High Court refuses leave for judicial review, directing constitutional challenge to plenary proceedings.

THE HIGH COURT JUDICIAL REVIEW [2025] IEHC 436 Record No: 2025/1025 JR BETWEEN BULENT HICSONMEZ APPLICANT AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

RULING of Ms. Justice Siobhán Phelan, delivered on the 25th day of July, 2025

INTRODUCTION

1. On this ex parte application, the Applicant seeks leave to proceed by way of judicial review to challenge the decision of the Minister communicated by letter dated the 4th of April, 2025, refusing the Applicant’s application for a certificate of naturalisation.

The application was refused because the Applicant was ineligible as he did not meet the one-year continuous residence in the State in the year immediately preceding the date of application condition. This is a condition of eligibility prescribed in s. 15(1)(c) of the Irish Nationality and Citizenship Act, 1956 (as amended) (hereinafter “the 1956 Act”).

2. On the Minister’s calculations the Applicant did not meet the one year continuous residence condition by reason of being absent from the State for 177 days in the year immediately prior to the making of the application. This exceeds the maximum number of days absence from the State, fixed at 70 (plus 30 additional days where the Minister is satisfied that those additional days absence were necessitated by exceptional circumstances relating to the applicant), allowed for applicants to be absent from the State and still be treated as continuously resident for the purpose of s.15(1)(c) of the 1956 Act by operation of s. 15C(1) and (3) of the 1956 Act (inserted by s. 8 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023) effective from the 31st of July, 2023.

3. The Applicant contends that refusal on the basis aforesaid is unlawful, inter alia, because the Minister was overly rigid in the application of the condition in relation to continuous residence, applied an inflexible policy and failed to conduct a fact sensitive inquiry.

4. Although not pleaded in the legal grounds relied upon in the Statement of Grounds as filed, in submissions the Applicant further contends that the application of the residence requirements of the newly inserted s. 15C of the 1956 Act commenced from the 31st of July, 2023, in respect of an application for a certificate of naturalisation made in June, 2024, is unlawful as a retrospective change in the qualifying conditions for citizenship.

5. Alternatively, the Applicant pleads that s. 15C(1) and (3) of the 1956 Act are unconstitutional as contrary to Articles 28 and/or 40.3 of the Constitution. In submissions the Applicant further complains that these provisions are contrary to Article 40.1 of the Constitution.

BACKGROUND

6. The Applicant is a national of Turkey who was born on the 26th of August, 1969. He arrived in the State on the 15th of March, 2019. The Applicant arrived on a Stamp 1 visa in order to commence employment with Google Ireland Limited. The Applicant then received a Stamp 4 visa in 2023.

7. On 27th of June 2024, the Applicant applied for a certificate of naturalisation under the Irish Nationality and Citizenship Act 1956 (as amended), which included the necessary supporting documentation and statutory fee. The Applicant answered ‘Yes’ to the question “Have you been absent from the State for more than 70 days per annum in any of the past 5 years?”

8. In a letter dated the 27th of June, 2025, the Applicant’s solicitors made detailed submissions in relation to the Applicant’s absences from the State. It was explained that due to his employment duties with Google Ireland Limited he was required to travel frequently. It was further stated that he was absent from the state for medical and personal reasons, in particular, the sudden death of his father and serious health issues of his mother, who subsequently had passed away in May, 2022 and that he travelled to London to spend time with his wife and son (who is 13 years old), as his wife works in real estate in the UK. The submissions further noted, inter alia, that:

“We also wish to highlight that the letters which are issued by the General Immigration Division which grants individual with a temporary permission to remain under stamp 1 or 4 condition explains “continuous residency” as:- “…living in the State for the period covered by this temporary permission to remain, allowing for reasonable periods of absence from the State for holidays, exceptional family circumstances or commitments outside the State arising from business or employment carried on within the State”. From the above, it is submitted that our client has been continuously resident in the State (as can be seen from his retention of place of residence in the State along with his taxation status in the State).

We also note in the past, applications for certificate of naturalisation which is considered to have “absence from the State for more than 70 days in the past five years” has not been accepted due to the fact that when the total period of “absence” of 70 days has been subtracted, they do not fulfil the residency criteria. However, that been said, where justifiable reasoning for absence were given (especially for employment reasons and personal absences as this case)

with supporting documentations, these were accepted (we have acted for numerous applications which this was the case). It is submitted that this policy is unlawful and has no basis in the legislation governing naturalisation and citizenship. Section 15 and 16A of the Irish Nationality and Citizenship Acts

1956 as amended clearly stipulate the only duration that may be excluded when calculating an individual’s reckonable residence is any time, they spent on a student visa or while seeking asylum. For the reasons above, we trust our client’s “absences” from the State will be justifiable and the Minister’s executive discretion will be applied. It is further submitted that our client’s absences from the State for the purpose of non justifiable reasons are below 70 days in any given years.”

9. An “absences spreadsheet” was included with the application, covering the 5 years running up to the 27th of June, 2024 application, showing in detail the days spent out of the State, and the reasons for these. This showed in relation to the period of one year immediately preceding the naturalisation application, that four periods of absence predated the commencement of s.15C of the 1956 Act on the 31st of July, 2024 (amounting to some 33 days in total). Further absences in the period between the 31st of July, 2024 and 20th of June, 2024 were outlined amounting (on my rough calculation) to in excess of 150 days.

10. A letter from the Applicant’s employer dated the 20th of June, 2024, was included, which stated:

“Bulent Hicsonmez’s current and previous positions with Google require them to travel for business reasons on a regular basis including business trips to other Google offices worldwide. Costs related to these business trips are sponsored by Google Ireland Ltd. These travels are necessary for Bulent’s job at Google”.

11. By email dated the 4th of July, 2024, the Minister wrote to the Applicant, acknowledging receipt of the application and stating:

“Citizenship Division will now examine the application and if any further documentation/clarification is required from you we will revert in due course.”

12. By way of letter on the 5th of December, 2024, the Minister wrote to the Applicant deeming his application ineligible and stated, inter alia, that:

“The documentation submitted with your application has disclosed that when such periods have been considered, although your documentation shows that you have five years permission to remain from the Garda National Immigration Bureau, when your absences from the state are taken into consideration you do not have your last year continuous residence at the date of your application, therefore, your application for naturalisation has been deemed ineligible.”

13. By way of letter dated 16th of December, 2024, the Applicant’s solicitors wrote to the Minister and stated that were was no document showing residence calculations enclosed in the refusal. The letter further sought confirmation that the Applicant’s personal and family reasons were taking into consideration and that Ministerial Discretion had been considered in his application.

14. By way of letter on the 23rd of January, 2025, the Minister wrote to the Applicant and stated:

“The reason your application has been deemed ineligible is due to the fact that there is an absence from the state in excess of one hundred days in the year prior to the date of application”.

15. By way of letter dated 27th of January, 2025, the Applicant’s solicitors wrote to the Minister and requested confirmation on the below:

“(i) Whether our client’s justifiable reason for the personal and family reasons has been taken into consideration, for the purpose of Ministerial Discretion to be exercised. (ii)Confirmation that the Ministerial Discretion has been considered before making the decision. We have made significant amount of applications on behalf of clients who have been in a similar situation and they have been approved without any difficulty even where there was a break in continuity in the last one year prior to the application. If it is the case that the initial decision with be withheld, you might kindly inform us as to why different policy approach has been taken to Mr Hicsonmez.”

16. The letter further called on the Minister to confirm whether the Ministerial Discretion had been considered within 10 days, and in the event that the Ministerial Discretion was not applied, judicial review proceedings would be initiated with the Minister liable for costs of same.

17. By letter dated the 5th of February, 2025, the Minister wrote to the Applicant and stated that they would review the submissions and would revert within 28 days.

18. By way of letter dated the 11th of February, 2025, the Applicant’s solicitors wrote to the Minister and requested a response within 21 days. The Minister sought further time on the 5th of March, 2025.

19. By way of decision letter dated the 4th of April, 2025, the Minister indicated that a review had been conducted and that the Minister’s position remained the same as the 5th of December, 2024. Section 15C of the 1956 Act was referred in express terms. The letter noted, inter alia, that:

“For clarity, this application was deemed ineligible on the basis that the applicant did not meet the one year continuous residence in the State immediately before the date of application condition in section 15(1)( c) of the

195 Act as amended. As the attached residency calculator shows, the Applicant was resident in the State for 188 days and therefore absent from the State for

177 days in the year immediately before date of application. The Applicant was absent from the State for 177 days. This is in excess of the maximum number of days allowed by section 15C for applicants to be absent from the State, namely

70 days, plus 30 additional days where the Minister is satisfied that those additional 30 days of absence were necessitated by exceptional circumstances relating to the applicant. As your client was absent from the state for an additional period of 77 days, this is beyond the period of time allowed for absence by the statute. As a consequence, the Applicant does not meet the one year continuous residence condition as set out in section 15(1)(c) and the Minister has no discretion additional to the 70 and 30 days allowed for in section 15C to deem the residence condition met.”

20. The Applicant was invited to apply again once he meets the statutory conditions.

APPLICABLE TEST

21. The application is moved on the well-established arguable grounds threshold identified in G v. Director of Public Prosecutions [1994] 1 I.R. 374. While this is a low threshold, it is nonetheless necessary for an applicant for leave to proceed by way of judicial review to demonstrate a sufficient interest in the matter to which the application relates to, that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review, that on these facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks, that the application has been made promptly and within the applicable time limits and that the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be in order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, in all the facts of the case, a more appropriate method of procedure.

22. The issue which troubles me on this application is whether the legal grounds advanced are arguable. What an “arguable” case might mean was amplified by Denham J. in the G v. D.P.P decision, with whom Blayney J. agreed. At p. 382, she stated:

“This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar – to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily. ... It is a preliminary filtering process for which the applicant is required to establish a prima facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof to discharge.”

23. By way of subsequent elaboration on the test, in S and Others v Minister for Justice and Equality [2013] IESC 4, (cited in O.O. v Min for Justice [2015] IESC 26 by Charleton J.) Clarke J. referred at para. 5.1 of his judgment to:

“a sufficiently arguable case... for the grant of leave to seek judicial review in the light of the existing jurisprudence.”

24. More recently, in O.O., the Supreme Court (Charleton J.) referred back to the earlier

decision of Clarke J. in the S case, before proceeding to observe (at para. 15):

“Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be shown that a prima facie legal argument has been established. In terms of evidence, the requirement for a prima facie case is regarded as that which “if not balanced or outweighed by other evidence, will suffice to establish a particular contention”; Halsbury’s Laws of England (5th edition) volume 11, paragraph 767. In terms of law, the test is no different:

it is a point of law which if not balanced or outweighed by other principles will suffice to establish the contention. This is the filter, which the leave application is designed to be, in order to ensure that there is sufficient reason to disrupt administrative decisions and to litigate them.”

25. It seems from the foregoing that the test I must apply is whether the Applicant has demonstrated a prima facie legal argument that has a reasonable prospect of success and whether the evidence is such as to support that prima facie argument being advanced. I am engaged in this exercise as a filtering or screening process to prevent an abuse of the process, trivial or unstatable cases proceeding, and protect against unstateable claims impeding public authorities unnecessarily.

STATUTORY PROVISIONS

26. Section 15 of the 1956 Act provides for the grant of a certificate of naturalisation at the absolute discretion of the Minister but only where the Minister is satisfied that certain conditions are met. It provides in relevant part:

“15(1) Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application, if satisfied that the applicant—

(a), (b),

(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 period, has had a total residence in the State amounting to four years;

(d); and (e)”

27. Section 15(2) of the 1956 Act further provides that the conditions specified in paragraphs (a) to (e) of s. 15(1) are referred to in this Act as “conditions for naturalisation”.

28. Although there had long been a continuous residence requirement under s. 15(1)(c) of the 1956 Act, a maximum number of days absence was not prescribed until a new s.

15C was inserted by s. 8 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 and commenced by S.I. No. 389 of 2023 from the 31st of July, 2023.

29. The new s.15C made express provision for the calculation of continuous residence for the purpose of an application under s. 15 of the 1956 Act as follows:

“15C.— (1) When calculating a period of one year’s continuous residence in the State for the purposes of section 15 or 15B, the periods specified in subsection (3) during which—

(a) an applicant for a certificate of naturalisation under section 15, or

(b) , was not present in the State shall be reckoned as a period of residence in the State.

(2) When calculating a period of one year’s continuous residence in the island of Ireland for the purposes of section 15A, the periods specified in subsection

(3) during which an applicant for a certificate of naturalisation under that section was not present in the island of Ireland shall, subject to subsection (4), be reckoned as a period of residence in the island of Ireland.

(3) The following periods are specified for the purposes of subsections

(1) and (2):

(a) a period not exceeding, or periods the aggregate of which do not exceed, 70 days, and

(b) an additional period not exceeding, or such additional periods the aggregate of which do not exceed, 30 days, where the Minister is satisfied that the person’s not being present in the State or in the island of Ireland, as the case may be, during such additional period or periods was necessitated by—

(i) in the case of a minor applicant, exceptional circumstances relating to the minor applicant, or the person who made the application on his or her behalf, or both, and

(ii) in any other case, exceptional circumstances relating to the person.

(4) Where section 15A(4) applies to an applicant for a certificate of naturalisation, the periods specified in subsection (3) shall be in addition to any period of residence outside the island of Ireland referred to in section 15A(4).

(5) In this section— "day" does not include part of a day;

"exceptional circumstances", in relation to a person not being in the State or the island of Ireland, means one or more of the following:

(a) the family or personal circumstances of the person;

(b) the health requirements of the person or of a family member of the person;

(c) requirements arising out of, or in the course of, the employment, trade or profession of the person;

(d) requirements in pursuance of a course of study or a professional qualification of the person;

(e) any voluntary service by the person for humanitarian purposes;

(f) such other circumstances resulting in the person’s not being present in the State or in the island of Ireland, as the case may be, as the Minister considers to be outside the control of the person;

"family member", in relation to a person, means—

(a) the spouse, civil partner or cohabitant of the person,

(b) a child, step-child, son-in-law or daughter-in-law of the person,

(c) a parent, step-parent, mother-in-law or father-in-law of the person,

(d) a brother, sister, step-brother, step-sister, brother-in-law, sister-in-law, halfbrother or half-sister of the person,

(e) a grandparent or grandchild of the person, or

(f) an aunt, uncle, nephew or niece of the person.”

30. Under s. 15E of the 1956 Act, transitional provisions relating to applications for certificates of naturalisation are prescribed as follows:

“15E.— (1) Where, before the date on which this subsection comes into operation, an application for a certificate of naturalisation has been made—

(a) under section 15 in respect of a person who is of full age, or

(b) under section 15A in respect of a non-national spouse or civil partner of an Irish citizen, and, by that date, the application has not been determined under section

15 or section 15A, as the case may be, the application shall be deemed to have been made under section 15 (as amended by section 6 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023) or 15A (as amended by section 7 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023), as the case may be, and this Act shall apply accordingly.

(2) Where, before the date on which this subsection comes into operation, an application for a certificate of naturalisation has been made under section

15 on behalf of a minor and, by that date, the application has not been determined, the application shall be deemed to have been made on behalf of that minor under section 15B (inserted by section 8 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023) and this Act shall apply accordingly.”

31. Accordingly, s. 15E of the 1956 Act applies the new maximum allowable period of absence from the State for the purpose of a continuous residence assessment only to applications made after the 31st of July, 2023, as the Applicant’s was.

GROUNDS OF CHALLENGE

32. The written submissions filed in support of this application and elaborated upon orally depart from the pleaded grounds. For completeness, I will address both the pleaded grounds and the grounds advanced in submission.

33. The primary complaint articulated during the leave hearing ex parte on the 21st of July, 2025, was that the Minister’s decision was flawed by reason of a retrospective application of s. 15C. It is contended that the Minister wrongly applied s.15C of the 1956 Act to assess the one-year period before the 27th of June, 2024 application because s.15C was not in effect for the full duration of that period. As the application was made on the 27th of June, 2024, the reckonable period began on the 27th of June, 2023 whereas

s.15C was effective only from the 31st of July, 2023, upon the commencement s.8 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 by S.I. No. 389/2023.

34. It is contended that this constitutes an unlawful, retrospective application of s. 15C of the 1956 Act because a part of the year which was counted for the purpose of assessing the continuous residence condition pre-dated the commencing of s.15C. Reliance is placed on the fact that the Applicant had been abroad on 4 occasions between the 27th of June, 2023 and the 31st of July, 2023. It is acknowledged, however, that this period is not determinative, presumably because the period of absence after the 31st of July, 2023 well exceeded the maximum period tolerated under s. 15C without counting the days between the 27th of June, 2023 and the 31st of July, 2023.

35. In the face of the stark reality that absences exceeded the maximum permitted even if you only counted absences between the 31st of July, 2023 and the 27th if June, 2024 (giving the Applicant the benefit of the argument he seeks to make), it is further argued that the Minister was required to allow a full year to pass before applying s.15C. The argument made, as I understand it, is that as s. 15C precludes the treatment of a person who has been absent from the State for more than 100 days from being considered continuously resident for the purpose of an application under s. 15 of the 1956 Act, even though their residence in the State, relied upon in seeking a certificate of naturalisation, preceded the introduction of the statutory amendment and should therefore not be visited with this new condition.

36. In advancing the argument that the change offends against the presumption against retrospective changes in the law, reliance is placed on Dublin City Council v. Fennell [2005] 1 I.R. 604 where the Supreme Court found that a presumption of nonretrospectivity applies not only in respect of penal statutes, but in respect of statutes generally. In his judgment in Dublin City Council v. Fennell, Kearns J. quoted from Bennion on Statutory Interpretation (4th ed.) (at section 97, pp. 265 to 266) as follows:-

“The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws.

If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. '… those who have arranged their affairs … in reliance on a

decision which has stood for many years should not find that their plans have been retrospectively upset'’

37. The presumption against retrospective changes in the law articulated in Dublin City Council v. Fennell is relied upon on behalf of the Applicant to contend that s.15C should not be construed as applying to any one-year period required to be of “continuous residence” which had begun prior to its commencement. This argument is made even though the Applicant’s application was made almost a year after the commencement of the new provision. It is submitted on behalf of the Applicant that s.15C does not have the type of retrospective restrictive effect presumed by the Minister in applying it to the year immediately preceding the application where it was only newly commenced at the beginning of that year. It is contended that the s.15C delimitation of permitted absences cannot rationally or fairly be applied to part of the relevant one-year period but not another, the suggestion appearing to be that it has no application to absences between the 27th of June, 2023 and 31st of July, 2023 and therefore should not apply to the balance of the year which fell after the commencement of the application.

38. The argument advanced nowhere acknowledges the well-established fact that the conferral of citizenship is a privilege and not a right. The State is absolutely entitled to determine by law the conditions which must be met before the privilege of citizenship may be considered. In Dublin City Council v. Fennell, the Supreme Court was addressing whether the European Convention on Human Rights Act, 2003 could be applied in a challenge to a summary termination of tenancy which had occurred before the commencement of the 2003 Act on the 31st of December, 2003. In the judgment the Supreme Court reiterated a presumption against retrospective changes in law affecting vested rights, noting that the language of the 2003 Act appeared to suggest prospective application only. The Court found the 2003 Act did not apply in respect of a legal rights and obligations which were fixed and determined once the notice to quit was served, in that case well in advance of the commencement of the 2003 Act.

39. There is no parallel between the legal position of the evicted tenant in Dublin City Council v. Fennell and the position in this case. In this instance the contested provision is only applied to applications for naturalisation made after the section was commenced whereas in Dublin City Council v. Fennell the argument was that the new Act should be applied in respect of an eviction which had already occurred to alter the legal position of parties to that eviction. It cannot be said that any legal rights or obligation had vested in the Applicant to have continuous residence determined in any particular way before his application was presented at all. Thereafter, his application was considered in accordance with the law in effect on the date of his application. As made clear in Dublin City Council v. Fennell, citing Barron J. in O’H v. O’H [1990] 2 I.R. 558, the presumption against retrospective changes in the law does not mean that past events cannot be taken into account in a statute which nonetheless remains prospective.

40. Accordingly, the new provision applies prospectively in respect of applications made after the 31st of July, 2023. The application in this case was not presented until June, 2024. It is undeniable that the application for a certificate of naturalisation was made after s.15C had commenced. Had the application been submitted in advance of the 31st of July, 2023, then s. 15C would not have applied by virtue of the transitional provisions of s. 15E. It is noteworthy that counsel on behalf of the Applicant neglected to refer to s. 15E and this provision was not opened to me during the leave hearing.

41. The Applicant has no vested right to a determination on an application for a certificate of naturalisation on the basis of old law in respect of an application submitted after the law has changed. In this case, the Applicant cannot even argue that but for the inclusion of the period up to the 31st of July, 2023, he could have satisfied the continuous residence requirement given the extent of his absence from the State after the 31st of July, 2023.

42. In terms of the unfairness which the Applicant contends for arising from what he treats as a retrospective application of a new continuous residence requirement to him, it is important to recall that prior to the amendments effected from the 31st of July, 2023 and at all material times, s. 15(1)(c) has always required one years’ continuous residence, albeit statutory parameters to the assessment of what constituted continuous residence were had not previously been fixed by statute. Instead, prior to the 31st of July, 2023, the Minister operated an administrative policy in respect of the interpretation of continuous residence. Accordingly, at all times since the Applicant has resided in the State it has been a requirement that an applicant for a certificate of naturalisation in his position would demonstrate one year’s “continuous residence” and even if the Act did not prescribe what constituted an acceptable number of days’ absence, the Minister applied policy guidelines in this regard.

43. The pre-existing non-statutory policy was considered by the Court of Appeal in Jones v. Minister for Justice and Equality [2019] IECA 285 in a case where the applicant had absences of some 90 to 100 days from the State in the 12 months preceding the making of the application. The non-statutory rule or policy operated by the Minister whereby absences exceeding six weeks, absent exceptional circumstances, could not generally satisfy the continuous residence requirement was found to be lawful. The Court of Appeal rejected the contention that the policy gave rise to an unlawful fettering of discretion or constituted the imposition of an extra statutory barrier to naturalisation.

The Court of Appeal considered the requirements reasonable, balanced and in the interests of clarity and certainty.

44. The relevance of the decision Jones to the case made on behalf of the Applicant, insofar as it has any relevance, is that the one-year continuous residence requirement is not new. It has applied for many years and at all times material to the application. It is impossible to see how the Applicant could contend for a vested right to have absences of the order evidenced in this case discounted in an assessment of continuous residence based on the law which applies to applications made prior to July 31st, 2023, when the Minister’s policy up until July 31st, 2023, was to permit only 6 weeks absence save in exceptional circumstances. While the Minister had a policy which allowed of some discretion, there could be no expectation that the discretion would be exercised in the Applicant’s favour in view of the scale of his absences, even where he could point to sound work and family reasons to explain them.

45. It seems to me that the Applicant’s argument on grounds of retrospectivity is entirely misconceived and does not reach a threshold of arguability. I am not satisfied that it has any sufficient prospect of success to warrant the grant of leave.

46. The second broad ground of challenge sought to be advanced is that there has been an overly rigid interpretation of “continuous residence” on the part of the Minister in the application of s. 15C. It is submitted that Minister applied s. 15(1)(c) too literally by failing to account for the Applicant’s ordinary residence in the State and necessary work-related international travel, despite the Applicant maintaining strong ties to Ireland throughout. Reliance is placed on the decision of Whelan J. in Jones where she considered the concept of “continuous residence” in s.15(1)(c) in this regard. I am referred to para. 47 of her judgment where she found as follows:

“ 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 travel as the High Court suggests.”

47. Whelan J. went on to find that the Minister’s stated policy in that case was lawful as follows (at para. 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 an extrastatutory barrier to naturalisation nor is it unlawful.”

48. The Applicant contends that insofar as the Minister’s correspondence sets out that he considers that he no longer has any discretion to consider the reasonableness of absences and that he is entirely bound by the limits of s.15C of the 1956 Act, this is now a rule which allows of no exception. The Applicant objects to the fact that the Minister now appears to have no policy on extending the allowable days, relying entirely on s.15C. It is submitted that s.15C does not displace the Minister’s discretion to excuse absences from the State in his approach to the application of the continuous residence criterion.

49. In my view, the Applicant’s argument in this regard is entirely misconceived and wholly misunderstands the nature of the statutory amendment. Whereas the decision in Jones was addressed to a non-statutory rule under which the Minister retained a discretion, this is no longer the case. Section 15C of the 1956 Act imposes statutory conditions which the Minister has no capacity to waive. This is clear from the use of the word “shall”. Quite simply, the Minister’s discretion to grant a certificate of naturalisation only arises where he is first satisfied that the statutory conditions are met. In this way the Oireachtas has provided by law for preconditions to the grant of a certificate of naturalisation. The Applicant’s argument that the Minister has a discretion to grant a certificate of naturalisation even where he cannot meet the requirement to have been present in the State for at least 264 days in the year prior to the presentation of the application is plainly wrong in law and is not sustainable. The wording of s. 15(1)(c)

and s. 15C(1) & (3) is clear.

50. The Minister is not at large to ignore these preconditions and he has no discretion unless the statutory pre-conditions are met. There is no basis for contending that there was an error of approach on the Minister’s part in this regard. I am satisfied that the Applicant’s criticism is not stateable. It bears note that while the Minister has some discretion as between 70 and 100 days where exceptional circumstances are demonstrated, the exercise of this discretion does not arise on the facts of this case because the length of absence far exceeds the limits of the Minister’s discretion. It is patently the case that the Minister does not retain the discretion contended for on behalf of the Applicant.

51. Finally, an alternative argument is advanced on behalf of the Applicant that s. 15C is unconstitutional. In written submissions it is stated that in addition to the grounds of unconstitutionality set out in the Statement of Grounds, the Applicant seeks to amend his Statement of Grounds and to add two additional grounds as follows:

“(vii) The Minister erred in law and/or acted irrationally in treating the Applicant’s periods of temporary absence from the State as grounds for refusal of naturalisation without offering a reasoned justification based on the nature and context of those absences. The constitutional principle of equality requires that distinctions between applicants be justified by reference to relevant factual differences. It is not sufficient to apply a blanket rule or threshold (e.g. number of days absent) without demonstrating why the Applicant’s circumstances — involving work-related travel while maintaining ordinary residence in the State — warranted less favourable treatment.

(viii) Without prejudice to the foregoing, section 15C of the Irish Nationality and Citizenship Act 1956, insofar as it imposes rigid and inflexible criteria without allowing for individual assessment of circumstances, is itself unconstitutional. It unjustifiably excludes applicants who are factually and substantively resident in the State, thereby undermining the principles of equality, proportionality, and fairness protected by Article 40.1 of the Constitution.”

52. The first of these two new grounds is dealt with by my treatment above of the complaint that the Minister had erred in concluding that he had no discretion. It is incorrect to state as now sought to be pleaded at a new (vii) as set out above, that the Minister erred in law and/or acted irrationally in treating the Applicant’s periods of temporary absence from the State as grounds for refusal of naturalisation without offering a reasoned justification based on the nature and context of those absences. Once it is appreciated that the Minister had no discretion and that the decision was based on the application of an identified statutory condition which the Minister was satisfied for stated reason was not and could not be met, there was no further requirement to engage in a consideration of the nature and context of absences. It would only have been necessary to so engage if absences in question were between 70 and 100 days in the previous calendar year. They were not.

53. In advancing the second of these two new proposed grounds, the Applicant relies on the following extract from O'Meara and Others v The Minister for Social Protection,

Ireland and The Attorney General [2024] IESC 1, [2024] 1 I.L.R.M. 437, where O’Donnell CJ. stated at para 14:

“It is important to acknowledge that it is not enough, on this limb of the argument, to simply point to the distinction the Constitution makes in respect of marriage, and argue that the Constitution recognises a difference in social function between married and non-married couples, and therefore any and all distinctions made on the basis of marriage are permissible. The concept of equality involves not only treating like cases alike, and unalike cases unalike, but also that where a differentiation is made, that it is made and justified by reference to the manner in which the comparators are unalike.”

54. I am at a loss to understand in what way s.15C offends against the Constitution in any way. The inequality ground which was at the heart of the submission made during the leave hearing is not readily applied in this context. There is no apparent inequality created by a neutral residence requirement as a condition of eligibility for a certificate of naturalisation and it is difficult to see in what way O’Meara assists the Applicant.

Indeed, s. 15C allows for additional absences for exceptional family reasons or work and in this way incorporates a degree of flexibility which recognises that cases are not identical. In the end of the day, however, the Oireachtas has laid down a limit to the extent to which absence from the State is acceptable in a non-national who is seeking Irish citizenship. There is a logical, rational and non-discriminatory link between actual physical presence in the State and eligibility for consideration for citizenship. If the non-statutory policy considered in Jones was found to be fair and reasonable, it is difficult to see on what basis it might be contended that the statutory policy is not. In my view the argument advanced in reliance on Article 40.1 of the Constitution is an empty one.

55. No authority whatsoever has been advanced for the proposition that s. 15C is in breach of Articles 28.2 or 40.3 of the Constitution. I consider it a very difficult proposition to accept that the Oireachtas is not entitled under the Constitution to provide in law for conditions governing the grant of certificates of naturalisation. Even allowing for the

possibility of an improved argument, I do not see the challenge in contemplation having a prospect of success on the case as opened to me at leave stage.

56. I am also mindful that a constitutional challenge does not require to be taken by way of judicial review. When a challenge is taken by way of plenary proceedings it is not subject to a leave test. While a constitutional challenge may be maintained by way of judicial review particularly where matters which are properly pursued by way of judicial review also arise, the better approach where no such grounds have been established, as here, and where only a constitutional challenge remains is to proceed to challenge the constitutionality of legislation by plenary proceedings. In McGowan v.

Labour Court & Ors. [2010] IEHC 501, Hedigan J. declined to decide a constitutional issue on the basis that it was undesirable that the constitutional challenge should proceed alone in judicial review proceedings observing that they should be brought if the applicants wish to do so by way of plenary proceedings. Although the Supreme Court proceeded to determine the constitutional issue on appeal in McGowan v. Labour Court & Ors [2013] IESC 21, it did so in circumstances where the constitutional issue had been properly before the High Court and had been fully argued during a protracted High Court hearing.

57. Where all that remains in these proceedings at leave stage is a constitutional challenge, it seems to me, irrespective of my views on the merits of the constitutional argument, that this is a claim which the Applicant could more alternatively and appropriately pursue in plenary proceedings which are not governed by a requirement to obtain leave of the court.

58. In refusing leave, I wish to be clear that my refusal of leave is not intended as and should not be read as a finding on the issue of constitutionality in a manner which might operate to preclude the full ventilation of the question with the benefit of a more developed legal argument in appropriate plenary proceedings. My refusal of leave is based on a preliminary analysis of the arguments advanced. My view as to their lack of merit such that I am satisfied that the threshold of arguability is not met is arrived at in circumstances where it remains open to the Applicant to pursue a constitutional challenge in differently constituted proceedings without any requirement to obtain leave. The issue of the constitutionality of the legislation is not res judicata in consequence of my refusal of leave on this application, albeit it signals my view as to the weakness of the argument on the basis of the claim advanced before me.

CONCLUSION

59. For the reasons given above, I refuse this application for leave. In my view the threshold of arguability has not been reached on any of the grounds advanced and I am not satisfied by the standards of a rational preliminary analysis that this case ultimately has a prospect of success. I am mindful too that the alternative, appropriate remedy of plenary proceedings remains available in respect of any constitutional challenge the Applicant may wish to maintain and develop.