Ozkaya v The Minister For Justice

THE HIGH COURT 2024 No.184 JR [2026] IEHC 268 BETWEEN: IBRAHIM OZKAYA APPLICANT AND THE MINISTER FOR JUSTICE RESPONDENT Ex tempore JUDGMENT of Ms. Justice Mary Rose Gearty delivered 9th March, 2026 Introduction 1. The Applicant is a Turkish national who has resided in the State since the 14th of February 2016. He applied for a certificate of naturalisation on the 8th of March 2022. On the 14th of September 2023, the Respondent refused this application on the basis that the Applicant did not satisfy the requirement of one year’s continuous residence immediately prior to the date of his application. The Applicant seeks an order of certiorari quashing this decision. The case was heard on 5th March, 2026. 2. The challenge centres on two related complaints: (i) that the Respondent misapplied the statutory test of continuous residence and failed to consider relevant matters, including asserted exceptional circumstances, and (ii) that the decision failed to disclose intelligible reasons; it referred to a “residency calculator” that was not, in fact, used, and did not otherwise explain why the Applicant’s circumstances were disregarded. The Applicant also criticises the Respondent’s failure to respond to two post-decision letters seeking clarification. 3. For the reasons explained below, I will quash the decision and remit the matter to the Respondent with a direction to reconsider it and reach a decision in accordance 1 with the findings of the court. I express no view on the ultimate outcome of that reconsideration, which is entirely a matter for the Respondent. Factual Background 4. The Applicant has lived and worked in Ireland since 2016. He applied for naturalisation on the 8th of March 2022. In the year immediately preceding that date, he was absent from the State for a total of 159 days, comprising two lengthy visits to Turkey to attend his father, who had been diagnosed with cancer. The Applicant says his absences were driven by exceptional family circumstances and pandemic related travel restrictions, and that his pattern of travel in other years was very different. 5. The refusal letter of 14th September 2023 stated that the application was deemed ineligible on the basis that the Applicant did not meet the relevant criteria. This can be interpreted to mean that the Applicant did not meet the requirement of continuous residence, and that was the meaning that the Respondent argued must be inferred. The decision purported to rely upon, and attach, a residency calculator; none was attached and, it later emerged, none exists. Thus, the method of reasoning said to be employed was not the method actually used. It was later explained that the days were calculated by a clerical officer and, on the basis of the total absences, the application was refused without further consideration. The decision did not mention exceptional circumstances, there was no indication that they were considered, nor was there an explanation as to why they were immaterial. 6. The Respondent’s affidavit evidence was sworn by a deponent who was not the decision-maker. The affidavit sheds little light on how, if at all, the question of the calculation was approached. It confirms that no discretion was exercised because the period of absence was considered so extensive that the application could be determined by simple calculation. None of this reasoning appeared in the decision communicated to the Applicant. The decision itself, therefore, conveyed little useful information to the Applicant. Indeed, it was actively misleading in respect of the “residency calculator.” Neither the decision, nor the affidavit, clarified what period of absence might defeat a claim such as this one, where an applicant had provided evidence of a genuine emergency, unlikely to be repeated. 7. After this refusal, the Applicant’s solicitors wrote on the 10th of October 2023 and 16th November 2023 seeking clarification, in particular asking whether the Applicant’s family medical circumstances were taken into account. No reply was received. The Respondent subsequently explained that the letters omitted the correct application number and were not matched to the file. This was a significant failure, given the seriousness of the contents of the letters and the importance of 2 the decision to the Applicant. Even a pro forma letter or an email advising that the file could not be located would have been helpful. 8. The application was made some three weeks outside the deadline imposed by O.84, rule 21, and the Applicant seeks an extension of time on the basis that it was reasonable to await a reply to the two letters referred to above. Statutory and Policy Framework 9. Section 15(1)(c) of the Irish Nationality and Citizenship Act 1956 (as it stood when the application was made and determined) required, among other things, that an applicant must have been in one year’s continuous residence in the State immediately prior to the application, in addition to fulfilling a longer-term residence requirement over the preceding years. The concept of continuous residence is more rigorous than ordinary residence and places significant emphasis on physical presence in the State during the relevant year. 10. At the relevant time there was no statutory specification of an acceptable number of days’ absence within that “continuous” year. The Department historically applied a policy of permitting up to six weeks’ absence for holidays or other usual travel, with a further discretionary allowance (not quantified in days) for exceptional circumstances, such as vouched work‑related travel or illness abroad. That practice formed the backdrop to the decision here, but it was neither articulated in the impugned decision nor was it transparently applied to the Applicant’s circumstances. 11. In a section entitled “Frequently Asked Questions” displayed on the immigration service delivery website, the question appears as to whether absence from the State due to COVID-19 travel restrictions or isolation measures will affect a citizenship application and the answer is that a pragmatic approach will be applied in such emergencies. 12. In 2023, the Legislature enacted the Courts and Civil Law (Miscellaneous Provisions) Act of 2023, which inserted s.15C into the 1956 Act (commencing on 31st July 2023). This provision prescribed explicit limits: up to 70 days of absences were permitted in the year immediately preceding the application, with a further discretionary allowance of up to (but no more than) 30 days for exceptional circumstances. That provision does not apply to this application, which pre‑dates its commencement. It is mentioned only to underline that, before s.15C, there was no statutorily prescribed period in respect of absence, and discretion, apparently, remained with the Minister. 3 Applicable Case Law: Jones and Hicsonmez 13. In Jones v. Minister for Justice and Equality [2019] IECA 285, the Court of Appeal held that “continuous residence” does not require uninterrupted presence or a complete ban on travel, but it does attach significant importance to physical presence during the relevant year. The Court distinguished the stricter one-year requirement from the broader multi-year residence criterion. In Jones, the Court of Appeal held that the applicant’s 79 days of holiday absences grounded a lawful refusal, while affirming that “continuous” must be given real meaning. 14. Both parties also relied on Hicsonmez v. Minister for Justice and Equality [2025] IEHC 436, but that case concerned a naturalisation application governed by s.15C and is not determinative of the pre‑commencement position. There, Phelan J. considered the approach adopted in Jones and refused leave to challenge a decision in respect of an applicant who had been absent from Ireland for 177 days due to work requirements. Phelan J. relied on the plain terms of s.15C but also referred to Jones, confirming her view that the case she was considering was such a clear example of excessive absence, that Mr. Hicsonmez could not have expected to establish continuous residence. 15. At paragraph 42, rejecting the argument that s.15C could not be applied retrospectively to that applicant’s case, Phelan J. concluded as follows: 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. 16. In this regard, I note that the Applicant in this case does not argue that he had a vested right to have the absences of up to 159 days discounted but submits that he was entitled to have his circumstances considered, and that they were not. 17. Addressing the issues of reasons and procedural fairness, the Applicant relied on familiar authorities emphasising that reasons must be given and cannot be retro- actively provided through affidavits, and that decision‑makers must consider relevant representations (Mallak v. Minister for Justice, R (Ermakov) v. SSHD, 1996 All E.R. 3021 and M.N.N. v. Minister for Justice [2020] IECA 187). 4 18. As the Court of Appeal confirmed in M.N.N., the fact that naturalisation is the grant of a privilege does not mean that an applicant enjoys inferior legal protection when pursuing such an application. Information that is presented to the Minister in a submission must be accurately recorded, complete and considered in full by the decision-maker before reaching a determination. 19. Finally, in respect of the extension of time sought in this case, relying on the two letters in which the Applicant sought clarity in respect of the decision, the most useful authority is that of Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109, pithily summarised by Simons J. as follows: “The factors of which account may be taken will include the nature of the order or actions the subject of the application, the conduct of the applicant, the conduct of the respondent, the effect of the decision it is sought to challenge, any steps taken by the parties subsequent to that decision, and the public policy that proceedings relating to the domain of public law take place promptly except where good reason is furnished. The “blameworthiness” of an applicant is relevant, albeit as only one such factor to be weighed in the balance.”. Issues 20. Five issues arise: i. Reasons: Whether the Minister failed to provide adequate reasons for the refusal. ii. Discretion: Whether the Minister failed to consider the Applicant’s asserted exceptional circumstances, proceeding instead on an erroneous view that there was effectively no discretion in a case with extensive absences. iii. Fair procedures: Whether the reference to a non‑existent “residency calculator”, the opacity of the policy being applied, and the failure to respond to post‑decision correspondence vitiated the decision. iv. Practical utility: Whether the Court should refuse relief on the basis that a reconsideration will inevitably lead to the same outcome. v. Whether an extension of time should be granted to the Applicant. Analysis (i) Reasons 21. The refusal letter conveys no meaningful explanation for the decision beyond the conclusion that the continuous residence requirement was not met. It references a calculator that was not supplied and, in truth, did not exist. The affidavit material—sworn by a non-decision-maker—cannot retrospectively cure the absence of reasons. The Applicant was entitled to know whether (and how) any 5 discretion was considered, what policy was applied, and why his exceptional circumstances were rejected. He was told none of this. That is a breach of the duty to give reasons which are sufficient to enable the Applicant to understand the decision and consider a challenge. (ii) Discretion and Relevant Considerations 22. Prior to s.15C, there was no statutorily permitted period of absence. The Respondent’s previous administrative practice envisaged both (i) a six-week tolerance and (ii) a further discretionary margin for exceptional circumstances. The Respondent now says the Applicant’s 159-day absence placed him so far outside the tolerance that discretion simply did not arise. That stance both mischaracterises the nature of undefined discretion and fails to engage with the evidence of why the absences occurred. The Minister was not obliged to grant the application, but was obliged to consider the relevant representations. The decision shows no such consideration. 23. In Hicsonmez, under the amended legislation, the Minister had some discretion as between 70 and 100 days where exceptional circumstances were demonstrated, and Phelan J. held that the exercise of this discretion did not arise on the facts of the case because the length of absence far exceeded the limits of the statutory discretion. Here, however, there is no express demarcation under statute of the limits of the Respondent’s discretion. 24. The Applicant exhibited anonymised files indicating that, in other cases, more than six weeks’ absence had been permitted. Those materials are not precedents, and the total period of absence in this case is far longer than those exhibited; however, the files suggest that discretion exists and was exercised in practice. A lawful decision required the Respondent to explain why, in this case, the discretion was not exercised, rather than to proceed as if discretion were unavailable. 25. As set out above, there was evidence that the Respondent indicated, through postings on the relevant website, that a pragmatic approach would be taken to travel disruption caused by the COVID-19 pandemic. The evidence here was that travel restrictions affected the Applicant, who could not return easily due to the pandemic. This was not disputed. The Respondent neither applied the pragmatic approach described on the relevant website, nor explained why it could not be applied in this Applicant’s case. (iii) Fair Procedures 26. The combination of: (a) a misleading reference to a non-existent calculator; (b) a failure to identify the operative number of days or any threshold beyond which discretion would never be entertained; (c) a failure to engage at all with the circumstances of the Applicant’s case; and (d) the failure to reply to two letters 6 raising the core point of exceptional circumstances (albeit misnumbered) cumulatively amounts to a denial of fair procedures. (iv) Practical Utility 27. The Respondent argues that an order remitting the decision for further consideration is pointless, given the scale of the absences. The implication being that an application for naturalisation made in March 2022 would inevitably have to refused, having regard to the travel within the previous twelve months. While the argument is not without force, it must be rejected. The Applicant is entitled to a decision in accordance with law, including fair procedures and cogent reasons. To date, the Applicant has not been afforded that entitlement. It is not inevitable that the same outcome will result if the Minister gives proper consideration to the naturalisation application. Moreover, a fresh decision in 2026 (or as soon thereafter as may be) may legitimately, take account of the Applicant’s residence in Ireland in the intervening years when exercising the Respondent’s discretion under the pre-s.15C regime. It would defeat the purpose of the 1956 Act to treat the matter as frozen in time and solely made by reference to 8th March 2021– 8th March 2022, albeit that the decision must be directed towards the year in question. (v) Extension of Time 28. The Applicant cannot succeed unless the time period for making his application for judicial review is extended. The decision on whether or not to extend time must be made in accordance with the principles set out in Arthropharm. It is correct to say the Applicant’s side bears a minimal burden of fault in respect of the failure to consider his two post-decision letters. As explained above, the two letters did not contain the correct case reference number. However, the Respondent’s conduct in failing to outline the applicable policy, failing to refer to the correct (or any) method of calculation and failing to respond to the letters was the more blameworthy. The public policy of prompt decision-making has not been upheld by the Respondent in the circumstances of the case and the effect of the decision on the Applicant is more significant than the effect of quashing that decision will be on the Respondent, even taking into account the clear and appropriate policy aim of strict regulation of the process of conferring the privilege of naturalisation. Remittal to the Respondent 29. The Respondent is entitled to take the view that the period of absence in this case is simply too long to allow a successful application when the concept of “continuous residence” must be applied to the year in question. If doing so, the circumstances outlined by the Applicant must be considered and it must be 7 explained why those circumstances are not sufficient to allow his application to succeed. 30. Equally, the Respondent may take the view that due to the history of the case, it encompasses exceptional circumstances which allow for an exercise of discretion in favour of the Applicant. 31. It is inappropriate for the Court to offer any view on the question of whether this naturalisation application is a strong one, which is entirely one for the Respondent. In particular, the Court notes that it has no evidence as to how long the Applicant has spent residing in Ireland in the years subsequent to the application nor indeed any detailed evidence in respect of his pattern of residence in the years before March of 2021. Fundamentally, I do not think it clear and unavoidable that the Respondent will make the same decision; it is appropriate to remit the matter for a fresh decision. Conclusion and Orders 32. The time within which to challenge this decision under O.84 is extended, in accordance with rule 21, until the date of the filing of the application. 33. The decision of 14th September 2023 will be quashed on the grounds that: (i) the Minister failed to provide adequate reasons; and (ii) the Minister failed to consider relevant matters, including whether exceptional circumstances warranted the exercise of discretion, proceeding instead on an erroneous assumption that no discretion arose. 34. The matter will be remitted to the Respondent, pursuant to Order 84, rule 27(4) of the RSC, with a direction to reconsider it and reach a decision in accordance with the findings of the Court. The Respondent shall apply the law in force at the time of the original application (i.e., the pre-2023 position) and may have regard to any and all such matters as are relevant to the exercise of discretion, including the Applicant’s period of residence here since March of 2022. This case does not set a direct precedent in light of post-2023 legislative changes, which are not engaged here. Costs 35. My provisional view is that the Applicant, having been wholly successful, is entitled to his costs. If the Respondent disputes this, contact the Registrar within 14 days. 8