Irish nationality law

Irish nationality law is the law of the Republic of Ireland governing citizenship. In Irish law the terms "nationality" and "citizenship" have equivalent meanings. A person may be an Irish citizen through birth, descent, marriage to an Irish citizen, or through naturalisation. Irish nationality law is currently contained in the provisions of the Irish Nationality and Citizenship Acts 1956 to 2004, and in the relevant provisions of the Constitution of Ireland.

Acquisition of citizenship

At birth

Anyone born in the territory of what is now the Republic of Ireland on or before the 31 December 2004 was automatically an Irish citizen unless one of his or her parents was entitled to diplomatic immunity at the time of the child's birth.

The Irish Nationality and Citizenship Act 1956 applied an entitlement to citizenship by birth to anyone born in Northern Ireland either before or after the coming into force of that Act. Anyone born in Northern Ireland on or before the 31 December 2004 is entitled to be an Irish citizen if they choose to be.

The virtually undiluted application of Jus soli (the right to citizenship of the country of birth) in the Republic, was brought to an end by the Irish Citizenship and Nationality Act 2004 which came into force on 1st January 2005. A person born on the island of Ireland on or after that date is no longer either automatically a citizen or entitled to be a citizen, unless at least one of that person's parents is either:

an Irish citizen (or entitled to be an Irish citizen),
a British citizen,
a resident of the island of Ireland who is entitled to reside in either the Republic or in Northern Ireland without any time limit on that residence, and/or
a legal resident in Ireland for three out of the 4 years preceding the child's birth. (However time spent as a student or seeking asylum does not count for this purpose).

By descent

Citizenship is automatic for the children of an Irish-born citizen regardless of where they are born. Children born outside Ireland to Irish citizens who were themselves born outside Ireland, may only become Irish citizens following registration at an Irish mission abroad. The citizenship of such children dates as of registration.

Children born outside Ireland to naturalised Irish citizens, or Irish citizens by marriage, can also acquire Irish citizenship in this way, provided the Irish parent acquired citizenship before they were born.

Irish citizenship acquired by registration of the birth at an Irish consulate is effective only from the date of registration. For those registered on or before 30 June 1986, Irish citizenship is deemed to be effective from the date of birth, or 17 July 1956 if the person was born before that date.

By adoption

The rules depend on whether an adoption was completed in the Republic of Ireland or elsewhere. All adoptions performed under Irish law automatically confer Irish citizenship on the adopted child (if they weren't Irish citizens already). The nationality of children adopted under the laws of a foreign state depends on whether the adoption itself will be recognised. The rules involved depend on the habitual, ordinary residence or domicile of the adoptive parents at the time of the adoption.

By marriage

As of 30 November 2005, citizenship must be acquired through the normal naturalisation process. The residence requirement is reduced from 5 years to 3 for the spouse of an Irish citizen.

Previously, the law allowed for the spouses of most Irish citizens to acquire citizenship through Post Nuptial Citizenship (registration of citizenship) without residence in Ireland, or the standard naturalisation process being required.

From 17 July 1956 to 30 June 1986, the wife (but not the husband) of an Irish citizen (other than by naturalisation) could apply for Post Nuptial Citizenship immediately after marriage.
Between 1 July 1986 and 29 November 2005, the spouse of an Irish citizen (other than by naturalisation, honorary citizenship or a previous marriage) could obtain Post Nuptial Citizenship after 3 years of subsisting marriage, provided the Irish spouse had held that status for at least 3 years.

By naturalisation

The naturalisation to a foreigner as a Irish citizen is a discretionary power held by the Irish Minister for Justice. Naturalisation is granted on a number of criteria including good character, residence in the state and intention to continue residing in the state.

In principle the residence requirement is three years if married to an Irish citizen, and five years otherwise. For those not married to Irish citizens, residence must be in the Republic, while for spouses of Irish citizens, residence in Northern Ireland can also count. However not all time spent in the Republic or in Northern Ireland will count for the purposes of naturalisation. Time spent seeking asylum will not be counted. Nor will time spent as an illegal immigrant. Time spent studying in the state by a national of a non-EEA states (i.e. a state other than European Union Member States, Iceland, Norway and Liechtenstein) will not count.

It is also possible for the residency requirement to be waived by the Minister for Justice in respect to:

the spouses and children of naturalised children,
recognised refugees,
stateless children,
those resident abroad in the service of the Irish state,
people of "Irish descent or Irish associations".

Revocation

A certificate of Naturalisation may be revoked by the Minister when it was obtained by fraud or by:

residence outside the Republic of Ireland for a period exceeding seven years without registering annually his or her intention to retain Irish citizenship,
acquisition of another citizenship other than by marriage.

These provisions are not automatic and require Ministerial action. A notice of the revocation of a certificate of naturalisation must be published in Iris Oifigiúil (the official gazette of the Republic) and in the period from January 2002 to April 2005 no such notices were publishedSee the Official journal's Website. The period reflects the length of the Gazette's availability online..

Honourary grant of Irish citizenship

Section 12 of the Irish Nationality and Citizenship Act 1956 allows the President, on advice of the Government, to:

" ... grant Irish citizenship as a token of honour to a person, or the child or grandchild of a person who, in the opinion of the Government, has done signal honour or rendered distinguished service to the nation."

Although known as "honorary Irish citizenship" this is in fact legally a full form of citizenship, with entitlement to an Irish passport and the other rights of Irish citizenship on the same basis as a naturalised Irish citizen.

Among the people who have had honorary Irish citizenship conferred on them are:

Jack Charlton (and his wife) – for his achievements as manager of the Republic of Ireland national football team
Alfred Chester Beatty (1957) – art collector, philanthropist and founder of the Chester Beatty Library
Alfred Beit (1993) (and his wife) – art collector and owner of Russborough House
Tiede Herrema (1975) (and his wife) – Dutch businessman kidnapped by the Provisional IRA
Derek Hill (1999) – artist who discovered the Tory Island school of painting
Tip O'Neill (and his wife) – Irish-American and Speaker of the House of Representatives
Jean Kennedy Smith (1998) – former United States ambassador to the Republic of Ireland.

Loss and resumption of Irish citizenship

Under the Irish Nationality and Citizenship Act 1956 Irish citizenship may only be lost by:

formal renunciation under Irish law (a renunciation made to other authorities, such as the US naturalisation oath is not valid); or
revocation of a naturalisation certificate

A former Irish citizen who was born on the island of Ireland may resume Irish citizenship by declaration. Other former Irish citizens must qualify for naturalisation should they wish to recover their citizenship.

Passports

Irish passports use the standard EU design, with a machine-readable identity page and 32, 48 or 64 visa pages. The identity page on older Irish passports was on the back cover of the booklet. Newly-issued passports have been redesigned with additional security features. The identity page is now a plastic card attached between the front cover and the first visa page. The cover bears the harp, the national symbol of Ireland, along with the words "European Union" and "Ireland" in English and Irish.

All Irish citizens have a constitutional right to an Irish passport. Passports are generally valid for 10 years; children and retired people may also apply for a cheaper 3-year passport.

Constitutional history

Irish citizenship originates from Article 3 of the 1922 Constitution of the Irish Free StateIt should be noted that until the coming into force of the Twenty-sixth Amendment of the Constitution of the Irish Free State on 5th April 1935, Irish citizenship technically only applied within the Free State and not externally.. Anyone domiciled in Ireland on the coming into force of the constitution (the 6th December 1922) was an Irish citizen if:

She or he was born in Ireland,
At least one of his or her parents was born in Ireland, or
She or he had been ordinarily resident in Ireland for seven or more years before the 6th December 1922,

unless they chose not to accept Irish citizenship. The further acquisition and loss of Irish citizenship was to be regulated by law (something that was not done until 1935).

While the Constitution referred to those domiciled in the "jurisdiction of the Irish Free State" on 6th December 1922, this has been interpreted as meaning the entire island. This was based on the Anglo-Irish Treaty which, on it face, defined the Free State as covering the entire island and on the fact that while Ireland gained independence on the 6th December 1922, Northern Ireland did not opt-out of the Free State until the 7th December 1922. The upshot being that Northern Ireland was considered to have been "within the jurisdiction of the Irish Free State" on the 6th December 1922, if even just for one day.Re Logue (1933) ILTR 253. The decision resulted in changes being made the British Nationality Act 1948 by section 5 the Ireland Act 1949, to ensure that people who were domiciled in Northern Ireland on 6th December 1922 but were born elsewhere in Ireland would not fail to become citizens of the United Kingdom and Colonies merely because they were also Irish citizens.

The 1937 Constitution of Ireland simply maintained the previous citizenship body, also providing that the further acquisition and loss of Irish citizenship was to be regulated by law.

Jus soli was maintained as a matter of common and statute law, the only people being constitutionally entitled to citizenship of the Irish state post-1937 were those who were citizens of the Irish Free State. However in 1998 as part of the new constitutional settlement brought about by the Belfast Agreement, the Nineteenth Amendment of the Constitution of Ireland provided (among other things) that:

"It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."

The introduction of this guarantee was largely a grandiose political statement but one which resulted in establishing jus soli as a constitutional right for the first timeThis is clearly the view of Denham, McGuinness and Hardiman JJ, in Osayande. A view which is supported by the current writers of the Kelly.. In contrast the only people entitled to British citizenship as a result of the Belfast Agreement are people born in Northern Ireland to Irish citizens, British citizens and permanent residents.

If immigration was on the political agenda in 1998, it did not take long to become so afterwards. Indeed soon after the agreement, the already rising strength of the Irish economy reversed to historic pattern of emigration to immigration. A turnaround which in turn resulted in a large number of foreign nationals claiming a right to remain in the state based on their Irish-born citizen childrenThe Irish Department of Justice granted leave to remain in the state to around 10,500 non-nationals between 1996 and February 2003 on the basis of their having an Irish born child – Department of Justice Press Release.. They did so on the basis on a 1992 Supreme Court ruling Fajujonu v. Minister for Justice where the court prohibited the deportation of the foreign parents of a Irish citizen. In January 2003 the Supreme Court distinguished the earlier decision and ruled that it was constitutional for the Government to deport the parents of children who were Irish citizens. A point which would have been thought to put the matter to rest but concerns about the propriety of the (albeit indirect) deportation of Irish citizens and what was perceived as the overly generous provisions of Irish nationality law remained.

In March 2004 the government introduced the Bill of the Twenty-seventh Amendment of the Constitution of Ireland to remedy what the Minister for Justice Michael McDowell described as an "abuse of citizenship" whereby citizenship was "conferred on persons with no tangible link to the nation or the State whether of parentage, upbringing or of long-term residence in the State"Quoted from the Daíl debate.. The amendment did not propose to change the wording of Articles 2 and 3 as introduced by the Nineteenth Amendment, but instead to insert a clause clawing back the power to determine the future acquisition and loss of Irish citizenship by statute, as previously exercised by the Oireachtas (Irish parliament) before the Nineteenth amendment. The government also cited concerns about the Chen case, then before the European Court of Justice. In that case a Chinese mother who had been living in Wales had gone to give birth in Northern Ireland on foot of legal advise. Mrs Chen then pursued a case against the British Home Secretary to prevent her deportation from the United Kingdom on the basis of her child's right as a citizen of the European Union (derived from the child's Irish citizenship) to reside in a member state of the Union. (Ultimately Mrs. Chen won her case but this was not clear until after the result of the referendum.) Both the proposed amendment and the timing of the referendum was contentious but the result for decisively in favour of the proposal; 79% of those voting, voting yes, on a turnout of 59%See: Twenty-seventh Amendment of the Constitution of Ireland#Results.

The effect of the amendment was to prospectively restrict the constitutional right to citizenship by birth to those who are born on the island of Ireland to at least one parent who is (or is entitled to be) an Irish citizen. Those born in Ireland prior to the coming into force of the amendment continue to have a constitutional right to citizenship. Moreover jus soli primarily existed in legislation and it remained, after the referendum, for the Oireachtas (parliament) to pass ordinary legislation that would abolish it. This was, in fact, done by the Irish Citizenship and Nationality Act 2004 the effects of which are detailed above). It remains, however, a matter for the legislature and jus soli could be re-established by ordinary legislation without recourse to the People.

References

J.M. Kelly, The Irish Constitution 4th edn. by Gerard Hogan and Gerard Whyte (2002) IBSN 1854758950

External links

Notes

Nationality law | Irish laws | Irish American history

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