British nationality law and the Republic of Ireland

This article is about British nationality law in respect of citizens of Ireland. The latter is referred to in British nationality law as the "Republic of Ireland" and was previously referred to as "Eire" [sic][note 1] between 1937 and 1949 and as the Irish Free State between 1922 and 1937. (This article does not discuss Irish nationality law).

Historical background

British subjects

When the Irish Free State seceded from the United Kingdom of Great Britain and Ireland in 1922, the existing status of "British subject" was, from the point of view of British nationality law, left unaffected. Broadly speaking, this was because, as a dominion within the British Commonwealth, the Irish Free State continued to form part of "His Majesty's dominions".

This British theory of "British subject" nationality was not fully shared by the Irish government and as early as the 1920s was discussed in Ireland in the following terms:

The meaning of 'citizenship' [in the Constitution of the Irish Free State, which was approved by the British government] is defined only to the extent of saying that the citizen shall 'within the limits of the jurisdiction of the Irish Free State enjoy the privileges and be subject to the obligations of such citizenship'. There appears to be here a suggestion that the status of citizen of the Irish Free State carries no privileges or obligations outside the jurisdiction of the Irish Free State: that the Irish Free State citizen when he goes to France has no 'privileges or obligations' as such. This may not have been intended at all: on the other hand it may have been deliberately inserted in pursuance of a British theory that the citizen of any Dominion, once he gets outside his Dominion, must rely for support on his 'Imperial' status as a 'British Subject'[1]

British subjects with local Irish nationality

According to Article 3 of the 1922 Constitution of the Irish Free State

Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) at the time of the coming into operation of this Constitution who was born in Ireland or either of whose parents was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) for not less than seven years, is a citizen of the Irish Free State (Saorstát Eireann) and shall within the limits of the jurisdiction of the Irish Free State (Saorstát Eireann) enjoy the privileges and be subject to the obligations of such citizenship [...].

The same Article also stated that "the conditions governing the future acquisition and termination of citizenship in the Irish Free State" were to be "determined by law". However, no such law was passed until 1935.

From the British perspective, Free State citizenship was only enjoyed by its holders "within the limits of the [Free State's] jurisdiction". There were some remarkable manifestations of the British perspective in this matter, such as the Parkes case. In Murray v. Parkes (1942), the King's Bench Divisional Court found that Roscommon-born Michael Murray, then aged 33 and living in Leicester, was a British subject and therefore legitimately subject to conscription into the British Army. The Irish Times reported on 2 April 1942 that the Court held that[2]

Murray was a British subject and nothing had deprived him of that status. The legislation that made him a citizen of the Irish Free State did no more than confer on him a national character as an Irish citizen within the wider British nationality. His status was that of a British subject...

The position has been commented on in the following terms:[3]

Thus, the Constitution reflected the twin intentions of the Treaty which, on the one hand, stipulated that the privileges and obligations of Irish citizenship were to be within the limits of the jurisdiction of the Irish Free State’ (reflecting the existence of Northern Ireland and partition) and, on the other, linked them to an external power through the Oath of Allegiance to the British Crown and common citizenship of the Commonwealth. Though unique in the Commonwealth of the day, Irish citizenship, therefore, was not an autonomous status. It was not until the 1930s that 'an Irish citizenship for international purposes was established', independently of a Treaty and Constitution enacted as British statutes. Under the power contemplated in Article 3 of the 1922 Constitution, the Nationality and Citizenship Act, 1935 repealed the British Nationality and Status of Aliens Act, 1914 (as amended in 1918). It specified that, under Irish law, Irish citizens (or nationals) were those born in the territory of the whole island of Ireland or those who chose to activate an inherent right to the status derived from either parent, resident or not, who had been born on the island. It drew on the conclusions of the 1930 Commonwealth Conference that each member could define for itself its own nationals while maintaining mutual recognition of common status. It was considered in both Houses from November 1933, passed on 4 April 1935 and signed by the King six days later. Following its enactment, and with mutuality and reciprocity in mind, Ireland introduced its own Aliens Act under which anyone who was not a citizen of Sáorstat Éireann was an alien. This made the British as alien as any other nationality. But an exemption Order (S.R. + O. No 80 of 1935) excluded them and the peoples of the Commonwealth from the application of the Aliens Act and, hence, permitted the continuation of their free movement into Ireland....The UK, because of the common citizenship of the Commonwealth, had not amended its Nationality and Status of Aliens Act 1914 (amended 1918) which specified that persons born in what was then the United Kingdom of Great Britain and Ireland, as well as the Commonwealth, were British subjects. There being no change in UK law until 1948 meant, as McGuinness[4] points out, that British judicial opinion was able to maintain – as late as 1942 – that Ireland's 1922 Constitution "did no more than confer ... a national character as an Irish citizen within the wider British nationality"; and that this remained the case despite the Nationality and Citizenship Act 1935 and the new 1937 Constitution. From the British point of view the peoples of all these lands have status as British subjects, and generally there is no discrimination among British subjects as to place of birth within the Commonwealth [5] in their access to citizenship rights in the UK. This remained contentious in Ireland.

Passport issue

The Free State government did not consider that the status of "British subject" was an appropriate description for its citizens.[6] This caused difficulties between the British and Irish governments over the wording of Free State passports, which used the description "Citizen of the Irish Free State and of the British Commonwealth of Nations".[7] One practical effect was that the Foreign Office refused to provide consular assistance to Free State citizens unless they held an alternative passport describing the holder as a "British subject".

Developments from 1935 to 1949

In 1933 the Fianna Fáil party, led by Éamon de Valera, won the Irish general election, and began to put forward a series of reforms intended to more strongly assert Irish independence, including the Irish Nationality and Citizenship Act 1935, which received the royal assent on 10 April 1935. This was the first example of a Commonwealth member country passing legislation to create its own citizenship distinct from the status of "British subject", and it expressly repealed (s. 33) both the British nationality legislation and common law carried over at independence.

When the Free State was reconstituted as "Ireland" in 1937, following the enactment of the Constitution of Ireland (Bunreacht na hÉireann), domestic Irish nationality law was left unchanged. References in UK laws to the Free State were soon replaced with "Eire", an approximation of the Irish language name for "Ireland", Éire.

British nationality law continued to recognise citizens of Ireland/Éire as holding the status of British subjects until the British Nationality Act 1948 came into force on 1 January 1949.

Since the establishment of the Republic

British Nationality Act 1948

Following Canada's enactment of the Canadian Citizenship Act 1946 (in force from 1 January 1947), the Commonwealth Prime Ministers' Conference agreed that every member state, except Ireland which declined to participate at the Conference, would enact its own citizenship law while retaining the common status of British subject. The British Parliament passed the British Nationality Act 1948, which created the status of citizen of the United Kingdom and Colonies. Because of Ireland's impending departure from the Commonwealth (on 18 April 1949), special provision was made for the retention by certain Irish citizens of the status of British subject without being citizens of a Commonwealth member state.

As a result, Irish citizens ("citizens of Eire" (sic)) lost British-subject status automatically on 1 January 1949 if they did not acquire citizenship of the UK and Colonies or that of another Commonwealth country, notwithstanding that Ireland did not cease to be one of His Majesty's dominions until 18 April 1949.[8]

However, section 2 of the Act allowed certain Irish citizens who were British subjects before 1949 to apply at any time to the Secretary of State to remain British subjects. Applications had to be based on:

• previous Crown service under His Majesty's Government;
• possession of a British passport; or
• associations by way of descent, residence or otherwise with the United Kingdom or any Crown colony, protectorate, British mandated territory or British trust territory.

No provision was made for the retention of British nationality by Irish citizens born in the Republic of Ireland after 1948. British subject status, as distinct from citizenship of the UK and Colonies, was not transmissible by descent.

For the purpose of the 1948 act, the "United Kingdom of Great Britain and Northern Ireland" was defined on its post-1922 borders. Hence, birth before 1922 in that part of Ireland that became the Irish Free State was not sufficient in itself to confer citizenship of the UK and Colonies. Persons born before 1949 in that part of Ireland that became the Republic of Ireland became Citizens of the United Kingdom and Colonies "by descent" in British law on 1 January 1949 if they had a father born in the United Kingdom or a place that was a colony at that date (provided father was married to the person's mother).

In common with those from the Commonwealth, Irish citizens resident in the United Kingdom, whether they held British subject status or not, were entitled to apply for registration as a Citizen of the United Kingdom and Colonies after one year's residence, by the 1970s increased to five years.

Ireland Act 1949

The United Kingdom's Ireland Act 1949 came into force on 18 April 1949 and recognised the end of the Irish state's status as a British dominion, which had been effected under the Irish Republic of Ireland Act 1948 brought into force in 1949. The 1949 Act was also used by the United Kingdom to "repair an omission in the British Nationality Act, 1948".[9] The 1948 Act included provisions dealing specifically with the position of "a person who was a British subject and a citizen of Eire on 31st December, 1948".[9] Because of this, how the British law would apply was dependent on a question of Irish law, namely, who was a "citizen of Eire"? The UK Government seriously misunderstood the position under Irish law. The UK Secretary of State for Home Affairs explained that:[9]

"[when British Nationality Act was passed the United Kingdom did not know that a person who was born in Southern Ireland of a Southern Irish father and on 6th December, 1922, was domiciled in Northern Ireland was regarded as a citizen of Eire under Eire law. They therefore considered that such a person became a United Kingdom citizen on 1st January, 1949 [in accordance with the British Nationality Act]".

The impact of this was that many people in Northern Ireland were in theory deprived of a British citizenship status they would otherwise have enjoyed but for Irish law. This was an unintended consequence of the British Nationality Act.

The Secretary of State also explained the background to the mistake. He reported that under Irish law the question of who was a "citizen of Eire" was in part, dependent on whether a person was "domiciled in the Irish Free State on 6th December, 1922". In this regard he noted:[9]

"The important date to bear in mind there is 6th December, 1922, for that was the date...the Irish Free State was constituted, and as constituted on 6th December, 1922, it consisted of the 32 counties with the six counties which now form Northern Ireland having the right to vote themselves out. They did so vote themselves out on 7th December, but on 6th December, 1922, the whole of Ireland, the 32 counties, was the Irish Free State and it was not until 7th December, the next day, the six counties having voted themselves out, that the Irish Free State became confined to the 26 counties. Therefore, the Eire law, by inserting the date 6th December, 1922, and attaching to that the domicile, meant that anybody domiciled inside the island of Ireland on 6th December, 1922, was a citizen of Eire."

The amendment made to the British Nationality Act under the Ireland Act was intended to make it clear, in summary, that regardless of the position under Irish law, the affected persons domiciled in Northern Ireland on 6 December 1922 would not be deprived of a British citizenship status they would otherwise have enjoyed but for Irish law.

Section 5 of the 1949 Act conferred Citizenship of the UK and Colonies (CUKC) on any Irish-born person meeting all the following criteria:[10]

1. was born before 6 December 1922 in what became the Republic of Ireland;
2. was domiciled outside the Republic of Ireland on 6 December 1922;
3. was ordinarily resident outside the Republic of Ireland from 1935 to 1948; and
4. was not registered as an Irish citizen under Irish legislation.

Separate to nationality law, the 1949 Act also provided that "citizens of the Republic of Ireland" (the British nomenclature adopted under the Act) would continue to be treated on a par with those from Commonwealth countries and would not be treated as aliens.

Effect on descendants of pre-1922 Irish emigrants

Under section 5 of the Ireland Act 1949, a person who was born in the territory of the future Republic of Ireland as a British subject, but who did not receive Irish citizenship under the Ireland Act's interpretation of either the 1922 Irish constitution or the Irish Nationality and Citizenship Act 1935 (because he or she was no longer domiciled in the Republic on the day the constitution came into force and was not permanently resident there on the day of the 1935 law's enactment and was not otherwise registered as an Irish citizen) was deemed by British law to be a Citizen of the United Kingdom and Colonies.[10]

As such, many of those individuals and some of the descendants in the Irish diaspora of an Irish person who left Ireland before 1922 (and who was also not resident in 1935) may be registrable for Irish citizenship while also having a claim to British citizenship,[11] through either:

• birth to the first generation emigrant,
• consular registration of later generation births by a married father who was considered a British citizen under British law, within one year of birth, prior to the British Nationality Act (BNA) 1981 taking effect,[12][13]
• registration, at any time in life, with Form UKF, of birth to an unwed father who was considered a British citizen under British law,[14] or
• registration, at any time in life, with Form UKM, of birth to a mother who was considered a British citizen under British law, between the BNA 1948 and the BNA 1981 effective dates, under the UK Supreme Court's 2018 Romein principle.[12][13]

In some cases, British citizenship may be available to these descendants in the Irish diaspora even when Irish citizenship registration is not, as in instances of failure of past generations to timely register in a local Irish consulate's Foreign Births Register before the Irish Nationality and Citizenship Act 1986 and before births of later generations.[11]

British Nationality Act 1981

The British Nationality Act 1981, in force from 1 January 1983:[15]

• retained the facility for those born in the Republic of Ireland before 1949 to register as British subjects (section 31)
• provided that Irish citizens, in common with those from the Commonwealth, would be required to apply for naturalisation as British citizens rather than registration after five years' residence in the UK (three years if married or in a Civil Partnership with a British citizen).
• British subjects retained the right to apply for registration as a British citizen after five years' residence in the UK.

Good Friday Agreement

The 1998 Good Friday Agreement recognises "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] Some Irish nationalists have argued that the agreement is violated by ascribing automatic UK citizenship to those born in Northern Ireland; the UK government argues that the ability to renounce UK citizenship at a later date is sufficient. The Northern Ireland Act 1998, which incorporates the agreement in UK law, does not amend the 1981 act.[17][18] The dispute informs an ongoing test case in which a Magherafelt woman is treated for spousal immigration purposes as a UK/dual citizen rather than an Irish/EEA citizen. She refuses to engage in renunciation of a UK citizenship she denies ever having had.[19] Immigration Services took the government view; the First-tier Tribunal ruled in her favour in 2018, but in 2019 the Upper Tribunal reversed that judgment.[18]

Current situation

Access to British citizenship for Irish citizens

As a result of the above, there is generally no special access to British citizenship for Irish citizens, except for those born in diaspora and descended from Irish persons who left the United Kingdom of Great Britain and Ireland before 1922.

The facility for those born before 1949 to claim British subject status does not confer British citizenship, although it gives an entitlement to registration as such after five years in the UK.

Irish citizens seeking to become British citizens are usually required to live in the UK and become naturalised after meeting the normal residence and other requirements, unless they can claim British citizenship by descent from a UK born or naturalised parent. An Irish citizen who naturalises as a British citizen does not automatically lose Irish citizenship.

Naturalisation as a British citizen is a discretionary power of the Secretary of State for the Home Department but will generally not be refused if the requirements are met.

British subject passports

Persons holding 'British subject' status may apply for a British passport with the nationality inscribed as a "British subject". The passport does not offer the same level of visa-free access offered by an Irish passport or a British passport that describes the holder as a "British citizen". Holders of 'British subject' passport are notably not eligible for the Electronic System for Travel Authorization (ESTA) Visa Waiver Program (VWP) of the United States, nor the Electronic Travel Authority of Australia. Canada's Electronic Travel Authorization (eTA) is only available to British subject passport holders with a vignette printed in their passport stating their right of abode in the UK.[20]

Irish-born 'British subjects' qualify for right of abode in the UK, and their British subject passport will be endorsed to this effect.

Unlike British subjects from Commonwealth countries, Irish born 'British subject' passport holders (thus having right of abode printed within their passport) – including those with this status but currently without any British and/or Irish passport – are not entitled to apply for British naturalisation at no cost under the Windrush Scheme (and thus not be liable for the typical full costs normally associated with naturalisation).[21][22] This is because the rules of the Scheme stipulate that only "a national of one of the Commonwealth countries or territories or groups listed in the Scheme" may apply: the British Ireland Act 1949 recognised that Ireland, by identifying itself in 1948 as a republic, had terminated its membership of the Commonwealth.

Statistics

The July 1980 White Paper titled British Nationality Law – Outline of Proposed Legislation (upon which the British Nationality Act 1981 is largely based) stated that 140,000 persons from the Republic of Ireland had made claims to retain British subject status since 1949. More claims, albeit at a slower rate, have been lodged since 1980.

British-born children of Irish citizens

Before 1983, anyone born in the UK other than the child of a diplomat was automatically British by birth.

From 1 January 1983 an additional requirement was put in place that one parent must be a British citizen or 'settled' in the United Kingdom. Irish citizens are automatically deemed to be "settled" in the United Kingdom.[23] Since 2 October 2000, this is a more favourable status than that given to citizens of other EU and EEA member states. This special status comes from section 1(3) of the Immigration Act 1971, the legislative basis for the Common Travel Area.

It is not publicised by the Home Office, but reference can be found in the Home Office Nationality Instructions, EEA and Swiss citizens (pdf)

"5.3 ... Citizens of the Irish Republic, whether exercising EEA free movement rights or not, are not normally subject to any form of immigration control on arrival in the UK because of the Republic's inclusion in the Common Travel Area (s.1(3), Immigration Act 1971)"

and:

"8.3 The 2000 Regulations did not affect the position of EEA nationals entitled to remain indefinitely on some other basis, for example because they had been granted indefinite leave to remain under some other provision of the Immigration Rules, were entitled by virtue of diplomatic status to exemption from UK immigration control or because, as Irish nationals, they benefit under the Common Travel Area provisions. Persons in these categories should be regarded as having been free from any restriction under the immigration laws on the period for which they may remain."

See also

• British nationality law
• History of British nationality law
• British subject
• Irish nationality law

Notes

1. A misspelling of Éire. According to the 1937 Constitution of Ireland, (Article 4) "the name of the State is Éire, or, in the English language, Ireland" .

References

1. "Extract from a memorandum on nationality and citizenship". Documents on Irish Foreign Policy. Royal Irish Academy, (Irish) Department of Foreign Affairs, National Archives of Ireland.
2. The Irish Times, 2 April 1942; See also https://www.jstor.org/pss/1089976
3. Meehan, Elizabeth. "BORDERS AND EMPLOYMENT: OPPORTUNITIES AND BARRIERS" (PDF). Institute of Governance, Queens University Belfast. Archived from the original (PDF) on 5 October 2011. Retrieved 29 June 2011.
4. Diarmaid McGuinness, 1998, ‘Has the Common Travel Area a Future?’. Unpublished paper. Dublin: Law Library, p. 4.
5. Irish Independent, 4.2.47, D/T S14002A.
6. Ó Caoindealbháin, Brian (2006). "Citizenship and borders: Irish nationality law and Northern Ireland" (PDF). IBIS Working Paper. Institute for British-Irish Studies, UCD. 68: 10. Retrieved 18 November 2015.
7. Elliott, W. Y. (April 1930). "The Riddle of the British Commonwealth". Foreign Affairs (April 1930). Retrieved 18 November 2015. England and the Irish Free State, furthermore, do not yet appear to have found how to afford British consular services to citizens of the Irish Free State unless the latter carry a British passport, since the Irish Free State puts "Citizen of the Irish Free State and of the British Commonwealth of Nations" on its passports in place of the conventional description of the bearer as a "British subject."
8. Mansergh, Nicholas (2013). Survey of British Commonwealth Affairs: Problems of Wartime Cooperation and Post-War Change 1939-1952. Routledge. ISBN 9781136242892.
9. HC Deb 01 June 1949 vol 465 cc2235-51 (Secretary of State for Home Affairs)
10. R. F. V. Heuston (January 1950). "British Nationality and Irish Citizenship". International Affairs. 26 (1): 77–90. doi:10.2307/3016841. JSTOR 3016841.
11. Daly, Mary E. (May 2001). "Irish Nationality and Citizenship since 1922". Irish Historical Studies. Cambridge University Press. 32 (127): 395, 400, 406. JSTOR 30007221.
12. Khan, Asad (23 February 2018). "Case Comment: The Advocate General for Scotland v Romein (Scotland) [2018] UKSC 6, Part One". UK Supreme Court Blog.
13. The Advocate General for Scotland (Appellant) v Romein (Respondent) (Scotland) [2018] UKSC 6, [2018] A.C. 585 (8 February 2018), Supreme Court (UK)
14. "Nationality: Registration as a British Citizen" (PDF). Immigration Law Practitioners’ Association. 14 August 2015. Retrieved 1 April 2019.
15. Bernard Ryan (2001). "The Common Travel Area between Britain and Ireland" (PDF). Modern Law Review. 64 (6): 831–54. doi:10.1111/1468-2230.00356.
16. "Agreement reached in the multi-party negotiations". CAIN. University of Ulster. 10 April 1998. Constitutional Issues 1(vi). Retrieved 14 October 2019.
17. Northern Ireland Human Rights Commission; Irish Human Rights and Equality Commission (June 2019). "Proposal for legal analysis on incorporating into UK law the birthright commitment under the Belfast (Good Friday) Agreement 1998" (PDF). Retrieved 14 October 2019.
18. "Derry woman loses British citizenship case". RTÉ News. 14 October 2019. Retrieved 14 October 2019.; Bowcott, Owen (10 September 2019). "Northern Ireland citizens must register to identify as Irish, tribunal told". The Guardian. Retrieved 14 October 2019.
19. Emma DeSouza (6 May 2019). "It is not up to the UK government to decide whether I'm Irish or not". The Guardian. Retrieved 15 October 2019. (Op-ed)
20. "Entry requirements by country," Government of Canada, 7 February 2018, accessed 15 February 2018.
21. UK Visas and Immigration (June 2019). "The Windrush Scheme application" (PDF). Government of the United Kingdom. Retrieved 20 July 2019.
22. UK Visas and Immigration; Home Office (June 2019). "Windrush Scheme". Government of the United Kingdom. Retrieved 20 July 2019.
23. "Irish nationals in UK law". Archived from the original on 18 January 2012.