A new policy which is disqualifying people from Irish citizenship even if they have been resident in Ireland for much of their lives is unlawful and possibly unconstitutional, lawyers have said.
The “six-week rule” – the maximum amount of time a person may spend outside the country in the year prior to a citizenship application – has been increasingly identified as the reason for refusal of citizenship applications in recent months, legal sources say.
It was introduced by the Department of Justice about two months after the UK voted to leave the European Union in June 2016.
A High Court challenge to the policy is believed to be likely.
While the exact number of those who have been refused citizenship as a result of the policy is unclear, specialist immigration lawyers say they have noticed an increase in such decisions in the last three to six months, following a deliberative process on applications that can take up to a year. More refusals based on the six-week rule are anticipated.
"I think it is utterly unconstitutional," said Carol Sinnott, principal at Sinnott Solicitors in Dublin, one of the firms with experience of the issue.
“There is absolutely no legislative basis for the Department to do this. It’s just something they have decided to do. I think it’s unconstitutional and it affects your right to earn a livelihood.”
Ms Sinnott said her firm has noticed an increase in rejections in recent months and said it has been a particular problem for those whose jobs require them to travel.
Letter
In the past, she says, such cases could be addressed with an accompanying letter from an employer.
Berkeley Solicitors, another specialist in immigration law in Dublin, on its website said: "We submit that this policy is unlawful and has no basis in the legislation governing naturalisation and citizenship."
It added: “We would submit that the refusal of an application for naturalisation due to a period of absence of over six weeks a year as part of a holiday during reckonable [qualifying] residence is unlawful . . . an exercise of authority that the Minister of Justice and Equality does not have.”
The only time that can be subtracted from calculating residency periods, the firm argues, citing legislation, is that spent on a student visa or while seeking asylum. It also believes those applying for naturalisation should have been made aware of this seemingly new policy.
"We have been working for years and years on these naturalisation cases," solicitor Karen Berkeley told The Irish Times. "These decisions have only popped up in the last few months; I would say a maximum of six months ago."
There are also concerns that the policy may have implications for the tech sector in particular, where many foreign nationals are employed and travel regularly for work. A person with knowledge of the tech sector who didn’t wish to be named said: “This also happens for many people working for Google, Facebook and other tech companies (mostly non-EU people).”
Ms Sinnott said there are all sorts of reasons why someone would have to leave the country for six weeks. “So one would have to ask if that six-weeks \[policy\] is a bit draconian,” she said.
Legal challenge
The rule’s potential unconstitutionality can only be established by a declaration from the High Court which would require a legal challenge.
Ms Sinnott believes the rule could infringe on freedom of movement rights for EU citizens, should they be required to remain in Ireland while in the midst of the application process.
The Department of Justice said it would not comment on legal opinion.
Irish citizenship applications are made under the Nationality and Citizenship Act 1956, the conditions of which include that an applicant must have one year’s continuous residency immediately before the date of application and, during the eight years before that, a total residence period of four years.
In August, 2016, the Department decided to apply “a reasonable and generous period of up to six weeks...for absences from the State for normal holidays and other short-term and temporary nature absences, such as for a business meeting, family bereavement or a medical emergency while abroad” when calculating residency terms. Applications are decided on individual merits, it said.
