DD v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 06 February 2025
• Neutral Citation: [2025] IEHC 67
• Docket Number: RECORD NO. 2023/664JR

Between

DD

Applicant

and

Minister for Justice

Respondent

[2025] IEHC 67

RECORD NO. 2023/664JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Mr. Justice Mark Heslin delivered on the 6 ^th day of February 2025

Introduction

1 . The applicant seeks an order of certiorari in relation to the respondent's decision of 15 March 2023 refusing her application for naturalisation pursuant to the Irish Nationality and Citizenship Act 1956 (as amended) (“the 1956 Act”). “ Naturalisation” is dealt with in Part III of the 1956 Act, and ss. 15 and 16 are of particular relevance.

Section 15

2 . Section 15 is headed “ Conditions for issue of certificate” and, in relevant part, provides:-

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) (i) is of full age, or

(ii) is a minor born in the State;

(b) is of good character;

(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) intends in good faith to continue to reside in the State after naturalisation; and

(e) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows—

(i) made a declaration, in the prescribed manner, of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.

(2) The conditions specified in paragraphs (a) to (e) of subsection (1) are referred to in this Act as conditions for naturalisation.” (emphasis added).

Section 16

3 . Turning to s. 16, which is headed “Power to dispense with conditions of naturalisation in certain cases”, it provides:-

“16. (1) The Minister may, in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

(a) where the applicant is of Irish descent or Irish associations;

(b) where the applicant is a parent or guardian acting on behalf of a minor of Irish descent or Irish associations;

(c) where the applicant is a naturalised Irish citizen acting on behalf of a minor child of the applicant;

(d) …

(e) …

(f) where the applicant is or has been resident abroad in the public service;

(g) where the applicant is a person who is a refugee within the meaning of the United Nations Convention relating to the Status of Refugees of the 28th day of July, 1951, and the Protocol Relating to the Status of Refugees of the 31st day of January, 1967, or is a Stateless person within the meaning of the United Nations Convention relating to the Status of Stateless Persons of the 28th day of September, 1954.

(2) For the purposes of this section a person is of Irish associations if –

(a) he or she is related by blood, affinity or adoption to, or is the civil partner of, a person who is an Irish citizen or entitled to be an Irish citizen, or

(b) he or she was related by blood, affinity or adoption to, or was the civil partner of, a person who is deceased and who, at the time of his or her death, was an Irish citizen or entitled to be an Irish citizen.” (emphasis added).

Relevant facts

4 . Having touched on the statutory backdrop, it is useful to note certain relevant facts which emerge from a consideration of the evidence. These including the following.

5 . The applicant was born in Brazil, in January 1995, and is a citizen of that country.

6 . The applicant came to Ireland on 5 August 2006, at the age of 11.

7 . From 2006, the applicant resided in this State, lawfully, as a dependent of her father, who, by virtue of a work permit, had permission to remain in Ireland. The applicant's father subsequently became a naturalised citizen (in October 2012).

8 . The applicant's 2 paternal uncles, a paternal aunt, and 2 cousins are Irish citizens, residing in the State.

9 . The applicant lived in the State continuously for 6 years, completing part of her primary education and all of her secondary education in Ireland.

10 . In March 2011, the applicant registered for residence in her own right. The Garda National Immigration Bureau has confirmed (by letter dated 20 December 2018) that the applicant had a ‘Stamp 3’ permission to reside, lawfully, in the State from 13 March 2011 to 8 June 2011; and from 3 July 2011, to 3 September 2012.

11 . The applicant returned to Brazil, in June 2012, after completing her Leaving Certificate. Other than “ to stay with an aunt”, no reason is given for the applicant leaving the State.

12 . It is common case that the applicant's father could have made an application for her naturalisation when she was a minor (under s. 16 (1) (c) of the 1956 Act). However, no such applicant was ever made and no reason for this is given.

13 . The applicant has lived in Brazil since June 2012.

14 . From 12 May 2015, to 20 April 2016, the applicant was employed as an English teacher in Brazil, according to her naturalisation application.

15 . At some unidentified point following her return to Brazil, the applicant met her husband and they were married in Brazil in January 2017.

16 . The plaintiff and her husband had their first child, in December 2017, in Brazil.

17 . In July 2017, the applicant visited the State for a month, on foot of a visitor permission.

18 . On 9 October 2018, the applicant made another visit to Ireland, having been granted a 90-day non-renewable temporary visitor permission (“visitor permission”), which expired on 7 January 2019.

19 . On 8 January 2019, the applicant, through solicitors, applied for a temporary extension of the visitor permission, in order to facilitate the preparation of supplementary applications for a long-term permission.

20 . On 15 January 2019, the respondent stated that “ The nature of extension of visitors conditions is that they are short-term immigration permission for exceptional changes in circumstances. The purpose of such applications is not to seek temporary permission in order to make further applications.” The Irish naturalisation and immigration service gave notice that the applicant should make arrangements to leave the State on or before the expiration of her visitor permission; provide evidence of departure; and if such evidence was not received by the relevant date, a proposal to deport would issue.

21 . On 18 January 2019, the applicant's solicitors sought permission under section 4 (1) of the Immigration Act 2004 and the discretionary powers of the respondent (“the s.4(1) application”).

22 . Correspondence was exchanged between the respondent and the applicant's solicitors, on 24 January and 1 February2019, in relation to further information concerning the s. 4(1) application.

23 . On 24 January 2019, the applicant applied for naturalisation, under the 1956 Act. The respondent acknowledged this application by letter dated 31 January 2019.

24 . It is common case that the applicant, who returned to live in Brazil in 2012, did not meet the section 15 (1) (c) requirement (of a year's continuous residence in the State immediately prior to applying, together with four additional years during the preceding eight), but is of “ Irish associations” as a consequence of which she is entitled to make an application, pursuant to s. 16.

25 . On 18 February 2019, the applicant's solicitors wrote to the respondent in relation to the applicant's residency in the State, from 2006, and enclosed further documentation.

26 . It is common case that the applicant remained in the State for over 8 months after the expiry of her temporary visitor permission.

27 . Whilst in Ireland, the applicant learned that she was pregnant with her second child and made the decision to leave Ireland and to return to Brazil before receiving a decision on her s.4(1) residency application.

28 . On 26 July 2019, the applicant's solicitor wrote to the respondent giving notice that the applicant, her husband, and their minor child intended to return to Brazil. The reasons given were because the applicant was expecting her second child and her husband was due to sit his final exams for a chemistry degree at a university in Brazil. This letter stated inter alia that: “ The family intend to return to Ireland in the spring of 2020 and are worried that, because they overheld on their initial visit visa whilst they made applications to the Minister, they may run into difficulty in re-entering the State”.

29 . A proposal to deport the applicant issued and, on 2 August 2019, the applicant's solicitor wrote to the respondent giving notice that the applicant would be voluntarily leaving the State, on 14 August 2019, and requesting confirmation that the applicant would be permitted to lawfully enter the State in the future.

30 . The applicant returned to Brazil, on 14 August 2019, at which point her residency application ‘fell away’, but her naturalisation application remained to be decided.

31 . On 20 August 2019, the applicant's solicitor wrote to the respondent, giving notice that the applicant had left the State, on 14 August 2019, and confirming that the applicant wished to continue to pursue her naturalisation application.

32 . From 22 to 27 August 2019, further communication passed between the applicant's solicitors and the respondent in relation to proof that the applicant had departed Ireland and returned to Brazil.

33 . On 2 September 2019, the respondent sought details of the applicant's address in Brazil. The applicant's solicitor furnished this by letter dated 10 September 2019.

34 . On 13 January 2021, the applicant's solicitor wrote to the respondent, stating that the applicant's...