Court which meant that persons could leave the State in the twelve-month period prior to their application.
The Court held that the policy of the Minister in allowing absences from the State for work, and other reasons, and more time in exceptional circumstances, was not a rigid or inflexible policy and that the policy was reasonable.
The Court also found that the Minister for Justice is permitted to operate the policy of allowing absences of up to six weeks, and this has been the approach adopted by the Citizenship Division since.
The Courts and Civil Law (Miscellaneous Provisions) Bill 2021 proposes to amend and extend the “continuance residence” conditions to allow absences of up to 70 days in the twelve-month period prior to an application and allowing for a further period of 30 days in exceptional circumstances.
“a period not exceeding, or periods the aggregate of which do not exceed, 70 days,
and (b) an additional period not exceeding, or additional periods the aggregate of which do not exceed, 30 days, where the Minister is satisfied that the person’s not being present in the State during the period or periods was necessitated by exceptional circumstances set out in subsection (2).”
Exceptional circumstances may mean family or personal circumstances of the Applicant, health requirements of the Applicant or family member, requirements in the course of employment to the profession of the Applicant, requirements in pursuance of a course of study or professional qualification of an Applicant, voluntary service by an Applicant for humanitarian purposes, humanitarian considerations relating to the Applicant’s circumstances, and any other circumstances which are considered by the Minister to be outside of the Applicant’s control which results in the presence outside of the State.
Whilst the extension of continuous residence from the current 42 days (six weeks) to 70 days in ordinary circumstances with an additional 30 days in exceptional circumstances is most welcomed, the provisions, particularly with respect to exceptional circumstances remain uncertain. We submit that further amendments will be required before this Bill is signed into law, however, it is encouraging to see that steps are being taken to clarify the continuous residence requirement as the law has remained uncertain in this regard since the case of Roderick Jones as above outlined. As always Sinnott Solicitors are delighted to have contributed on behalf of our clients to the development of policy and laws governing immigration matters in Ireland and we will continue to do so on a daily basis.
Amendment to International Protection Act 2015
The Bill also proposes to amend Section 48(3) of the International Protection Act which deals with permission to remain decisions and rules of same. Under the current rules Applicants have five days to submit further representations to the Minister for Justice as to why they should be granted permission to remain in Ireland following a negative decision. The Bill proposes to increase this time period to 30 days which is a much more practical and realistic timeframe for Applicants who had been significantly prejudiced to date being allowed only five days to submit further representations in support of a leave to remain application. This is certainly a welcomed development which Sinnott Solicitors are very happy to see and will benefit many International Protection applicants who are at the final stages of the processing of their cases.
Sinnott Solicitors have a specialist team of Immigration Solicitors and Immigration Consultants located in our Dublin and Cork offices who are experts on all Irish immigration matters. Should you have any queries with respect to any of the information contained in this article or any other immigration matters, do not hesitate to contact our immigration department in Cork or Dublin today on 014062862 or info@sinnott.ie.
