Naturalization Delay

We continue to receive a large number of queries from clients regarding the on going delays in the Citizenship Section. It is very appararent that many applications submitted in 2007 continue to be undetermined. Amongst our clients in this catagory are a number of doctors, and a client working in the financial services. There is no apparent reason for the delay on the facts of their cases. Our clients are frustrated, particularly as they feel they have given a lot to this State through their professional services. 

The amount of new queries recently received on this issue warants a further posting on our blog. We think that it might be helpful for those who are stuck in this waiting game to understand the caselaw coming from the superior courts, which greatly influences the Naturalization processs.

In most applications before the Minister for Justice, a processing period of 6- 12 months would be regarded as reasonable, while a period of over 18 months would be deemed to be unreasonable and in breach of the applicant's rights. However, during 2009 and 2010, a number of cases before the High Court held that the Minister was not restricted in the time period for processing Naturalization applications because the granting of Citizenship is a special privilege granted by the State, and not comparable to other applications for residency. Thus, the applicants who took the delay cases during that period were unsuccessful. (See cases such as Nawaz v Minister for Justice, 19th July 2009, Bepo v Minister for Justice, 18th June 2009, Tabi v Minister for Justice 16th April 2010, Jiad v Minister for Justice 19th May 2010 and Abuissa v Minister for Justice,1st July 2010 ).

Since then, the Citizenship Section of the Department of Justice has relied on these High Court judgments to support their position that they are permitted to allow extremely long delays in the determinations of many applications for Naturalization. Unfortunately, Immigration lawyers were hesitant to challenge the delays by way of High Court litigation because of the risks posed to their clients becuase of these same unsuccessful High Court judgements in 2009/2010.

On the 16^th December 2011, Mr. Justice Kearns of the Supreme Court delivered a judgment which changed this position – the case is Dana Salman v Minister for Justice and Equality. The case involved a hearing to establish liability for costs in respect of one of the previous High Court Naturalization delay cases. The Minister’s delay in determining Mr Salman’s application for naturalization was 3 years and 9 months at the time of issuing of High Court proceedings. Mr. Justice Kearns found that there was no evidence before the Supreme Court of any system in place for dealing fairly with applications for certificates of naturalisation. In particular, the Minister did not indicate any specific reasons for the delay and refused to explain the extended period of delay past the average time put forward by the department (24 months). Mr. Justice Kearns held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded. (Please see our previous blog post of December 2011to read further about this judgement).

Since the Salman judgement, a number of new Naturalization delay cases have recently been issued in the High Court, where the delay is in the region of the Salman case – 3 and ½ years. The High Court is granting permission to take a full case against the Department of Justice where there is substantial delay of this kind. It remains to be seen if one of these more recent cases will proceed to full hearing, and perhaps set a new precedent in light of the Salman case.

We will keep updating you as further developements occur.

Brophy Solicitors

High Court Judgement in Naturalization Delay Case

Case Summary; Dana Salman v Minister for Justice and Equality, Judgement of Mr. Justice Kearns of 16.12.2011

This case saw the applicant compelling the Minister to administer a decision in his application for naturalisation. The applicant is a refugee originally from Iran. Application for naturalisation was made in early 2008 – thus a delay of three years and nine months was at issue.

This delay caused severe inconvenience to the applicant; he found he was frequently detained at immigration control when he attempted to travel outside the state and for that reason he stopped travelling. The eve prior to the substantive hearing of the proceedings the applicant was issued with a certificate of naturalisation, therefore the sole matter that was to be determined between the parties was the cost of the proceedings.

It was argued by the applicant that the respondent’s statutory duty to consider the application should not be confused with his discretion as to the outcome of the application. Citing Article 34 of the UN Convention on the Status of Refugees and Stateless Persons, 1951 the applicant accepts that there is no requirement to grant citizenship to refugees but there is an obligation to expedite the process and that this requirement has been ignored in the instant case.

Further the applicant argued that even though the Minister is given no time period by law in which to make a decision, there is nevertheless a duty to make a decision within a reasonable time. It is argued that the above delay is not a reasonable one.

Having taken into account article 9.1.2 of the Constitution, Section 15 of the Irish Nationality and Citizenship Act 1986, the United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the Protocol of 1967 Article 34 the court stated that

‘The respondent in the instant case was not granted an unfettered discretion to issue a decision on the applicant’s application at his leisure, or not to issue a decision at all. He was under a duty to exercise his statutory powers in a fair and reasonable manner.’

The court cited Cooke J in the 2010 case of Nearing of 2010;

‘Once it is clear that the Department has in place a particular system for the administration of such a scheme, it is not the role of the court in exercise of its judicial function to dictate how a scheme should be managed or to prescribe staffing levels or rates of productivity in the relevant section of the department. Once it is clear from the evidence that there is in place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case’. 

Having considered this in light of the present circumstances Kearns J found that in this case there was no evidence before the Court of any system in place for dealing with applications for certificates of naturalisation. In particular, the Minister did not indicated specific reasons for delay and refusing to explain the extended period of delay past the average time put forward by the department the court held that there was no evidence that there was in place a fair and rational system for the processing of applications. The court held that the applicant was therefore entitled to costs as he would have been entitled to relief if the judicial review had proceeded.

Such a decision inspires hope for the many awaiting decisions from the Minister in this regard and  is welcomed as a step forward in decreasing the waiting times. 

Brophy Solicitors

20.12.11

NEW FEES FOR CITIZENSHIP APPLICATIONS

The Department of Justice and Equality recently introduced an application fee of €175 for all Naturalisation applications made after the 10^th November 2011. This fee is non-refundable and will apply even if you have lodged an ineligible application, for example where you do not have the required reckonable residency. Therefore it is important that all applicants ensure that they are entitled to apply for Naturalisation before they submit the application!

Brophy Solicitors
21.11.11

The Naturalisation Process, Ireland and the United Kingdom compared

We have recently made submissions to the Minister on behalf of a client who is waiting a determination of his application for Naturalization for a period of over four years and four months. It has been indicated that to us that our client’s application for Naturalization is being considered “in the normal way” with a view to be establishing that he has met the statutory requirements for Naturalization.

We cannot accept this response as reasonable or adequate in the circumstances of our client’s case.   He does not present as a person who would potentially be ineligible for Naturalization pursuant to the Statutory requirements of the Irish Nationality and Citizenship Acts 1956 to 2004. He has lawfully resided in the State for over ten years. He is married to and EU national. He is a highly qualified person, and has always been in employment in this State. He has never come to the adverse attention to the Gardai in the State or any other country.

We recently wrote to the Minister to request to know why is this application taking over twice as long to process as the average application? Why is he being discriminated against compared to the average applicant? What has the Department been doing while processing his application over the course of four years and four months? When can our client expect to complete the processing of this application? We also indicated that we have submitted many applications for  Naturalization whereby the applicant has been found not to meet the criteria of the Citizenship Acts and these applications have been determined in periods of time far less than this client.

It was indicated to us in a responding correspondence from the Citizenship Section that should our client issue court proceedings in an attempt to compel the Minister to determine the application, that he would strictly be pursued for costs. This assertion was based on a number of judgments from the High Court from 2009 and 2010 where it was held that because Naturalization is a privilege, an applicant can not compel the Minister to determine the application  (Nawaz versus Minister for Justice, 29^th July 2009, Bepo v versus Minister for Justice 18^th June 2009, Tabi versus Minister for Justice  16^th April 2010 and Jiad versus Minister for Justice 19^th May 2010  ).

Thus, there is nothing an applicant such as our client can do put continue to wait without any understanding regarding why his application is being treated so unfavourably.

It is interesting to compare the UK Naturalization process.

Currently, the granting of a Certificate of Naturalisation is at the discretion of the Home Office. Applicants are required to be aged 18 years or over, of sound mind, intend to continue living in the United Kingdom or to maintain close links with the United Kingdom, be able to communicate in English, Welsh or Scottish Gaelic to an acceptable degree, be of good character, meet certain residential requirements of five years or three years – with conditions attached to each. Applicants are also required

to have sufficient knowledge of life in the United Kingdom (with the exception of those who are over 65 years of age or are suffering from a long term mental condition preventing them from being tested on their knowledge ).

Applicants are entitled to have an acknowledgement receipt of their application within a number of weeks of submitting the application, and Applicants can accept to receive a determination of the application within a six month period. Applicants may also be required to attend an interview.

The Home Office has recently introduced strict new requirements which potential applicants will be required to meet in order to meet the criteria necessary to be approved. Applicants will now be required to have knowledge of British history in order to pass the citizenship test. Prime Minister David Cameron has noted the fact that the current test examines knowledge about the roles and powers of the main institutions of Europe and the benefits system in the United Kingdom. He is hopeful that the new test will be centred on British history and culture. It is thought that the new rule requiring knowledge of British history may prove to be a significantly more difficult obstacle for those who seek to be accepted as citizens of the United Kingdom in the future.

There is no similar requirement for knowledge of Irish history for Naturalisation in Ireland. Applications are decided upon by the Minister for Justice and Equality, who enjoys absolute discretion. Many of the general requirements are similar to the United Kingdom such as the requirement to be aged 18 or older and of good character. Applicant must intend to reside in the state after naturalisation, make a declaration of fidelity to the nation and loyalty to the state, to undertake to observe the laws of the state and respect democratic values. One is also expected to be supporting themselves and their dependents while living in the state when they make their application.

The great difficulty with the Irish Naturalisation process is that it is the complete lack of  transparency. This allows for blatant disregard for fair procedures like the example of the case above.

UNIVERSAL PERIODIC REVIEW

This October saw Ireland examined for the first time by other United Nations (UN) countries on our human rights record. The process is called Universal Periodic Review.  It is a process where the human rights record of the United Nations 192 member states are reviewed and assessed every four years. It is an important part of reminding states of their responsibility to fully respect and implement all human rights and fundamental freedoms. As noted by Ban Ki – moon, UN secretary General, the Universal Periodic Review ‘has great potential to promote and protect human rights in the darkest corners of the world.’ 

Minister Alan Shatter personally attended the United Nations Geneva Head Quarters on the 6^th October 2011 to answer questions on Ireland’s human rights record as Ireland submitted to its first ever ‘Universal Periodic Review’. In his opening address, Minister Shatter made specific references to both the positives and negatives of Ireland’s human rights record. Of particular interest to us was his specific reference to the unacceptable delays in the Naturalization process. He confirmed that he was taking steps to rectify this problem, and aimed in due course to have all applications dealt with within a six month period. He acknowledged criticism for the lack of appeal process to decisions of Naturalization applications, but confirmed that he reviewed all decisions and therefore there was no higher authority to determine appeals.  He cited the new Citizenship ceremonies as a positive step towards welcoming and celebrating newly declared citizens. 

Questions were then put to the Minister from each represented member state focusing on human rights issues of concern in Ireland today including children’s rights, access to abortion and the ABC judgment, prison violence, overcrowding and sanitation and traveller’s rights. The review marked an opportunity for people in Ireland to highlight important human rights issues which face the country, and to encourage Ireland to promise to address these issues in front of an audience of their international peers.

The Minister made some positive statements such as confirming that a Referendum on children’s rights would be held early in 2012 in order to bring Ireland into line with the UN Convention on the Rights of the Child. He acknowledged the urgent need to modernise our mental capacity legislation in order to protect those who are vulnerable in society. He also outlined a commitment to ratify the optional protocol to the Covenant on Economic, Social and Cultural Rights which would allow individuals to complain about alleged violations of these rights at an international level.

However, it has been noted that the Minister was short on detail in response to questions on other issues that are related to human rights protection in Ireland. For instance, the Minister noted the government are preparing legislation to enable it to ratify the Optional Protocol under the UN Convention against Torture. This is an important development and would require the establishment of a national body to monitor places of detention. However, the Minister failed to go into detail on the substance of that legislation or to give any timeline for its implementation. Irish Council for Civil Liberties (ICCL) Director Mark Kelly has commented that while Mr. Shatter appears to be sincere in his intentions, concrete action will be required to meet the promises made by Mr. Shatter at the review.

On the 11^th October, the UN Human Rights Council adopted its ‘Outcome Report’ on Ireland. This contained a summary of what was discussed at the hearing and a list of recommendations for Ireland to improve the human rights situation. This will be formally adopted at a hearing in March 2012, where Ireland, The United Nations Human Rights Council, and NGOs will be able to discuss the report and the obligations which Ireland are required to meet.  Once this report is formally adopted, it will form the basis on which Ireland’s human rights performance will be measured for the coming 4 years.

We believe that the Universal Periodic Review (UPR) is an essential part of improving the human rights situation in all countries and to address human rights violations whenever they occur. It has allowed for civil society to contribute to the examination of Ireland by highlighting the human rights issues of concern which are facing Ireland today and providing evidence of this to the United Nations about how they are affecting people on the ground.

Brophy Solicitors

13.10.11

STAMP 1 A – RECKONABLE OR NOT?

In the recent months, our office has received a substantial number of queries from clients who are ACCA trainee accountants and resident on Stamp 1 A status. The queries relate to whether their status is reckonable for the purposes of acquiring Irish citizenship by birth for their children, pursuant to the terms of the Irish Nationality and Citizenship Act 1956 (as amended by Section 4 of the Irish Nationality and Citizenship Act 2004). They also inquire as to whether their status is reckonable in respect of the Naturalization process, pursuant to of Section 14 of the Irish Nationality and Citizenship Act 1956.

The cases that have come to our attention include contradictory directions from GNIB, the Department of Justice and the Passport Office as to whether the applicant’s Stamp 1 A is reckonable or not. In a number of cases, the clients have received letters from GNIB indicating that their periods of Stamp 1 A are reckonable, while the Passport Office has regarded the same periods as not reckonable in respect of applications for passports for their children. 

Each of these clients who have been refused passport for their children have instructed that they are aware of trainee accountant colleagues on Stamp 1 A status who have been issued passports for their children in similar circumstances. According to one client’s instructions, such a passport was issued on this basis within the recent months. They are understandably very frustrated over such inconsistant policies in respect of elibibility for Irish citizenship by birth.

Stamp 1 A is the designated stamp for trainee accountant. It is described on the INIS website as follows; “This person is permitted to remain in Ireland for the purpose of full time training with a named body until a specified date. Other employment is not allowed.”

An Information leaflet titled “General Information on Irish Citizenship”, as posted on the INIS website, explains the entitlement to citizenship by birth as follows;

“A person born in the island of Ireland after 1 January 2005 is entitled to Irish citizenship only if, during the four year period immediately preceding the person’s birth, one of the parents has been resident* in the island of Ireland for a period of not less than three years and neither parent was entitled to diplomatic immunity in the State”

A note in respect of residency is added as follows;

“certain residence is not reckonable, including unlawful residence, residence granted for the purpose of study and period where there was a provisional permission to reside granted pending determination of an asylum application ”

Further difficulties arise in respect of Stamp 1 A status in the Naturalization process. It is not clear stated in the recent Departmental Guidelines of July 2010 whether a stamp 1 A is reckonable or not for the purposes of Naturalization/ Citizenship by birth. We have noted that the new Citizenship Application Form indicates that stamp 1 A is not reckonable. However, the new reckonable residence calculator on the INIS website indicates stamp 1 A is reckonable in the calculation.

It appears from some letters we have seen from the GNIB that the status of trainee accountants on stamp 1 A is reckonable. While in other letters issued from the GNIB the trainee accounts have been registered on stamp 1 permission, as opposed to stamp 1 A. Thus, their residence on stamp 1 is reckonable residence. Sometimes, it seems that the GNIB have used the stamp 1 and stamp 1 A interchangeably.

We have sought clarification from the Citizenship Section of the Department of Justice, and I have been informed in writing that stamp 1 A is not reckonable. However, when we rang the Citizenship Section in July last to seek clarification on the point and we were informed that stamp 1 A is “definitely” reckonable for the purposes of Naturalization. We asked that this point be confirmed, and we subsequently received a further telephone call to confirm that Stamp 1 A  was reckonable.

We have requested Citizenship Section to provide us with copies of the current and past Ministerial guidelines in respect of reckonable residence for the purposes of Irish Nationality and Citizenship Act 2004. They have not yet been provided to us.

We have today again requested from the Minster provide us with a clear statement as to the current Departmental policy in respect of this issue.

We submit that residency permission under stamp 1 A is designed for trainee accountants, as opposed to students, and therefore evidenced by a variation of the Stamp 1 (worker permission) as opposed to stamp 2 (student permission). Furthermore, the conditions of the ACCA qualification process necessitate that the trainee obtains work experience.We submit that it is certainly arguable that Stamp 1 A should be properly regarded as reckonable. However, most importantly, we would argue that it is unacceptable for such unclear and contradictory policies, directions and decisions to continue between the relevant bodies in respect of a matter as fundamental as the eligibility of Irish citizenship. 

Brophy Solicitors

25.8.11