Thomas Smith considers himself Irish.
That’s how he describes himself in a letter for his citizenship application. “As an Irish person … ,” writes Smith, before counting the ways he has tried to excel academically to do Ireland proud.
Smith, who is a UK citizen, moved from England to Ireland with his family more than 30 years ago. He was a year old, his letter says.
For his childhood and adolescent years, “I have no memories of being outside of Ireland,” said Smith, last week on a Zoom call.
It was almost 24 years later that Smith moved away, first to study in Scotland, then briefly returning to Ireland, before leaving again for a postdoc research job in the Czech Republic, where he now lives.
Given those long formative (and more years) in the country, Smith applied for Irish citizenship in February 2019 on the grounds of “Irish association”, a route for those who are either of Irish descent or have compelling circumstances that attach them to Ireland by enduring ties.
Smith says he didn’t apply earlier, while he was still living in Ireland, because of the financial barrier: there’s an application fee of €175, and then it’s another €950 to pay if the application is successful.
“I am from a poor, working-class background. I left for work and to improve my life, pay off student debt,” he says. “Never had the cash lying around.”
Last month, the government refused to grant Irish citizenship to Smith.
At issue was his failure to meet a discretionary threshold that says, in the year before applying, would-be citizens should have their feet on Irish soil for close to 365 days. (A few weeks of travelling is deemed understandable.)
His reasons for claiming Irish association weren’t compelling enough to prompt the minister for justice to waive the residency requirement, the refusal letter says.
“But they didn’t say what makes it compelling or what doesn’t,” says Smith.
A spokesperson for the Department of Justice didn’t say what, in general, makes an Irish association case compelling enough but said that Irish citizenship is a privilege and an honour, granting EU-wide rights. “It is important that appropriate procedures are in place to preserve the integrity of the process,” they said.
Bashir Otukoya, an assistant professor of law at Dublin City University (DCU), says the Irish association condition of the citizenship act should be broadened.
It should include people who have grown up in Ireland and have contributed to the country, even if they fall short of blood ties, he said.
“It is very divisive because, essentially, we’re saying that there are people who can claim Irishness without ever living in the country, and we have undocumented children growing up in Ireland, who can’t,” says Otukoya.
What is Enough?
Smith’s two sisters were born in Ireland and have Irish citizenship. “My mother has been living there for the past 30 years,” Smith says.
Having siblings with Irish citizenship is not a firm ground for claiming Irishness because citizenship is usually by descent,says the Department of Justice’s immigration website.
Association by ascent, such as being the parents of Irish citizen children or through Irish citizen siblings, is not considered enough for the minister to exercise her absolute discretion and ignore the residency requirement “in the absence of exceptional and compelling reasons”, it says.
Siobhán Conlon, founder and human rights solicitor at the law firm Siobhán Conlon Solicitors, says what’s compelling or exceptional is not explicitly mentioned anywhere.
“It says in relation to siblings that the connection is not enough. And that’s the real question: what is compelling enough?” says Conlon.
“And far as I’m aware of, there’s no guidelines in relation to that,” she said.
The overall brevity and ambiguity of guidelines for applying under Irish association are not ideal either, Conlon said: “The guidance that’s there is minimal.”
Wendy Lyon, partner and solicitor at the law firm Abbey Law, also said that it’s unclear what is meant by “Irish association”. “And it’s also not consistently applied.”
In 2019, the Court of Appealoverturned the minister for justice’s decision to refuse citizenship to Adriana Borta, a child with a Moldovan passport, who was living in Ireland, going to school here, and had an infant Irish citizen sibling.
The minister had acknowledged that Borta had Irish ties but said that they weren’t strong enough. In her judgment, Ms Justice Aileen Donnelly said that the minister should have clarified why they weren’t.
“Ms. Borta was entitled to know the reasons so that she could address that in the context of a further application for naturalisation,” she said.
“It goes without saying that a clear statement of reasons would permit Ms. Borta to challenge them if she believed there were good grounds to do so,” Ms Justice Donnelly said.
Smith says he’s upset that after almost three years of waiting for a decision, his claims to Irishness were assessed as insignificant with no clear explanation.
On his refusal letter, it’s scribbled with a pencil, that the “applicant should reapply when he is resident in the State”.
Said Smith: “And then someone scribbles a note on it. It’s three years of my life that I spent in hope.”
He says the citizenship division of the Justice Department wrote to him a few times asking for various documents during that time, which kept hope alive.
Conlon, the solicitor, says that in her experience, applications made under the Irish association condition of the citizenship act are rare, but she’s interested to find out their success rate.
A spokesperson for the Justice Department said that recording statistics that way is labour-intensive and would “represent a significant diversion of resources from day to day processing”.
But they said that in line with the law, the minister would “very rarely” and “under the most exceptional and compelling circumstances”, waive the residency requirement in favour of Irish association.
But “it is open to the applicant to include any material they deem necessary to explain their circumstances”, they said.
Otukoya, the law professor at DCU, says limiting the Irish association condition to blood ties means pitting two groups against one another. “And it would cause resentment.”
If a child who’s grown up in Ireland finds no path to citizenship, he said, but say “an American who has never lived in Ireland, knows nothing about Ireland beyond St Patrick’s Day, can claim Irishness because they have blood affiliation” finds a way, the inequality means one group can end up begrudging the other.
In a letter on his citizenship application, Smith opens up about the other group, venting frustration.
“While more people than ever before are attaining Irish passports having never even stepped foot in the country, I grew up in Ireland, completed all my schooling there, have Irish family, learned the Irish language, and identify as Irish in every manner apart from my current passport,” writes Smith.
Says Otukoya: “I think focusing on the blood link is very restrictive in a modern, diversifying Irish society.”
“Miss Ireland, for example, is a Black Irish woman, but she doesn’t have Irish association as it’s defined in our current legislation,” he said.
“So, I think there is a strong impetus to move away from blood affiliation because that segregates a group of people who don’t have that,” he said.
Looking at people’s genuine links to a country for assessing their rights to citizenship is the way to go, as highlighted in a1953 judgment by the International Court of Justice, said Otukoya.
“That’s a very strong judgment, and it’s still used in the EU, and we need to move towards that,” he said.
He says that if abolishing the blood affinity condition is not a workable solution, then the law should be widened to include kids who grew up here. It’s also, he said, a way to regularise undocumented kids.
“Undocumented children who grow up here, they don’t know they’re undocumented. As they grow up they realise that ‘I’m not a citizen and that I can’t apply for citizenship,’” said Otukoya.
A spokesperson for the Department of Justice said that would-be citizens should prove in good faith that they plan on living in Ireland if granted citizenship.
For now, Smith lives in the Czech Republic with his wife. In the letter on his application, he says that he desires to “return to live in Ireland in the near future”.
Navigating the fact that he’s not considered Irish by the government has been difficult, he says. “Citizenship is all about belonging and knowing that you belong.”
Says Smith: “It just feels horrific, to be honest, I couldn’t sleep after that.”
UPDATED: This article was updated at 11:02am on 1 December 2021 to include Smith’s comments on why he didn’t apply for citizenship while he was still living in Ireland.