Click here for
Explanatory Memorandum
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BILLE NÁISIÚNTACHA AGUS SAORÁNACHTA ÉIREANN
2004
IRISH NATIONALITY AND CITIZENSHIP BILL 2004
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Mar a tionscnaı́odh
As initiated
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ARRANGEMENT OF SECTIONS
Section
1. Definitions.
2. Amendment of section 2 of Principal Act.
3. Amendment of section 6 of Principal Act.
4. Citizenship of children of non-nationals.
5. Construction of references in section 9 of Principal Act.
6. Amendment of section 10 of Principal Act.
7. Amendment of section 13 of Principal Act.
8. Amendment of section 15 of Principal Act.
9. Amendment of section 15A of Principal Act.
10. Amendment of section 16 of Principal Act.
11. Amendment of section 28 of Principal Act.
12. Short title, collective citation and commencement.
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[No. 40 of 2004]
Acts Referred to
European Communities (Amendment) Act 1993
1993, No. 25
Immigration Act 2003
2003, No. 26
Immigration Act 2004
2004, No. 1
Irish Nationality and Citizenship Act 1956
1956, No. 26
Irish Nationality and Citizenship Act 1986
1986, No. 23
Irish Nationality and Citizenship Act 2001
2001, No. 15
Irish Nationality and Citizenship Acts 1956 to 2001
Refugee Act 1996
1996, No. 17
2
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BILLE NÁISIÚNTACHA AGUS SAORÁNACHTA ÉIREANN
2004
IRISH NATIONALITY AND CITIZENSHIP BILL 2004
————————
BILL
5
entitled
AN ACT TO AMEND THE IRISH NATIONALITY AND
CITIZENSHIP ACT 1956.
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1.—In this Act—
Definitions.
10 “Principal Act” means the Irish Nationality and Citizenship Act
1956;
“Act of 2001” means the Irish Nationality and Citizenship Act 2001.
2.—Section 2 (amended by the Act of 2001) of the Principal Act
is amended by—
15
(a) the insertion, in subsection (1), of the following
definitions:
“‘EEA state’ means a state, other than a Member State, that is a contracting party to the
EEA Agreement;
20
‘EEA Agreement’ has the same meaning as it
has
in
the
European
Communities
(Amendment) Act 1993;
‘Member State’ means a Member State of the
European Communities;”,
25
(b) the insertion of the following subsection:
“(1A) In this Act—
(a) a reference to a section is a reference to a section
of this Act, unless it is indicated that a reference
to some other enactment is intended,
3
Amendment of
section 2 of
Principal Act.
(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which
the reference occurs, unless it is indicated that a
reference to some other provision is intended,
and
5
(c) a reference to any enactment shall be construed
as a reference to that enactment as amended,
adapted or extended, whether before or after
the commencement of the Irish Nationality and 10
Citizenship Act 2004, by or under any subsequent enactment.”.
Amendment of
section 6 of
Principal Act.
3.—Section 6 (inserted by section 3(1) of the Act of 2001) of the
Principal Act is amended by—
(a) the substitution of the following subsection for subsection 15
(1):
“(1) Subject to section 6A (inserted by section 4 of the
Irish Nationality and Citizenship Act 2004), every person
born in the island of Ireland is entitled to be an Irish
citizen.”,
20
(b) the substitution of the following paragraph for paragraph
(a) of subsection (2):
“(a) Subject to subsection (5), a person who is entitled
under subsection (1) to be an Irish citizen shall
be an Irish citizen from the date of his or her 25
birth if—
(i) he or she does any act that only an Irish citizen is entitled to do, or
(ii) if he or she is not of full age, any act is done
on his or her behalf that only an Irish citi- 30
zen is entitled to do.”,
(c) the deletion of subsection (4), and
(d) the insertion of the following subsection:
“(6) In this section ‘person’ does not include a person
born in the island of Ireland—
35
(a) neither of whose parents was at the time of the
person’s birth an Irish citizen or entitled to be
an Irish citizen, and
(b) at least one of whose parents was at that time
entitled to diplomatic immunity in the State.”. 40
Citizenship of
children of nonnationals.
4.—The Principal Act is amended by the insertion of the following sections:
“Entitlement
to Irish
citizenship of
persons born
to certain nonnationals.
6A.—(1) A person born in the island of Ireland
shall not be entitled to be an Irish citizen unless a
parent of that person has, during the period of 4 45
years immediately preceding the person’s birth,
been resident in the island of Ireland for a period of
4
not less than 3 years or periods the aggregate of
which is not less than 3 years.
(2) This section does not apply to—
5
(a) a person born before the commencement
of the Irish Nationality and Citizenship
Act 2004,
(b) a person born in the island of Ireland—
10
(i) to parents at least one of whom was
at the time of the person’s birth an
Irish citizen or entitled to be an
Irish citizen,
(ii) if the person was born to parents one
of whom was deceased at the time
of the person’s birth and—
15
(I) the other parent was at that
time, or
(II) the deceased parent was, immediately before he or she
died,
20
25
an Irish citizen or entitled to be an
Irish citizen, or
(iii) if the person was born to parents
both of whom were deceased at the
time of the person’s birth, and at
least one of them was, immediately
before his or her death, an Irish citizen or entitled to be an Irish citizen,
(c) a person born in the island of Ireland—
30
35
(i) to parents at least one of whom was
at the time of the person’s birth a
British citizen or a person entitled
to reside in Northern Ireland without any restriction on his or her period of residence,
(ii) if the person was born to parents one
of whom was deceased at the time
of the person’s birth and—
(I) the other parent was at that
time, or
40
45
(II) the deceased parent was, immediately before he or she
died,
a British citizen or a person entitled
to reside in Northern Ireland without any restriction on his or her period of residence, or
(iii) if the person was born to parents
both of whom were deceased at the
5
time of the person’s birth and at
least one of them was, immediately
before his or her death, a British
citizen or a person entitled to reside
in Northern Ireland without any restriction on his or her period of
residence,
5
(d) a person born in the island of Ireland—
(i) to parents at least one of whom was
at the time of the person’s birth a 10
person entitled to reside in the State
without any restriction on his or her
period of residence,
(ii) if the person was born to parents one
of whom was deceased at the time 15
of the person’s birth and—
(I) the other parent was at that
time, or
(II) the deceased parent was, immediately before he or she 20
died,
a person entitled to reside in the
State without any restriction on his
or her period of residence, or
(iii) if the person was born to parents 25
both of whom were deceased at the
time of the person’s birth and one
of them was, immediately before his
or her death, a person entitled to reside in the State without any restric- 30
tion on his or her period of
residence,
or
(e) a person born in the island of Ireland—
(i) neither of whose parents was at the 35
time of the person’s birth an Irish
citizen or entitled to be an Irish citizen, and
(ii) at least one of whose parents was at
that time entitled to diplomatic im- 40
munity in the State.
Residence in
the island of
Ireland for the
purposes of
section 6A.
6B.—(1) Where a parent of a person to whom
section 6A (inserted by section 4 of the Irish
Nationality and Citizenship Act 2004) applies dies
before the person’s birth, the period commencing on 45
the date of the parent’s death and expiring on the
date of the person’s birth shall be reckonable for the
purposes of calculating a period of residence in the
island of Ireland under that section, if—
6
(a) the parent was, immediately before his or
her death, residing in the island of
Ireland, and
5
(b) the period in respect of which he or she
was, immediately before his or her
death, resident in the island of Ireland is
reckonable for the purposes of that
section.
(2) Where a national of—
10
15
(a) a Member State (other than the United
Kingdom of Great Britain and Northern Ireland),
(b) a state (other than a Member State) that
is a contracting party to the EEA Agreement, or
(c) the Swiss Confederation,
20
25
makes a statutory declaration that he or she has resided in the island of Ireland for such period as is
stated in that declaration, he or she shall, for the
purposes of section 6A, be regarded as having been
resident in the island of Ireland—
(i) for that period, if during the entire of that
period he or she was a national of a
Member State, an EEA state or the
Swiss Confederation, or
(ii) if he or she was such a national for part
only of that period, for that part of the
period,
unless the contrary is proved.
30
35
40
45
(3) (a) If a person who is the guardian of, or in
loco parentis to, a person (in this paragraph referred to as the ‘second-mentioned person’) who—
(i) has not attained the age of 18 years,
and
(ii) is the child of a person (in this paragraph referred to as the ‘parent’)
who was, at the time of the secondmentioned person’s birth, a national
of a state referred to in subsection
(2),
makes a statutory declaration that the
parent resided in the island of Ireland for
such period as is specified in that declaration, the parent shall, for the purposes
of section 6A, be regarded as having
been resident in the island of Ireland—
(I) for that period, if during the entire of
that period he or she was a national
7
of a Member State, an EEA state or
the Swiss Confederation, or
(II) if he or she was such a national for
part only of that period, for that
part of the period,
5
unless the contrary is proved.
(b) If a person (in this paragraph referred to
as the ‘declarant’) who—
(i) has attained the age of 18 years, and
(ii) is the child of a person (in this para- 10
graph referred to as the ‘parent’)
who was, at the time of the declarant’s birth, a national of a state referred to in subsection (2),
makes a statutory declaration that the 15
parent resided in the island of Ireland for
such period as is stated in that declaration, the parent shall, for the purposes
of section 6A, be regarded as having
been resident in the island of Ireland— 20
(I) for that period, if during the entire of
that period he or she was a national
of a Member State, an EEA state or
the Swiss Confederation, or
(II) if he or she was such a national for 25
part only of that period, for that
part of the period,
unless the contrary is proved.
(4) A period of residence in the State shall not
be reckonable for the purposes of calculating a per- 30
iod of residence under section 6A if—
(a) it is in contravention of section 5(1) of the
Act of 2004,
(b) it is in accordance with a permission given
to a person under section 4 of the Act of 35
2004 for the purpose of enabling him or
her to engage in a course of education or
study in the State, or
(c) it consists of a period during which a person (other than a person who was, dur- 40
ing that period, a national of a Member
State, an EEA state or the Swiss
Confederation) referred to in subsection
(2) of section 9 (amended by section
7(c)(i) of the Immigration Act 2003) of 45
the Refugee Act 1996 is entitled to remain in the State in accordance only with
the said subsection.
8
(5) A period of residence in Northern Ireland
shall not be reckonable for the purposes of calculating a period of residence under section 6A—
(a) if—
5
10
(i) the person concerned is not during
the entire of that period a national
of a Member State, an EEA state or
the Swiss Confederation, and
(ii) the residence of the person concerned in Northern Ireland during
that period is not lawful under the
law of Northern Ireland,
or
15
20
25
(b) if the entitlement of the person concerned
to reside in Northern Ireland during that
period is subject to a condition that is the
same as or similar to a condition which,
if applicable in respect of an entitlement
to reside in the State, would, by virtue of
subsection (4), render a period of residence in the State pursuant to such an
entitlement not reckonable for the purposes of calculating a period of residence
under the said section 6A.
(6) A statutory declaration referred to in subsection (2) or (3) shall be accompanied by such verifying documents (if any) as may be prescribed.
(7) In this section—
‘Act of 2004’ means the Immigration Act 2004;
30
‘British citizen’ means a citizen of the United
Kingdom of Great Britain and Northern Ireland.”.
5.—References in section 9 of the Principal Act to father shall be
construed as including references to mother.
Construction of
references in
section 9 of
Principal Act.
6.—Section 10 of the Principal Act is amended by the substitution
35 of “the island of Ireland” for “Ireland”.
Amendment of
section 10 of
Principal Act.
7.—Section 13 (amended by section 3(b) of the Act of 2001) of the
Principal Act is amended by the substitution of “the island of
Ireland” for “Ireland”.
Amendment of
section 13 of
Principal Act.
8.—Section 15 (inserted by section 4 of the Irish Nationality and
40 Citizenship Act 1986) of the Principal Act is amended by—
Amendment of
section 15 of
Principal Act.
(a) the substitution, in subsection (1), of the following paragraph for paragraph (a):
“(a) (i) is of full age, or
9
(ii) is a minor born in the State;”,
and
(b) the insertion of the following subsection:
“(3) In this section ‘applicant’ means, in relation to an
application for a certificate of naturalisation by a minor,
the parent or guardian of, or person who is in loco parentis
to, the minor.”.
Amendment of
section 15A of
Principal Act.
5
9.—Section 15A (inserted by section 5 of the Act of 2001) of the
Principal Act is amended by the insertion of the following subsections:
10
“(3) Paragraph (h) of subsection (1) shall not apply to an applicant for a certificate of naturalisation to whom subsection (4)
applies.
(4) Any period of residence outside the island of Ireland, during which—
15
(a) the applicant for a certificate of naturalisation to
which this section applies was married to and living
with his or her spouse, and
(b) that applicant’s spouse was in the public service,
shall be reckoned as a period of residence in the island of Ireland 20
for the purposes of calculating—
(i) continuous residence under paragraph (f) of subsection (1), or
(ii) total residence
subsection.”.
Amendment of
section 16 of
Principal Act.
under
paragraph
(g)
of
that
25
10.—Section 16 of the Principal Act is amended by the insertion
of the following subsection:
“(2) For the purposes of this section a person is of Irish associations if—
(a) he or she is related by blood, affinity or adoption to 30
a person who is an Irish citizen or entitled to be an
Irish citizen, or
(b) he or she was related by blood, affinity or adoption
to a person who is deceased and who, at the time of
his or her death, was an Irish citizen or entitled to 35
be an Irish citizen.”.
Amendment of
section 28 of
Principal Act.
11.—The Principal Act is amended by the insertion of the following section:
“28A.—(1) A person who makes an application under section
28 shall make and provide to the Minister or an Irish diplomatic 40
or consular officer, a statutory declaration that his or her parent
resided in Northern Ireland for such period as is stated in that
declaration.
10
(2) The Minister or an Irish diplomatic or consular officer may
require a person who makes an application under section 28 to
produce to him or her—
(a) documents of such a class as may be prescribed, or
5
10
(b) such other documents as he or she considers necessary
or expedient to enable him or her to perform his or
her functions under this section.
(3) For the purposes of this section different classes of documents may be prescribed in respect of different classes of person
making an application under section 28.
(4) This section applies to a person who claims to be entitled
to be an Irish citizen under section 6A(1) by virtue of one of his
or her parents having resided—
15
(a) in Northern Ireland for a period of not less than 3
years or periods the aggregate of which is not less
than 3 years, or
(b) in Northern Ireland and the State for periods the aggregate of which is not less than 3 years,
20
but shall not include a person one of whose parents was, during
the entire of that period or those periods and at the time of the
person’s birth, a national of a Member State, an EEA state or
the Swiss Confederation.”.
12.—(1) This Act may be cited as the Irish Nationality and
Citizenship Act 2004.
25
(2) The Irish Nationality and Citizenship Acts 1956 to 2001 and
this Act may be cited together as the Irish Nationality and Citizenship Acts 1956 to 2004.
(3) This Act shall come into operation on such day as the Minister
may, by order, appoint.
11
Short title,
collective citation
and
commencement.
Click here for Bill
————————
BILLE NÁISIÚNTACHTA AGUS SAORÁNACHTA
ÉIREANN 2004
IRISH NATIONALITY AND CITIZENSHIP BILL 2004
————————
EXPLANATORY MEMORANDUM
————————
Introduction
1. The Irish Nationality and Citizenship Bill 2004 provides for
amendments to the Irish Nationality and Citizenship Acts 1956 to
2001 consequent on the coming into effect of the Twenty-seventh
Amendment of the Constitution Act 2004. The Bill also includes an
amendment to those Acts designed to exclude the future possibility
of the re-introduction of a scheme of investment-based naturalisation.
2. The Twenty-seventh Amendment of the Constitution Act
inserted a new provision into the Constitution at Article 9 which
provides as follows:
Notwithstanding any other provision of this Constitution, a
person born in the island of Ireland, which includes its islands
and seas, who does not have, at the time of his or her birth, at
least one parent who is an Irish citizen or entitled to be an Irish
citizen is not entitled to Irish citizenship or nationality, unless
otherwise provided by law.
The effect of this amendment is to qualify Article 2 of the Constitution, which provides that—
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.
3. Also relevant is the British-Irish Agreement whereby, at Article
1(vi), the two Governments—
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.
In a declaration annexed to the Agreement (Annex 2), the two
Governments declared 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
1
citizen or is otherwise entitled to reside in Northern Ireland
without any restriction on their period of residence.
In April 2004, the two Governments issued a joint interpretative
declaration which stated—
that it was not their intention in making the [British-Irish]
Agreement that it should impose on either Government any
obligation to confer nationality or citizenship on persons born
in any part of the island of Ireland whose parents do not have a
sufficient connection with the island of Ireland.
4. The Constitutional change enables the bringing forward of
legislation to provide a new and prospective framework within which
the entitlement to Irish citizenship of persons born in the island of
Ireland to non-national parents can be determined. This Bill’s provisions provide that framework, and do so by way of amendments to
the Irish Nationality and Citizenship Act 1956 (which has previously
been amended by successive Irish Nationality and Citizenship Acts
in 1986, 1994 and 2001). The Bill also reflects the continuing constitutional entitlement to Irish citizenship of a person born in the island
of Ireland to a parent who is, or is entitled to be, an Irish citizen.
5. The Bill provides (at section 4; new section 6A of 1956 Act)
that a person born, whether north or south, to non-national parents,
either of whom has been lawfully resident in the island of Ireland
for at least three out of the four years immediately preceding the
birth, will have an entitlement to Irish citizenship. The Bill specifically exempts from this residence requirement certain categories of
persons as follows:
• a person born whether north or south to parents, one of whom
is an Irish citizen or entitled to be an Irish citizen;
• a person born whether north or south to parents, one of whom
is a British citizen or has an entitlement to reside in the UK
(and thus Northern Ireland) without any restriction on his or
her period of residence;
• a person born whether north or south to parents, either of whom
has an entitlement to reside in the State without any restriction
on his or her period of residence.
These exemptions are designed to ensure that Irish citizenship law
remains consistent with the British-Irish Agreement; these and other
provisions of the Bill are designed to ensure also that to the greatest
extent possible the conditions for acquiring an entitlement to Irish
citizenship deriving from place of birth are similar north and south.
6. For the most part, the question whether a person born in
Ireland north or south to non-national parents is entitled to Irish
citizenship under the Bill will be determined by operation of law,
since the facts going to that determination are generally verifiable by
readily available or easily obtained documentation (for example,
birth certificates, immigration stamps in parents’ passports, etc).
Where reckonable residence in Ireland is as an EU citizen (such
persons have Treaty rights of free movement within the territories
of the Member States) or as a citizen of an EEA state or the Swiss
Confederation (international agreements provide analogous free
movement rights for such persons), the period of such reckonable
residence can be vouched by declaration (section 4 of Bill; new
section 6B(2) of 1956 Act). Where a period of reckonable residence
is in Northern Ireland as a citizen of a state other than these, the
determination of citizenship will be on foot of an application for a
certificate of nationality under section 28 of the 1956 Act (section 11
2
of Bill; new section 28A of 1956 Act); regulations will specify the
types of documentation that will be acceptable in support of the declaration to verify the period of residence in Northern Ireland.
7. Time spent in the State or Northern Ireland as a student or an
asylum-seeker will not be reckonable for the purposes of calculating
the period of residence that will determine entitlement to Irish citizenship (section 4 of Bill; new section 6B(4) and (5) of 1956 Act).
8. The provisions of the Bill are designed to ensure continued consistency of Irish citizenship law with the State’s international obligations under the UN Convention on the Reduction of Statelessness,
to which Ireland is a party since 1983. These obligations are primarily
reflected in Irish law by section 6(3) of the 1956 Act (amended in
2001) which provides that a person born in the island of Ireland is
an Irish citizen from birth if he or she is not entitled to citizenship
of any other country.
9. The Bill also contains a provision (section 10) designed to
ensure that the scheme of investment-based naturalisation will not
be re-instituted and to rule out any future such scheme.
10. Along with the amendments arising out of the Constitutional
change, the Bill includes provisions to:
• remove the entitlement to citizenship in respect of a person born
in the island of Ireland to non-national parents one of whom is
a diplomat;
• remove any special entitlement to citizenship in respect of
persons born in the island of Ireland to a non-national on a
foreign ship or aircraft (the new rules will apply as for any person born in Ireland);
• treat time spent abroad by a non-national spouse with his or her
Irish citizen spouse who is resident abroad in the public service
(e.g. Irish embassies abroad) as time spent residing in the State
for naturalisation purposes; and
• facilitate the naturalisation of minors.
Provisions of Bill
11. Section 1 is a standard definitions section.
12. Section 2 provides for the insertion of new definitions at
section 2 (definitions) of the 1956 Act. It also provides for the insertion of a new subsection (1A) containing standard interpretation
text.
13. Section 3 of the Bill makes a number of amendments to section
6 (citizenship by birth in the island of Ireland) of the 1956 Act
(amended by the Irish Nationality and Citizenship Act 2001). The
first of these, at paragraph (a), has the effect of qualifying the general
entitlement of persons born in the island of Ireland in the present
section 6(1) to the extent set out in the new section 6A (entitlement
to Irish citizenship of persons born to certain non-nationals) to be
inserted in the 1956 Act by section 4 of the Bill.
14. Section 3(d) of the Bill adds a new subsection (6) to the
present section 6 of the 1956 Act, defining ‘‘person’’ for the purposes
of that section so as to exclude a person born in Ireland to parents
neither of whom is Irish or entitled to be Irish and one of whom is
a foreign diplomat. Section 3(c) of the Bill, as a consequence, deletes
the present section 6(4), and section 3(b) of the Bill makes a consequential change to the present section 6(2). (As regards children
3
born to non-nationals on foreign ships or aircraft in Ireland (also
covered by the present section 6(4)), the remaining provisions of this
Bill regarding entitlement to Irish citizenship will apply in the normal
way to them as they will to any other person born in Ireland.)
15. Section 4 of the Bill provides for the insertion of two new
sections into the 1956 Act which deal with the citizenship of children
of non-nationals. These are: section 6A, dealing with the entitlement
to Irish citizenship of persons born to certain non-nationals; and
section 6B, which specifies what periods of residence in Ireland are
to be reckoned where that is a factor under the new section 6A.
16. The new section 6A(1) lays down the general rule (modifying
the effect of the present section 6(1), as reflected in section 3(a) of
the Bill) that a person born (whether north or south) to non-national
parents, either of whom has been lawfully resident in the State or
Northern Ireland for at least three out of the four years preceding
the birth, will have an entitlement to Irish citizenship. Subsequent
subsections of this new section set out exceptions to and qualifications of this general rule.
17. The first of these exceptions, at section 6A(2)(a), ensures that
all persons born before the enactment of the Bill will continue to
have the same entitlement to Irish citizenship that they had on the
basis of pre-existing law irrespective of their parents’ nationality or
period of residence in the State or Northern Ireland.
18. Section 6A(2)(b)(i) excepts from the general rule at section
6A(1) a person born in the island of Ireland (north or south) to
parents either of whom was at the time of the birth an Irish citizen
or entitled to be an Irish citizen. Subparagraph (ii) addresses the
situation where one parent pre-deceased the birth and subparagraph
(iii) where both parents pre-deceased the birth; in either case, the
effect of the subparagraph is to ensure the entitlement to Irish citizenship notwithstanding the pre-decease of a parent through whom
that entitlement would have derived.
19. Subparagraph (c)(i) of the new section 6A(2) excepts from the
general rule at section 6A(1) a person born in Ireland (north or
south) to parents either of whom was at the time of the birth a British
citizen or entitled to reside in Northern Ireland without restriction
as to the period of residence (with provisions at subparagraphs (ii)
and (iii) regarding the pre-decease of parents analogous to those at
section 6A(2)(b)). As regards persons born in Northern Ireland, this
provision ensures consistency with Article 1(vi) of the British-Irish
Agreement having regard to the definition of ‘‘the people of
Northern Ireland’’ at Annex 2 of that Agreement; to the extent that
this provision will also apply to persons born in the State, it seeks to
ensure similarity of treatment north and south.
20. Subparagraph (d)(i) of the new section 6A(2) excepts from the
general rule at section 6A(1) a person born in Ireland (north or
south) to parents either of whom was at the time of the birth entitled
to reside in the State without restriction as to the period of residence
(with provisions at subparagraphs (ii) and (iii) regarding the predecease of parents analogous to those at section 6A(2)(b)).
21. Section 6A(2)(e) is necessary as a consequence of the amendment to section 6 of the 1956 Act at section 3(d) of the Bill. Consistent with that amendment, this paragraph of the new section 6A(2)
excepts from the general rule at section 6A(1) a person born in
Ireland to non-national parents one of whom is a foreign diplomat.
Thus, a child of such a parent will not acquire an entitlement to Irish
4
citizenship even if the diplomat parent or the other non-national parent has been lawfully resident in the State for more than three years
prior to the birth.
22. The new section 6B (also at section 4 of the Bill) sets out the
framework within which the reckonability of periods of residence of
parents of persons born in the island of Ireland is to be determined
in the case of parents to whom section 6A applies.
23. Section 6B(1) deals with the situation where a parent dies
before the birth of a child in the island of Ireland. It provides that,
if the parent was residing in Ireland at the time of death and the
period immediately prior to the death was reckonable as residence
in the island of Ireland for the purposes of section 6A, the period
between the death of the parent and the birth of the child is also
reckonable.
24. Section 6B(2), (3) and (6) together provide a means whereby
the reckonable residence in Ireland (north or south) of parents who
are EU nationals can be verified by declaration. EU nationals resident in the State in exercise of their Treaty rights may obtain residence permits from the Minister as evidence of their right to exercise
those rights in the State, but the obtaining of such a permit is not a
pre-requisite to lawful presence in the State in exercise of those
rights, and many such nationals choose not to seek residence permits.
Nationals of the EEA States (Norway, Iceland and Liechtenstein)
and Swiss nationals have analogous rights of free movement under
international agreements and, accordingly, the new section 6B(2) and
(3) apply to their reckonable residence as well; the subsections do
not however apply to British citizens, since they are amongst the
classes of person exempted from the provisions of the new section
6A by subsection (2) thereof.
25. The statutory declaration procedure in the new section 6B(2)
will enable the parent of a person born in Ireland (north or south)
to make a statutory declaration as evidence of a period of residence
in Ireland (north or south) as an EU, EEA or Swiss national; that
declaration (accompanied as necessary by whatever documents may
be prescribed by regulation under section 6B(6)) will be sufficient
for, say, the passport authorities or other bodies concerned with the
Irish citizenship status of a person to recognise as evidence of the
reckonability of the parent’s period of residence in Ireland. This declaration provision covers only reckonable periods when the parent
was a national of a relevant state (paragraph (ii) of the new
subsection); the reckonability of other periods (e.g. for a national of
a new EU member state, a period of residence in Ireland before
1 May 2004) is dealt with under section 6B(4) and (5).
26. Subsection (3) of the new section 6B caters for the situation
where the parent who might otherwise make the declaration in subsection (2) is deceased or otherwise not in a position to make the
declaration; in such cases the declaration (supported as necessary by
prescribed documents) can be made by a parent or guardian or
person in loco parentis to a minor (paragraph (a)) or by an adult
(paragraph (b)) whose entitlement to Irish citizenship is in issue.
27. Section 6B(4) (which relates to periods of residence in the
State) and (5) (which relates to periods of residence in Northern
5
Ireland) set out the periods which are not reckonable for the purposes of section 6A.
28. Section 6B(4) provides that a period of residence in the State
is not reckonable for the purposes of section 6A if:
• it is in contravention of section 5(1) of the Immigration Act 2004
(i.e. the person is illegally in the State);
• it is in accordance with a permission given under section 4 of
the Immigration Act 2004 for the purpose of enabling the person
to engage in a course of education or study in the State; or
• it consists of a period during which the only basis for the presence of the person (other than an EU, EEA or Swiss national)
concerned in the State was a temporary residence permission
issued under section 9 of the Refugee Act 1996 (i.e. a permission
given to an asylum-seeker to remain in the State only until such
time as the claim for asylum has been determined).
29. Section 6B(5) provides that a period of residence in Northern
Ireland is not reckonable for the purposes of section 6A if:
• the person concerned was not an EU, EEA or Swiss national
and the residence consists of unlawful residence under the laws
of Northern Ireland; and
• the period of residence in Northern Ireland would, if the residence were in the State, not be reckonable under section 6B(4)
(i.e. if the person was allowed to reside only for the purposes of
study or for the examination of a claim for asylum).
(See also the comments below on section 11 of the Bill (new section
28A of the 1956 Act) as regards reckonable residence in Northern
Ireland.)
30. Section 6B(7) contains definitions of terms used in the section.
31. Section 5 of the Bill provides for gender balance at section 9
(citizenship of posthumous children) of the 1956 Act by providing
that references in that section to ‘‘father’’ should also be construed
as references to ‘‘mother’’.
32. Sections 6 and 7 of the Bill bring the terminology in sections
10 (citizenship of foundlings) and 13 (citizenship of persons born on
ships and aircraft) of the 1956 Act into line with similar references
in the remainder of the Act by replacing the term ‘‘Ireland’’ with the
term ‘‘the island of Ireland’’.
33. Section 9 of the Bill amends section 15A (naturalisation of
spouses of Irish citizens; inserted in 2001) of the 1956 Act by relaxing
certain of the conditions for naturalisation concerned in the special
scheme for naturalisation of non-national spouses of Irish citizens in
certain cases. Those cases are where the non-national spouse is living
with his or her Irish citizen spouse who is resident abroad in the
public service (e.g. Irish embassies abroad). The amendment will
treat time spent abroad by a non-national spouse with his or her Irish
citizen spouse who is resident abroad in the public service as if it
were time spent residing in the State for the purpose of the conditions at section 15A(1)(f) and (g) of the 1956 Act (new subsection
(4) to be inserted in section 15A)); and by relieving the non-national
spouse in those circumstances of the need to fulfil the condition at
section 15A(1)(h) regarding intention to reside in the State after
naturalisation.
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34. Section 10 amends section 16 (power to dispense with conditions of naturalisation in certain cases; replaced in 1986) of the
1956 Act by providing for a narrow interpretation of ‘‘Irish associations’’. The expression is at present undefined and taken to have its
natural meaning; in the past, this has been considered as including
an association with the State centred primarily on an investment
made in a firm operating in the State. This amendment, by defining
‘‘Irish associations’’ in terms of blood relationship, affinity (i.e.
relationship by marriage) or adoption to an Irish citizen, or a person
who would if alive have been an Irish citizen, aims to remove the
possibility for any person who does not meet all of the conditions
for naturalisation set out at section 15 of the 1956 Act (as replaced
in 1986) to obtain Irish citizenship solely on the basis of an investment made in the State.
35. The new, narrower meaning to be given to this expression does
not specifically encompass the possibility of waiver of conditions for
naturalisation in the case of a minor child born in the State but who
does not come within the compass of the present specific waiver provisions for minors at section 16(b) (parent or guardian acting on
behalf of a minor of Irish descent or Irish associations) or (c)
(naturalised parent acting on behalf of a minor child). Subsection
(1)(a) of section 15 (conditions for issue of certificates of
naturalisation) of the 1956 Act, which at present makes it a condition
of naturalisation that the applicant be of full age, would in those
circumstances be an insurmountable obstacle. Accordingly, section 8
of the Bill amends section 15(1)(a) of the 1956 Act to include minors
born in the State; a complementary provision is also included (new
section 15(3)) to ensure that applications are made on behalf of
rather than by minors.
36. Section 11 provides for the insertion of a new section 28A into
the 1956 Act introducing a requirement for persons asserting an
entitlement to Irish citizenship, on the basis that there has been a
period of reckonable residence in Northern Ireland on the part of
one of his or her parents, to apply to the Minister for a certificate of
nationality under section 28 of that Act as a precursor to doing any
act which only an Irish citizen is entitled to do (such as obtaining an
Irish passport). The application for the certificate will have to be
accompanied by a statutory declaration, together with supporting
evidence (the nature of which can be prescribed by regulations: new
section 28A(2)(a) and (3)) to show that the period of residence in
Northern Ireland is reckonable for the purposes of the proposed new
section 6A of the 1956 Act being inserted by section 4 of the Bill.
37. The provisions at section 11 of the Bill will not apply where
the parent concerned is an Irish or British citizen or entitled to reside
in Northern Ireland without any restriction on his or her period of
residence as this class of person is exempted from the provisions of
section 6A by subsection (2) of that section. In addition, the section
will not apply where the parent concerned is an EU, EEA or Swiss
national as a special procedure has been introduced for this class of
person by the new section 6B (inserted by section 4 of the Bill) - see
paragraph 24 above.
38. Sections 12(1) and (2) of the Bill specify the short title and
collective citation. Section 12(3) of the Bill is a standard commencement provision.
7
Financial implications
39. The operation of the proposals in the Bill will give rise to
additional staffing and administrative costs in the region of \700,000.
There are no other significant budgetary or financial implications in
the operation of the proposals in this Bill.
An Roinn Dlı́ agus Cirt, Comhionannais agus Athchóirithe Dlı́,
Meán Fómhair 2004.
Wt. 4412. 739. 9/04. Cahill. (X46699). Gr. 30-15.
8