Section 15(1) of the Irish Nationality and Citizenship Act 1956, as amended, provides, inter alia, that “Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant … (c) has had a period of one year’s continuous residence in the State immediately before the date of the application”. The applicant was an Australian citizen who applied to become a naturalised Irish citizen. The Minister refused his application for naturalisation on the basis that he had not been continuously resident in the State in the year immediately before he applied for naturalisation. The Minister operated a policy which permitted a maximum of six weeks absence from the State, with the possibility of longer periods being permitted in exceptional or unavoidable circumstances. However, during the year immediately prior to his application, the applicant was out of Ireland for 100 days, 97 on holiday, three for work reasons. He challenged the refusal of his application arguing inter alia that the Minister had erred in law in failing to make reasonable allowance for temporary absences from the State. The High Court ( IEHC 519) dismissed his challenge on the basis that to be eligible for naturalisation, an applicant had to have a one-year period of residence in Ireland that is unbroken, uninterrupted, connected throughout in space or time. The applicant appealed.
The Court of Appeal held that Barrett J had erred in his construction of the term “continuous residence” in s.15(1)(b) of the 1956 Act. Whelan J delivered the judgment of the court, holding that as a matter of statutory interpretation, the term “continuous residence” should be given its ordinary and natural meaning unless to do so would result in an absurdity. It was held that the construction of s.15(1)(b) of the 1956 Act adopted by the High Court judge was unworkable and gave rise to an absurdity, and that continuous residence within the meaning of the sub-section did not require uninterrupted presence in the State throughout the entirety of the relevant year. Whelan J held that the term “continuous residence” is wholly distinct and separate from the concepts of “ordinary residence” or “residence” per se, and that it was clear that the Oireachtas had mandated that a more rigorous approach be applied to the physical presence of an applicant in the State in the year immediately prior to the application being submitted. It was held that by including the “continuous residence” requirement in the year immediately preceding the application, the Oireachtas had attached significant importance to physical presence within the State during the relevant year, and that “an applicant must generally be physically present in the State during the particular year and an application may be refused if there are significant absences.” Having regard to the overall scheme of the legislation and the tenor of the Minister’s policy which permitted up to six weeks’ absence from the State, Whelan J was satisfied that this was a reasonable policy aimed at ameliorating the potential harshness and rigidity of the first part of s.15(1)(c) which placed “a significant but by no means absolute premium on the continuity of physical presence in the State during the relevant year.” Whelan J also rejected the argument that the adoption of this policy amounted to an unlawful fettering of discretion or acted as the imposition of an extra-statutory barrier to naturalisation. Accordingly, it was held that the High Court had erred in respect of the findings in relation to the six week policy but as the overall outcome was to dismiss the applicant’s challenge, the appeal was dismissed.
Decision: Appeal dismissed.