Bashir Otukoya is a PhD student in the UCD Sutherland School of Law, and also in the UCD School of Politics & International Relations. He holds a BAL, an LLB, as well as an LLM in Public Law. His current research focuses on citizenship, in particular, exploring the politico-legal process of becoming an Irish citizen (by naturalisation), and its influence on the sociological idea of being Irish.
Bashir is a member of the Irish Refugee Council and is experienced in advising migrants in politico-socio-economic integration matters. He is also an ex-board member of Dialogue & Diversity, and has organised workshops and published reports on migrant integration.
This is a follow-up letter of a previously published letter tiled ‘Super-Citizens: Equal Powers comes with Greater Responsibilities’.
A fully referenced version is available here.
Borders, physical or imaginary, are becoming less relevant in a world where cheap flights and international interdependency are prominent. As a result, there now exists a legal sorcery in the art of being here whilst at the same time, being somewhere else. In Irish immigration law, the conditions for becoming a citizen through the process of naturalisation demands that the immigrant acquires a reckonable residence of five out of nine years in the State. However, the determination of this residence period poses a problem in establishing which legal concept of residence is required. Legal terminology on residency can be found in different areas of law. You will find ‘lawful residency’ in immigration law and ‘actual residency’ in taxation law. ‘Normal’ and ‘habitual residency’ are both found in succession law and family law. Therefore, to put in context the term ‘neither here nor there’, to which this letter refers, different areas of law may classify you as having one form of residence, whilst having another at the same time.
For example, some people ‘temporarily reside’ in Belgium but are ‘habitually resident’ in Brazil. The difference of course is that the former has no real legal benefits, apart from a visa that lets you stay in the country for a limited period of time, whereas the latter comes with a range of legal benefits, including access to employment. Others may ‘lawfully reside’ in Germany whilst ‘normally residing’ in Denmark. ‘Ordinary residence’ is similar to ‘normal residence’ and can be distinguished by the terminology relied upon in each country.
One’s residency will be considered their ‘normal residence’ when it can be determined that the individual has lived in the state for at least 185 days and has established a close and personal relationship with the state, in the presence or absence of occupational ties. In Keller v The Revenue Commissioner, it was noted that where the applicant lives in turn in two or more states, as a result of such person’s occupational ties being in a different place from their personal ties, the normal residence of that person would be the place of their personal ties, once it can be proven that they return frequently. According to this definition, normal residency will be recognised by law if the condition of 185 days has been met and personal ties with the State have been established, even if the immigrant resides there illegally. It is important to note that ‘lawful residence’, is not required in order to satisfy the normal residency test since ‘actual residence’ will suffice.
A situation which often arises is one in which an individual might, for example, be a ‘citizen’ of Ireland and a ‘national’ of Nigeria, but ‘actually reside’ in the UK. It is well established from cases and legislation in taxation law that ‘actual residence’ connotes physical presence. The earliest case that referred to the concept was in 1929, where in seeking to determine whether the appellant was domiciled in Saorstát Eireann or in England for the purpose of income tax assessments, a literal interpretation of the term ‘actual residence’ was applied. The appellant claimed that he had not been a resident nor a citizen of Saorstát Eireann for the years of tax assessment and was therefore exempt from tax payments. In defining residence, the court took their interpretation from ‘ordinary educated speech’:
These latter words, ie residing, being a resident, imply something more than an intention to settle down or than having settled down, and to my mind, import a measure of physical presence. It may well be that in their primary literal sense these words connoted meanings that would be expressed at present by some such phrases as "actually residing" or "in actual residence".
Of course, one does not need to be ‘actually resident’ in the state of one’s citizenship or nationality, as evidenced by high levels of global migration. Yet, being physically present is an absolute necessity in many of the legal residency terms already discussed.
Legal terminology aside, let us revive the conversation on Irish citizenship post-Brexit. The upsurge in Irish citizenship applications as a result of the fear of losing access to EU member states has shown the importance of free movement in a globalised and interconnected world. British ‘nationals’ acquire Irish ‘citizenship’, mainly to continue the free movement rights they enjoyed when previously in the EU. But is that all Irish citizenship is worth, a ticket? Feelings of Irish identity and national pride resurrected by international events like Euro16, Eurovision, the Olympics, or in recent times, Conor McGregor, reveal themselves to be just that - feelings. Do those feelings not amount to an accession of Irish citizenship to those who, if not feel, at least earn citizenship? Only when it comes to naturalising migrants do we see those feelings come into play. British nationals who may not even feel Irish obtain Irish citizenship, even though the Minister for Justice has often stated at naturalisation ceremonies that citizenship is a privilege that is earned. Thousands of British nationals are gaining ‘citizenship by right’ - by virtue of their affinity to the Irish nation - ahead of those immigrants who have truly earned and/or feel it. Their ‘nationality’ is British, their ‘citizenship’ is Irish-British (or British-Irish), and their ‘actual residence’ may perhaps be somewhere else.
Immigrants, however, are required to reside in Ireland for a reckonable period of five out of nine years before being eligible for citizenship. This does not necessarily mean that the applicant be physically resident in the state during those periods. In theory, an applicant will have satisfied the residency condition even if, over a period of eight years, the applicant resides in another state and only comes to Ireland when the visa permitting his/her residency in Ireland is due for renewal. Though ‘lawfully resident’ in the State for the requisite five years, the applicant only needs to have spent 365 days of consecutive ‘actual’ physical residence in the State prior to the application.
Even if lawfully resident in the State, the periods of residency for asylum or study are not reckonable for the purposes of satisfying the naturalisation condition. If the logic for not counting the period of asylum and study as reckonable is that the visa is granted in order of fulfilling a sole purpose, what then about those with permission to remain on the sole basis of work? Immigrants who remain in the State on the basis of a Stamp 1 or a Green Card are eligible for citizenship after five years of reckonable residence. What differences are there between the international student and the immigrant worker that disadvantages the former by a period of five years? One answer might suggest that the immigrant worker does not pose a burden to the state. They are usually financially stable before being granted a visa and have documentary evidence of guaranteed employment before arriving to the state. The international student, however, is presumed financially dependent on guardians, and upon completion of their course, if permitted to remain, will presumably seek state welfare before attaining employment. Thus it seems, evidenced from the high price of naturalisation, Irish citizenship is not something which is acquired as an award after a long period of undefined residency. It is neither here nor there.
Is mise le meas,