Hicsonmez v Minister for Justice: The High Court Confirms the Mandatory Nature of the 70 + 30-Day Absence Rule in s.15C Irish Nationality & Citizenship Act 1956
1. Introduction
This commentary analyses the High Court’s ruling in Hicsonmez v Minister for Justice, Home Affairs and Migration & Ors ([2025] IEHC 436). The applicant, a Turkish national employed by Google Ireland Ltd., sought leave to challenge the Minister’s decision refusing his naturalisation application on the ground that he lacked the statutorily required “one year’s continuous residence” immediately preceding his application.
The significance of the case lies in the Court’s first detailed consideration of the new section 15C, inserted by the Courts and Civil Law (Miscellaneous Provisions) Act 2023. Section 15C codifies—at 70 days plus a potential additional 30 days for “exceptional circumstances”—the maximum permissible absences from the State that may still be treated as “continuous residence” for naturalisation purposes.
The applicant’s arguments centred on: (i) alleged unlawful retrospectivity in applying s.15C; (ii) alleged fettering of the Minister’s discretion; and (iii) the constitutionality of s.15C. Ms Justice Siobhán Phelan refused leave, holding that none of the grounds were even “arguable” under the G v DPP threshold.
2. Summary of the Judgment
- The High Court refused leave for judicial review, finding no arguable case on any ground.
- Retrospectivity: s.15C applies prospectively to all applications made after its commencement on 31 July 2023; counting pre-commencement days within the one-year look-back period does not render the provision retrospective.
- No residual discretion: Unlike the former non-statutory policy, the new statutory caps in s.15C are mandatory. The Minister cannot deem further absences as “continuous residence.”
- Constitutionality: The applicant’s claims under Articles 40.1, 40.3 and 28 were found unstateable at leave stage; any constitutional challenge should proceed, if at all, by plenary summons.
- The Court emphasised that citizenship is a privilege, not a right, and the Oireachtas may set eligibility criteria.
3. Analysis
3.1 Precedents Cited
Established the “arguable case” threshold for leave in judicial review. The Court faithfully applied this low but real threshold to filter out unstateable claims.
Elaborated on the need for “reasonable prospects of success” at leave stage. Justice Phelan quotes Charleton J.’s formulation that a point of law must not be “empty”.
Authority on the presumption against retrospectivity. The Court distinguished it: unlike in Fennell, no vested right existed; the applicant’s claim was assessed under the law in force on the date of application.
Upheld the previous administrative six-week (≈42-day) absence policy as lawful. Justice Phelan used Jones to illustrate that the idea of limiting absences is neither new nor unfair, and that the 2023 statute merely replaces a policy discretion with a statutory rule.
Cited for the proposition that a statute may refer to past events without being retrospective.
Referenced by the applicant for an equality argument, but the Court found it inapposite because s.15C treats all applicants uniformly and already embeds limited flexibility.
3.2 Legal Reasoning
- Prospective Application of s.15C
• Section 15E makes clear that all applications filed after 31 July 2023 fall under the amended Act.
• Counting absences falling before 31 July 2023 does not change the fact that the application itself is post-commencement – therefore the provision is applied prospectively.
• The presumption against retrospectivity therefore never arises. - Mandatory Language Removes Ministerial Discretion
• Section 15C(1) provides that specified absences “shall be reckoned as residence”, while s.15C(3) caps those absences at 70 + 30 days.
• Once absences exceed 100 days, continuous residence is legally impossible; the Minister’s absolute discretion under s.15 is triggered only if preliminary statutory conditions are met.
• Because the applicant was absent for 177 days, he fell far outside even the outer limit. - Constitutional Challenge Procedurally and Substantively Weak
• Procedurally: A plenary action, not judicial review, is the usual vehicle when no other public-law error survives.
• Substantively: s.15C is facially neutral, proportionate, and rationally connected to the legitimate aim of ensuring a real connection with the State before granting the privilege of citizenship.
3.3 Potential Impact
- Administrative Practice: The decision confirms that the Minister’s previous discretionary policy is supplanted; officials must now apply the statutory caps rigidly, save for assessing “exceptional circumstances” within the extra 30-day window.
- Litigation Strategy: Applicants hoping to challenge s.15C must proceed by plenary summons and craft well-developed constitutional arguments; “back-door” challenges via judicial review are unlikely to clear the G v DPP filter.
- Applicant Behaviour: Prospective applicants will need to time their travel carefully during the 12 months before applying, or postpone filing until their absence falls within 100 days.
- Comparative Law: Ireland now joins jurisdictions (e.g., Australia, Canada) that legislate precise absence limits, reducing ministerial latitude and enhancing transparency.
4. Complex Concepts Simplified
- Continuous Residence: In naturalisation law, applicants usually must live in the country for a specified period without major interruptions. “Continuous” does not mean zero absence; statutes or policies specify how much time abroad is tolerable.
- Statutory vs. Administrative Policy: A policy can be flexible and subject to discretion; once Parliament enshrines rules in a statute, officials must obey the fixed wording unless the statute itself allows discretion.
- Presumption Against Retrospectivity: Courts assume new laws do not change the legal effect of past actions unless Parliament clearly says so. However, using past facts to apply a new law prospectively is usually permissible.
- Leave (Permission) Stage in Judicial Review: Before a full hearing, an applicant must show an “arguable case” – a preliminary filter designed to weed out weak claims.
- Plenary Proceedings: A full civil action started by a plenary summons, involving pleadings, discovery, oral evidence, and no leave requirement. Commonly used for pure constitutional challenges.
5. Conclusion
Hicsonmez crystallises the legal position following the 2023 amendments:
- The 70-day + 30-day “exceptional circumstances” formula in s.15C is a hard statutory ceiling.
- The Minister’s historical discretion to excuse longer absences has been legislatively removed.
- Applying s.15C to applications filed post-31 July 2023 is not retrospectively punitive.
- Constitutional challenges will face an uphill battle, but may still be mounted in plenary form.
Overall, the judgment promotes certainty and uniformity in the naturalisation process while signalling that the courts will not lightly entertain challenges that seek to reinterpret straightforward statutory language. Prospective citizens now have clear guidance: be physically present in Ireland for at least 264 days (and ideally 295 days) in the year before you apply.
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