Factual and Procedural Background
These proceedings arise from two judicial review applications challenging the refusal of certificates of naturalisation under section 15 of the Irish Naturalisation and Citizenship Act, 1956 (as amended). The refusals were based on the Minister's conclusion that the Applicants did not have the requisite five years of reckonable residence in the State. Both Applicants entered the State as family members of EU citizen siblings exercising free movement rights and applied for residence using Form EU1, without seeking permission under section 4 of the Immigration Act, 2004. Their applications were accepted for consideration under the European Communities (Free Movement of Persons) Regulations 2015 ("the 2015 Regulations"), but the Minister calculated reckonable residence from the date of registration with the Garda National Immigration Bureau (GNIB) rather than from the date of acceptance of their applications for consideration.
The Applicants contended that their lawful residence should be reckoned from the date their applications were accepted for consideration under Regulation 7 of the 2015 Regulations, arguing that the grant of residence is a recognition of an existing right. The Minister disputed this, relying on section 16A of the 1956 Act and contending that residence pending determination did not constitute lawful residence for naturalisation purposes.
The High Court heard both cases together and considered the interplay between EU law, the 2015 Regulations, the Immigration Act 2004, and the Naturalisation Act 1956.
Legal Issues Presented
- Whether physical presence in the State of a person whose application for residence as a family member of an EU citizen has been accepted for consideration under the 2015 Regulations constitutes reckonable residence for a subsequent application for a certificate of naturalisation under section 15 of the 1956 Act.
- Whether Regulation 7(6) of the 2015 Regulations provides a right or permission to remain in the State pending determination of a residence application made by a permitted family member without a prior separate application under Regulation 5.
- Whether presence in the State under Regulation 7(6) is in contravention of section 5(1) of the Immigration Act 2004, thereby affecting reckonability of residence under section 16A of the 1956 Act.
Arguments of the Parties
Applicants' Arguments
- The Applicants argued that the Minister erred in law by treating reckonable residence as commencing only from the date of registration with GNIB and the grant of Stamp 4 EU Fam, excluding the period during which their applications for residence were pending consideration.
- They contended that the grant of residence is a recognition of an existing right under EU law, and thus lawful residence should be deemed to accrue from the date the application was accepted for consideration.
- They relied on the declaratory nature of EU Treaty rights and the provisions of Regulation 7(6) entitling family members to remain pending a decision on their residence application.
Minister's Arguments
- The Minister disputed any error of law, relying on section 16A of the 1956 Act which excludes periods of residence in contravention of section 5(1) of the 2004 Act from reckonable residence.
- It was contended that for residence to be reckonable, the Minister must have conducted an extensive examination under Regulation 5 to decide whether the Applicant should be treated as a permitted family member, which did not occur as a separate preliminary application.
- The Minister argued that any entitlement to remain pending a decision under Regulation 7(6) does not constitute a permission within the meaning of the 2004 Act and thus does not render the residence reckonable.
- The Minister did not contend that the Applicants were unlawfully present or that they should have sought permission under section 4 of the 2004 Act while their applications were processed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Druzinins v. Minister for Justice Equality and Law Reform [2010] IEHC 84 |
Acknowledgement of receipt of residence application legitimises presence pending decision. |
Supported the view that acceptance of application evidences lawful presence pending determination. |
| Desci v. Minister for Justice, Equality and Law Reform [2010] IEHC 342 |
Right to work arises from Directive rights upon acknowledgement of residence application, not from formal permit. |
Confirmed that residence card evidences a pre-existing right of residence. |
| Mohamud v. Minister for Justice, Equality and Law Reform [2011] IEHC 54 |
Entitlement to remain continues until definitive decision on application, even if initial refusal quashed. |
Supported continuous lawful residence pending final determination. |
| Sulaimon v. Minister for Justice, Equality and Law Reform [2012] IESC 63 |
Lawful residence requires not being in breach of section 5(1) of Immigration Act 2004; permission can be granted by Minister. |
Clarified meaning of "permission" under section 5(1) and recognized Minister's power to grant permission. |
| Rodis v. Minister for Justice, Equality and Law Reform [2016] IEHC 360 |
Diplomatic presence not contravening section 5(1) excludes such residence from reckoning under section 16A. |
Illustrated statutory carve-out for diplomats and its effect on reckonable residence. |
| C.A. v. Governor of Cloverhill Prison [2017] IECA 46 |
Permitted family member status requires positive Ministerial decision under Regulation 5; no right to remain pending that decision. |
Confirmed two-stage process for permitted family members and no residence entitlement pending Regulation 5 decision. |
| Rafique v. Governor of the Dóchas Centre [2017] IEHC 80 |
Supported C.A. decision that no permission to reside arises pending decision under Regulation 5. |
Reinforced absence of residence entitlement pending Regulation 5 decision. |
| S.S. (Pakistan) v. Governor of Mountjoy Prison [2019] 3 I.R. 595; [2019] IESC 37 |
No requirement to establish prima facie entitlement before right to remain under Regulation 7(6) arises for qualifying family members. |
Distinguished qualifying from permitted family members; held Regulation 7(6) confers right to remain pending decision for qualifying members. |
| P.F. v. Minister for Justice and Equality [2019] IEHC 369 |
Distinction between entitlement to remain and permission under section 4(7); entitlement to remain not equated with formal permission. |
Recognized that statutory entitlement may not be formal permission but does not equate to unlawful presence. |
| Kant v. Minister for Justice and Equality [2019] IEHC 583 |
Residence applications under EU Treaty rights are under 2015 Regulations, not section 4 of 2004 Act; permissions under 2015 Regulations suffice. |
Supported view that no separate permission under 2004 Act is required when residence granted under 2015 Regulations. |
| C-22/21 SRS v. Minister for Justice and Equality |
Permitted family members do not have an automatic right of entry and residence but may be granted such rights. |
Clarified EU law distinction between qualifying and permitted family members. |
Court's Reasoning and Analysis
The Court began by examining the statutory framework governing residence rights of family members of EU citizens, focusing on the distinction between qualifying and permitted family members under Directive 2004/38/EC and the 2015 Regulations. Qualifying family members have a right of residence subject to limited exceptions, while permitted family members have only the possibility of being granted such rights after an extensive examination under Regulation 5.
The Court noted that the 2015 Regulations envisage a two-stage process for permitted family members: a preliminary decision under Regulation 5 to treat the person as a permitted family member, followed by an application for residence under Regulation 7. However, in the cases before the Court, no separate Regulation 5 application or decision was evident. Instead, a single application form (Form EU1) was used, and the applications were accepted for consideration under Regulation 7 without a distinct Regulation 5 process.
The Court held that acceptance of the application for consideration under Regulation 7 must be understood as the Minister having decided to treat the Applicants as permitted family members, even if this was not formally communicated as required by Regulation 5(6). Thus, the entitlement to remain under Regulation 7(6) was triggered, allowing the Applicants to remain lawfully pending the determination of their applications.
The Court then addressed whether presence under Regulation 7(6) contravened section 5(1) of the Immigration Act 2004, which prohibits presence without permission. It found that section 2(2)(f) of the 2004 Act provides that nothing in that Act shall derogate from the 2015 Regulations. This means that the lawful entitlement to remain under Regulation 7(6) displaces any requirement for a separate permission under the 2004 Act.
The Court characterized the right to remain under Regulation 7(6) as a form of statutory permission, albeit without the formalities of a stamp or registration. This statutory permission is sufficient to render the Applicants' presence lawful and not in contravention of section 5(1) of the 2004 Act. Consequently, periods of residence under Regulation 7(6) are reckonable for naturalisation purposes under section 16A of the 1956 Act.
The Court rejected the Minister's argument that only residence post-registration with GNIB and grant of Stamp 4 EU Fam is reckonable, emphasizing that the statutory scheme and case law support reckoning residence from the date the application is accepted for consideration under Regulation 7.
Holding and Implications
The Court held that the Minister erred in law by excluding from reckonable residence the period during which the Applicants' applications for residence under Regulation 7 were accepted for consideration but not yet granted. The Court quashed the refusals of certificates of naturalisation in both cases by way of orders of Certiorari.
The core ruling is that residence in the State pursuant to Regulation 7(6) of the 2015 Regulations prior to the grant of formal residence permission is lawful and reckonable residence for the purposes of section 15 of the Irish Naturalisation and Citizenship Act 1956.
This decision directly affects the Applicants by allowing their residence periods from the date their applications were accepted for consideration to count towards naturalisation eligibility. No new precedent beyond the application of existing EU and domestic legal principles is established.