NATURALISATION UPDATE: SECTION 28 DECLARATIONS

Section 28 of the Irish Nationality and Citizenship Act 1956 (as amended) provides that any person who claims to be an Irish citizen, other than a naturalised citizen, may apply for a certificate of nationality stating that the applicant is an Irish citizen.

Pursuant to this, we have recently dealt with an application regarding two minors claiming Irish citizenship under Article 6 A of the 1956 Act which provides that “A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not less than three years or periods the aggregate of which is not less than three years”. 

The father of the applicants entered the state in 2005 following his refugee father’s successful application for family reunification under Section 18 of the Refugee Act. The children in question were subsequently born in 2009 and 2011, their father therefore having in excess of the three year reckonable residence necessary for his children to be deemed Irish citizens. However, the applicants’ initial application for Irish passports was refused on the grounds that there were gaps in the father’s registration in the Register of Non-nationals. 

Applying the judgement of Mr Justice Ryan in Sulaimon V Minister for Justice Equality and Law Reform it was successfully argued that the gaps in the register were through no fault of the applicant’s father, whose lawful residence had been acknowledged on several occasions by the Minister through the granting of family reunification under section 18 of the Refugee Act and through the granting of visas permitting travel to the state.

Following a lengthy decision period by the department, we are pleased that certificates of nationality have been granted to the applicants in question. Brophy Solicitors wish to congratulate the applicants on their success and wish them well in the future. 

Caroline Grogana

Brophy Solicitors

ROMANIAN AND BULGARIAN CITIZENS AND RECKONABLE RESIDENCE

Recently we have been working on a case involving the disputed reckonable residence of a Romanian national for the purposes of obtaining an Irish passport for the applicant’s child.

Following Romania’s accession into the EU in 2007 our client was eligible to reside in the State. Having resided in the State legally between 2007 and 2013 the applicant should have been eligible to obtain an Irish passport for his daughter. However, this was denied by the Passport Office which claimed that the client was not lawfully resident due to having worked without a work permit for a number of years. While it is recognised that the father may have breached employment law, his residence was in fact valid under EU law and thus Irish law. The High Court proceedings have been issued on the contention that the Passport Office was erroneous in its decision as our client did not fit into any of the specified ‘reckonability’ restrictions in S6B(4) of the Irish Nationality and Citizenship Act 1956.

We are pleased that the High Court has granted to leave to bring a judicial review against this decision. We will provide further update in due course.

 

Karen Berkeley

Brophy Solicitors

STAMP 0 UPDATE

I refer to our blog posts that referred to confusion around the introduction of Stamp 0. As previously noted, we wrote to the Department in order to seek express clarification in this regard and I am happy to confirm we have received a helpful response.

The letter notes that Stamp 0 has no provision in the Irish Nationality and Citizenship Act 1956 (as amended). However, this also means that the permission is not amongst the express exclusions for eligibility for citizenship by naturalisation and is thus ‘not excluded from reckonability’. It is further stated in the letter that naturalisation is a discretionary determination, which is why INIS has sought to ‘dampen expectations that Stamp 0 would lead to citizenship, and it is being granted on the basis that naturalisation would not be the probable outcome’. 

However, as with any resident who is granted reckonable permission, anyone within the state on stamp 0 permission is entitled to apply and have their case decided by the Minister on their own merits, in a manner identical to that of all such applications. 

Our arguments in respect of the confusion and lack of clarification on the INIS website in this regard have been accepted and furthermore assurance has been provided that this issue will be addressed shortly. 

Therefore, it has been established that Stamp 0 is accountable in respect of reckonable residency, and all naturalisation applications on the basis of this permission will be determined within the Minister’s discretion, as is the standard procedure with all naturalisation applications.

Naomi Pollock

Brophy Solicitors

REVOCATION OF IRISH CITIZENSHIP

We have been working on a number of cases involving the proposed revocation of Irish citizenship in the recent months.

As of 2012, the Minister stated that for the period 2002-2012, there had been no cases where a Certificate of Naturalisation was revoked by either he or his predecessors. While no further numbers have since been released, an article published in the Metro Eireann in February of 2013 notes that the Department informed them of an unspecified number of cases being considered under the revocation provisions of the Irish Nationality and Citizenship Act 1956 and that some or all of the cases could result in the revocation of the certificate of Naturalisation in 2013. (http://metroeireann.com/article/citizenship-on-the-line,3541)

Basis for Revocations of Irish Citizenship:

The Irish Nationality and Citizenship Act, 1956, section 19, states the Minister may revoke a certificate of naturalisation if he is satisfied:

a) You obtained it through fraud, misrepresentation or concealment of material facts or circumstances 

b) You have, through an overt act, failed in your duty of fidelity to the nation and loyalty to the State 

c) You were ordinarily resident outside Ireland (other than in public service) for a continuous period of 7 years and, without a reasonable excuse, did not register your name and a declaration of your intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister for Justice and Equality on an annual basis

d) You are also, under the law of a country at war with the State, a citizen of that country 

e) You have, by any other voluntary act other than marriage or registration of civil partnership, acquired citizenship of another country 

This section further states, before revocation of a certificate of naturalisation, the Minister will inform the person in advance of his intention to revoke the certificate, stating the grounds and the right of that person to apply to the Minister for an inquiry as to the reasons for revocation. On application for an inquiry, the Minister will refer the case to a Committee of Inquiry who will report their findings to the Minister. A notice of revocation of one’s certificate of naturalisation will be published in Iris Oifigiuil (Ireland’s official State Gazette).

Form 5-Declaration of Intention to Retain Irish Citizenship by a Naturalised Irish Citizen Residing Outside Ireland

Of particular importance is point c) – i.e for those naturalized persons outside the State, who have failed to register their name and a declaration of their intention to retain Irish citizenship, become liable for revocation after having been ordinarily a resident outside Ireland for a continuous period of 7 years. Thus, in order to retain citizenship under these circumstances, it is essential to complete Form 5, prior to the end of one’s 7 year period. Failure to complete this form could result in revocation of one’s citizenship. **Please note that there is a new version of this form, updated January 2014, available on the INIS website (http://www.inis.gov.ie/en/INIS/Form%205%20%28Ver%205.0%20Jan%202014%29.pdf/Files/Form%205%20%28Ver%205.0%20Jan%202014%29.pdf)

Karen Berkeley 

Brophy Solicitors