British nationality law and the Republic of Ireland
Encyclopedia
This article concerns British nationality law
in respect of citizens of what is now the independent state of Ireland
, which was known in the United Kingdom
as "Eire" between 1937 and 1949, and which was the Irish Free State
between 1922 and 1937. For clarity, the article is concerned with British law, not Irish law.
was created out of part of the United Kingdom 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 and as early as the 1920s was discussed in Ireland in the following terms:
, "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". This meant that the citizenship law did not govern what the status of its holders were outside the Free State's jurisdiction. There were some remarkable manifestations of the British perspective in this matter including in the Parkes case. In the case of Murray v. Parkes (1942), the King's Bench Divisional Court decreed 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 1940 that the Court held that:
The position has been commented on in the following terms:
refused to provide consular assistance to Free State citizens, unless they held an alternative passport describing the holder as a "British subject".
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. One such reform was the Irish Nationality and Citizenship Act 1935, which received the royal assent on 10 April 1935. The 1935 Act 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 Irish 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. Within the United Kingdom's own law, references to the Irish Free State were soon after replaced with references to "Eire" (the Irish language
name for "Ireland" ("Éire"), misspelt without the accent).
British nationality law continued to recognise citizens of Ireland/Eire as holding the status of British subjects until the British Nationality Act 1948
came into force on 1 January 1949.
(in force from 1 January 1947), the Commonwealth Heads of Government
agreed that every member state would enact its own citizenship law, while retaining the common status of British subject. The United Kingdom 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 any Commonwealth member state.
As a result of the British Nationality Act 1948, Irish citizens ("citizens of Eire") lost British-subject status automatically on 1 January 1949 if they did not acquire citizenship of the UK & 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.
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:
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 & Colonies, was not transmissible by descent.
For the purpose of the 1948 legislation, the United Kingdom was defined based on its post-1922 borders. Hence, birth in the Republic of Ireland before 1922 was not sufficient in itself to confer UK & Colonies citizenship. Persons born in the Republic of Ireland before 1949 became Citizens of the UK & Colonies by descent in UK law on 1 January 1949 if they had a father born in the United Kingdom or a place which 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 UK & Colonies after one year's residence. By the 1970s this time period had increased to five years.
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 parliament
's Republic of Ireland Act 1948 which was brought into force in 1949. The 1949 Act provided that "citizens of the Republic of Ireland" (the new 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 in the United Kingdom.
Section 5 of the 1949 Act conferred Citizenship of the UK and Colonies (CUKC) on any Irish-born person meeting all the following criteria:
, in force from 1 January 1983:
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 their 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.
, the Australian Electronic Travel Authority
or visa-free tourist entry to Canada
Details
Irish-born British subjects will also qualify for a right of abode
in the UK, and their British subject passport will be endorsed to this effect. Unlike other British subject passports, the passports of British subjects with the right of abode are marked "European Union
", as their holders are European Union citizens.
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.
From 1 January 1983 an additional requirement was put in place that one parent should be a British citizen or 'settled' in the United Kingdom. Irish citizens are automatically deemed by British law to be "settled" in the United Kingdom. Since 2 October 2000, this is a more favourable status than that given to citizens of other EU and EEA member states. The special status of Irish citizens in the UK 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 further on:
"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."
British nationality law
British nationality law is the law of the United Kingdom that concerns citizenship and other categories of British nationality. The law is complex because of the United Kingdom's former status as an imperial power.-History:...
in respect of citizens of what is now the independent state of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, which was known in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
as "Eire" between 1937 and 1949, and which was the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
between 1922 and 1937. For clarity, the article is concerned with British law, not Irish law.
British subjects
When the Irish Free StateIrish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
was created out of part of the United Kingdom 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
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
within the British Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
, 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 and as early as the 1920s was discussed in Ireland in the following terms:
British subjects with local Irish nationality
According to Article 3 of the 1922 Constitution of the Irish Free StateConstitution of the Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State Act 1922, of which it formed a part...
, "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". This meant that the citizenship law did not govern what the status of its holders were outside the Free State's jurisdiction. There were some remarkable manifestations of the British perspective in this matter including in the Parkes case. In the case of Murray v. Parkes (1942), the King's Bench Divisional Court decreed that Roscommon
Roscommon
Roscommon is the county town of County Roscommon in Ireland. Its population at the 2006 census stood at 5,017 . The town is located near the junctions of the N60, N61 and N63 roads.-History:...
-born Michael Murray, then aged 33 and living in Leicester was a "British subject
British subject
In British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
" and therefore legitimately subject to conscription into the British Army. The Irish Times reported on 2 April 1940 that the Court held that:
The position has been commented on in the following terms:
Passport Issue
The Free State government did not consider that the status of "British subject" was an appropriate description for its citizens. This caused difficulties between the British and Irish governments over the wording of Irish Free State passports, which used the description "Citizen of the Irish Free State and of the British Commonwealth of Nations". One practical effect was that the Foreign OfficeForeign and Commonwealth Office
The Foreign and Commonwealth Office, commonly called the Foreign Office or the FCO is a British government department responsible for promoting the interests of the United Kingdom overseas, created in 1968 by merging the Foreign Office and the Commonwealth Office.The head of the FCO is the...
refused to provide consular assistance to Free State citizens, unless they held an alternative passport describing the holder as a "British subject".
Other Developments during 1935-1949
In 1933 the Fianna FáilFianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
party, led by Éamon de Valera
Éamon de Valera
Éamon de Valera was one of the dominant political figures in twentieth century Ireland, serving as head of government of the Irish Free State and head of government and head of state of Ireland...
, won the Irish general election, and began to put forward a series of reforms intended to more strongly assert Irish independence. One such reform was the Irish Nationality and Citizenship Act 1935, which received the royal assent on 10 April 1935. The 1935 Act 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 Irish Free State was reconstituted as "Ireland" in 1937, following the enactment of the Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
(Bunreacht na hÉireann), domestic Irish nationality law was left unchanged. Within the United Kingdom's own law, references to the Irish Free State were soon after replaced with references to "Eire" (the Irish language
Irish language
Irish , also known as Irish Gaelic, is a Goidelic language of the Indo-European language family, originating in Ireland and historically spoken by the Irish people. Irish is now spoken as a first language by a minority of Irish people, as well as being a second language of a larger proportion of...
name for "Ireland" ("Éire"), misspelt without the accent).
British nationality law continued to recognise citizens of Ireland/Eire as holding the status of British subjects until the British Nationality Act 1948
British Nationality Act 1948
The British Nationality Act 1948 was an Act of the Parliament of the United Kingdom that created the status of "Citizen of the United Kingdom and Colonies" as the national citizenship of the United Kingdom and its colonies....
came into force on 1 January 1949.
British Nationality Act 1948
Following Canada's enactment of the Canadian Citizenship Act 1946Canadian Citizenship Act 1946
The Canadian Citizenship Act is an Act of the Parliament of Canada, which was enacted June 27, 1946, and came into effect on January 1, 1947, recognizing the definition of a Canadian, including reference to them being British subjects....
(in force from 1 January 1947), the Commonwealth Heads of Government
Commonwealth Heads of Government
The leaders of the nations with membership in the Commonwealth of Nations are collectively known as the Commonwealth Heads of Government. They are invited to attend Commonwealth Heads of Government Meetings every two years, with most countries being represented by either their Head of Government...
agreed that every member state would enact its own citizenship law, while retaining the common status of British subject. The United Kingdom 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 any Commonwealth member state.
As a result of the British Nationality Act 1948, Irish citizens ("citizens of Eire") lost British-subject status automatically on 1 January 1949 if they did not acquire citizenship of the UK & 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.
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
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
to remain British subjects. Applications had to be based on:
- previous Crown service under the United Kingdom government;
- possession of a British passport; or
- associations by way of descent, residence or otherwise with the United Kingdom or any Crown colonyCrown colonyA Crown colony, also known in the 17th century as royal colony, was a type of colonial administration of the English and later British Empire....
, protectorateProtectorateIn history, the term protectorate has two different meanings. In its earliest inception, which has been adopted by modern international law, it is an autonomous territory that is protected diplomatically or militarily against third parties by a stronger state or entity...
, UK mandated territory or UK 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 & Colonies, was not transmissible by descent.
For the purpose of the 1948 legislation, the United Kingdom was defined based on its post-1922 borders. Hence, birth in the Republic of Ireland before 1922 was not sufficient in itself to confer UK & Colonies citizenship. Persons born in the Republic of Ireland before 1949 became Citizens of the UK & Colonies by descent in UK law on 1 January 1949 if they had a father born in the United Kingdom or a place which 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 UK & Colonies after one year's residence. By the 1970s this time period had increased to five years.
Ireland Act 1949
The United Kingdom's Ireland Act 1949Ireland Act 1949
The Ireland Act 1949 is a British Act of Parliament that was intended to deal with the consequences of the Republic of Ireland Act 1948 as passed by the Irish parliament...
came into force on 18 April 1949 and recognised the end of the Irish state's status as a British dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
, which had been effected under the Irish parliament
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
's Republic of Ireland Act 1948 which was brought into force in 1949. The 1949 Act provided that "citizens of the Republic of Ireland" (the new British nomenclature
Nomenclature
Nomenclature is a term that applies to either a list of names or terms, or to the system of principles, procedures and terms related to naming - which is the assigning of a word or phrase to a particular object or property...
adopted under the Act) would continue to be treated on a par with those from Commonwealth countries and would not be treated as aliens in the United Kingdom.
Section 5 of the 1949 Act conferred Citizenship of the UK and Colonies (CUKC) on any Irish-born person meeting all the following criteria:
- was born before 6 December 1922 in what became the Republic of Ireland;
- was domiciled outside the Republic of Ireland on 6 December 1922;
- was ordinarily resident outside the Republic of Ireland from 1935 to 1948; and
- was not registered as an Irish citizen under Irish legislation.
British Nationality Act 1981
The British Nationality Act 1981British Nationality Act 1981
The British Nationality Act 1981 was an Act of Parliament passed by the British Parliament concerning British nationality. It has been the basis of British nationality law since 1 January 1983.-History:...
, in force from 1 January 1983:
- 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 (or three years if married to a British citizen).
- British subjects retained the right to apply for registration as a British citizen after 5 years residence in the UK.
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. 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 5 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 their 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 United Kingdom passport. However, the British subject passport is not eligible for the United States Visa Waiver ProgramVisa Waiver Program
The Visa Waiver Program is a program of the United States Government which allows citizens of specific countries to travel to the United States for tourism or business for up to 90 days without having to obtain a visa. The program applies to the 50 U.S. states as well as the U.S...
, the Australian Electronic Travel Authority
Electronic Travel Authority
Electronic visas are issued by the Department of Immigration and Citizenship to some foreign nationals for entry into Australia. Unlike ordinary visas, when electronic visas are issued, no stamp or other documentation is affixed inside the traveller's passport; instead, the computer-based system...
or visa-free tourist entry to Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
Details
Irish-born British subjects will also qualify for a right of abode
Right of abode
The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction....
in the UK, and their British subject passport will be endorsed to this effect. Unlike other British subject passports, the passports of British subjects with the right of abode are marked "European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
", as their holders are European Union citizens.
Statistics
The July 1980 White PaperWhite paper
A white paper is an authoritative report or guide that helps solve a problem. White papers are used to educate readers and help people make decisions, and are often requested and used in politics, policy, business, and technical fields. In commercial use, the term has also come to refer to...
titled British Nationality Law - Outline of Proposed Legislation (upon which the British Nationality Act 1981
British Nationality Act 1981
The British Nationality Act 1981 was an Act of Parliament passed by the British Parliament concerning British nationality. It has been the basis of British nationality law since 1 January 1983.-History:...
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 Great Britain or Northern Ireland 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 should be a British citizen or 'settled' in the United Kingdom. Irish citizens are automatically deemed by British law to be "settled" in the United Kingdom. Since 2 October 2000, this is a more favourable status than that given to citizens of other EU and EEA member states. The special status of Irish citizens in the UK comes from section 1(3) of the Immigration Act 1971, the legislative basis for the Common Travel Area
Common Travel Area
The Common Travel Area is a passport-free zone that comprises the islands of Ireland, Great Britain, the Isle of Man and the Channel Islands. The area's internal borders are subject to minimal or non-existent border controls and can normally be crossed by Irish and British citizens with only...
.
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 further on:
"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 lawBritish nationality lawBritish nationality law is the law of the United Kingdom that concerns citizenship and other categories of British nationality. The law is complex because of the United Kingdom's former status as an imperial power.-History:...
- History of British nationality lawHistory of British nationality law- Early English and British nationality law :British nationality law has its origins in medieval England. There has always been a distinction in English law between the subjects of the monarch and aliens: the monarch's subjects owed him allegiance, and included those born in his dominions and...
- British subjectBritish subjectIn British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
- Irish nationality lawIrish nationality lawIrish nationality law is the law of the Republic of Ireland governing citizenship. A person may be an Irish citizen through birth, descent, marriage to an Irish citizen or through naturalisation. Irish nationality law is currently contained in the provisions of the Irish Nationality and Citizenship...