The High Court has quashed two refusals of Irish citizenship applications, ruling that residence while applications for residence as permitted family members of EU citizens were pending could count towards the five-year residence requirement for naturalisation.
The cases concerned Israr Ahmed and Nazneen Arshad, both Pakistani nationals who applied for residence in Ireland on the basis of their relationships with EU citizen siblings. Their Form EU1 applications were accepted for consideration and later granted. Neither had made a separate application under Regulation 5 of the European Communities (Free Movement of Persons) Regulations 2015, and neither was asked to do so.
The Minister for Justice refused both naturalisation applications on the basis that the applicants did not have five years of reckonable residence. The calculations began their residence periods after formal registration or the issue of residence cards, rather than when their applications had been accepted for consideration. The applicants challenged those refusals by judicial review, arguing that their earlier residence should count.
Justice Siobhán Phelan said the 2015 Regulations allow a family member whose residence-card application is under consideration to remain in the State pending a decision. In these cases, the Minister’s acceptance of each application for consideration showed that the applicants had been allowed to proceed as permitted family members. The judge concluded that this triggered the right to remain under Regulation 7(6), even though the process had used one application form rather than separate Regulation 5 and Regulation 7 applications.
The judge also held that residence under Regulation 7(6) was not in contravention of section 5(1) of the Immigration Act 2004 merely because the applicants lacked a separate permission under that Act. Since the residence was not excluded by section 16A of the Irish Nationality and Citizenship Act 1956, it was reckonable for naturalisation purposes.
The court quashed the Minister’s refusal of Arshad’s application, dated 9 March 2023, and Ahmed’s refusal, dated 24 November 2022. It did not grant either applicant a certificate of naturalisation or determine that either now meets all requirements. The judge said the parties could be heard on the form of the orders and any consequential matters they could not agree.