Pursuant of Section 7 of the Irish Nationality and Citizenship Act 1956, you are automatically entitled as an Irish Citizen to a Passport or to Irish Citizenship if you fall into a certain number of categories, be that you’re the child of an Irish Citizen or that you are the grandchild of a person born on the island of Ireland.
There are certain processes that you may have to go through if one of your grandparents was born on the island of Ireland and one of your parents was not born on the island of Ireland there’s a separate process known as the Foreign Births Register but other than that the other way to get Irish Citizenship is generally through the Naturalization Process which is normally based on residency but the minister can make exemptions based on Irish associations.
A solicitor isn’t required to advise in relation to any particular application. It is very much up to the individual applicants to decide whether or not they use a solicitor or seek legal advice.
Here at KOD Lyons, we see a whole host of people who come in to seek advice; some people have very basic queries that they want answered, and there are other cases which are extremely complicated.
You’ll see from the form itself a signature doesn’t have to necessarily be witnessed by a solicitor. There’s a whole host of people who can witness the signature.
Our strongest advice though is that if you are seeking professional advice that you actually seek out a professional advisor who’s either duly regulated by the Law Society or is in an NGO that has significant experience and expertise in the area because when an application goes wrong it can go very wrong.
Section 15C of the Irish Nationality and Citizenship Act 1956 makes it very clear that in the year prior to your application you have to be continuously resident.
A decision of the Superior Court in a case called Roderick Jones is clarified that the minister can have a policy to allow reasonable absences from the state and we know that the current policy says you are entitled to a six-week absence from the state but that they will in exceptional circumstances consider an extension of that six weeks policy in exceptional circumstances.
Those exceptional circumstances have never really been tested before the courts and the veracity of the six-week policy also hasn’t really been tested before the courts and circumstances where people have to work for example or travel for business, but what we would say again is to try and err on the side of caution and try and keep your absences under six weeks in the year prior to applying.
There is no express guidance in the Irish Nationality and Citizenship Act 1956 about absences from the state after the lodgement of the Naturalization application.
They’re very clear in the guidelines before the application is lodged, which is continuous residence. KOD Lyons Solicitors advise that you have to be continuously resident in the jurisdiction so that you’re in compliance with your conditions and any exceptional absences from the state really should be notified to the minister during the currency of your application.
The view of KOD Lyons Solicitors, and certainly, many Practitioners is that if you have a fixed penalty notice or you’ve you’ve received a fixed penalty notice and a fine that it is worth disclosing those issues to the minister either in the cover letter or in the actual application itself because arguably it does go towards good character however it would be highly unlikely that the minister will use that against you.
You are not necessarily prohibited from applying if you have any form of a criminal conviction. It really will be a case-by-case assessment by your legal practitioner or by your advisor or by the minister themselves in determining how that’s disclosed and how it’s dealt with.
What is most important is that you fully disclose those criminal convictions and that we would advise doing a Subject Access Request to ensure that you have given the minister the full picture and that you’ve provided as full of an explanation as possible to show why you are still of good character notwithstanding the criminal conviction itself.
Like in most applications for naturalisation, the minister has a very broad discretion to decide who can and cannot qualify for citizenship.
It’s considered a gift and not a right, but similarly they have the same approach when it comes to what permissions that you have or what permissions you possess.
As a general rule Stamps 1, 1G, 3, 4 and 5 are considered reckonable, whereas Stamps 0, 2 and 2A are generally not considered reckonable. However with Stamp 0, our office is aware of a number of cases where people have been able to get naturalisation and that Stamp 0 has been considered reckonable but it very much is on a case-by-case basis and we would suggest if you’re in that category to seek professional advice before making that application.
Stamp 1G is considered reckonable and the advice is that even though it doesn’t appear on The Reckonable Residency Calculator at the moment that there are steps being taken by the department to make sure that it’s added in, but until such time as it is added in you should insert Stamp 1 into the Reckonable Residency Calculator and highlight the issue in the cover letter.
Under the Irish Nationality and Citizenship Act there are a number of niche categories where the reckonable residency can be reduced from five years, which is the usual, to three years. One of those examples is someone who has been declared a refugee. One of the issues that arises is whether you can claim Refugee status after you’ve been declared or is it back dated to the date that you applied. Under the Geneva Convention it’s backdated to the date of application and we would be advising anyone who is a refugee to use that as your starting point for calculating the three years recordable residence.
The Minister’s discretion is extremely broad while the 150 Point requirement is a new requirement and we haven’t seen many decisions by the Minister on how strictly it’s going to be interpreted.
When you read the form it specifically notes that there are exceptions and there are discretions that a minister can apply. We would recommend that any available evidence that you have relating to your identity or proof of address, if you cannot reach the 150 points, should be included together with an affidavit speaking about your residence and your your reckonable residence in the jurisdiction.
At present, the Minister is suggesting that most applications are taking up to 23 months to process. Our legal advice certainly at present would be that any delay over 23 months needs to be looked at and actioned immediately.
Our advice to clients is that if your delay is 24 months and it’s been a standard application that you would write a warning letter to the Minister threatening to take legal action compelling them to issue a decision and in parallel to doing that also writing for a Subject Access Request so that you can have a look at the file and see exactly what work has been done on the file to date.