Eligibility for citizenship of Ireland: what is “reckonable residency”?

In order to have their applications for citizenship of Ireland by “naturalisation”, considered, immigrants are required to have resided in the state with the required immigration permissions for a given period (per Part III of the Irish Nationality and Citizenship Act 1956 (as amended)). That period is described as the period of “reckonable residency” (footnote*).

In the case of infants born in the state, if one of their parents has been a legal resident for three years before their birth, they are not required to apply for naturalisation as such, because they are entitled to become citizens of Ireland under section 6A of the Act. However, the question of “reckonable residency” arises when the parent’s residency is being calculated; that was the issue around which this case revolved: Sulaimon v Minister for Justice Equality & Law Reform [2012] IESC 63.

The Irish Naturalisation and Immigration Service (INIS) has always maintained that reckonable residency commences when residents who have been granted permission by the Minister for Justice (by means of a letter from the INIS) take that letter to the Garda National Immigration Bureau (the GNIB) to have their passports stamped and to be issued with a “Certificate of Registration” (the credit-card sized “GNIB card”, showing the nature of the residency permission granted etc). Indeed, the INIS provides an online “naturalisation residency calculator” by means of which applicants can calculate their reckonable residency by referring to the stamps in their passports. In most cases, this will continue to be a practical and useful tool. However, the decision in Sulaimon makes it quite clear that the reckonable period(s) are those during which the applicant had the Minister’s permission to reside in the state – whether registration with the GNIB had been effected or not.

In this case, the parent had acquired his GNIB stamp in his passport 1092 days before the birth of his son; this left him three days short of the 1095 days required to entitle his son to Irish citizenship. However, he had received a letter granting him permission to reside in Ireland 15 days before registering with the GNIB. He argued that these days should also be considered reckonable. The High Court and, in December 2012, the Supreme Court, agreed with him.

If you wish to apply for naturalisation, or if you are not sure whether you have been legally resident in the state for the “three years” required to entitle your Irish born child to Irish citizenship, this information may be important. It means that, if your calculations using the residency calculator (based on the stamps in your passport) leave you short of the required days, but you actually had a permission (usually in the form of a letter from the INIS) to reside for the required time, then the online residency calculator will NOT accurately reflect the full extent of your reckonable residency.

It is important to note that registration with the GNIB remains a legal obligation under section 9 of the Immigration Act, 2004. It is an offence not to register and to fail to obtain a Certificate of Registration. Indeed, immigrants are required to inform the immigration officer of any change of address after they have registered.

The Supreme Court published two written judgements in the case, and (if you are that way inclined!) they make for interesting reading. Mr. Justice Hardiman, in particular, published a scathing and colourful judgement. On a personal note, the judgement contains some of my favourite judicial quotes of 2012. You can read the whole judgement on courts.ie here, or just the parts I couldn’t resist quoting:

The infant respondent’s application for a certificate of Irish nationality, and for an Irish passport, were refused on grounds so threadbare that I regard the administrative decision which the appellant upholds in these proceedings as not merely being wrong, but as flying in the face of the ordinary meaning of words and numbers, especially dates. [para 4]

…It is dispiriting to see State litigation conducted in this way, at public expense. It must also have subjected the family of the infant respondent to prolonged anxiety and to no little expense. [para 5]

[The infant] was born in the Rotunda Hospital, Dublin on the 24^th August, 2008. He is therefore now almost four years and four months old. He lives with his father in Tyrrelstown, Dublin 15. The boy’s father is a naturalised Irish citizen. He has an older sister (born 31^st July, 2002 in Ireland and now ten years old). She is an Irish citizen because she was born in 2002, before Irish law changed dramatically in 2004. The infant respondent has lived in Ireland all his life. [para 7]

This case is about whether the infant respondent is entitled to a certificate of Irish nationality from the Minister. If he is, then he can also obtain an Irish passport and be treated for all purposes as an Irish citizen, like his father and sister. …his entitlement depends on whether a parent (his father in this instance) was lawfully resident in Ireland for a total of three of the four years immediately preceding the boy’s birth. “Lawfully resident” means resident here with the permission of the Minister for Justice. There is no doubt that the father was resident here for well in excess of the required period; the sole issue in this case is whether he was “lawfully” resident, that is, resident with the permission of the Minister for three years of the four years immediately preceding Sunday 24^th August 2008. The father says he was continuously and lawfully resident at least since 7^th July 2005. The Minister says he was lawfully resident only since 22^ndJuly 2005. This is the nub of the case. [para 8]

The dispute regarding dates arose because the applicant maintained that the Minister’s letter granting him permission to reside made him legally resident, while the Department of Justice maintained that legal residency commenced when the applicant registered with the GNIB and obtained a stamp in his passport.

This whole case depends on the answer to the question, did the Minister grant permission to remain in the State to the father on the 7^th July 2005 [the date of the letter], or did the permission (as the appellant claims) only come into being on the 22^nd July 2005 [the date of registration with GNIB]? If the appellant is correct, the father will be three days short of the three years of legal residence required – 1092 days instead of 1095. The appellant says that the three missing days enable him to refuse the child a certificate of citizenship and therefore enable the Department of Foreign Affairs to refuse him an Irish passport. The Minister and the D.F.A. have done both of these things, on that basis. The infant respondent has challenged both decisions and succeeded in the High Court (Ryan J.). This is the Minister’s appeal. [para 17]

I consider that the decision to refuse this child a certificate of nationality and an Irish passport is not merely wrong but wrong-headed. It was justified by a bewildering display of unembarrassed casuistry. I use that term in its original sense of a process for resolving difficult individual cases by the inflexible application of what are alleged to be general rules, often involving a quibbling or evasive way of dealing with real difficulties. [para 18]

I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers’ money which has been spent, it entirely eludes me. [para 22]

Notwithstanding the appellant’s arguments, I reiterate that the phrase “permission to remain in the State for two years until 07/07/2007” [written in the Minister’s letter] means a permission to remain from the 7^th July 2005 [the date of the letter] to the 7^th July 2007. No rational person would maintain the contrary in any forum but a court of law. It is important for this court to assert that words in a statute, or in a bureaucratic decision, will be interpreted in their ordinary and natural meaning unless there is coercive reason to the contrary. [ para 71, my emphasis] 

Thus the court thoroughly rejected the State’s argument that the permission granted by the Minister did not confer legal residency until such time as GNIB registration had been effected. The State, having “at last admitted that the Minister had power to grant permission to remain in the State” went on to claim that “he consistently decided not to exercise it” – essentially that that power had been delegated to the GNIB. Of this argument Mr Justice Hardiman stated:

 …this argument would involve anyone who accepts it in a total departure from reality. The Minister has never said that he acted in this way. His letter says that he “decided to grant [the infant respondent’s father] permission to remain” in the country. This is utterly inconsistent with his not having the power to grant such permission, and equally inconsistent with a decision to refrain from exercising the power. But in my view this argument in any case fails in limine because there is a total absence of any factual matrix to permit it to be advanced. It amounts to an argument that a hypothetical Minister might perhaps, in a hypothetical universe, have understood his powers in this way and acted accordingly. There is in my opinion no standing to advance such an argument unless it is grounded in evidence in some way - grounded, that is, in the facts of this case, not presented as a mere hypothesis or abstract proposition. [para 78]

Certain areas of the law – those relating to the imposition or the avoidance of taxation and to aspects of Road Traffic Law in particular – have acquired an unenviable reputation for over subtle arguments which sometimes depend on a willingness to prescind from reality. Official spokesmen not infrequently disparage such Byzantine technicalities. But this case, in my view, shows that the State itself may be all too willing to resort to an argument as Byzantine as any I have heard. [para 79]

*In most cases, one is required to have resided with permission for five out of the previous nine years in order to be eligible to apply (Section 15 1956 as amended). Periods spent applying for asylum etc are not reckonable, unless one is recognised as a refugee, in which case the reckonable period is three years from the date of arrival in the state. Permissions granted to international students (Stamp 2) are not reckonable. However, if you have been a Stamp 2 holder and your family resides in the state, you may well be eligible to apply. Once it has been ascertained that one is eligible to apply for naturalisation, the Minister has “absolute discretion” to decide whether to grant naturalisation.