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The Celtic Cubs: The Controversy over
Birthright Citizenship in Ireland
Bernard Ryan*
European Journal of Migration and Law, 6 (3) pp 173 – 193
2004
Not Published Version
Abstract:
n/a
Keywords:
n/a
Introduction
On 11 June 2004, a referendum in Ireland1 resulted in a large majority in favour of
restricting the entitlement of all those born on the island of Ireland to citizenship
(here referred to as ‘birthright citizenship’ or ‘unconditional ius soli’). This was the
latest development in a controversy over birthright citizenship in Irish nationality
law. The Irish authorities had already succeeded in 2003 in establishing the legal
principle that the parents of Irish citizen children did not necessarily have a right of
residence in Ireland. After the referendum, the Government’s intention is to change
the legislation on nationality, so as to require prior residence by parents who are
neither Irish nor British if their children are to acquire citizenship. If done, this will
be the first time in the history of the Irish state that such a restriction will have been
legislated for.
This article offers a survey of these recent developments in Irish nationality
law. It begins with a brief account of the law on birthright citizenship since the Irish
state was founded in 1922. The two related questions which have emerged in
recent years are then considered in turn: the treatment of the non-Irish parents of
Irish citizen children, and the possible abandonment of unconditional ius soli. The
draft of the post-referendum legislation is also summarised and evaluated. What
the paper shows is that – while there were good reasons for scepticism about the
constitutional amendment - developments in Ireland are consistent with a wider
pattern whereby immigration considerations exert a strong influence upon the
content of the law of nationality. It is significant too that the move away from
birthright citizenship involves a departure from the traditional account of Irishness,
which starts from birth on the presumed national territory.
* Senior Lecturer, Law School, University of Kent, England
1 Unless the context suggests otherwise, the terms ‘Ireland’ and ‘Irish’ are used here to refer to the state of
Ireland. Where necessary, the term ‘island of Ireland’ is used to refer to the two jurisdictions on the island. The
terms ‘Britain’ and ‘British’ refer to the United Kingdom of Great Britain and Northern Ireland.
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A short history of birthright citizenship in Irish law
The historical starting-point of Irish nationality law was Article 3 of the Free State
Constitution of 1922. That Article sought to define the original citizens of the Free
State from among the persons alive when the state came into being on 6
December 1922. Under Article 3, the essential requirement for citizenship was that
a person was domiciled “in the area of the jurisdiction of the Irish Free State” on 6
December 1922. It was also necessary to satisfy a further condition: that the
person, or one of their parents, had been born in “Ireland”, or alternatively that the
person had been “ordinarily resident” for seven years in the “area of the jurisdiction
of the Irish Free State” on 6 December 1922. Birth on the island of Ireland
therefore led to citizenship under Article 3, but only if the person in question
satisfied the requirement of domicile on 6 December 1922.
Article 3 of the Irish Free State Constitution provided that “the future
acquisition and termination of citizenship” was to be determined by law. There was
an initial delay in legislating on the subject due to a dispute with Britain as to the
international status of Irish Free State citizenship (see below). A code of nationality
law was eventually defined by the Irish Nationality and Citizenship Act 1935. It was
here that unconditional ius soli was introduced into Irish nationality law. Under the
1935 Act, all those born in the Irish Free State on or after 6 December 1922 were
classed as ‘natural-born citizens’.2 The 1935 Act also provided that those born on
the island of Ireland before 6 December 1922, and who had not become citizens
under Article 3 of the 1922 Constitution, could obtain citizenship in two ways: if
they were permanently resident in the state on or after the coming into force of the
1935 Act; or, for those who were not naturalised in another state, upon
registration.3 The 1935 Act did not however make any provision that those born in
Northern Ireland after 6 December 1922 would qualify as Irish citizens through
birth.
In 1937, a new Constitution was adopted, which renamed the state ‘Ireland’.
Article 2 of the 1937 Constitution included the claim that Northern Ireland was
within the ‘national territory’, while Article 3 stated that “pending the re-integration
of the national territory”, the laws adopted by the Irish Parliament would have the
same “area and extent of application” as those of the Irish Free State. As regards
citizenship, Article 9 provided that those who were citizens of the Irish Free State
on the coming into force of the Constitution became citizens of Ireland
automatically. In other respects, the acquisition and loss of citizenship was to be
governed by legislation.
The terms of Articles 2 and 3 of the 1937 Constitution were then reflected in
the reform of nationality law by the Irish Nationality and Citizenship Act 1956. The
1956 Act followed Article 2 in extending the principle of unconditional ius soli to
Northern Ireland.4 The 1956 Act was also fully retrospective, so that all births on
2
Irish Nationality and Citizenship Act 1935, s 2(1)(a) and (b).
1935 Act, s 2(4) and (5). For the acquisition of citizenship through registration, a maximum period of two
years from the coming into force of the 1935 Act was initially specified. That time limit was removed by the
Irish Nationality and Citizenship Act 1937.
4 Irish Nationality and Citizenship Act 1956, s 6(1).
3
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the island of Ireland prior to the 1956 Act could give rise to Irish citizenship without
the satisfaction of any further substantive condition. The only qualification in the
1956 Act echoed Article 3: it was stated that, “pending the re-integration of the
national territory”, those born in Northern Ireland after 6 December 1922, and who
did not acquire Irish citizenship in another way, were required to make a formal
declaration of citizenship.5
The extension of unconditional ius soli to Northern Ireland in 1956 was not
however of great significance in practice. This was because most persons born in
Northern Ireland were anyway Irish citizens by descent. In the eyes of Irish law, the
“area of jurisdiction” of the Irish Free State on 6 December 1922 was the whole
island of Ireland, since, formally, Northern Ireland opted-out of the new state only
the following day.6 Irish law therefore treated the vast majority of persons domiciled
in Northern Ireland on 6 December 1922 as having become Irish citizens under
Article 3. The 1935 Act had provided for the acquisition of citizenship by descent
only through fathers, and had conferred citizenship automatically only on the first
generation of children born outside the state after 6 December 1922. But the 1956
Act went much further: it provided that citizenship passed through either parent,
and, more importantly, that citizenship would cease to pass automatically only from
the second generation born outside the island of Ireland. Since the 1956 Act also
applied retrospectively, the result was that any person descended from someone
born on the island of Ireland before 6 December 1922 was automatically an Irish
citizen, so long as not more than one successive generation had been born outside
the island of Ireland.7 As the Irish Minister for Justice put it at the time:
“the vast majority of those in the Six Counties who, of course, are of
Irish stock will have Irish nationality and citizenship when this Bill is
enacted into law…. [B]ut there will remain a limited category born in
the Six Counties since 1922 who are of entirely alien parentage
without racial ties, and for these … we provide that on making a
voluntary declaration their Irish citizenship operates from the date of
their birth …”8
The extension of unconditional ius soli to Northern Ireland in 1956 was therefore of
practical relevance above all to persons who did not have a historical family
connection to the island of Ireland.
The emergence of a principle of unconditional ius soli in Irish law in 1935
and 1956 can be attributed to two influences. In the first place, the recognition of
ius soli in Irish law was undoubtedly of British inspiration. It is well known that the
historical preference for unconditional ius soli in British nationality law has its
origins in the feudal theory that those born in a territory were the sovereign’s
subjects. Many states which emerged from British colonies based their nationality
law on unconditional ius soli, and this remains true in Canada, India, New Zealand,
5
1956 Act, s 7(1).
This view was affirmed by the Irish Circuit Court in Re Logue [1933] 67 ILTR 253, and was accepted by the
British authorities in 1949. For a discussion, see B. Ryan, ‘The Ian Paisley Question: Irish Citizenship and
Northern Ireland’ (2003) 25 Dublin University Law Journal 145, pp 147-152 and 155-158.
7 For a fuller account of the 1956 Act in relation to Northern Ireland, see Ryan, 2003, pp 158-162.
8 Dáil Debates, 29 February 1956, col. 1000.
6
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Pakistan and the USA.9 Britain retained unconditional ius soli until the British
Nationality Act 1981, which provided that citizenship would be acquired by birth
only if a parent was either a British citizen or permanently resident in Britain.10
Unconditional ius soli was also the position in Australia, until a reform in 1986
required that a parent be an Australian citizen or permanent resident, or have been
resident for ten years at the time of the birth.11 Even today, all of these states differ
from the historical approach among continental European states, where citizenship
is typically acquired through descent or naturalisation, and there is either limited
provision or none at all for the automatic acquisition of citizenship through birth to
non-nationals on the territory.
There is moreover specific evidence for the influence of the British approach
to nationality law in drafting of the 1935 Act. At that time, the Irish Free State
remained a British dominion.12 British policy in the 1920s and 1930s was to
minimise the differences between the nationality laws of its dominions, so as to
maintain a common status of British subject for the whole Commonwealth. The
Irish Free State authorities’ general view was that Irish citizenship was
autonomous from British subject status.13 Nevertheless, they were willing to seek
consistency between different dominions’ laws, in order to ensure advantages for
Irish citizens elsewhere in the Commonwealth, and presumably so as to avoid
conflict with Britain. The proposals from which the 1935 Act derived therefore
proposed that the conditions for acquiring the status of ‘natural-born citizen’ of the
Irish state should correspond to those in the British Nationality and Status of Aliens
Act 1914.14 Under section 1 of that Act, “all persons born within His Majesty’s
dominions and allegiance” were ‘natural-born British subjects’.
The irony, however, is that unconditional ius soli is also associated with
claims made within traditional Irish nationalism. As we have seen, the historical
claim of entitlement to the whole island is reflected in the special treatment of
Northern Ireland as regards the acquisition of citizenship through both birth and
descent. More fundamentally, within Irish nationalism, the Irish nation or people is
often conceived of territorially – i.e. as comprising all those from the island of
Ireland, together with their descendants. This approach may be distinguished from
conceptions of the nation as an ethnic, cultural or linguistic community. The
emphasis on ius soli in Irish law, and its application to both the Irish state and
Northern Ireland, reflects an underlying territorial understanding of who the Irish
are in the first place.
See P. Weil, ‘Access to Citizenship: A Comparison of Twenty-Five Nationality Laws’ in T. Aleinikoff and D.
Klusmeyer, Citizenship Today: Global Perspectives and Practices (Washington DC, 2001), pp 19-21.
10 British Nationality Act 1981, s 1(1).
11 Australian Citizenship Act 1948, s 10(2), as amended.
12 The Irish state’s formal association with the British Commonwealth was limited after 1936, and ceased
definitively in 1949.
13 For a discussion of the disagreement, see M. Daly, ‘Irish Nationality and Citizenship since 1922’ (2001) 32
Irish Historical Studies 377, pp 382-384.
14 See ‘Nationality Bill 1933. Memorandum for Executive Council on Questions Requiring Decisions of Policy’,
17 November 1933 (National Archives of Ireland, file DT 5659). On the link with British legislation, see Daly,
2001, pp 384-387.
9
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The Belfast Agreement
The question of citizenship by birth in Ireland first acquired prominence in recent
years as a result of the Belfast Agreement of April 1998.15 This was an attempt at a
political settlement for Northern Ireland, and was agreed between the British and
Irish governments and all but one of Northern Ireland’s major political parties. One
new development in the Agreement was the acceptance by Unionist parties that
persons born in Northern Ireland should be entitled to opt for Irish citizenship. The
Agreement therefore recognised “the birthright of all the people of Northern Ireland
to identify themselves, and be accepted as Irish or British, or both, as they may so
choose ….”16 That statement was then the subject of a declaration by the two
governments, in which they expressed their “joint understanding” that the term “the
people of Northern Ireland” meant “all persons born in Northern Ireland and having,
at the time, of their birth, at least one parent who is a British citizen, an Irish citizen
or is otherwise entitled to reside in Northern Ireland without any restriction on their
period of residence.”17
The Belfast Agreement also provided for the amendment of Article 2 of the
Irish Constitution. The new Article 2, as set out in the Agreement, was to replace
the territorial claim with a second ‘birthright’ clause:
“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. Furthermore, the Irish
nation cherishes its special affinity with people of Irish ancestry living
abroad who share its cultural identity and heritage.”18
That amendment to the Irish Constitution was approved by a 94% majority in a
referendum in May 1998, and took effect on 2 December 1999.
A close examination of the new Article 2 reveals its relevance to nationality
law. It logically implies that persons born anywhere on the island of Ireland are
entitled not merely to membership of the ‘Irish nation’ in the abstract, but also to
the legal status of Irish citizen. This is the result of the reference in Article 2 to
“persons born in the island of Ireland .. to be part of the Irish nation” in the first
sentence, and to “persons otherwise qualified in accordance with law to be citizens
of Ireland” (emphasis added) in the second. The then Minister for Justice, John
O’Donoghue endorsed that interpretation in January 2000, when he indicated that
“in a nutshell, there was a statutory entitlement and now there will be a
constitutional entitlement.”19 This interpretation was also accepted by Hardiman J
in the Supreme Court in Lobe in January 2003. As he put it, “the phrase ‘otherwise
The 1998 Agreement is composed of two separate texts, each annexed to the another - the ‘multi-party
agreement’ between most major Northern Irish political parties, and the British-Irish Agreement between the
two governments.
16 Multi-Party agreement, “Constitutional Issues”, Article 1(vi) and British-Irish Agreement, Article 1(vi).
17 British-Irish Agreement, Annex 2.
18 Multi-Party Agreement, “Constitutional Issues”, Annex B and British-Irish Agreement, Article 4(1)(b).
19 Seanad Debates, 26 January 2000, col. 30.
15
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qualified in accordance with law to be citizens of Ireland’ … is not easy to
understand without an implication that the condition of ‘being part of the Irish
Nation’ entitles one to citizenship.”20
The amendment of Article 2 was followed by the reform of nationality law by
the Irish Nationality and Citizenship Act 2001.21 The 2001 Act did away with the
previous formal distinction between birth in the Irish state and in Northern Ireland.
After the 2001 Act, those born in either part of the island of Ireland, and entitled to
Irish citizenship alone, acquire it automatically. By contrast, those who are also
entitled to another nationality acquire Irish citizenship only if they perform an “act
which only an Irish citizen is entitled to do”, such as a formal declaration of
citizenship, an application for a passport, or registration to vote in presidential
election.22 This latter category includes most persons seeking citizenship through
birth in Northern Ireland, as well as persons born in the Irish state who are entitled
to another citizenship through a non-Irish parent. Where such an act is done, the
individual is deemed to have been an Irish citizen from birth.23 The 2001 Act also
removed the previous restrictions on acquisition of citizenship through birth in
Ireland, for the children of accredited diplomats, and for children born in Irish
territory to non-nationals on board a foreign registered ship or aircraft.24
The 2001 Act did not however significantly alter the law on the acquisition of
citizenship by descent.25 In particular, it continues to be the case that the
requirement to register applies only from the second generation born outside the
island of Ireland. For those born on the island of Ireland to Irish citizen parents, or
the first generation born outside the island, citizenship by descent is automatic.
The 2001 Act also retained the rule that the failure of a parent to exercise their own
Irish citizenship by birth prior to a child’s birth does not “of itself” prevent the
acquisition of Irish citizenship by the child. That was also the position under the
original 1956 Act for the children of persons who acquired citizenship through
descent from a person who registered their birth in Northern Ireland.26
The parents of Irish citizen children
The recognition of unconditional ius soli in Irish law, first as a statutory rule, and
then as a constitutional one, had implications for Irish immigration law. It created
the possibility that families of Irish citizen children would make a legal claim to
remain in the state on the basis of their connection to an Irish citizen. That line of
argument is a potentially strong one in the Irish context, because of Article 41 of
20
A.O. and D.L. v. Minister for Justice, Equality and Law Reform [2003] 1 IR 1, 131.
While the 2001 Act itself came into force with effect from 5 June 2001, the changes to the law were deemed
to have come into force (with the new Article 2) on 2 December 1999: see s 9 of the 2001 Act.
22 Minister for Justice, John O’Donoghue, Dáil Debates, 13 April 2000, col. 268. The 2001 Act does not itself
provide a list or definition of the range of acts which are sufficient. The forms for making a declaration of
citizenship are set out in the Irish Nationality and Citizenship Regulations 2002, SI No. 567 of 2002.
23 Section 6(3) of the 1956 Act, as amended by s 3 of the 2001 Act.
24 The previous restrictions were in sections 6(5) and 13(2) of the original version of the 1956 Act. In these
cases, a declaration of citizenship is expressly required: see 6(4) of the 1956 Act as amended by s 3 of the
2001 Act. The forms for such declarations are set out in the 2002 Regulations.
25 The new section 7 of the 1956 Act, as inserted by s 3 of the 2001 Act.
26 That is because, under the original section 7(1) of the 1956, citizenship by birth was “deemed to apply ...
from birth” where a declaration was made.
21
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the Constitution: it recognises “the family as the natural primary and fundamental
unit group of Society and as a moral institution possessing inalienable and
imprescriptible rights, antecedent and superior to all positive law.”
In the mid-1980s, Article 41 began to be invoked by the spouses and
parents of Irish citizens in order to resist deportation. The first reported High Court
decision in which the argument was addressed was Pok Sun Shun in 1985.27 That
concerned a Chinese national with a wife and three children who were Irish
citizens. In that case, Costello J rejected the view that marriage to an Irish citizen
created an absolute right to remain in state, and tended to the view that marriage
made no difference whatever to the Minister for Justice’s power to deport a nonnational. That was followed in 1986 by the decision in Osheku, concerning a
Nigerian national whose wife and child were Irish citizens. There too, Gannon J
essentially treated the fact of marriage to an Irish citizen as irrelevant: the applicant
could not “by a marriage with the State … acquire status of citizenship nor
immunity from the sanctions of the law in respect of his continued disobedience of
the law.”28
These decisions were then followed in the High Court in 1987 in the key
case of Fajujonu.29 That concerned a Nigerian and Moroccan married couple who
had taken up residence in Ireland in 1981 in breach of immigration law. They had a
child in Ireland in 1983, and two further children in Ireland after 1984. In 1984, the
Department of Justice indicated that it would not permit them to reside in Ireland,
though without making a formal deportation order. The family applied for a judicial
determination to the effect that they had a right to reside in the state. In the High
Court, Barrington J accepted that the daughter had constitutional rights both to
reside in Ireland and to the society of her parents. But he went on to conclude that
“it does not follow … that she has a right to the society of her parents
in Ireland. I do not think that the parents can by positing on their child
a wish to remain in Ireland in their society confer upon themselves a
right to remain in Ireland…”30
He therefore refused the orders against the Minister which had been sought.
The Supreme Court took a quite different approach on appeal in Fajujonu.
Two judgments were delivered, by Finlay CJ and Walsh J, and were endorsed by
the three remaining judges. Each of the judgments first held that the Fajujonu
children had a right to family life which was exercisable in Ireland. Finlay CJ put it
as follows:
“where, as occurs in this case, an alien has in fact resided for an
appreciable time in the State and has become a member of a family unit
within the State containing children who are citizens … there can be no
27
Pok Sun Shun v. Ireland [1986] ILRM 593. Article 41 was also invoked in 1985 in State (Bouzagou) v.
Station Sergeant, Fitzgibbon Street [1985] IR 426 by a Moroccan national with an wife and two children who
were Irish citizens. Article 41 was however held to be inapplicable because the applicant’s wife and children
lived as a separate unit, and she had previously obtained a barring order against him.
28 Osheku v. Ireland [1986] IR 733, 747.
29 Fajujonu v. Minister for Justice [1990] 2 IR 151.
30 Ibid., 158.
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question but that those children, as citizens, have got a constitutional right
to the company, care and parentage of their parents within a family unit …
[P]rima facie and subject to the exigencies of the common good … that is
a right which these citizens [are] entitled to exercise within the State.” 31
Walsh J expressed a similar understanding of the legal position:
“the first two-named plaintiffs [the parents] and their three children
constitute a family within the meaning of the Constitution and the three
children are entitled to the care, protection and society of their parents in
this family group which is resident in the State. There is no doubt that the
family has made its home and residence in Ireland.” 32
It followed that the children’s right to family life in Ireland had to be given significant
weight in decisions taken with respect to their parents. For Finlay CJ, the Minister
could deny the parents a right of residence only if satisfied that “a grave and
substantial reason associated with the common good” required such a step.33
Similarly, Walsh J concluded that the Minister
“would have to be satisfied that the interests of the common good of the
people of Ireland and of the protection of the State are so predominant and
so overwhelming in the circumstances of the case that an action which can
have the effect of breaking up this family is not so disproportionate to the
aim sought to be achieved as to be unsustainable.”34
The Supreme Court concluded that the position of the family should be
reconsidered by the Minister, with the possibility for the family to apply for the
judicial review of any decisions taken.
Lobe and Osayande
It is well known that, from the second half of the 1990s, Ireland became for the first
time in its modern history a state of significant immigration. Census data shows
that the percentage of the usually resident population born outside Ireland and
Britain rose from 1.6% in 1996 to 4.0% in 2002.35 There was also a marked
increase in the number of work permits issued to non-EU nationals, up from
roughly 1,100 in 1993, to roughly 18,000 in 2000, and more than 47,500 in 2003. 36
31
Ibid, 162.
Ibid, 164.
33 Ibid, 162.
34 Ibid, 166.
35 Central Statistics Office, Census 2002: Principal Demographic Results (Dublin, 2003), p 24. The 2002
census also found that 118,500 (or 3.1%) of the population had neither British nor Irish nationality, but there
was no previous finding with which that could be compared.
36 For detailed figures for 1993-2002, see Immigrant Council of Ireland, Labour Migration into Ireland (Dublin,
2003), p 11. The figure for 2003 is in Department of Enterprise, Trade and Employment, Annual Report 2003
(Dublin), p 38.
32
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Applications for asylum also grew rapidly: where there had only been 39
applications in 1992 and 91 in 1993, there was a peak of 11,634 applications in
2002, before a fall in 2003 to 7,900 applications.37 In 2002, Ireland was the EU
member state with the third highest per capita rate of applications.38
For several years after 1989, the decision in Fajujonu had been the basis for
acceptance by the Department of Justice of residence in Ireland by the nonnational parents of Irish citizen children. While the publicly-available statistics are
incomplete, it is clear that, as immigration to Ireland increased in general, so too
did applications to remain in Ireland on the basis of parenthood.39 In 1996 and
1997, permission to remain as a parent was granted to 142 and 107 current or
former asylum applicants, respectively. After a pause due to a review of the policy
in 1998, permission was granted to 1227 current or former asylum applicants and
201 others in 1999 (a total of 1428), and to 909 current or former asylum
applicants, and 606 others in 2000 (a total of 1515). Further increases then saw
6570 applications in 2001 (5924 in respect of current or former asylum applicants)
and 8620 applications in 2002.40 It was this increase which led the Department of
Justice to change its policy towards the end of 2001, and to begin refusing
applications from parents of Irish citizen children, where the family had not been in
Ireland for an “appreciable time”.41
The test case of Lobe emerged out of the new policy. The proceedings
concerned a Czech Roma family (the Lobes) and a Nigerian family (the
Osayandes), whose circumstances were similar in their essential facts. 42 One or
both parents had applied for asylum in Ireland, having previously been refused
asylum in Britain, and were to be returned to Britain under the Dublin Convention.
An initial deportation order had been made prior to the birth of the Irish citizen
child. After the birth of the child, the deportation was reconsidered, and the same
three reasons were given for proceeding with it. These were: the short period the
family had been in the state (then nine months and seven months, respectively),
the application of the Dublin Convention, and “the overriding need to preserve
respect for and the integrity of the asylum and immigration systems.”43
The applications to set aside the deportation decisions were rejected in the
High Court in April 2002,44 and again on appeal by a five-to-two majority in the
Supreme Court in January 2003. Within the Supreme Court majority, Keane CJ,
37
Figures
from
the
Office
of
the
Refugee
Applications
Commissioner,
at
http://www.orac.ie/Pages/Stats/2003.htm.
38 See UNHCR, Asylum Applications Lodged in Industrialized Countries: Levels and Trends 2000-2002
(Geneva, 2003), Table 1. In 2002 the per capita rate in Ireland was 3.1 per thousand. The EU states with
higher rates were Austria (4.6 per thousand) and Sweden (3.7 per thousand).
39 Written answers given by Minister for Justice, John O’Donoghue: Dáil Debates, 3 October 2001, col 228;
Dáil Debates, 21 February 2002, col 548; Dáil Debates, 17 April 2002, col 427-428.
40 Written answers by Minister for Justice, John O’Donoghue, Dáil Debates 21 February 2002, col 548 and by
Minister for Justice, Michael McDowell, Dáil Debates, 6 February 2003.
41 Irish Times, 1 December 2001.
42 In the Lobe proceedings, the parents and their three non-Irish children had applied for asylum in both Britain
and Ireland, and all were subject to a deportation order. In the Osayande proceedings, only the father had
applied for asylum in both Britain and Ireland – the mother and non-Irish child applied in Ireland only – so that
he alone was the subject of a deportation order.
43 In the case of the Lobe family, it was also indicated that the Irish child would be able to adapt to a return to
Britain and the Czech Republic. There was no equivalent statement in the case of the Osayande family.
44 Unreported, High Court, 8 April 2002 (Smyth J).
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Hardiman J and Denham J delivered judgments along similar lines, and
Geoghegan J concurred with the first two of those. A fifth judge, Murray J, agreed
with the result, but offered a legal analysis which differed in important respects
from the rest of the majority. Within the minority, Fennelly J delivered a fully-argued
judgment, with which McGuinness J agreed, while adding substantial comments on
her own.45
For the four-judge majority, the starting-point was that the Irish citizenship of
children did not confer legal protection against the deportation of their parents.
Keane CJ and Hardiman J took the view that the Irish citizen child was incapable
of making a choice as to residence, so that the child’s right of residence in Ireland
was ineffective, and there was no basis for the claimed entitlement of the parents
to remain.46 Denham J meanwhile allowed that the child had an effective right of
residence in Ireland, but concluded that, in exercising a choice on the child’s
behalf, the parents were obliged to respect their own lack of a right of residence.47
The four-judge majority overcame the possible precedent of Fajujonu by arguing
that it turned on its particular facts.48 The position of the Lobes and Osayandes
was to be distinguished, because of their lack of a significant period of residence in
Ireland. It followed that these applications were to be treated as conventional
claims for judicial review of an administrative decision. They were to be decided
according to the usual, deferential, standard, which is “whether the decisions were
so manifestly contrary to reason and common sense that they must be set
aside.”49
The fifth judge in the majority, Murray J, offered a different analysis of the
legal position, which more closely followed the reasoning and language in
Fajujonu. He was prepared to accept that the children’s constitutional rights were
in play: “the children have a general right of residence in the State and prima facie
a right to the company and parentage of their parents within the family unit while
within the State.”50 He also insisted that these rights had to be given specific
weight in the Minister’s decision-making: “the Minister must take into account …
the prima facie constitutional rights deriving from the citizenship of the infants in
question, and consider whether, notwithstanding those rights, there are good and
sufficient reasons for the deportation of the parents.”51 When it came to the final
decision, however, he nevertheless found that that test had been met by the
Minister.
All five judges in the majority were in agreement as to the reasons which the
Minister could legitimately rely upon in support of a decision to deport. They firstly
agreed that the Minister was entitled to base his decision on the general need to
For a more detailed account of the judgments, see D.O’Connell and C. Smyth, ‘Citizenship and the Irish
Constitution’ in U. Fraser and C. Harvey (eds) Sanctuary in Ireland: Perspectives on Asylum Law and Policy
(Dublin, 2003).
46 [2003] 1 IR 1, 18-19 (Keane CJ) and 157-160 (Hardiman J).
47 Ibid., 59. The difference of approach might be significant in other cases. The analysis of Keane CJ and
Hardiman J implies that the family cannot leave the children in Ireland, whereas Denham J’s approach does
not.
48 Ibid, 38-39 (Keane CJ), 61 (Denham J) and 155-156 (Hardiman J).
49 Ibid, 40 (Keane CJ). See too Hardiman J at 164-165. This test derives from O’Keeffe v. An Bord Pleanála
[1993] 1 IR 39.
50 Ibid, 83.
51 Ibid, 84.
45
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preserve the integrity of the immigration and asylum systems.52 This involved the
rejection of the applicants’ proposition that – at least in a case involving a family
with an Irish citizen member - specific reasons had to be advanced, such as the
criminal conduct of the individual being deported. All five judges in the majority also
accepted that the Minister was entitled to have regard to the Dublin Convention in
deciding to deport.53 This may be thought surprising, given that the Dublin
Convention does not require a state to transfer an applicant, and specifically
provides for a state to choose to determine an asylum claim notwithstanding the
Convention’s provisions. Having accepted the validity of those reasons, all of the
majority, including Murray J, went on to uphold the decisions to deport in the two
proceedings.
By contrast with the majority, the minority judgments gave far greater weight
to the constitutional rights in play. In the first place, the new Article 2 of the
Constitution was taken to have altered the quality of Irish citizenship. As Fennelly J
put it, “The ‘birthright of every person born in Ireland …to be part of the Irish nation’
must have real content and should not be treated as a piece of empty
sloganeering.”54 In particular, it entailed the possibility of growing up in Ireland, and
therefore a right of residence for the child and their parents: “a child who is de facto
deported from the State before his education commences cannot conceivably be
‘part of the Irish nation’ or ‘share its cultural identity and heritage’.”55 Secondly, the
strong protection given to the family by Article 41 of the Constitution had to be
respected. For Fennelly J, under Article 41 “the rights of the family are superior to
those of the State itself.”56 For McGuinness J, “compelling reasons [were] required
to displace” the rights of the family.57
The minority also disagreed with the four-judge group’s assessment that
Fajujonu could be distinguished. Once the relevance of the constitutional rights of
the Irish citizen was accepted, it was hard to see how those rights could depend
upon the length of time the family had been in the State. The general principle in
Fajujonu therefore remained relevant: there had to be a substantial reason
justifying the deportation of the parents.58 The minority also rejected the five-judge
majority’s assessment of the permissible reasons for a deportation decision. It was
not enough to rely upon a general concern to maintain the integrity of the
immigration and asylum systems, given that the rights of Irish citizens were at
issue.59 Reliance upon the Dublin Convention was also rejected, given that the
State was not required to send the applicants back.60
In legal terms, the majority and minority therefore disagreed as to the
relative weight to be attached to executive power and to constitutional rights, at
least in a case where an Irish citizen is involved. It is clear however that the judges
52
Ibid, 39-40 (Keane CJ), 62 (Denham J), 80-81 (Murray J), 161-163 (Hardiman J).
Ibid, 41 (Keane CJ), 62 (Denham J), 88-89 (Murray J) and 163 (Hardiman J).
54 Ibid, 182. In support, see McGuinness J: “Some import and meaning must be given to the concept of the
birthright of the Irish born person and to the declaration that such a person is part of the Irish nation; it is not a
mere shibboleth” (at 99).
55 Ibid, 183.
56 Ibid, 190.
57 Ibid, 109.
58 McGuinness J at 117-118 and 120-121 and J at 194.
59 McGuinness J at 121-123 and Fennelly J at 199-202.
60 McGuinness J at 124 and Fennelly J at 205-206.
53
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in the majority were significantly influenced by their concern to ensure the orderly
regulation of immigration to Ireland. In the first place, the majority relied upon the
changed circumstances with respect to immigration and asylum in order to
distinguish Fajujonu. As Hardiman J put it, “it would be unreal not to have due
regard to the manifest truth that factual conditions in Ireland, in terms of
immigration and otherwise, are very different to those that prevailed in 1989 …”61
Secondly, the changed circumstances featured in the majority’s reasons for
allowing the Minister to base his deportation decisions on the need to respect the
integrity of the systems of immigration control. As Murray J put it, with reference to
applications for asylum:
“there is manifestly a distinction to be drawn between a situation where the
number of persons seeking to enter the State is any one year is very low,
for example 30 or 40, and the situation where many thousands seek to do
so. In the latter situation, the … necessity of maintaining the integrity of
such a system in the interests of the common good is far greater than in
the former case.”62
Finally, the notion of a fundamental change in circumstances appeared simply as a
general background consideration. To quote Keane CJ:
“It cannot be right that this court should approach this case on the
assumption, totally at variance with the facts known to us, that conditions
in Ireland are as they were in the 1980s when there was a relatively high
level of unemployment, many Irish people were emigrating to seek work
abroad and there were relatively few immigrants or persons seeking
asylum as refugees.… [T]he legislature and executive cannot be expected
to disregard the problems which an increased volume of immigration
invariably creates, because of the strains it places on the infrastructure of
social services, and, human nature being what it is, the difficulty of
integrating people from very different ethnic and cultural backgrounds into
the fabric of Irish society.”63
It was because of that background that the majority were concerned that the legal
regime should not be such that the birth of an Irish child (the so-called ‘anchor
child’) would enable non-nationals to circumvent the immigration and asylum
systems. As Keane CJ put it,
“The executive is … entitled to take the view that the orderly system in
place for dealing with immigration and asylum applications should not
be undermined by persons seeking to take advantage of the period of
time which necessarily elapses between their arrival in the State and
the complete processing of their applications for asylum by relying on
[2003] 1 IR 1, 155. See too Keane CJ, at 39: “[B]oth the factual and statutory context in which the
respondent is required to decide whether a deportation order should be made has altered since that case was
decided.”
62 Ibid, 86-87.
63 Ibid, 25, 26.
61
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the birth of a child to one of them during that period as a reason for
permitting them to reside in the State indefinitely.” 64
Similar statements are to be found in the judgments of Murray and Hardiman JJ.65
Unresolved questions
The Irish authorities responded to the Lobe ruling by ceasing to accept new
applications for residence which were based on parental status.66 In July 2003,
they then announced that in future parenthood of an Irish citizen child would only
be taken into account as part of representations against a deportation.67 In
practice, however, there have been very few deportations of the parents of Irish
citizen children since the Lobe ruling. In January 2004, it was reported that, out of
approximately 11,000 families whose applications had been outstanding at the
time of the ruling, only 358 had received a notice of intention to deport, and only
three families had actually been deported.68 While other families had presumably
left the state, it is likely that several thousand remained without a determination of
their status.
The lack of deportations may be due in part to the legal issues left
unresolved by the decision in Lobe. Chief among these was the position in Irish
law of families whose cases were stronger than the applicants there. It is unclear
from the judgments of the four-judge majority when, if at all, a higher degree of
scrutiny than in conventional judicial review is required. Does it still matter that
applicant parents have been present in Ireland for an ‘appreciable time’, and if so
what is meant by ‘appreciable’? It is also unclear from the judgments of the whole
majority when immigration control considerations are persuasive. In particular,
what if a parent has come to Ireland legally, so that respect for the immigration and
asylum system is less compelling, and the Dublin Convention irrelevant? These
are not questions on which Lobe can be said to have given definite guidance.
The potential application of Article 8 ECHR to deportation cases is another
area of uncertainty. At the time of Lobe, the ECHR was not part of Irish law, and it
was accepted that it could not be relied upon. Two judges in the majority
nevertheless offered the view that the proposed deportations were compatible with
Article 8 ECHR.69 By contrast, Fennelly J concluded that Article 8 ECHR might be
engaged and that, if it was, a state would not be able to justify a deportation by
reference to general statements concerning the system of immigration control.70 It
is significant that the ECHR has now been incorporated into Irish law, and is
binding on “every organ of the State”.71 This will permit reliance on recent
64
Ibid, 39.
Ibid, 87 (Murray J) and 162 (Hardiman J).
66 Irish Times, 19 February 2003.
67 Department of Justice press release, 17 July 2003.
68 Irish Times, 31 January 2004.
69 Ibid, 56-57 (Denham J) and 141-144 (Hardiman J). They relied in particular on the rejection by the
Commission of Human Rights of a similar case in Poku v. United Kingdom (1996) 22 EHRR CD 94, and on the
summary of the requirements of Article 8 ECHR in the Court of Appeal in R (Mahmood) v. Secretary of State
for the Home Department [2001] 1 WLR 840.
70 [2003] 1 IR 1, 195, 198.
71 European Convention on Human Rights Act 2003, s 3.
65
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judgments of the European Court of Human Rights which have found breaches of
Article 8 ECHR in deportation cases because family life is “practically impossible”
in another state due to the impossibility of a spouse’s integrating there.72 A child’s
difficulty of moving country might equally protect a parent otherwise liable to
deportation. This could in particular be the case where a child has spent a
considerable time in Ireland, or there are specific reasons why the child cannot be
expected to move to the state of parental nationality.
The potential contribution of EU law cannot be ruled out either. At the time
of writing, the question of the rights of Irish citizen children and their families to
reside in other EU member states is before the Court of Justice in Chen.73 That
case concerns a child who acquired Irish citizenship through birth in Belfast to a
Chinese national mother who was not resident in Britain. In his opinion delivered in
May 2004, Advocate General Tizzano concluded that, as an EU citizen, the child
was entitled to reside in Britain under Council Directive 90/364. He also found that,
in order for the child’s right of personal movement to have real effect, the child’s
mother had to have a derivative right to reside in Britain. Even if endorsed by the
Court of Justice, the principle set out in the Chen opinion will admittedly be of
limited scope. A family will have to have sufficient resources to maintain the child
and parent(s) in another member state, so as to meet the requirements of Directive
90/364. It may also turn out that a variation on the ruling in Akrich will apply, so that
only family members lawfully resident in some member state can benefit from the
rights of personal movement of EU citizens.74
Nevertheless, the irony of the Chen opinion is that it raises the possibility
that the parents of some Irish citizen children will have a right of residence in other
member states which is denied them in Ireland itself. If the Chen opinion were to
be followed by the Court of Justice, it would probably lead to political pressure
upon the Irish authorities, particularly from Britain, to permit the residence in
Ireland of parents with an EU law right to reside elsewhere. It might even have an
effect on post-Lobe case-law concerning the circumstances in which the Minister is
free to deport parents. Fear of the knock-on effects within Ireland may explain why,
in the Chen proceedings, the Irish Government advanced the argument accepted
by Keane CJ and Hardiman J in Lobe, that a child cannot have a right of
residence, since they are incapable of exercising it independently. This argument
was rejected by Advocate General Tizzano, who observed that the fact that a
person “is not in a position to exercise … rights independently does not detract
from [their] status as a holder of those rights.”75
72
Boultif v. Switzerland, Application 54273/00, judgment of 2 August 2001 (phrase taken from para. 55),
Amrollahi v. Denmark, Application 56811/00, judgment of 11 July 2002 (“de facto impossible”: para 43), Yildiz
v. Austria, Application 37295/97, judgment of 21 October 2002.
73 Case C-200/02, Chen and Zhu v. Secretary of State for the Home Deprtment, Opinion of Advocate General
Tizzano, 18 May 2004.
74 See Case C-109/01, Secretary of State for the Home Deparmtent v. Akrich, ECJ judgment of 23 September
2003, especially paras 50-54.
75 Para 46 of the opinion.
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The citizenship referendum
The Irish Government was already considering the possibility of a constitutional
referendum to remove unconditional ius soli in 2001.76 As we have seen, it chose
instead at that time to operate the new policy which was confirmed in Lobe. The
possibility of a constitutional amendment remained a live one, however. In its June
2002 programme, the re-elected Fianna Fáil-Progressive Democrat coalition
indicated that it would “keep under review the number of applications from nonnationals to remain in the State on the basis of parentage of an Irish-born child,”
and that it would “initiate all-party discussions on the issue of such constitutional or
other measures which might be required.”77 It appears that one of the possibilities
under consideration in mid-2002 was a clause in the Constitution to the effect that
citizens could not confer a right of residence on their parents.78
After the Supreme Court judgment in Lobe, the necessity of a constitutional
referendum appeared to have been removed. It therefore came as something of
surprise when in March 2004 the Government announced a proposal to restrict the
constitutional provision for birthright citizenship in the case of the children of nonnationals. The proposed amendment, and a draft of the legislation to follow it, were
then published in April.79 The amendment did not seek to alter Article 2 of the
Constitution, but rather to add a new Article 9.2.1 to the Constitution:
“Notwithstanding any other provision of this Constitution, a person
born in the island of Ireland … who does not have, at the time of his
or her birth, at least one parent who is an Irish citizen or entitled to be
an Irish citizen is not entitled to Irish citizenship or nationality, unless
otherwise provided for by law.”
In addition, a new Article 9.2.2 was proposed, according to which “this section shall
not apply to persons born before the date on which this section was enacted.”
The Government’s case for the proposed reform was strongly contested in
key respects. One argument advanced by the Government was that problems were
being posed by non-nationals giving birth at Dublin maternity hospitals. As the
Minister for Justice, Michael McDowell, put it soon after the referendum was
announced:
“Our maternity services come under pressure because they have to
deal at short notice with women who may have communications
difficulties, about whom no previous history of the pregnancy or of the
mother’s health is known, and who in about half of cases of first arrival
… are already at or near labour. Hospitals cannot predict the demand
on resources from month to month, and all the resources in the world
76
This became public knowledge only during the 2004 referendum campaign. It appears that a division of
opinion within the 2001 Cabinet prevented the referendum proposal from going ahead: Irish Times, 10 April
2004.
77 Fianna Fáil and Progressive Democrats, Agreed Programme for Government (2002), p 28.
78 Interview with the new Minister for Justice, Michael McDowell, Sunday Independent, 21 July 2002. Ironically,
McDowell had been counsel for the Fajujonus in the 1980s.
79 Department of Justice, Equality and Law Reform, Citizenship Referendum: The Government’s Proposals
(April 2004).
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would be of little use in dealing with suddenly-presenting crisis
pregnancies.”80
This line of argument was however called into question by the Government’s failure
to produce detailed information concerning births to non-resident mothers. The
information which was provided during the referendum campaign concerned only
some hospitals, and counted all non-nationals together.81 More detailed information
published soon after the referendum did show that roughly one-sixth of births in
Dublin in 2002 and 2003 were to non-EU nationals.82 Even then, however, there
was no indication of the percentage of births to mother who were not resident in the
State.
A second Government argument concerned the Chen opinion.83 The
Government argued that, if the opinion were to be followed, and Irish law were to
remain unaltered, there would be an increase in the numbers of persons coming to
Ireland to obtain citizenship for their children, which would in turn cause difficulties
in Ireland’s relations with other member states. But that met the replies that the
scope of the principle in the Chen opinion was likely to be limited (see above)84 and
that EU law anyway gives member states freedom to determine their own
nationality law.85
The Government also had difficulty explaining why its proposals were not
inconsistent with the Belfast Agreement. On 19 April 2004, the Irish and British
Governments published an ‘interpretative declaration’ on the British-Irish
Agreement. In the declaration, the Governments offered the “legal interpretation”
that
“it was not their intention in making the said Agreement that it should
impose on either Government any obligation to confer nationality or
citizenship on persons born on the island of Ireland whose parents do
not have sufficient connection with the island of Ireland.”
It is doubtful however that the 2004 declaration does justice to the agreement
reached in 1998. The statement that those lacking a ‘sufficient connection’ need
not be granted nationality essentially sought to extend the 1998 declaration with
respect to the “people of Northern Ireland” to the whole island. But, if that was what
was intended in 1998, why was such a declaration not made at that time? There is
anyway evidence that the effect of the new Article 2, in entrenching unconditional
ius soli, was understood at the time by the negotiators on the Belfast Agreement.
In a letter in April 1998 to the then leader of the Irish Labour Party, the Taoiseach
(Prime Minister) in both 1998 and 2004 wrote that “One effect of the new Article
80
Sunday Independent, 14 March 2004.
See the figures given for hospitals in Dublin and Drogheda by Minister for Health. Michael Martin, Dáil
Debates, 21 April 2004, col 1295.
82 Irish Times, 17 June 2004.
83 Remarks of Michael McDowell, reported in Irish Times, 19 May 2004.
84 For example in the Labour Party campaign for a ‘no’ vote in the referendum, reported in Irish Times, 28 May
2004.
85 For example, by C. Costello, ‘Accidents of Place and Parentage: Birthright Citizenship and Border
Crossings’ in The Citizenship Referendum: Implications for the Constitution and Human Rights (Trinity College
Dublin School of Law, 2004), pp 25-28.
81
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will undoubtedly be to confer an entitlement to Irish citizenship on persons born in
Northern Ireland irrespective of their family background or the circumstances of
their birth in Northern Ireland.”86
Probably the most persuasive case made by the Government was the most
fundamental one, that the referendum sought to preserve the ‘integrity’ of Irish
citizenship. As the Tánaiste (deputy Prime Minister) argued, it was not the number
of persons coming to Ireland which mattered, but the fact that the “our
constitutional provisions are being used in a way we did not intend.”87 This view
was encapsulated in the ‘common sense citizenship’ slogan of the campaign by
the major governing party, Fianna Fáil. To quote the Minister for Children: “The
referendum is about how in the light of the real-life circumstances in which we
found ourselves, we shall regulate Irish citizenship for the future.”88
A number of compelling replies were offered to the ‘integrity’ argument in
the referendum campaign. It was widely argued that a fundamental reform of
nationality law should not occur without a thorough process of consultation and
debate on the whole subject.89 It was said too that the requirement of a connection
with Ireland was not being pursued systematically, given the possibility of acquiring
citizenship through descent for a minimum of two generations,90 and given the lack
of any proposal that an Irish-born child should be able to obtain citizenship though
their own residence in Ireland.91 It was also argued that birthright citizenship
should not be removed while immigration law made inadequate provision for rights
of residence.92 Nevertheless, it was rare in the referendum campaign for a case to
be made for unconditional ius soli as such, viewed in isolation from other
considerations.93
Having been passed by the two Houses of the Oireachtas (Parliament), the text of
the constitutional amendment was approved by an overwhelming majority in the
June referendum – 79% to 21%, on a 60% turnout.94 Support for the referendum
was broadly consistent across the state, with the ‘yes’ vote ranging from 84% to
71% by counting area. The Government’s immediate response was to announce
that, once new legislation on nationality is adopted, it will review the position of the
remaining parents of Irish-born citizens, and will reform immigration law through an
Immigration and Residency Act.95 What is unclear however, is whether the scale of
86
Letter from Bertie Ahern to Ruairi Quinn, 20 April 1998, quoted in Irish Times, 21 April 2004.
Mary Harney, quoted in Irish Times, 20 April 2004.
88 Brian Lenihan, ‘Citizenship change common sense’, Irish Times, 28 May 2004.
89 For example, D. O’Connell and C. Smyth, ‘The case for urgent constitutional reform has simply not been
made’, Irish Times, 1 April 2004 and the Labour Party campaign, as reported in Irish Times, 28 May 2004.
90 For example, in the Labour Party campaign, as reported in Irish Times, 28 May 2004.
91 See Costello, 2004, pp 24-25. Her suggestion was for a provision along the lines of section 1(4) of the
British Nationality Act 1981, which allows a child born in Britain, but who does not obtain citizenship through
birth, to acquire it instead through continuous residence in Britain until the age of ten.
92 See I. Bacik, ‘Immigration and Citizenship Law: Implications of the Referendum Proposal’ in The Citizenship
Referendum: Implications for the Constitution and Human Rights (2004).
93 For an exception, see Costello, 2004, pp 18-21, who emphasized the undesirability of differentiation among
Irish-born residents.
94 The vote took place together with European and local elections, and that may be thought to explain the
higher turnout than in other recent referendums. There is no minimum threshold of participation for a
referendum proposal to be validly approved.
95 Michael McDowell, reported in Irish Times, 14 June 2004.
87
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the positive vote in referendum will itself now affect the political calculations with
respect to legislation on nationality and immigration law.
The draft legislation
The next stage in the controversy over birthright citizenship in Ireland will concern
legislation to amend nationality law. As was mentioned above, the Government
published draft legislation with the referendum proposal in April 2004, and the draft
Bill is the subject of consultation at the time of writing. The Bill provides that a child
born on the island of Ireland will acquire Irish citizenship in six circumstances, as
follows.
The first case is where at least one parent is an Irish citizen or “entitled to
be” one. The notion of being ‘entitled’ to Irish citizenship is not explained in the
proposals, or in existing legislation. The category presumably includes a parents
born on the island of Ireland who is also entitled to another nationality, who must –
after the 2001 Act - exercise their entitlement to citizenship by birth, but who has
not done so at the time of the birth. The notion of ‘entitled’ also arguably includes
the rarer case of a parent born outside the island of Ireland, who is entitled to
citizenship by descent only if they register, but who has not registered at the time
of the birth. It appears that the latter group will confer citizenship by birth on their
children born on the island of Ireland, even though they cannot confer citizenship
by descent upon them.
Secondly, citizenship by birth will arise where at least one parent is a British
citizen. The draft Bill provides that the children of British citizens will in all
circumstances be entitled to Irish citizenship by birth, whichever part of the island
of Ireland the children are born in. As regards births in the Irish state, this favouring
of British citizens over other non-nationals is consistent with their general
exemption from Irish immigration law.96 As regards births in Northern Ireland,
meanwhile, it is consistent with the Northern Irish ‘birthright’ set out in the Belfast
Agreement.
Thirdly, a child will be eligible for Irish citizenship where at the time of the
birth at least one parent is “entitled to reside in the State without any restriction on
[their] period of residence.” There is a basic difficulty with this clause: because of
the inadequate development of Irish immigration law, there is at present no general
concept of permanent residence which can be relied upon for this purpose. As long
as such a concept is not introduced, the citizenship of the child will be dependent
upon the terms of the immigration permissions given to individuals by the Minister
for Justice.97
The fourth case will be that of a parent who is “entitled to reside in Northern
Ireland without any restriction on [their] period of residence.” Since there is no
separate immigration law for Northern Ireland, the notion of being “entitled to
reside in Northern Ireland” is inherently problematic. It seems that anyone who is
96
97
The exemption of British citizens is now in the Aliens (Exemption) Order 1999, SI No 97 of 1999.
The power to give permission to remain in the state is now in the Immigration Act 2004, s 5(1).
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permanently resident in the United Kingdom will be able to confer Irish citizenship
by birth on their child, even if they have never resided in - or indeed been to Northern Ireland. This was made clear in the April 2004 memorandum which
accompanied the draft legislation, according to which this criterion would be
satisfied by a parents with “an entitlement to reside in the UK (and thus in Northern
Ireland)”.98
A fifth possibility will be that at least one parent has been resident in the
island of Ireland for at least three years out of the previous four.99 A period of
residence will not count for these purposes if it arises under a permission to study,
during a period of application for asylum, or is unlawful. One set of problems with
the requirement of parental residence are again posed by the inclusion of Northern
Ireland. It is inherently difficult to measure a parent’s length of residence in
Northern Ireland, given that it is not distinct from the rest of Britain for immigration
purposes. It is also peculiar that Irish citizenship will depend on the immigration
status of the parent in British law, which may differ in material respects from that in
Irish law. A second set of difficulties with the requirement of parental residence
concerns EEA and Swiss parents, since they frequently do not register their
residence in Britain and Ireland. The draft legislation attempts to deal with the
problems of proof which will arise by allowing a parent who is a national of an EEA
state, or of the Swiss confederation, to make a ‘statutory declaration’ as to their
length of residence on the island of Ireland. A declaration may also be made by the
guardian or person in loco parentis to the child of a citizen of such a state, or by
the child themselves after the age of 18. In each case, the declaration has
presumptive force only.
The sixth case will be that of statelessness. It is not proposed in the draft
legislation to alter the existing rule whereby “a person born in the island of Ireland
is an Irish citizen from birth if [they are] not entitled to citizenship of any other
country.”100 The peculiar effect of this rule in relation to Northern Ireland may be
noted, however. Where a child is born in Northern Ireland, and is not ordinarily
entitled to any nationality, then it appears that the child obtains Irish citizenship,
and does not become a British national. This is because British law does not
confer nationality automatically in cases of statelessness, but instead allows an
individual to register as a British national, if they were born in Britain, have spent
most of the previous five years there, and have been stateless throughout their
lives.101
It can be seen that, as always when citizenship by birth is dependent on parental
status, difficult issues of definition and implementation arise in the draft legislation.
These difficulties are unusually complex in the Irish case, however, because of the
98
Department of Justice, Equality and Law Reform, 2004, p 5.
The Bill is slightly different to the April 2004 memorandum, which indicated a requirement would be of three
years’ residence in Northern Ireland or in the Irish state: Department of Justice, Equality and Law Reform,
2004, p 6.
100 Section 6(3) of the 1956 Act. The intention to allow citizenship automatically in the case of statelessness is
set out in the April 2004 memorandum: Department of Justice, 2004, p 6. It is not entirely clear that the draft
Bill achieves that result, however, since, under the Bill, the position of children of non-nationals appears to be
regulated solely by the proposed new section 6A of the 1956 Act.
101 British Nationality Act 1981, Sch 2, para 3. An application cannot be made after the age of twenty-two. Note
that the interaction of Irish and British approaches already implies that persons born stateless acquire Irish
citizenship automatically, without the need for an affirming act: see Ryan, 2003, p 170.
99
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desire that residence in Northern Ireland should count, even though Northern
Ireland is not separate from the rest of Britain for immigration purposes. It cannot
therefore be ruled out the details of the rules on parental nationality and residence
will have to be revisited, either in the current legislative process, or subsequently.
Conclusion: citizenship and change in Ireland
The principle of unconditional ius soli has been central to Irish nationality law for
most of the period since the Irish state came into being. It has been applied to
births in the Irish state from 1935, and to births in Northern Ireland ever since
1956. It also attained the rare status of having been constitutionally entrenched as
a consequence of the Belfast Agreement in 1998. In historical terms, the centrality
of ius soli to Irish nationality law can be seen as a reflection of a combination of
British influence and of a territorial conception of the Irish people.
While the probable abandonment of unconditional ius soli is a significant
development in Ireland, it is not unusual when viewed in comparative terms. In
states where significant immigration occurs, that frequently exerts an influence on
the content of nationality law.102 States where it is possible to acquire citizenship
through birth, whether unconditionally, or with restrictions, often respond by
introducing restrictions. Equally, immigration in states where nationality law is
based on ius sanguinis often liberalise the law on naturalisation and ius soli, in
order to avoid a substantial population of permanent non-national residents. While
there are reasons for scepticism about the constitutional amendment, the likely
curtailment of ius soli is consistent with a wider international pattern.
Nor is the rise in immigration is not the only change in Irish society which
has been expressed in recent changes to its nationality law. The attenuation of the
historical claims to the people and territory of the whole island is also part of the
background to recent developments. The move away from that approach to
Irishness had already been seen in the Belfast Agreement: the ‘birthright’ clauses
treated Irish citizenship as an entitlement rather than as automatic, while the new
Article 2 deliberately substituted a personal entitlement for the previous territorial
claim. That tendency has now been confirmed by the 2004 referendum and the
expected legislation: the denial of an entitlement to Irish citizenship to some
persons born on the island is a further departure from a territorial definition of the
Irish people.
The content of Irish nationality law is likely to continue to be controversial.
The result of the referendum means that not even the content of post-referendum
legislation can be taken for granted. There is nevertheless reason to hope that the
result of future controversy need not be exclusive, or detrimental to migrants and
their children. The paradox of the removal of unconditional ius soli is that, while
curtailing a potential basis for migration to Ireland and the EU, it also dispensed
with the understanding of Irishness previously embodied in nationality law. It
For a survey of European developments, see R. Hansen and P. Weil, ‘Introduction: Citizenship, Immigration
and Nationality: Towards a Convergence in Europe?’ in R. Hansen and P. Weil (eds), Towards a European
Nationality: Citizenship, Immigration and Nationality Law in the EU (Basingstoke, 2001).
102
Published version available in ‘European Journal of Migration and Law, 6 (3) pp 173 – 193’
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Kent Academic Repository – http://kar.kent.ac.uk
cannot be ruled out that an inclusive conception of membership, based on a
connection to the society rather than the soil, may emerge to replace that which
has been rejected.
Published version available in ‘European Journal of Migration and Law, 6 (3) pp 173 – 193’
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