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IRISH CITIZENSHIP_ NATIONALITY A

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									Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


                    IRISH CITIZENSHIP, NATIONALITY AND PASSPORTS:



                                                 AN OPINION



Introduction



1.    I have been asked to advise on the questions of citizenship in Irish law, Irish nationality and

      the issuing of       Irish passports to persons in Northern Ireland.            This will also require

      consideration of United Kingdom law in much of the twentieth century. Citizenship and

      nationality are - from an international law perspective - substantially matters of domestic

      jurisdiction, though the problem is compounded by the existence of European citizenship

      since 1992. The context of the request is Irish attempts to defend the territorial claim by

      playing the green card - the effects, practical if not symbolic, on the identity of northern

      nationalists if articles 2 and 3 of the Irish constitution are amended.



2.    I can see no insuperable problem to the continuation of the present positions in the

      eventuality of the territorial claim being ended, any necessary legislative changes (which are

      unlikely) being entirely a matter for the Oireachtas. The direct answer is to be found in

      paragraphs 22 and 35 below, but the development of dual nationality in the south after 1948,

      and the north from 1956, needs to be established on the basis of extra-territorial effect in the

      two jurisdictions.



Ireland under the Union, 1801 - 1922
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


3.    Irish law survived the 1800 acts of union, but the jurisdiction came under the United

      Kingdom parliament. `Though there are traces of a distinct nationality of the Kingdom of

      Ireland during the seventeenth and eighteenth centuries, and though a distinct process of Irish

      naturalisation was erroneously thought to survive even the Union with Great Britain, there

      could in the nature of things be no such concept as that of nationality or citizenship of the

      Republic of Ireland until that entity, or rather its first forerunner, the Irish Free State, was set

      up in 1922.' (Clive Parry, Nationality and Citizenship Laws of the Commonwealth and of the

      Republic of Ireland, London 1957, p. 925)



4.    The - consolidating - British Nationality and Status of Aliens Act 1914, which applied of

      course to Ireland (and subsequent amending acts of 1918, 1922, 1933 and 1943), set the

      parameters for Irish citizenship law in the first decades of the new state. The 1914 act

      defined natural-born British subjects as any person born `within His Majesty's dominions and

      allegiance', or whose father was a British subject `born within His Majesty's allegiance' or to

      whom a certificate of naturalization had been granted. Allegiance was associated with the

      lawful exercise of British jurisdiction in other than His Majesty's dominions (section 1). And

      the dominions had the power not to adopt part II of the act on naturalization (section 9).

      Aliens could be naturalized under part II after five years residence in His Majesty's

      dominions or five years service of the Crown (both in the last eight years), the former also

      requiring residence in the United Kingdom for the year before application; an oath of

      allegiance had also to be sworn (section 2). British nationality - not a term of art - could only

      be surrendered by naturalization `in any foreign state' (section 14). This remained the law,

      with amendment - the British Nationality and Status of Aliens Acts 1914 to 1943 - until 1948.



The Irish Free State, 1922 - 37



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion




5.    No attempts were made in the early years of the Free State to legislatively provide for a

      separate Irish citizenship. The oath in article 4 of the 1921 Articles of Agreement for a

      Treaty between Great Britain and Ireland (`the Treaty') referred to `the common citizenship of

      Ireland with Great Britain' and to `membership of the group of nations forming the British

      Commonwealth of Nations'. This was repeated in article 17 of the 1922 constitution of the

      Irish Free State, dealing with members of the Oireachtas. Citizenship here was not a term of

      act, the people of the Irish Free State remaining British subjects.             But article 3 of the

      Constitution provided for Irish (in reality Irish Free State) citizenship:



6.    Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish

      Free State (Saorstat 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 (Saorstat Eireann) for

      not less than seven years, is a citizen of the Irish Free State (Saorstat Eireann) and shall

      within the limits of the jurisdiction of the Irish Free State (Saorstat Eireann) enjoy the

      privileges and be subject to the obligations of such citizenship: Provided that any such person

      being a citizen of another State may elect not to accept the citizenship hereby conferred; and

      the conditions governing the future acquisition and termination of citizenship in the Irish Free

      State (Saorstat Eireann) shall be determined by law.



7.    This constitution had been enacted in Dublin and then in London (Constitution of the Irish

      Free State [Saorstat Eireann] Act 1922; Irish Free State Constitution Act 1922). While

      existing in Irish law only, the Westminster parliament had permitted - through the transfer of

      the power - citizenship law in the Free State. It was unique in the commonwealth, and a



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      function of the Treaty negotiations leading to the creation of a new state out of the United

      Kingdom of Great Britain and Ireland.



8.    The features of this Irish citizenship were: one, no sex distinction; two, the jurisdiction of the

      Irish Free State (which was clear in United Kingdom, and Irish, law but finally settled in

      1925); three, the offering of citizenship to those domiciled in the Free State on 6 December

      1922 only; four, based upon birth of self or a parent in Ireland (undoubtedly the 32 counties),

      or seven years minimum residence in the jurisdiction; five, citizenship only within the

      jurisdiction of the state; six, a proviso allowing citizens of other states - query whether this

      included British subjects from the United Kingdom and elsewhere (Parry was sceptical in

      1957) - domiciled in the Free State electing not to accept Irish citizenship; and seven, future

      acquisition and termination to be determined by law.



9.    This founding Irish citizenship was limited to the 26-county Free State (but see In re Logue

      [1933] 67 ILTR 253, where Judge Moonan, in the Circuit Court, held that someone resident

      in Derry, in Northern Ireland, on 6 December 1922, was entitled to citizenship: also

      Fransman's British Nationality Law, 1989 ed., pp. 638-9.)                   It was also based upon the

      principle of domicile on the first day of the new state's existence: Iveagh v Revenue

      Commissioners [1930] IR 386; Bradfield v Swanton [1931] IR 446. In United Kingdom law,

      of course, all those born in Ireland shared British nationality with those in Great Britain and

      throughout the empire/commonwealth.               The Irish Free State as a dominion could have

      adopted part II of the 1914 act, and issued certificates of naturalization with extra-territorial

      effect - but it chose not to do so. When citizens of the Irish Free State travelled abroad

      (including to Northern Ireland) they did so as British subjects. There was no provision in the

      Irish constitution, or in ordinary domestic law, for Irish passports. British passports were



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      carried. And there was no compulsion on anyone of British nationality in the Free State

      (much less in Northern Ireland) having to accept Irish citizenship; they could elect to decline

      what was being conferred - presumably by retaining their existing status as British subjects.



10.   This was arguably reconciliable in public international law (but not if `citizen of another

      State' in article 3 of the constitution included the United Kingdom and His Majesty's

      dominions and allegiance). In 1930, a convention on the conflict of nationality laws was

      signed at The Hague. Article 1 states: `It is for each State to determine under its own law

      who are its nationals. This law shall be recognized by other States in so far as it is consistent

      with international conventions, international custom, and the principles of law generally

      recognized with regard to nationality.' There was no agreement in 1930 on what the relevant

      principles of international law were. The 1933 amending British act purported to give effect

      to the convention, by changing the law on the status of married women only. There is also

      evidence that the 1930 convention encouraged the Irish state to legislate for citizenship. But

      the key change was the coming to power of Eamon de Valera in 1932.



De Valera takes a hand.



11.   On 5 April 1935, by the twenty sixth constitutional amendment, de Valera removed the

      restrictions from article 3 of the constitution which confined citizenship to the jurisdiction.

      Irish citizenship was given extra-territorial effect. And the Free State, presumably, began to

      issue Irish passports; they were certainly in existence at the time of the Spanish civil war.

      This power, though de Valera might not have accepted the argument, was consequent upon

      the 1931 Statute of Westminster. And the British Nationality and Status of Aliens Acts 1914




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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      to 1933 still applied throughout Ireland, in the absence of the exercise of any legislative rights

      under the 1914 or 1931 acts.



12.   Five days later, de Valera enacted an Aliens Act, and - the first - Irish Nationality and

      Citizenship Act. In so doing, he closely followed British legislation.



13.   Aliens were all those who were not citizens of the Irish Free State under the constitution. But

      section 10(1) allowed for the exemption of `citizens, subjects or nationals of any country in

      respect of which the [government] are satisfied that, having regard to all the circumstances

      and in particular the laws of such country in relation to immigrants, it is proper that the

      exemption...should be granted.' De Valera did not use this power immediately. During the

      1939-45 war, Eire/Ireland was neutral, and its people were subject to British controls. It was

      only after the war that de Valera was to exempt British subjects born in Northern Ireland or

      Great Britain: Aliens Order 1946 (SR&O 395) and Aliens (Amendment) Order 1975 (SI No.

      128). They were not to be aliens - or foreigners - in Irish eyes.



14.   The 1935 Citizenship Act advanced the concept of Irish nationality, to no particular effect - it

      seemingly being a synonym for citizenship (section 1 defining citizenship of any other

      country - undoubtedly including the United Kingdom - as applying also to subjects or

      nationals).



15.   This first Irish act, in following the scheme of the 1914 United Kingdom act, applied both the

      jus soli (birth) and the jus saguinis (descent). But the latter purported to have extra-territorial

      effect.    Under section 2, the Act defined `natural-born citizens of Saorstat Eireann' (in

      addition to the citizens already created by article 3 of the constitution). Natural-born citizens



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      were essentially all persons born in the state (not Ireland as in the constitution) since 6

      December 1922, and those born outside the state but of fathers who, on the day of birth, were

      Irish citizens. (Mothers had disappeared for the purposes of legal descent.) The 1935 act was

      therefore retrospective. The latter category - born outside the state (the site of the extra-

      territorial effect) - was qualified as from 10 April 1935, that is during the life of the act. If

      the father was a natural-born citizen born outside the state since 6 December 1922, or a

      naturalised citizen, then, within one year, the child's birth had to be registered in a Northern

      Ireland births register kept by the minister for external affairs in Dublin, or in the foreign

      births entry book in Irish legations or consulates in other countries or in the foreign births

      register (also kept by the minister in Dublin). (There was also to be a register of nationals in

      every legation and consulate, these - seemingly not too many names - being entered on a

      general register in Dublin at least once a year; this general register was also to include those

      permanently resident outside the state whose deemed natural-born citizenship was dependent

      upon registration.) Upon reaching the age of 21 years, the person had one year to make `a

      declaration of retention of his citizenship of Saorstat Eireann and also, if he was a citizen of a

      foreign country, divests himself, in accordance with the laws of that country, of his

      citizenship thereof.' The United Kingdom was a foreign country in 1935, but not one inclined

      to allow British subjects to divest themselves of their nationality. This had the practical

      effect in the case of those born outside the state of limiting citizenship - subject to the above

      minor, but complicated, exceptions - to those with fathers who were born within the state

      from 6 December 1922; on 10 April 1935, this was few if any. And, as time progressed, the

      number of 26-county-born fathers producing children in Northern Ireland - as opposed to

      Great Britain - remained small.




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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


16.   The 1935 act also provided for: persons born before 6 December 1922, but not an Irish

      citizen, though born in Ireland, or of a parent born there, could be deemed to be natural-born

      citizens, if they became permanently resident in the state, and, even if they were resident

      outside the state, if       they were not naturalised in any other country and they were so

      registered. This referred to those who were not domiciled in the state on 6 December 1922,

      as required in the Free State constitution. It affected Northern Ireland insofar as persons

      became permanently resident in the Free State, or, remaining there, they managed to give up

      being British subjects - which could only be done under section 14 of the 1914 act, from

      which the Free State, as a dominion, was undoubtedly excluded. This residence qualification

      was to be used by only some 4,400 persons worldwide between 1935 and 1956.



17.   The 1935 act did not expressly extend citizenship of Saorstat Eireann to Northern Ireland

      (despite the register in Dublin of births in Northern Ireland to natural-born citizens born

      outside the state, or to naturalised citizens). But birth and residence had an effect on - some -

      persons there. In 1935, most residents of Northern Ireland had been born in Ireland before 6

      December 1922. None was, of course, domiciled in the Irish Free State on that date. And

      none was therefore eligible for Irish citizenship under the constitution between then and

      1935. The first Irish citizenship act, however, by virtue of its natural-born definition, to say

      nothing of the residence provision, against the background of treating Ireland as the unit for

      the purposes of birth and descent, extended citizenship to some British subjects in Northern

      Ireland. There was a potential conflict of nationality laws, with Irish or British nationality

      being effectively voluntary options in this part of the United Kingdom.



18.   De Valera did not rush in 1935 to exclude British subjects from being aliens in Irish law by

      executive action, and, in United Kingdom law, Irish citizens who were also British subjects,



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      whether resident in the Free State or Northern Ireland, could not make an effective

      declaration of alienage - even if they wished. In contrast, Irish citizens who acquired another

      nationality could, under section 21 of the 1935 act, make such a declaration of alienage. And,

      in section 23 - the Free State was still a member of the commonwealth - , de Valera provided

      for mutual - or reciprocal - citizenship rights, whereby, as a result of a convention between

      the Irish and another government, citizens of the latter would be granted all or any of the

      rights and privileges of Irish citizens in return for such rights and privileges being granted

      Irish citizens in that country.



Bunreacht na hEireann, 1937



19.   Citizenship was given its own article - 9 - in the section of de Valera's new constitution on

      `THE STATE':

                    1.1 On the coming into operation of this Constitution any
                    person who was a citizen of Saorstat Eireann immediately
                    before the coming into operation of this Constitution shall
                    become and be a citizen of Ireland.

                    1.2 The future acquisition and loss of Irish nationality and
                    citizenship shall be determined in accordance with law.

                    1.3 No person may be excluded from Irish nationality and
                    citizenship by reason of the sex of such person.

                    2. Fidelity to the nation and loyality to the State are
                    fundamental political duties of all citizens.


      `The change of name of the Irish Free State to Eire and other changes which were made by

      the Constitution of 1937 did not affect the law of Irish citizenship in any way.' (Parry, p. 929)

      Article 9.1.1 kept alive the 1935 act, citizens of Saorstat Eireann (including natural-born

      ones) becoming citizens of Ireland. This was a change of name only, Irish citizens - hitherto

      relating to Saorstat Eireann - now being associated with the new state which, under article 4,


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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      was to be called Eire or Ireland. This article did not make persons in Northern Ireland

      citizens, insofar as they were not such under the 1935 act. Article 9.1.2 underlined the point

      about how citizenship was a question for legislative provision. And article 9.1.3 simply took

      over the point from article 3 of the Free State constitution. (For an English-law view, see

      Murray v Parkes [1942] 2 KB 123, a case concerning an appellant - represented by Sergeant

      Sullivan - born in [what was then] Eire in 1908, and therefore a British subject, resident in

      England from 1934, who argued unsuccessfully that the 1931 Statute of Westminster had

      permitted de Valera to secede from the commonwealth, which he had allegedly done in 1937,

      thereby making the appellant an Irish citizen only, therefore an alien - and not liable to

      conscription. Viscount Caldecote CJ recognized dual nationality, albeit `a national character

      as an Irish citizen within the wider British Nationality'.)



20.   Article 9.2 was new in Irish constitutional law. Under British rule, there had been a common

      law duty of allegiance to the crown, within or without the United Kingdom: R v Casement

      [1917] 1 KB 98. And naturalization, under the 1914 act, required an applicant to swear to `be

      faithful and bear true allegiance' to the sovereign. The duty of allegiance continued arguably

      - at least in part - in Irish law under the Free State. Members of the Oireachtas were required

      to swear `true faith and allegiance' to the constitution, and to be faithful to the sovereign. De

      Valera abolished this oath in 1933.              The concept of allegiance, if it survived 1922,

      alternatively 1933, did not appear in the 1937 constitution. Instead, de Valera distinguished

      nation and state, requiring all citizens, including the president, to show fidelity to the nation,

      and loyalty to the state. These were defined as fundamental political duties, suggesting a

      degree of active commitment. Loyalty is a political concept; but fidelity is more religious,

      and, given the structure and nature of the constitution, seemingly more important. The Irish

      courts, however, have not helped interpret article 9.2. Gavan Duffy J conflated the two into



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      one duty: The State (Burke) v Lennon [1940] IR 136. The two duties were raised obiter by

      McCarthy J in the Supreme Court in McGimpsey v Ireland [1990] IR 110 considering the

      plaintiffs' locus standi: `such fidelity and loyalty do not prohibit or restrict disagreement with

      the content of the Constitution nor with the actions of the government.' (p. 123) They remain

      to be defined in Irish constitutional law, where, of course, precedent does not operate.



Eire/Ireland leaves the Commonwealth, 1948-49



21.   From 1937, Irish citizenship law remained that of 1935. However, it was in 1946 that de

      Valera decreed that British subjects were not aliens in Irish law. In 1948, there were major

      legislative changes in both jurisdictions, British law anticipating a constitutional change in

      Irish law - the final severing of all ties with the sovereign.



22.   Eire/Ireland was, under the Executive Authority (External Relations) Act 1936, associated

      with, alternatively still a member of, the commonwealth. On 21 December 1948 - the date of

      operation to be determined by government order - the Oireachtas passed the Republic of

      Ireland Act 1948. This repealed de Valera's 1936 measure, and it also declared a new

      description of the state - but without changing the name in the constitution.              The act

      eventually came into force on 18 April 1949, Easter Monday - the (religious) anniversary of

      the 1916 Dublin rising. From that date, the Republic of Ireland cut its remaining ties with the

      commonwealth.



23.   Also in 1948 (on 30 July), the United Kingdom parliament recast British nationality law as

      from 1 January 1949 (this remained the regime until 31 December 1982, with amending acts

      in 1958, 1964 and 1965.)            The British Nationality Act 1948 advanced the concept of



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      citizenship of the United Kingdom and Colonies, by birth and (and future) descent, in part II.

      This applied to Northern Ireland, but not to Eire (as the state was known in United Kingdom

      law). However, under section 6, a `citizen of Eire' (being considered along side those from

      the commonwealth) was expressly given the right to become a citizen of the United Kingdom

      and Colonies, if he had been resident in the United Kingdom for at least 12 months or was in

      crown service. This was registration, not naturalisation, Eire being treated differently from

      Burma (which acquired independence outside the commonwealth in 1947).                 Eire was

      expressly treated in part I of the 1948 act dealing with British nationality. In section 1,

      citizens of Canada, Australia, New Zealand, South Africa, Newfoundland, India, Pakistan,

      Southern Rhodesia and Ceylon were, by virtue of their own citizenship, declared to be also

      British subjects, or, in new terminology, commonwealth citizens. This was a recognition of

      dominion power. Eire, however, was separately treated. This was in spite of the fact that, on

      30 July 1948, and even on 1 January 1949, it still remained associated with the

      commonwealth. No doubt, Dublin had made it clear to London it did not wish to participate

      in commonwealth citizenship. Under section 2, citizens of Eire who were also British

      subjects could, by notice in writing to the secretary of state, claim to remain British subjects

      on any or all of the following grounds: crown service; a British passport; or association by

      descent, residence or otherwise with the United Kingdom and Colonies. (This must be the

      United Kingdom at the time of the notice in writing.) Someone born in Eire before 1 January

      1949 could, in United Kingdom law, become a British subject. After that date - though Eire

      remained in the commonwealth until 18 April 1949 - commonwealth citizenship could not be

      acquired since Irish citizenship was not recognized as a basis. This voluntary retention of

      British nationality did not, as long as Eire remained in the commonwealth, have extra-

      territorial effect in addition to the surviving United Kingdom powers to legislate for the




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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      former empire.        The act contained, however, a recognition of the existence of dual

      nationality, not in Northern Ireland, but in Eire.



24.   Withdrawal from the commonwealth led to the Ireland Act 1949 (passed on 2 June), which

      was deemed to have retrospective effect from 18 April. Eire became the Republic of Ireland

      in United Kingdom law. In section 2, the Republic, though no longer a part of His Majesty's

      dominions, was declared not to be a foreign country. There was no question of its citizens

      being treated as aliens. They would be treated as de facto commonwealth citizens. Sections

      3 to 5 (the bulk of the act) dealt with citizenship. Section 3 declared that the British

      Nationality Act 1948, in particular sections 2, 3 and 6, was not affected; further, citizens of

      Eire included, on their true construction, citizens of the Republic of Ireland. Section 4 dealt

      with transitional provisions. And section 5 - treating existing Irish and United Kingdom law -

      deemed that a person born in the Republic of Ireland before 6 December 1922, who was a

      British subject immediately before the commencement of the British Nationality Act 1948,

      had not ceased to be a British subject on 1 January 1949, unless he had been domiciled in the

      Republic on 6 December 1922, `permanently resident in that part of Ireland' on or after 10

      April 1935, or had `been registered as a citizen of Eire under the laws of that part of Ireland

      relating to citizenship.' (There were deemed omissions in sections 12 and 13 of the 1948 act

      to cover British subjects who had not become Irish citizens in the three ways specified.) In

      preventing Republic of Ireland citizens becoming aliens in United Kingdom law, the Ireland

      Act 1949 contained a - United Kingdom-law - recognition of Irish citizenship law under

      article 3 of the 1922 constitution (as amended), section 2(4)(a) of the Irish Nationality and

      Citizenship Act 1935 and the remaining provisions of section 2 of the same act - registration

      applying to third generation descent from natural-born citizens. There seemed to be no

      problem of conflict of nationality laws.



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion




Irish Nationality and Citizenship Act 1956



25.   De Valera had been out of office in 1948-51, during when a coalition government

      legislatively described Eire/Ireland as a republic. He was back in power in 1951-54. It was a

      second coalition government, in 1956, which produced the second, and a radically different,

      citizenship act in the history of the state, in the wake of the 1948/49 constitutional

      developments. One of the reasons for a new act was the politics of the nation, with the Free

      State party seeking to outdo de Valera's republicanism. Another was the disaggregation of

      the status of British subject brought about by the British Nationality Act 1948. The relevant

      provisions of the 1956 Irish act - noting those with a bearing on the constitution - are:


                    2....

                    "Ireland" means the national territory as defined in Article
                    2 of the Constitution.

                    "Irish citizen" means a citizen of Ireland.

                    ...

                    5. (1) The Irish Nationality and Citizenship Act, 1935 (No.
                    13 of 1935) and the Irish Nationality and Citizenship Act,
                    1937 (No. 39 of 1937) [which changed provisions on the
                    registration of nationals], are hereby repealed.


                    (2) Every person who, immediately before the passing of this
                    Act, was a citizen of Ireland shall remain an Irish citizen,
                    notwithstanding the foregoing repeals.

                    6. (1) Every person born in Ireland is an Irish citizen from
                    birth.

                    (2) Every person is an Irish citizen if his father or mother
                    was an Irish citizen at the time of that person's birth or
                    becomes an Irish citizen under subsection (1) or would be an
                    Irish citizen under that subsection if alive at the passing of
                    this Act.


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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion




                    (3) In the case of a person born before the passing of this
                    Act, subsection (2) applies from the date of passing [17 July
                    1956]. In every other case, it applies from birth.

                    (4) A person born before the passing of this Act whose
                    father or mother is an Irish citizen under subsection (2), or
                    would be if alive at its passing, shall be an Irish citizen from
                    the date of its passing.

                    ...

                    7. (1) Pending the re-integration of the national territory,
                    subsection (1) of section 6 shall not apply to a person, not
                    otherwise an Irish citizen, born in Northern Ireland on or
                    after the 6th December 1922, unless, in the prescribed
                    manner, that person, if of full age, declares himself to be an
                    Irish citizen or, if he is not of full age, his parent or guardian
                    declares him to be an Irish citizen. In any such case, the
                    subsection shall be deemed to apply to him from birth.

                    (2) Neither subsection (2) nor (4) of section 6 shall confer
                    Irish citizenship on a person born outside Ireland if the
                    father or mother through whom he derives citizenship was
                    also born outside Ireland, unless -

                                  (a) that person's birth is registered under section
                    27, or

                                  (b) his father or mother, as the case may be, was
                    at the
                                  time of his birth resident abroad in the public
                    service.

                    ...


                    12. (1) The President may grant Irish citizenship as a token
                    of honour to a person or to the child or grandchild of a
                    person who, in the opinion of the Government, has done
                    signal honour or rendered distinguished service to the
                    nation.

                    ...

                    15. Upon receipt of an application for a certificate of
                    naturalisation, the Minister may, in his absolute discretion,
                    grant the application, if satisfied that the applicant complies
                    with the following conditions...



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


                    ...

                                (f) he has made...a declaration in the prescribed
                    manner,                  of fidelity to the nation and loyalty
                    to the State.

                    ...

                    19. (1) The Minister may revoke a certificate of
                    naturalisation if he is satisfied -

                    ...

                                  (b) that the person to whom it was granted has,
                    by any
                                  overt act, shown himself to have failed in his
                    duty of
                                           fidelity to the nation and loyalty to the
                    State, or

                    ...


                    21. (1) If an Irish citizen...is or is about to become a citizen
                    of another country and for that reason desires to renounce
                    citizenship, he or she may do so, if ordinarily resident
                    outside the State, by lodging with the Minister a declaration
                    of alienage in the prescribed manner, and, upon lodgment of
                    the declaration or, if not then a citizen of that country, upon
                    becoming such, shall cease to be an Irish citizen.

                    (2) An Irish citizen may not, except with the consent of the
                    Minister, renounce Irish citizenship under this section
                    during a time of war as defined in Article 28.3.3 of the
                    Constitution.

                    ...

                    24. No person shall be deemed ever to have lost Irish
                    citizenship under section 21 of the 1935 Act merely by
                    operation of the law of another country whereby citizenship
                    of that country is conferred on that person without any
                    voluntary act on his part.

                    ...

                    26. (1) Where the Government are satisfied that under the
                    law of another country (whether by virtue of a convention
                    between that country and the State or otherwise) Irish
                    citizens enjoy in that country some or all of the rights and


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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


                    privileges of a citizen of that country, the Government may
                    be order...declare that citizens of that country shall enjoy in
                    the State similar citizenship rights and privileges to those
                    enjoyed by Irish citizens in that country, but subject to such
                    conditions (if any) as the Government may think fit to
                    impose.

                    ...

                    29. An Irish citizen, wherever born, shall be entitled to all
                    the rights and privileges conferred by the terms of any
                    enactment on persons born in Ireland.


26.   This act amount to a fresh start in citizenship law. All previous legislation was repealed,

      though there was a saving for existing citizenship. The term `citizen of Ireland' (from article

      9 of the 1937 constitution), which had no major implications for Northern Ireland, was

      replaced with `Irish citizen', which did significantly extend the law north of the border. Aside

      from the problem of nation and state (see below), Irish citizenship law was again based on

      birth or descent (residence being abolished), and, as in the Free State constitution, descent

      was possible once again through either parent.



27.   There are five references to the constitution in the 1956 act. The first is the definition of

      Ireland in terms of article 2 of the constitution in section 1. Any change to article 2 might

      make this definition inconsistent with the constitution. But the inconsistency would probably

      lie in the term `national territory', and not Ireland. Firstly, Ireland hardly needs to be defined.

      Secondly, if it does, there must be adequate references in existing Irish statutes, or those

      brought over from the United Kingdom of Great Britain and Ireland in 1922. And thirdly, the

      definition could be expressly repealed and replaced with something like: `Ireland is Eire plus

      Northern Ireland'. The second reference to the constitution is the definition of `Irish citizen',

      in section 1, in terms of `citizen of Ireland', from article 9. This is uncontroversial. The third

      reference is `the re-integration of the national territory', in section 7(1), from, of course,



                                                                                                      17
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      article 3. Any amendment of article 3 might render this a dead letter. But the statutory

      provision - a formality to be complied with - would remain the law. The fourth reference, in

      sections 15 and 19, is to article 9.2 on fidelity to the nation and loyalty to the state. Despite

      Irish case law, it is offensive in the context of the Irish territorial claim. The fifth reference,

      in section 21(2), is to the definition of time of war, in article 28.3.3, and is uncontroversial.

      (A minor sixth reference, in section 12(1), allows for honorary citizenship granted by the

      president. The reference to `the nation' is most likely innocent.) The 1937 constitution did

      nothing to Irish citizenship law, except make the citizens of Saorstat Eireann citizens of

      Ireland, when it was enacted by the people. And it has no implications - given the law from

      1922, and the growth of extra-territoriality - for the 1956 legislation.



28.   The 1956 act (which has been amended in 1986 and 1994) replaced citizenship by birth,

      descent and residence, largely in the state, with birth and descent in Ireland, or the nation as

      asserted in article 1 of the constitution. Section 6(1) makes every person born in Ireland -

      whether alive or dead in 1956 - an Irish citizen from birth. This was heavily retrospective.

      As for descent, citizenship can be acquired under section 6(2), regardless of place of birth,

      through father or mother, alive or dead, as long as they are Irish citizens. But this only

      applied from 17 July 1956. Section 7(2) on formalities restricts third-generation citizenship,

      traced through a father or mother born outside Ireland, to where the child's birth was

      registered under section 27 (in a foreign birth entry book in a diplomatic mission or consular

      office, or in a foreign births register in Dublin), or to where the relevant parent was resident

      abroad in the public service. There is no reference, as in the 1935 act, to the Northern Ireland

      births register.




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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


29.   Section 7(1) deals with formalities as regards Northern Ireland. And it has a similar structure

      to article 3 of the constitution. It states that a person born in Northern Ireland on or after 6

      December 1922, not otherwise an Irish citizen (under article 3 of the 1922 constitution or the

      1935 act or the 1956 act less s 6(1)), is not an Irish citizen, unless that person declares himself

      such in the prescribed manner. There is no further definition of prescribed manner, though

      section 3 empowers the minister for justice to make regulations. At first blush, section 7(1)

      appears relatively innocent. It seems to be suggesting that citizenship by birth is only

      available in Northern Ireland through declaration in the prescribed manner: this is how

      Margaret Thatcher, who considered the question of dual citizenship when in office,

      remembered Irish law: The Downing Street Years, London 1995, p. 412. Query the position

      before 6 December 1922, where section 6(1) surely applies? But `not otherwise an Irish

      citizen' allows for citizenship by descent under the 1956 act. And sections 6(2) and 6(4),

      taken with section 7(2), allow a grandparent to become an Irish citizen, whether alive or dead,

      under section 6(1) as long as they were born in Ireland. `The sensational effect of these

      provisions...was to confer, in the eyes of Irish law, citizenship on the vast majority of the

      Northern Ireland population; the modifying effect of s. 7(1) was aimed at people "of entirely

      alien parentage" [in the words of the minister for justice on the second stage of the bill] born

      in Northern Ireland, who were to have Irish citizenship only if they expressly opted for it.

      The bulk of the northern population escaped this option because of the words "not otherwise

      an Irish citizen", i.e. not an Irish citizen by operation of provisions others than s. 6(1). To

      take the extreme instance, the combination of sub-ss. (2) and (4) of s. 6 would result in

      automatic citizenship for "every living person who is the grandchild of a person born in any

      part of the thirty-two countries prior to 6th December 1922." [minister for justice on third

      stage]' (J.M. Kelly, ed. G. Hogan & G. Whyte, Irish Constitution, 3rd ed., Dublin 1994, pp.

      40-1)



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion




The Law since 1956



30.   Irish citizenship law has not been recast in the past four decades. Nor was there any overt

      conflict of nationality law problems with the United Kingdom from 1956. The unified, and

      dominant, British subject had been replaced in 1948-49 by commonwealth citizenship based

      on local citizenship, citizenship of the United Kingdom and Colonies, and, in the case of the

      Republic of Ireland, dual - Irish and British - nationality. The former stemmed from the 1935

      act, the latter from the continuing recognition of British subjects in the British Nationality Act

      1948. The Ireland Act 1949 affected both. Dual nationality only applied to Northern Ireland

      from 1956, based on Irish citizenship and citizenship of the United Kingdom and Colonies.

      Reviewing the citizenship regime in 1957, Parry wrote: `The situation is not quite that

      Northern Ireland is regarded by both the law of the United Kingdom and Colonies and the

      law of the Republic of Ireland as being within the territorial area in which that law, and in

      particular the rules thereof respecting citizenship by birth and descent, applies or apply. But

      that situation is very nearly approached.' (pp. 939-40)



31.   De Valera had avoided the problem of aliens from Northern Ireland, and Great Britain, in

      1946, and the United Kingdom parliament reciprocated in 1949, declaring the Republic not to

      be a foreign country. Reciprocal, or mutual, citizenship rights had been provided for in

      section 23 of the 1935 Irish act on the basis of a convention, and a citizenship rights order

      was provided for in 26 of the 1956 act on the basis of a convention or otherwise. Orders had

      been made under the 1935 act for citizens of the United Kingdom and Colonies, Canada,

      Australia, New Zealand, South Africa and Southern Rhodesia.                     The United Kingdom

      response - legislative and administrative - was reviewed in the 1981 Joint Studies, which



                                                                                                      20
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      considered the harmonization of rights and privileges in the two jurisdictions: `citizens of the

      United Kingdom resident in Ireland and Irish citizens resident in the United Kingdom enjoy

      virtually all the rights and privileges of citizens of the host country, reflecting the unique

      relationship between the two countries.' (Cmnd. 8414, London, p. 22)



32.   There is only room here to note that British nationality law - under the British Nationality

      Acts 1981 and 1983 as amended (plus legislative provision for Hong Kong) - was changed

      yet again as from 1 January 1983. The 1948 act provided for commonwealth citizens,

      including citizens of the United Kingdom and Colonies, or British subjects. In 1983, citizens

      of the United Kingdom and Colonies were divided between the categories of British

      citizenship, British Dependent Territories citizenship, and British Overseas citizenship (and,

      from 1987, British National (Overseas) status for Hong Kong) - holders of the former status

      only having the right of abode in the United Kingdom (a provision in immigration, not

      nationality, law first introduced in 1971). Those in Northern Ireland are British citizens in the

      main under the 1981 act. As for the Republic, while the 1948 act was repealed in 1981, the

      joint status of Irish citizen and British subject - acquired before 1 January 1949 - was allowed

      to continue. It will in time cease to exist. Those who failed to give notice to the secretary of

      state under the 1948 act may do so under the 1981 act, the grounds being crown service, or

      association by way of descent, residence or otherwise with the United Kingdom or any

      dependent territory. `From 1 January 1983,...the status of British subject ceased to be a

      common status enjoyed in addition to citizenship and became a miscellaneous, residual and

      disappearing category...In connection with any time on or after 1 January 1983, the

      expressions [commonwealth citizen and British subject] (with one exception) both refer to

      persons who under the British Nationality Act 1981 have the status of Commonwealth

      citizen...Save in the case of certain Irish citizens, the status of British subject is now



                                                                                                    21
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      incompatible with any other form of nationality.' (Halsbury's Laws, vol. 4(2), 4th ed. reissue,

      1992, pp. 6 & 62)



Europe



33.   Both states joined the European Economic Community (now the European Community) in

      1973, and this has had implications for Irish and British citizenship law. In European law, it

      is for each state to define who are its nationals; this allows for dual nationality. The terms

      `nationals of the United Kingdom of Great Britain and Northern Ireland' and `nationals of

      Ireland' therefore exist, through European law, in the respective state laws. There is no such

      thing as a British national in United Kingdom law: R v Home Secretary, ex parte Thakrar

      [1974] QB 684 CA, 709-10 per Lawton LJ. The Irish courts do not seem to have considered

      whether their citizens are Irish nationals (though the term was used as early as 1935). The

      overlap between the two states is a function of dual nationality, but also of the acceptance in

      European treaties of the above names of the states. The United Kingdom and the Republic,

      on accession, declared who their nationals were. Nationals of the United Kingdom are now

      British citizens (less those from the Channel Islands and Isle of Man), British subjects with a

      right of abode in the United Kingdom, and British Dependent Territories citizens with a

      connection with Gibraltar. Nationals of Ireland are defined presumably in terms of the 1956

      act.



34.   The 1992 Maastricht treaty amended the European Community treaty to provide for

      citizenship of the European Union. According to the 1997 Amsterdam treaty (not yet in

      force):




                                                                                                  22
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


                    ARTICLE 17 (EX ARTICLE 8)

                    1. Citizenship of the Union is hereby established. Every
                    person holding the nationality of a Member State shall be a
                    citizen of the Union. Citizenship of the Union shall
                    complement and not replace national citizenship.

                    2. Citizens of the Union shall enjoy the rights conferred by
                    this Treaty and shall be subject to the duties imposed
                    thereby.


European citizenship, aside from the right to move and reside freely, gives the right to participate in

municipal and European elections in other states, and to receive diplomatic and consular protection

in third states. Even before Maastricht, the Irish government was issuing European Community

passports, describing the bearer, following the 1937 constitution and not the 1956 act, as a `citizen

of Ireland'. Since Maastricht, the United Kingdom has also issued maroon, common format

European passports.



Irish and British Passports



35.   Aside from European citizenship, the question of passports in the two states has been an

      administrative matter - neither part of citizenship nor immigration law.



36.   Passports in the United Kingdom are issued under the royal prerogative in the discretion of

      the home secretary, and remain the property of the crown. Refusal, however, is judicially

      reviewable. And passports may become a common law right where, being a condition

      precedent for travel overseas, there is in United Kingdom law a right to travel (to the United

      States and India). A passport merely evidences British citizenship, and the right to claim (not

      necessarily receive) crown protection. However, for the purposes of immigration law, a




                                                                                                    23
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      United Kingdom passport is necessary to prove British citizenship or citizenship of the

      United Kingdom and Colonies with the right of abode.



37.   British citizens in Northern Ireland may apply for United Kingdom passports. So also may

      British subjects in the Republic. Between 1949 and 1982, one of the grounds by which the

      latter status could be established was the holding of a British passport. This was abolished in

      1981. It is the case that British subjects in the Republic, who are also Irish citizens (under

      Irish law), must have been born before 1 January 1949: British Nationality Act 1948 s 2(1),

      (2); British Nationality Act 1981 s 31(3), (4)           The status of British subject in the Republic

      must now be established mainly by associations by way of descent, residence or otherwise

      with the United Kingdom or with any dependent territory. It may still be claimed by notice in

      writing to the secretary of state, the status of British subject - if granted - being deemed to

      have existed continuously from 1 January 1949. As to the question of issuing British

      passports to Irish citizens in the Republic, there are, therefore, two stages to be gone through:

      one, the status of British subject must be established - for those born before 1 January 1949

      (now nearly in their fifties) - by a notice in writing; and two, on the basis of this notice, an

      application for a passport may be made (possibly to the embassy in Dublin but probably to

      the United Kingdom Passport Agency; application forms are available at main post offices).

      Any further extension of British passport rights in the Republic would require changes in

      United Kingdom nationality law, and negotiations in the Anglo-Irish Council (or

      Conference). It would not be necessary to have changes in Irish citizenship law since the

      principle of dual nationality is accepted throughout the island.



38.   As for the Republic, `the granting or withholding of a passport does not appear to be of

      statutory origin but would appear to have originally derived from the Crown prerogative': The



                                                                                                         24
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      State (M) v Attorney General [1979] IR 73, 76 per Finlay J. The issuing of Irish passports

      remains subject to administrative discretion. The function was mentioned in the Ministers

      and Secretaries Act 1924, but the Spanish Civil War (Non-Intervention) Act 1937 remains the

      only statutory provision dealing with passports in the Irish state. A condition precedent for

      an Irish passport - in this administrative regime - is Irish citizenship. But it is no longer

      simply a matter of executive prerogative. M's case in 1979 acknowledged a right to travel

      outside the state (not necessarily to be admitted into another country) - one of the

      unenumerated rights in article 40.3.1 of the constitution - and, since a passport is practically

      necessary for travel outside the Common Travel Area of Great Britain and Ireland

      (Immigration Act 1971 s 1(3)), a constitutional right to a passport was established. This did

      not preclude the withholding or withdrawal of passports in certain circumstances; see Lennon

      v Ganly and Fitzgerald [1981] ILRM 84 for an instance of passports not being withdrawn -

      Irish rugby playing in South Africa. There remains an administrative discretion, but it

      appears to be exercisable only in the interest of the public good and public order. Mention

      should also be made of article 40.3.3 (the right to life of the unborn), where, as a result of a

      1992 constitutional amendment - following Attorney General v X [1992] 1 IR 1 - the

      subsection was stated not to limit the freedom of travel between the State and another state

      (passports not being required of course for the United Kingdom).



Conclusion



39.   Irish/British dual nationality is unique: Ireland is not unusual in having citizens who are also

      citizens of another state; but the United Kingdom continues to grant the status of British

      subject to Irish citizens in the Republic, those in Northern Ireland being, of course, British

      citizens - alternatively Irish citizens.



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Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion




40.   Citizenship law in the island of Ireland has to be constructed from 1922. One, up until 1922,

      everyone there was a British subject. Two, in 1922, Westminster gave the Irish Free State a

      limited right to - internal - citizenship, plus defined everyone domiciled in the 26 counties on

      6 December as a citizen of Saorstat Eireann. This was on the basis of birth or descent in

      Ireland, or residence in the Free State. Three, de Valera ended the restriction on extra-

      territoriality in 1935, and made provision for the exclusion of British subjects in Northern

      Ireland and Great Britain from the status of aliens.                Four, he also introduced the first

      citizenship act in 1935, but this only had a minimal impact on Northern Ireland. Five, the

      1937 constitution of Eire/Ireland did nothing to Irish citizenship law.               Six, the British

      Nationality Act 1948 recognized dual nationality in the 26-county Eire. Persons in Northern

      Ireland became citizens of the United Kingdom and Colonies; they were also commonwealth

      citizens (or British subjects). Seven, in 1949, when the Republic of Ireland pulled out of the

      commonwealth, it was held in United Kingdom law not to be a foreign country. Reciprocal

      citizenship rights became the practice between Ireland and Britain, though differences

      remained and remain. Eight, the second - and surviving - citizenship act in 1956 purported to

      make all those born in Ireland Irish citizens from birth. An apparent withholding of major

      extra-territorial effect in section 7(1), requiring persons born in Northern Ireland after 6

      December 1922 to declare their citizenship, actually allowed the Irish government to offer

      citizenship to northerners by descent - as long as they had at least one grandparent born in

      Ireland before 6 December 1922. This will gradually break down. Nine, persons in Northern

      Ireland remained citizens of the United Kingdom and Colonies, and successive British

      governments accepted practical dual nationality in that part of the state. Ten, in United

      Kingdom law, persons in Northern Ireland became British citizens from 1 January 1983.

      Eleven, under the Maastricht treaty, a - common - European citizenship embraces nationals of



                                                                                                          26
Opinion, 15 December 1997: Irish Citizenship, Nationality and Passports: an Opinion


      the Irish and British states. Twelve, all Irish citizens have a - constitutional - right to an Irish

      passport, which would not be affected by removing the territorial claim from the constitution.

      Thirteen, British subjects in the Republic, born before 1 January 1949, have the right to apply

      for United Kingdom passports. Finally, the question of Irish or British passports, on the

      basis of the unique Irish/British dual nationality, could be referred to the Anglo-Irish Council,

      or Conference, or any new east-west body that might emerge from the current inter-party

      talks at Stormont.




                                                                                        Austen Morgan,

                                                                                      15 December 1997




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