Legal Ambiguity Around “Good Character” Requirements for Citizenship Leaves Some Migrants Reluctant to Criticise the System

On a recent cloudy Wednesday evening, Shannon Chance, a professor of architectural engineering at Technological University Dublin (TUD) was recalling her immigration woes.

Chance is from the American city of Blacksburg in Virginia. She came to Ireland in 2012 on the Marie Sk?odowska-Curie grant, a scheme which allows researchers to work full-time and reside in the country on a Stamp 4 visa.

Sitting in the home office of her rented flat in Dublin 7 she’s visibly upset as she recalls how her Irish Residence Permit (IRP) card — an immigration registration certificate required to work, study or re-enter the country — had expired this past May.

She applied to renew her IRP card online, through a new system set up to assist migrant Dubliners during the Covid-19 crisis, but her application was refused, through a technical fault on the Irish Naturalisation and Immigration Services (INIS) website.

Her refusal letter, sent by the Department of Justice, said that she might be in the state illegally and subject to a deportation order.

Chance says that the experience has caused her great emotional distress but she feels reluctant to criticise the system because she intends to apply for Irish citizenship soon.

Criticising problems in the immigration system, she says, might be viewed as lacking a “good character”, a requirement that must be satisfied by all citizenship applicants.

Some migrants say there are ambiguities with “good character” requirements, which is open to interpretation and may stop people speaking out against the current system, for fear of being denied citizenship.

Legal Ambiguity

The legislation governing citizenship applications is known as the Irish Nationality and Citizenship Act of 1956. An applicant’s age and length of reckonable residence are among the statutory requirements for Irish naturalisation, or citizenship.

Another statutory requirement is what’s known as being of “good character” which broadly means a person is a law-abiding citizen, followed by declaration of loyalty to Ireland, intention to live in the country after citizenship is granted and to respect the laws and democratic values of the state.

Unlike most European countries, however, language proficiency and a basic understanding of the country’s history and culture are not conditions for acquiring citizenship in Ireland.

Ultimately, the Minister for Justice has full autonomy to decide who gets citizenship, meaning that they can deny applicants even if they satisfy all the legal requirements.

Bashir Otukoya, a law lecturer in Griffith College Dublin, says that past cases show that a clean record, with no run-ins with Gardaí is not always enough to satisfy the “good character” requirement.

“For example, there has been a case where a woman was denied naturalisation because she’d come to the attention of Gardaí when she appeared as a witness in a case, not as a criminal,” he said.

In recent years, applicants for Irish citizenship were refused over minor road traffic offences. In 2016, one man faced refusal over an incident which involved driving without a licence even though he had presented the documentation to the Gardaí within the allocated deadline.

The lack of clarity in the definition of the good character requirement has prompted the condition to be the subject of several High Court proceedings. In Hussain V. Minister for Justice, for example, “good character” was considered to entail “reasonable standards of civic responsibility as gauged by reference to contemporary values.”

Super Citizens

Otukoya says that the “good character” condition is not well defined and open to interpretation, prompting reticence in immigrants when it comes to publicly exposing flaws in the system.

“You’re following all the rules, and you’re still having trouble in the system. And, you shouldn’t be afraid of speaking out. Speaking out against injustice is a key civic duty,” Otukoya said.

He’s had his own experience with the system, starting when he turned 18 and his citizenship application was delayed for almost five years.

“That led me to kind of keep thinking why because when I went to college, I got into trouble drinking, as you do, and I got an adult caution from the Gardaí,” he said.

He wondered if the Department of Justice eventually concluded that he was not of good character and therefore not eligible for Irish citizenship.

Otukoya was finally granted citizenship in 2016, but he never stopped wondering about the opaque implications of the good character requirement.

A few years later, as a PhD law student in University College Dublin, he wrote an academic article entitled “Super Citizens: Defining the Good Character Requirement for Citizenship Acquisition by Naturalisation”, urging Irish lawmakers to unequivocally define the condition in the legislation.

The title of the paper, he says, comes from the belief that as an immigrant in Ireland you could do no wrong, lest it show up on your record.

“It’s not that we are superior from Irish nationals, but we need to act superior in order to be equal, that is, satisfying the statutory requirement for citizenship, that’s why I call us super citizens,” he said.

Made to be broken

A spokesperson for the Department of Justice said that the good character requirement essentially means that an applicant has “demonstrated a history of compliance to the laws of the land”.

Applicants are asked to list any offences committed in the State or elsewhere, but committing a crime does not “automatically” result in refusal, they said.

Each applicant is assessed by a caseworker, and then by a line manager, and if refused applicants are provided with a detailed written submission, and judicial review if it is contested, the spokesperson said.

Otukoya says, however, that the minister is not legally obliged to provide a reason for rejecting an application.

“However, since August 2016, following the Supreme Court’s decision in Mallak v. Minister for Justice the INIS has changed its application forms to include a paragraph explaining that a reason will now be provided, where appropriate,” Otukoya says in his paper.

Under the UK’s system, however, the Home Secretary is obliged to detail the exact reasons for rejection while stating how long those real or perceived offences will pose an obstacle on the way of an applicant’s naturalisation.

Otukoya says that sometimes you have to break the law as a means to expose its shortcomings. That is why he believes that migrants in Ireland must continue to be outspoken and brave in calling out problems within the system.

“Like in the case of McGee in the 1970s when a woman insisted on her right to use contraception and it led to instrumental change,” he said.

The Department of Justice did not respond to questions asking if criticising the system was a possible breach of good character.

Documents obtained through a Freedom of Information request filed by journalist Sian Cowman, has recently revealed however, that the department was monitoring Twitter accounts of individual journalists, celebrities and members of the public who were highlighting migration issues in Ireland during the Covid-19 pandemic, even recording the number of likes and retweets they had received.

Meanwhile, as an academic, Chance said, not speaking out on behalf of many other immigrants in the country who are also grappling with rebooting their residency permits, would be hypocritical.

It is a matter of ethics, she said.

“I just submitted today a paper on ethics and about how engineers need to be brave enough to stand up when they see a problem and say, ‘let’s fix this’. Otherwise, we are going to keep making the same mistakes, and it’s not sustainable,” she says.