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					Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

OPINION

IRISH NATIONALITY, CITIZENSHIP, PASSPORTS – AND IMMIGRATION

Introduction

1. I have been asked to advise generally on the immigration implications of the 22 May 1998 referendum proposals, as a result of the Belfast Agreement of 10 April – designed to bring about peace in Northern Ireland. The

disjuncture between the nation and the state in the Republic of Ireland (‘ROI’) – 26 and 32 counties – should be a major immigration concern. However, it is necessary to disaggregate the concepts of nationality, citizenship and passports in any discussion of immigration law and practice. (It may also be necessary to refer to the United Kingdom [‘UK’]; immigration controls from the 1960s have influenced British nationality law inordinately.)

2. It is my view that the changes to articles 2 and 3 of Bunreacht na hÉireann, and the new British-Irish Agreement (‘BIA’), are principally ideological – lacking any domestic legal effect in terms of immigration rights.

The Changes

Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

3. The first change is in international law, in the new treaty agreed by the British and Irish governments on 10 April (which has yet to come into force):

Article 1 The two Governments: … (vi) recognise 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, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland. … Annex 2 Declaration on the Provisions of Paragraph (vi) of Article 1 In Relationship to Citizenship The British and Irish Governments declare that it is their joint understanding that the term ‘the people of Northern Ireland’ in paragraph (vi) of Article 1 of this Agreement means, for the purposes of giving effect to this provision, 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.

4. The second change is to Bunreacht na hÉireann, which will only come into effect if the institutions envisaged by the Agreement are established:

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

Article 2 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 specific affinity with people of Irish ancestry living abroad who share its cultural identity and heritage. Article 3 1. It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. 2. …

Basic Concepts

5. There has been a tendency in recent months to elide concepts and ideas – thus, the territorial claim grants citizenship to northern nationalists who should then have the right to vote in the Republic. This does injury to the complexity of Irish law.

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

6. The concept of nationality has no legal effect. It may be defined as those of Irish identity (in Ireland). People of Irish nationality make up the nation, a concept that remains undefined in the constitution. It is essentially a

voluntary affiliation; anyone can choose to call him/herself Irish. It is for this reason that it has no legal effect, though the term has been used, in association with citizenship, in Irish law since 1935.

7. Citizenship is, in contrast, a term of art. It was governed by British law, and is now largely determined by Irish law. It has its own article – article 9 – in Bunreacht na hÉireann, though article 9.1.2 states that ‘the future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.’ The relevant law is the 1956 Irish Nationality and Citizenship Act.

8. Passports are, in terms of foreign travel and the identity of northern nationalists, absolutely crucial. While UK passports remain largely a matter of executive discretion, Irish citizens have effectively a legal right to a passport from their state: The State (M) v Attorney General [1979] IR 73. The executive may withhold or withdraw passports, but only in the interest of the public good or public order: Lennon v Ganly and Fitzgerald [1981] ILRM 84.

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

9. It cannot be assumed that these concepts are mutually reducible, nor that such things as voting rights and right to residence are simply determined.

The British-Irish Agreement

10. This is the only part of the 10 April Agreement (pp. 27-30) to be legally binding – on the two states in international law (though the multi-party agreement is annexed to the treaty). Article 1 of the BIA is designed to replace article 1 of the 1985 Anglo-Irish Agreement, and is described as ‘understandings on constitutional issues’ (p. 25). It contains a grudging Irish recognition of the United Kingdom as including Northern Ireland in paragraph (iii). The context of paragraph (vi) was Sinn Féin’s assertion that, with the end of the territorial claim, northern nationalists would lose their right to Irish passports. The two governments sought to meet this (non) argument by reassurances on nationality and citizenship. In doing so, they played fast and loose with their domestic laws.

11. Pargraph (vi), which seeks to imply that ‘birthright’ is a legal concept, has to be read with Annex 2. Whatever is given in the former is essentially taken back by the latter. ‘The people of Northern Ireland’ does not literally include all those residing there.

12. People of Northern Ireland have no ‘birthright’ – or at least nothing that has any legal effect. They may affirm Irish – or British – identity, and therefore nationality. But this has no implications for citizenship. Dual nationality

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

has existed in Northern Ireland since 1956 (and in the Republic since 1949) (see further below). But this legalized system of rights and obligations is about citizenship. It is wrong to see birth in Northern Ireland leading to Irish or British citizenship tout court. This is made clear in Annex 2, containing a further joint understanding on each state’s citizenship law. According to this, Irish citizenship requires birth in Northern Ireland of a parent who is already an Irish citizen (in other words, citizenship by descent). British citizenship requires birth plus one parent already a British citizen or with a right of abode (a concept of immigration law introduced in 1971).

13. The elision of nationality and citizenship in paragraph (vi) is, of course, only apparent. The words up to ‘choose’ refer to nationality. The

‘accordingly’ does not imply any logical connection. ‘Their right to hold both British and Irish citizenship is accepted by both Governments’ is simply declaratory of the existing dual nationality in UK law, in the case of the British government, and, in the case of the Irish government, a recognition of British citizenship. The reference to this dual nationality continuing is a harking back to the 1995 Framework Documents, where it was inferred that the constitution of a future united Ireland was being constructed.

Bunreacht na hÉireann

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

14. Again, the principal purpose of the new article 2 is to allow Sinn Féin to claim little if anything has changed ideologically. The former article 2 defined the national territory as all Ireland. Though the concept of ‘national territory’ has gone, ‘the island of Ireland, which includes its islands and seas’ has been substituted in a context of the Irish nation. Moreover, the phrase ‘the territory of the island of Ireland’ is used in article 3.1.

15. The new article 2 contains three sentences, addressing three discrete concepts, and shows the overwhelming political imperative of the constitutional amendment: the first refers again to nationality; the second to citizenship; and the third – probably a consequence of Mary Robinson – to the Irish diaspora. (It would have been better to replace ‘national territory’ with a definition of the democratic road to a united Ireland.)

16. The first sentence of the new article 2 picks up the notion of ‘birthright’. It is preceded by ‘entitlement’, as if this were more than a synonym. The birthright is ‘to be part of the Irish nation’. This at least makes clear the nationality pedigree of birthright.

17. The second sentence is perplexing. It begins ‘that is also the entitlement’, suggesting that nationality generates citizenship. But the text actually

reads: ‘all persons otherwise qualified in accordance with law to be citizens of Ireland.’ This can only be a reference to article 9.1.2 of Bunreacht an Éireann. The operative word is ‘otherwise’. It is possible to be of Irish

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

nationality, whether by entitlement or birthright, but not to be an Irish citizen.

18. The diaspora does not require comment save to say: one, Irish nationality is confined to Ireland (by virtue of the race/nation distinction in Irish nationalism, which later inspired the national territory idea); and two, the diaspora is, further, excluded from citizenship – unless the Oireachtas so provides.

Irish Citizenship Law

19. Citizenship applies to states, and there has been an Irish state since 1922. It is neither here nor there whether it seems to rest on nationality and nations (though the term nationality law still survives in the UK). Irish citizenship dates from the so-called 1921 treaty. Under the British Nationality and Status of Aliens Act 1914 (and amending acts of 1918, 1922, 1933 and 1943), the people of Ireland remained British subjects. Citizenship was by birth, descent or naturalization. And this continued until 1 January 1949 – and indeed continues.

20. The treaty – the foundation of the Irish Free State – provided for a limited form of Irish citizenship, a sort of internal citizenship. Domicile in the 26 counties on 6 December 1922 was a condition precedent. This citizenship operated through birth (in Ireland), descent or residence in the Irish Free State for at least seven years. Birth in Ireland was provided for in article 3

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

because the jurisdiction of the state – 26 or 32 counties – was not settled at the point at which the UK legislatively created the new state in 1922. Significantly, embryonic Irish citizenship – which was a matter for the Oireachtas - had an all-Ireland aspect from the beginning.

21. In 1935, de Valera ended the internal nature of Irish citizenship in the Free State constitution, thereby allowing for Irish passports. Irish law acquired an extra-territorial effect.

22. The Irish Nationality and Citizenship Act 1935 was the first attempt to legislatively provide for Irish citizenship, ‘natural-born citizens of Saorstat Éireann’. It closely followed the scheme of the 1914 British act – birth and descent. And it did not extend to Northern Ireland. The term ‘natural-born citizens’ was designed to cover up the disjuncture between state and nation. The birth rule applied to all those born in the 26 counties since 6 December 1922. The descent rule operated to include all those born outside the state but to fathers (not mothers) who had been Irish citizens under the Free State constitution. It was retrospective. The extra-territorial effect came through the descent rule. There were registration provisions for Northern Ireland, and the rest of the world, illustrating that descent ran only to two generations; this also included a declaration option at the age of 21 years. Finally, those born before 6 December 1922 in Ireland (and not yet an Irish citizen) could become a natural-born citizen by residence or registration.

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

23. Most residents of Northern Ireland did not have Irish citizenship between 1922, or 1935, and 1956. Nor did Bunreacht na hÉireann in 1937 alter the position.

24. In 1949, the Uk, by declaring the Republic not to be a foreign country (Ireland Act, section 2), dealt with the Irish legislative withdrawal from the commonwealth. The British Nationality Act 1948 was unaffected,

including the recognition – in UK law – of Irish citizenship. Westminster, ironically, brought about dual nationality in the Republic, since persons born there before 1 January 1949 were entitled – in UK law - to apply to remain as British subjects. This is still the law.

25. Modern Irish citizenship law stems from the Irish Nationality and Citizenship Act 1956 (as amended in 1986 and 1994).1 The law was recast in the wake of the disaggregation of British nationality in 1948. Though subsection 6(1) stated that ‘every person born in Ireland [defined as the 32 counties] is an Irish citizen from birth’, this did not mean there was an Irish birthright to citizenship. In the Republic, citizenship was acquired by birth – one of the leading general principles of nationality law. Irish citizenship could also be acquired outside Ireland by descent, the third generation requiring registration.

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The birthright concept dates from the enactment of this measure. On 29 February 1956, during the second stage debate in the Dáil, the minister for justice, Mr Everett, said of new groups in Northern Ireland being given citizenship: ‘These generations are of Irish stock and this Bill provides for their Irish citizenship without the fulfilment of any artificial requirements on their part such as registration. Citizenship is, in our opinion, their birthright.’ (col. 1000)

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

26. Special provision was made for Northern Ireland in section 7(1). This disapplied section 6(1) for those born there on or after 6 December 1922, and replaced it with the formality of declaration (on behalf of self or child). That’s how British observers understood the new Irish law.

27. However, the phrase ‘not otherwise an Irish citizen’ opened up a new route to citizenship. The act, because it was heavily retrospective, meant that section 6(1) also applied to those born in Northern Ireland before 6 December 1922. Then, through the operation of subsections 6(2) and 6(4), a descent rule was brought to bear in Northern Ireland. It is not here relevant whether this was three generations, as was suggested in the Dáil at the time, or, as has been claimed by more recent Irish governments, an endlessly repeating descent rule. (If this is the case, it is a very peculiar descent rule. It is also iniquitous: it means citizenship is easier to acquire in Northern Ireland than in the Republic.) It is incontrovertible that citizenship cannot be acquired by birth in Northern Ireland. Birth of an ancestor before 6 December 1922, followed by descent through however many generations, or acquisition of citizenship by declaration, does not amount to a birthright. Subsection 6(1) has to be read with subsection 7(1).

Conclusion

28. I have not addressed central questions of Irish immigration law and practice, especially in the context of the European Union. I suspect that, the

Republic having historically suffered from net emigration, the state is ill

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Opinion, 2 June 1998: Irish Nationality, Citizenship, Passports – and Immigration

prepared for Celtic-tiger immigration in the wake of the collapse of communism in eastern Europe.

29. However, I am convinced that there is no immigration implication from recent constitutional and legal changes. I do see a problem: is Northern Ireland part of the state or not? Obviously, it is not. However, nationalists treat it so, especially ideologically and rhetorically. Thus, the nonsense about birthright, which I suspect has not fooled Sinn Féin’s legal advisers.

Austen Morgan, 3 Temple Gardens, Temple, London EC4Y 9AU austenmorgan1@compuserve.com 2 June 1998

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