Jones v Minister for Justice and Equality [2019] IECA 285 (14 November 2019)

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JUDGMENT of Ms. Justice Máire Whelan delivered on the 14th day of November 2019

1. The Irish Nationality and Citizenship Acts, 1956-2004 comprise the Irish Nationality and

Citizenship Act, 1956, the Irish Nationality and Citizenship Act, 1986, the Irish Nationality

and Citizenship Act, 1994, the Irish Nationality and Citizenship Act, 2001 and the Irish

Nationality and Citizenship Act, 2004. They have been amended in turn by the Adoption

Act, 2010 and the Civil Law (Miscellaneous Provisions) Act, 2011. They are referred to

2. This appeal is primarily concerned with the construction of one of the statutory

prerequisites to be established before an applicant is eligible to be considered for

naturalisation pursuant to the Citizenship Acts, namely the first part of the condition

specified in section 15(1)(c) of the Irish Nationality and Citizenship Act, 1956 (as

amended)(“the 1956 Act”) which requires an applicant to satisfy the Minister that he has

“had a period of one years’ continuous residence in the State immediately before the date

3. The appellant is an Australian citizen. He has resided in the State since October 2011.

He has no children and is not married. He has been in full time employment in the State

4. On the 31st August, 2017 he applied to the Minister for a Certificate of Naturalisation

pursuant to the Citizenship Acts. Question 5.6 in the naturalisation application form

enquires whether an applicant has been absent from the State for more than six weeks

per annum in any of the past five years. The applicant is required to provide details of all

5. On the 25th of November, 2017 the Minister wrote to the appellant requesting details of

his departure dates from the State in the months of December 2014 and December 2015.

Thereafter, the appellant was refused naturalisation by a decision notified to him in

February 2018. Judicial review proceedings were issued in respect of that decision and

same were compromised. Rather than submitting a fresh application, by letter dated the

28th September, 2018 the appellant elected to submit further documentation and to

6. Since the appellant’s application was dated the 31st August, 2017, the relevant dates to

meet the condition of “one years’ continuous residence” specified in s.15(1)(c) of the Act

ran from the 1st September, 2016 to the 31st August, 2017. Absences from the State

during the relevant year were stated by the appellant to be as follows: -

(i) 30th August, 2016 to the 5th September, 2016 in Albuferia, Portugal (with ex-

(ii) 4th September, 2016 to 6th November, 2016 in Glasgow, Scotland (to see ex-

(iii) 16th February, 2017 to 18th February, 2017 in Aberdeen, Scotland (to see ex-

(v) 29th May, 2017 to 20th June, 2017 in Hobart, Australia (three days to visit

(vi) 18th August, 2017 to the 20th August, 2017 – Bruges, Belgium (holidays with

(vii) 23rd August, 2017 to 23rd August, 2017 – Loughborough, United Kingdom

(viii) 30th August, 2017 to 30th August, 2017 – Loughborough, United Kingdom

7. There was some dispute between the parties as to how certain dates ought to be

calculated including the days of travel abroad and return into the State. On the

appellant’s assessment, his absences abroad during the relevant year for the purposes of

s.15(1)(c) were about ninety days. The respondent contends that for approximately one

hundred days the appellant was absent from the State with only approximately three of

those days related to work. Whichever approach to calculation is adopted, it appears that

over ninety percent of the appellant’s absences from the State in the relevant year were

8. By decision dated the 11th October, 2018 the Minister gave notice deeming ineligible the

appellant’s application on the basis that he did not have one years’ continuous residence

in the State immediately preceding the date of his application as required by the first part

“While the Act clearly stipulates the statutory periods of residence required in the

State and that the final year be continuous residence, it has long been recognised

that many people may travel abroad for a holiday or may have some unexpected or

unavoidable reason to travel abroad. In this regard it is considered that a

reasonable and generous period of up to 6 weeks be allowed to provide for

absences from the State for normal holidays and other short term and temporary

nature absences, such as for business meetings or a family wedding or

bereavement or medical emergency while abroad, and that such short-term nature

absence from the State would not impact on the statutory residence requirement.

The Minister may allow some further discretion where there are wholly exceptional

In the notes attached to the application form it is made clear to applicants that

arrangements for assessment of residence are on the basis that the person is

physically resident in the State for the required period of time and that where there

are significant absences from the State the application may be refused.

When this policy has been applied to your [application] it has been determined that

you did not meet the above criteria at the date of application. The documentation

submitted with the application, coupled with our own internal enquiries have

disclosed that while you have five [years’] residence in the State, you did not have

one years’ continuous reckonable residence immediately preceding the date of your

application when the absences from the State have been deducted. It has been

calculated that you have in excess of 6 weeks’ absence from the State in the last

year continuous. These absences, you have stated, were for holidays, therefore

your application for naturalisation has been deemed ineligible. A document

showing our calculations in this regard is attached for your information.”

10. On the 12th November, 2018 the appellant was granted leave to apply for judicial review

in respect of the Minister’s decision. He sought an order of certiorari quashing the decision

of the Minister which had deemed ineligible the appellant’s application for a Certificate of

Naturalisation pursuant to the 1956 Act as notified by letter of the 11th October, 2018

The grounds upon which the said relief were sought were as follows: -

(1) The Minister erred in law by applying the requirements in s.15(1)(c) of the 1956

Act that an applicant for a Certificate of Naturalisation have “one year’s continuous

residence in the State immediately before the date of his application” in an overly

literal manner and by failing to make any reasonable allowance for temporary

absences from the State for valid reasons such as reasonable holidays.

(2) The Minister erred in law by having a policy that the s.15(1)(c) requirement of “one

year’s continuous residence in the State immediately before the date of his

application” cannot be satisfied where the applicant is absent from the State for

over six weeks during the relevant year, absent wholly exceptional circumstances

and by failing to approach the consideration of this requirement as a question of

(3) The Minister’s finding that, due to absences from the State, the appellant has not

had a period of one year’s continuous residence in the State immediately before the

date of his application is materially wrong in fact and irrational in the legal sense.

11. The Minister opposed the application, contending that the appellant was absent from the

State for approximately fourteen weeks during the relevant period and argued that on no

interpretation of s.15(1)(c) could he be said to have had “a period of one year’s

continuous residence in the State immediately before the date of his application”.

12. The High Court judgment was delivered on the 11th July, 2019. Based on an

interpretation not argued for at trial, the issue was characterised by the judge at para. 2

“In the impugned decision-letter of the 11.10.2018, the Minister concludes by

reference to the aforementioned ‘continuous residence’ requirement that Mr Jones

is ineligible to be considered for naturalisation by virtue of s.15(1). This is because

Mr Jones was absent for a period of in excess of what might be described as the

‘discretionary absence period of 6 weeks + possibly more in exceptional or

unavoidable circumstances’ that the Minister has hitherto been prepared to tolerate

when deciding whether a person ‘has had a period of one year’s continuous

residence’ for the purposes of s.15(1)(c) (and which he brought to bear in the case

“…the Minister, when assessing whether the applicant ‘has had a period of one

year’s continuous residence’, is not acting in the realm of discretion. Either an

applicant ‘has had a period of one year’s continuous residence’ or he has not.

Although the Minister has manifested very real humanity in (i) trying to nuance the

clear wording and effect of s.15(1)(c), by (ii) applying a ‘discretionary absence

period…’ so as (iii) to allow for the realities of modern life in which multiple

work/holiday absences may be possible in any one year unfortunately (iv) the

Minister has gone beyond what is legally permissible in this regard because (v) the

Act of 1956 does not confer any discretionary power on the Minister in this regard;

an applicant either ‘has had a period of one year’s continuous residence’ or he has

not; there is no basis in the just-quoted wording for introducing a ‘discretionary

absence period of 6 weeks + possibly more in exceptional or unavoidable

14. The High Court judge considered a dictionary definition of the word “continuous” in

s.15(1)(c) finding that it suggested “unbroken, uninterrupted, connected throughout in

“Whatever the intention of the Oireachtas may have been, the court does not see

that a literal reading of the word ‘continuous’ yields an absurdity that requires the

15. Considering the approach adopted by the Minister the High Court judge observed: -

“…the Court says – (i) there is no basis in s.15(1)(c) for the application of such

discretion, (ii) the word ‘continuous’ in s.15(1)(c) bears its ordinary English

meaning, (iii) no matter how one comes at Mr Jones’ residence history for the

period 01.09.2016 to the 31.08.2017, one cannot say that a one-year period of

residence that is punctuated by 97 days of holiday absences and three days of work

absences is ‘unbroken, uninterrupted, connected throughout in space or time’, (iv)

the court does not see that a literal reading of s.15(1)(c) yields an absurdity that

requires a court to move on to an alternative reading of same, with (v) the result of

(i)-(iv) being that Mr Jones is ineligible to be granted a certificate of naturalisation

16. The trial judge considered the grounds on which certiorari had been sought by the

“Rather than being ‘overly literal’ the Minister has, with respect, been excessively

generous in his approach to s.15(1)(c), bringing an approach to bear that is

inconsistent with a (proper) literal reading of that provision; the Minister, in his

application of the ‘discretionary absence period of 6 weeks + possibly more in

exceptional or unavoidable circumstances’, has sought to exercise a discretion that

he does not possess under s.15(1)(c). The absence of such discretion combined

with the dictionary definition of ‘continuous’ has a result that it is not open to the

Minister to make allowance for the referenced ‘temporary absences’.”

He considered that the Minister has sought to exercise a discretion he did not possess

17. Regarding the appellant’s contention in ground (iii) that the Minister’s finding that due to

absences from the State the appellant had not had a period of one year’s continuous

residence before the date of his application was materially wrong and irrational the trial

“The Minister’s ‘finding’ is neither materially wrong nor irrational. However, his

means of getting to that ‘finding’ rests on legal error. The Minister, it will be

recalled, arrives at his conclusion because Mr Jones has gone beyond the

‘discretionary absence period of 6 weeks + possibly more in exceptional or

unavoidable circumstances’ that the Minister has hitherto applied in the context of

“… No matter how one comes at Mr Jones’ residence history for the period

01.09.2017-31.08.2017, one cannot say that a one-year period of residence that it

punctuated by 97 days of holiday absences and three days of work absences is

‘unbroken, uninterrupted, connected throughout in space or time.’”

“The court does not see that a literal reading of s.15(1)(c) yields an absurdity that

requires the court to move on to an alternative reading of same.”

“…in the impugned decision-letter has come to the right conclusion by the wrong

route there is no point in the court exercising its discretion to grant any of the

(1) That the High Court judge erred in law in his interpretation of the term “continuous

residence” in s.15(1)(c), mistakenly considering that continuity of residence in the

State is affected by any type, or duration of absence from the State – finding in

effect that “continuous residence” requires presence in the State uninterrupted by

even a single night’s absence in circumstances where such an interpretation had

(2) The High Court judge erred in law in failing to hold that the Minister’s policy that

the s.15(1)(c) requirement of one year’s continuous residence in the State

immediately before the date of an application could not be satisfied where the

applicant is absent from the State for over six weeks during the relevant year,

(3) The High Court judge erred in law in failing to hold that the Minister had erred in

treating the issue of continuous residence as a matter of discretion rather than as a

The appellant seeks an order setting aside the judgment and order and seeks an order of

certiorari quashing the decision of the Minister which deemed ineligible the appellant’s

application for a Certificate of Naturalisation notified by the letter of the 11th October,

2018. An order is sought remitting the matter back to the Minister to be determined in

accordance with law. The Minister opposes the appeal in part only. Ground one is not

opposed insofar as the Minister contends that the High Court judge erred in law in his

interpretation of the term “continuous residence” in s.15(1)(c) of the 1956 Act.

20. The Minister agrees that the High Court judge’s interpretation of s.15(1)(c) was not one

advanced or advocated for by either party at the hearing. However, the Minister

contends that the High Court judge was correct to find that the Minister’s policy and his

interpretation of s.15(1)(c) was not unlawful on the grounds advanced by the appellant or

on any grounds. Whilst the High Court judge did not find that the Minister’s policy and

interpretation of s.15(1)(c) was unlawful on the basis contended for by the appellant, the

High Court had found that the Minister’s policy and interpretation was unlawful by virtue

of what the respondent contended was an erroneous interpretation applied to the term

“continuous residence” by the High Court judge. Finally, the Minister contends that the

High Court judge was correct to determine that the consideration of the term “continuous

21. The appellant contended that the High Court erred in law in its interpretation of the term

“continuous residence” in s.15(1)(c) of the 1956 Act. It was argued that the finding of

the High Court judge that to achieve statutory “continuous residence” required presence

in the State uninterrupted by even a single night’s absence for three hundred and sixty-

five days of the year immediately prior to the application was a construction not

advocated for by either party at the hearing before the High Court. It was posited that

rather than mechanically calculating days of absence the Minister ought to have evaluated

whether the appellant was continuously resident in the State for the previous year in the

sense of continuously having his home in Ireland and not residing elsewhere. It was

posited that the correct approach would have been for the Minister to ask whether the

appellant was resident in the State (as opposed to elsewhere) throughout the relevant

22. The appellant in submissions placed reliance on the decision The State (Goertz) v. The

Minister for Justice [1948] I.R. 45 which had considered the words “ordinarily resident” in

23. The appellant argued that the High Court judge correctly had regard to the dictionary

definition of “continuous” at para. 3 of his judgment: “However, he erred in not focusing

on the word ‘residence’”. It was contended that “…the effect of the judgment is to

interpret the word “residence” as meaning ‘presence’”. It was contended that the High

Court judge erred in law in failing to examine the 1956 Act in order to construe the word

“residence” appropriately. It was argued that when such an examination is undertaken it

becomes apparent that the word “residence” must be taken to mean lawfully living in a

particular place with the intention of having one’s settled home there: “Interpreted as

such, being absent from the State for holidays or work reasons does not break continuity

of residence which will be broken only by the applicant taking up another residence

elsewhere – something not done by having a holiday… or travelling abroad for work

24. It was posited that absence from the State per se could not preclude an applicant from

having “continuous residence” on the literal meaning of those words. Absence from the

State would break continuity of residence only if the appellant were to move his settled

home from the State to another country it was postulated. Further, an exclusively literal

approach to the term “continuous residence” is not permitted by the statute. The High

Court’s determination that the literal meaning of “continuous residence” in the sub-

section meant that a single night spent outside the State broke continuity of residence

was absurd and failed to reflect the plain intention of the Oireachtas. It was argued that

reading the words “continuous residence” in s.15(1)(c) as meaning a period of

uninterrupted presence in the State gave rise to an absurdity. Rather, the sub-section

should be interpreted to require that the appellant had been genuinely living in the State

for at least the past year and had his home here and not have taken up residence

elsewhere. It was further contended that if an applicant cannot be said to be resident in

any other country the requirement of “continuous residence” would very likely be

25. The appellant argued that the Minister had fettered his discretion in applying an extra-

statutory test outside the confines of the 1956 Act to his construction of the “one year’s

26. The Minister argued that the High Court had erred in its interpretation of the term “one

year’s continuous residence” in s.15(1)(c) of the 1956 Act. The State’s submissions

traced the history of the sub-section noting that the Irish Nationality and Citizenship Act,

2001 which commenced on the 30th November, 2002 had inserted a new section 16A into

the 1956 Act. The latter provision was in turn amended by s.11 of the Irish Nationality

and Citizenship Act, 2004. Whilst the appellant and the Minister differed as to the correct

interpretation of “continuous residence”, both agreed that the interpretation as found by

the High Court was not the product of submissions by either of them.

27. The Minister disagreed with the construction of the High Court judge insofar as he

determined that a person seeking naturalisation cannot be absent from the State for even

one day in the year immediately prior to application or that to do so would breach the

statutory requirement in s.15(1)(c). It was contended that such a construction gave rise

to a clear absurdity. This was exemplified in a scenario where an applicant who made a

round trip to Belfast returning the same day would forfeited any continuity of residence in

the State for the purposes of s.15(1)(c) on the basis of such an interpretation.

28. It was accepted that the High Court appeared to have considered the general proposition

that the words “continuous” and “residence” combine to create a statutory term. The

High Court judge nonetheless continued to assert a narrow and strict dominant emphasis

on the word “continuous”. It was argued that in so doing, the High Court noted that a

person could retain one’s residence in Ireland despite travelling abroad before proceeding

to find that such a person’s residence would not be continuous.

29. It was contended on behalf of the Minister that the term “continuous residence” can and

ought to be interpreted literally – but reading both words harmoniously. The High Court

judge had erred in placing too great an emphasis on the word “continuous” without

affording sufficient regard to the word “residence” in interpreting the totality of the term

30. With regard to the correct approach to the term’s interpretation it was contended that a

literal interpretation was supported by the fact that the Act does not prescribe any

31. The Minister strenuously contested the proposition that a finding by the Minister that the

appellant was not continuously resident in this jurisdiction was tantamount to a

determination that the appellant was resident in another jurisdiction.

32. John Stanley in his text “Immigration and Citizenship Law” (Thomson Reuters, 2017)

“Naturalisation as an Irish citizen is a privilege, not a right. The Irish Nationality

and Citizenship Acts, 1956 to 2004, as amended (the “Citizenship Acts”) give the

Minister for Justice and Equality an ‘absolute discretion’ to naturalise a person as an

Irish Citizen by granting the person a certificate of naturalisation. To be eligible for

naturalisation, a person usually must satisfy certain ‘conditions of naturalisation’,

with more lenient conditions applying where the applicant applies as the spouse or

33. As was stated by O’Donnell J. in the Supreme Court in A.P. v. The Minister for Justice

“Under s.15 of the Irish Nationality and Citizenship Act, 1956 (as amended) (‘the

1956 Act’), the Minister for Justice and Equality (‘the Minister’) may, in his or her

absolute discretion, grant a certificate of naturalisation to a person if satisfied that

the applicant complies with certain statutory conditions, any of which may be

waived by the Minister in circumstances themselves set out in the Statute. The

satisfaction of the statutory condition (or satisfaction subject to waiver of some or

all of the conditions) does not give rise to an obligation on the Minister to grant any

application. Rather, satisfaction of the conditions or permitted waiver allows the

Minister to exercise the absolute discretion conferred by statute as to whether or

“The origin of the procedure, and the extremely broad discretion conferred upon

the Minister, lies in some fundamental conceptions of sovereignty. It is a basic

attribute of an independent nation that it determines the persons entitled to its

citizenship. A decision in relation to the conferral of citizenship not only confers the

entire range of constitutional rights upon such a person, but it also imposes

obligations on the State, both internally in relation to the citizen, and externally in

“There are obvious differences between citizens and non-citizens in relation to the

question of acquisition of the status of citizenship, so there is no necessary

inequality in treating citizens and non-citizens differently in relation to the

acquisition of citizenship. The procedures under the 1956 Act are a clear example

of this, since, by definition, they apply only to non-citizens seeking naturalisation.

That decision relates to status and does not, at least directly, engage other rights.”

I respectfully agree with this analysis of the ambit and operation of s.15.

36. In a paper entitled “Super Citizens: Defining the ‘Good Character’ requirement for

Citizenship Acquisition by Naturalisation”, Hibernian Law Journal 2018, 17(1), 73-90,

Bashir Otukoya considers the criteria to be satisfied by an applicant for naturalisation

identified in s.15(1). Citing data from Eurostat, the statistical office of the European

Union, and the Migrant Integration Policy Index (MIPEX), he observes that: -

“Criticisms of these conditions are rare, considering that Ireland is renowned for its

easy and open naturalisation system; naturalising more immigrants than any other

European country in 2015, and currently one of the top naturalising countries in the

EU. Ireland's naturalisation system could be seen as easy or open because, unlike

most of its European Union counterparts, the applicant is not required to have any

knowledge about the State's history or customs, nor is the applicant required to

understand or speak either of the official languages of the State, and the applicant's

understanding of the civic structures of the State has no bearing on the granting of

37. Whilst mindful of course that the granting of naturalisation is a function vested exclusively

by the legislature in the Minster as an exercise by the State of its sovereignty and that

the Oireachtas has delegated the powers governing acquisition of citizenship by

naturalisation to the Minister, nevertheless, the relevant statutory provision is to be

interpreted in light of the overall statutory framework having due regard to the ordinary

principles governing interpretation. Whereas the granting of the certificate is an exercise

by the State of its sovereignty, the ascertainment of the actual legislative intent is to be

found in the text of the sub-section itself which must be resorted to in the first instance.

38. It is noteworthy that s.15(1) specifies five distinct conditions, all of which must be

satisfied by the applicant before an application will be found to be valid and eligible, to be

considered by the Minister at which point an exercise ministerial discretion as described in

the sub-section comes into play as to whether or not to exercise the statutory discretion

39. The third condition, s.15(1)(c), encompasses two distinct elements and provides as

follows: “(c) has had a period of one year’s continuous residence in the State immediately

before the date of the application and, during the eight years immediately preceding that

date, has had a total residence in the State amounting to four years;” Hence, compliance

with the residency condition encompasses two separate and distinct elements, the latter

portion is temporally concerned with the second to ninth year preceding the date of the

application but the first part of sub-section (c) is concerned solely with the year

immediately before the date of the application. It is the first part of s.15(1)(c) alone that

40. The term “continuous residence” must be accorded its ordinary and natural meaning. If

the said meaning is plain, then effect should be given to it. The principles of statutory

construction were reiterated in Howard v. Commissioners of Public Works [1994] 1 I.R.

“The cardinal rule for the construction of Acts of Parliament is that they should be

construed according to the intention expressed in the Acts themselves. If the words

of the statute are themselves precise and unambiguous, then no more can be

necessary than to expound those words in their ordinary and natural sense. The

words themselves alone do in such a case best declare the intention of the

41. In Harrisrange Limited v. Michael Duncan [2003] 4 IR 1 McKechnie J. observed at para.

“Where however an application of this literal approach leads to an "absurdity" then

recourse may be had to an alternative approach, such as the one previously

articulated as the golden or mischief rule but more modernly being referred to as

the schematic or teleological approach. This permits the Court to attribute to the

words a secondary or modified meaning which they are capable of bearing.”

42. As observed by Dodd in “Statutory Interpretation in Ireland” (Tottel Publishing, 2008) at

7.16: “It is presumed that the legislature does not intend enactments to create absurd

This gave rise to the rule against absurdity of which the author states: -

“The rule can be expressed in the following terms: ‘A construction leading to so

patently absurd and unintended a result should not be adopted unless the language

43. Section 5 of the Interpretation Act, 2005 effects a statutory codification of the rule

“5.–(1) In construing a provision of any Act (other than a provision that relates to the

(b) that on a literal interpretation would be absurd or would fail to reflect the

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in

(ii) in the case of an Act to which paragraph (b) of that definition relates,

the provision shall be given a construction that reflects the plain intention of the

Oireachtas or parliament concerned, as the case may be, where that intention can

44. In the Supreme Court decision Irish Life and Permanent Plc. v. Dunne and Anor. [2016] 1

I.R. 92 Clarke J. (as he then was) observed at p. 107 of his judgment, referring to s.5(1)

“So far as it is material to this case, it would seem that the section applies where,

on a literal interpretation, a construction would be absurd or would fail to reflect the

plain intention of the Oireachtas. In such cases, the provision should be given a

construction which reflects that plain intention of the legislation where same can be

ascertained from the legislation as a whole. In considering that provision in Kadri v.

Gov. Wheatfield Prison [2012] IESC 27, [2012] 2 ILRM 392, I said the following

‘It seems to me that there is at least a broad similarity between that area of

jurisprudence and the intent behind at least aspects of s.5(1) of the

Interpretation Act 2005. It is important to note that the construction which

that section requires is one that “reflects the plain intention of (the

legislature) where that intention can be ascertained from the Act as a whole’.

It is clear, therefore, that it not only is necessary that it be obvious that there was

a mistake in the sense that a literal reading of the legislation would give rise to an

absurdity or would be contrary to the obvious intention of the legislation in

question, but also that the true legislative intention can be ascertained. There may

well be cases where it may be obvious enough that the legislature has made a

mistake but it may not be at all so easy to ascertain what the legislature might

“… it is not for this Court to assess the policy behind any legislation. Where there

are possible reasons for adopting a particular measure, even if there might be

grounds for believing that the legislation may be ill-suited to achieving its ends, the

courts are given no mandate by s.5 of the 2005 Act to intervene. The question

which must be asked is as to whether there could be any possible or conceivable

basis on which the Oireachtas might have chosen to legislate in the manner which a

literal construction of the relevant provisions would require.”

In considering the statutory provision at issue in that case he expressed the view: -

“…I cannot see any conceivable basis on which the Oireachtas might have chosen to

allow for a case stated in one type of circuit appeal but not in another where the

distinction between the two types of cases could have no possible bearing on

whether a legal issue, which might warrant clarification by this Court, might arise.

“But that is not sufficient for the purposes of s.5. As pointed out in Kadri, it must

also be possible to tell, from the Act as a whole, what the true legislative intention

“There was some debate at the hearing before this Court as to whether s.5 truly extended

the principles of construction beyond those which had previously been identified in

the case law of the courts and are referred to, for example, in works such as

Bennion on Statutory Interpretation (5th Ed., Butterworths, 2008). It is not

necessary for the purposes of these appeals to consider whether s.5 extends

beyond the parameters of the common law rules thus identified. It may well be

that, at a minimum, s.5 is designed to encourage courts to engage, in appropriate

cases, in the sort of purposive interpretation which that section mandates.

However, it is also clear that s.5 only applies in limited circumstances. There are

limits to the extent to which a court can be expected to correct errors in legislation

even allowing for the scope of section 5. The court cannot be asked to rewrite

legislation. The court cannot be asked to include provisions which the Oireachtas

may have omitted, but where there might be legitimate debate as to whether the

Oireachtas would have included same (or in what form same might have been

45. In Crilly v. T and J Farrington Limited [2001] 3 IR 251 Murray J. (as he then was) noted

“Manifestly, … what the courts in this country have always sought to ascertain is

the objective intent or will of the legislature. This is evident for example from the

rule of construction according to which when the meaning of the statute is clear and

definite and open to one interpretation only in the context of the statute as a

46. The High Court judge construed the condition of “continuous residence” specified in the

“… for the last year prior to a naturalisation application an applicant must show a

one-year period of residence in Ireland that is ‘unbroken, uninterrupted, connected

47. The High Court judge erred in law in his interpretation of the term “continuous residence”

provided in s.15(1)(c) of the 1956 Act. The construction is unworkable, overly literal,

unduly rigid and gives rise to an absurdity. “Continuous residence” within the meaning of

the sub-section does not require uninterrupted presence in the State throughout the

entirety of the relevant year nor does it impose a complete prohibition on extra-territorial

48. At para. 6 of the judgment the judge instances a “business trip to London”, the type of

“But the problem for Mr Jones is that in none of those instances could a person who

goes on any one of those trips in any one year be said to be in ‘continuous

residence’ in Ireland during that year. Why? Because that person’s period of

residence in Ireland during that year has been punctuated by absences abroad and

thus is not ‘unbroken, uninterrupted, connected throughout in space or time’, i.e. it

49. That an applicant for a Certificate of Naturalisation could be deemed ineligible by reason

of, for example, taking a day trip to Newry in the immediate twelve months prior to

submitting an application for naturalisation is accepted by both the appellant and the

respondent as being plainly erroneous and reflects a construction of s.15(1)(c) not

advanced by either party at the hearing in the High Court and amounts to an

50. Such an approach creates an anomaly which defeats one of the fundamental purposes of

the legislation by introducing a significant obstacle to compliance with one of the

conditions for eligibility to apply for naturalisation which most applicants would find it

51. The construction accorded to the relevant part of s.15(1)(c) by the High Court gave rise

to a clear absurdity so as to engage s.5(1)(b) of the Interpretation Act, 2005 allowing an

objective assessment of the “plain intention” of the provision.

52. The term “continuous residence” is wholly distinct and separate from the concepts of

“ordinary residence” or “residence” per se. The words ought to be construed

harmoniously. The words “continuous residence” in the context in which they appear in

s.15(1)(c) (first part) do not impose an obligation on an applicant that he be wholly

precluded from leaving the jurisdiction at any time during the relevant year.

53. It is clear from the tenor of the words that significant importance is attached to physical

54. There are two distinct requirements to be satisfied within s.15(1)(c). It is clear that the

Oireachtas has mandated that a more rigorous approach be applied to the physical

presence of an applicant in the State in the year immediately prior to the date of the

application being submitted for a Naturalisation Certificate. Hence, the second limb of

s.15(1)(c) is distinguishable and of limited assistance in construing the first.

55. The task of ascribing ordinary meaning to the words “continuous residence” requires that

they be construed harmoniously. Contrary to the contentions advanced on behalf of the

appellant to the effect that the Minister should merely have examined whether the

appellant was continuously resident in the State for the previous year “in the sense of

continuously having his home here and not being resident elsewhere” as meeting the test

of “continuous residence” such an approach does not withstand scrutiny. The concepts of

“residence” and “ordinary residence” are materially different from the concept of

“continuous residence”. Such an approach would disproportionately elide the weight to

be attached to “continuous” and render that word nugatory – a word which does not

56. In ascertaining the plain intention of the Oireachtas for the purposes of section 5(1)(b) of

the Interpretation Act 2005 with respect to the words “one year’s continuous residence” it

is to be inferred that the legislature attached significant importance to physical presence

57. As is clear from the notice of decision dated the 11th of October, 2018, referred to above

at para. 9, the Minister’s approach to the construction of “one year’s continuous

residence” in the first part of s.15(1)(c) is to operate a clearly communicated practice or

policy of allowing applicants six weeks’ absence from the State, for work and other

reasons, and more time in exceptional circumstances. An applicant must otherwise

generally be physically present in the State during the particular year and an application

58. The question arises whether the approach of the Minister improperly fetters the

competence conferred on him by the relevant part of the sub-section. Is the approach

disclosed in the letter of decision a rigid and inflexible policy operated by the Minister in

connection with his construction of the first part of s.15(1)(c), or is it a reasonable policy

primarily directed at ameliorating the potential harshness and rigidity of the first part of

the sub-section, which places a significant but by no means absolute premium on the

continuity of physical presence in the State during the relevant year as one of the

preconditions to eligibility for consideration for a Certificate of Naturalisation.

59. In my view, having regard to the overall scheme of the legislation and the tenor of the

policy, the latter is the case. The Minister has not adopted a rigid or inflexible policy in

construing compliance with the first part of s.15(1)(c). It is apparent that the objective of

the Minister is to adopt a purposive, reasonable and pragmatic approach to the operation

of that part of the sub-section. It is to be inferred from the criteria referenced in the

decision sought to be impugned that a reasonable level of absences in connection with an

applicant’s employment or otherwise is not inconsistent with “continuous residence in the

60. The appellant was aware from the outset of and was legally advised in connection with

the conditions to be met to satisfy the obligation imposed upon him to discharge the

condition at s.15(1)(c) (first part). Whilst it was contended on his behalf before the High

Court that “Much of his absences were for work reasons”, in fact, it transpires that out of

absences from the State aggregating to approximately one hundred days in the relevant

61. In the instant case, the established policy of the Minister was ameliorative in nature and

mitigated the potential harshness of the first part of the sub-section. It operates for the

benefit of applicants. It will be recalled that there is no limit to the number of applications

for a Certificate of Naturalisation which the appellant can make.

62. Keane J. in Carrigaline Community Television Broadcasting Company Limited v. Minister

for Transport, Energy and Communications [1997] 1 I.L.R.M. 241 stated: -

“… The adoption by the licencing authority of a policy could have the advantage of

ensuring some degree of consistency in the operation of the regime, thus making

less likely decisions that might be categorised as capricious or arbitrary. But it is

also clear that inflexible adherence to such a policy may result in a countervailing

injustice. The case law in both this jurisdiction and the United Kingdom illustrates

63. In my view, it would be wrong to preclude the Minister as decision maker pursuant to the

sub-section from formulating a policy identifying criteria calculated to mitigate the

potential rigour of the sub-section. Such a policy is in the interests of good

administration and consistency in decision making where each application is to be treated

as a decision entirely on its own without reference to prior decisions or to any criteria. It

is in the public interest that there is clarity so that an individual in the position of the

appellant is clear as to how he can meet the condition of “one year’s continuous residence

in the State” for the purposes of being eligible to apply for a Certificate of Naturalisation.

64. The fact that over ninety percent of the appellant’s absences from the State were non-

work related is material. A policy which includes provision by the Minister of a period of

six weeks to provide for absences in general for holidays and the like is reasonable and it

accords with a purposive construction of the relevant part of s.15(1)(c) that such short-

term absences from the State would not adversely impact on compliance by an applicant

with the statutory residence requirement of “one year’s continuous residence in the State

65. The non-statutory rule or policy operated by the Minister whereby the requirement in the

first part of s.15(1)(c) of “one year’s continuous residence in the State immediately

before the date of his application” could not generally be satisfied in circumstances where

the applicant is absent from the State for in excess of six weeks during the relevant year

immediately prior to the application in the absence of wholly exceptional circumstances

does not amount to a fettering of discretion. Neither does it amount to the imposition of

66. The ministerial approach does not fetter discretion but rather facilitates flexibility, clarity

and certainty in the operation of the first limb of the sub-section and assists applicants in

establishing with certainty how the criterion of “one year’s continuous residence in the

State” is to be satisfied for the purposes of eligibility to apply for a Certificate of

Naturalisation. The approach is sensible and is within the terms of the legislation and is

consonant with the public good having regard to the nature of the decision in question

and in particular in circumstances where it pertains to what has been described in the

jurisprudence as “the purely gratuitous conferring of a privilege in exercise of the

sovereign authority of the State” per Hussain v Minister for Justice and Equality [2013] 3

I.R. 257 at para. 16, relying on the dicta of Cooke J. in Jiad v. Minister for Justice,

67. The criteria identified by the Minister in connection with establishing “continuous

residence” are reasonable and balanced and have regard to societal norms regarding

foreign travel as at the date of the submission of appellant’s application on the 31st

68. The trial judge correctly concluded that the Minister’s ‘finding’ was neither materially

wrong nor irrational. However, the Minister’s process of getting to that ‘finding’ did not

69. The criteria embodied in the policy offer a reasonable and flexible set of criteria whereby

compliance with the requirement of “continuous residence” can be established. The

Minister was correct in concluding that the appellant did not have such a period of

residence as constituted “continuous residence” and same was a finding of fact.

70. Save as aforesaid, the appeal ought to be dismissed.

Result: Appeal dismissed

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Jones v Minister for Justice and Equality [2019] IECA 285 (14 November 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IECA_285.html Cite as: [2019] IECA 285

High Court of Ireland Decisions