British nationality law and the Republic of Ireland


This article is about British nationality law in respect of citizens of Ireland. The latter is referred to in British nationality law as the "Republic of Ireland" and was previously referred to as "Eire" between 1937 and 1949 and as the Irish Free State between 1922 and 1937..

Historical background

British subjects

When the Irish Free State left the United Kingdom of Great Britain and Ireland in 1922, the existing status of "British subject" was, from the point of view of British nationality law, left unaffected. Broadly speaking, this was because, as a dominion within the British Commonwealth, the Irish Free State continued to form part of "His Majesty's dominions".
This British theory of "British subject" nationality was not fully shared by the Irish government and as early as the 1920s was discussed in Ireland in the following terms:

British subjects with local Irish nationality

According to Article 3 of the 1922 Constitution of the Irish Free State
The same Article also stated that "the conditions governing the future acquisition and termination of citizenship in the Irish Free State" were to be "determined by law". However, no such law was passed until 1935.
From the British perspective, Free State citizenship was only enjoyed by its holders "within the limits of the jurisdiction". There were some remarkable manifestations of the British perspective in this matter, such as the Parkes case. In Murray v. Parkes, the King's Bench Divisional Court found that Roscommon-born Michael Murray, then aged 33 and living in Leicester, was a British subject and therefore legitimately subject to conscription into the British Army. The Irish Times reported on 2 April 1942 that the Court held that
The position has been commented on in the following terms:

Passport issue

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

Developments from 1935 to 1949

In 1933 the Fianna Fáil party, led by Éamon de Valera, won the Irish general election, and began to put forward a series of reforms intended to more strongly assert Irish independence, including the , which received the royal assent on 10 April 1935. This was the first example of a Commonwealth member country passing legislation to create its own citizenship distinct from the status of "British subject", and it expressly repealed both the British nationality legislation and common law carried over at independence.
When the Free State was reconstituted as "Ireland" in 1937, following the enactment of the Constitution of Ireland, domestic Irish nationality law was left unchanged. References in UK laws to the Free State were soon replaced with "Eire", an approximation of the Irish language name for "Ireland", Éire.
British nationality law continued to recognise citizens of Ireland/Éire as holding the status of British subjects until the British Nationality Act 1948 came into force on 1 January 1949.

Since the establishment of the Republic

British Nationality Act 1948

Following Canada's enactment of the Canadian Citizenship Act 1946, the Commonwealth Prime Ministers' Conference agreed that every member state, except Ireland which declined to participate at the Conference, would enact its own citizenship law while retaining the common status of British subject. The British Parliament passed the British Nationality Act 1948, which created the status of citizen of the United Kingdom and Colonies. Because of Ireland's impending departure from the Commonwealth, special provision was made for the retention by certain Irish citizens of the status of British subject without being citizens of a Commonwealth member state.
As a result, Irish citizens lost British-subject status automatically on 1 January 1949 if they did not acquire citizenship of the UK and Colonies or that of another Commonwealth country, notwithstanding that Ireland did not cease to be one of His Majesty's dominions until 18 April 1949.
However, section 2 of the Act allowed certain Irish citizens who were British subjects before 1949 to apply at any time to the Secretary of State to remain British subjects. Applications had to be based on:
No provision was made for the retention of British nationality by Irish citizens born in the Republic of Ireland after 1948. British subject status, as distinct from citizenship of the UK and Colonies, was not transmissible by descent.
For the purpose of the 1948 act, the "United Kingdom of Great Britain and Northern Ireland" was defined on its post-1922 borders. Hence, birth before 1922 in that part of Ireland that became the Irish Free State was not sufficient in itself to confer citizenship of the UK and Colonies. Persons born before 1949 in that part of Ireland that became the Republic of Ireland became Citizens of the United Kingdom and Colonies "by descent" in British law on 1 January 1949 if they had a father born in the United Kingdom or a place that was a colony at that date.
In common with those from the Commonwealth, Irish citizens resident in the United Kingdom, whether they held British subject status or not, were entitled to apply for registration as a Citizen of the United Kingdom and Colonies after one year's residence, by the 1970s increased to five years.

Ireland Act 1949

The United Kingdom's Ireland Act 1949 came into force on 18 April 1949 and recognised the end of the Irish state's status as a British dominion, which had been effected under the Irish Republic of Ireland Act 1948 brought into force in 1949. The 1949 Act was also used by the United Kingdom to "repair an omission in the British Nationality Act, 1948". The 1948 Act included provisions dealing specifically with the position of "a person who was a British subject and a citizen of Eire on 31st December, 1948". Because of this, how the British law would apply was dependent on a question of Irish law, namely, who was a "citizen of Eire"? The UK Government seriously misunderstood the position under Irish law. The UK Secretary of State for Home Affairs explained that:
The impact of this was that many people in Northern Ireland were in theory deprived of a British citizenship status they would otherwise have enjoyed but for Irish law. This was an unintended consequence of the British Nationality Act.
The Secretary of State also explained the background to the mistake. He reported that under Irish law the question of who was a "citizen of Eire" was in part, dependent on whether a person was "domiciled in the Irish Free State on 6th December, 1922". In this regard he noted:
The amendment made to the British Nationality Act under the Ireland Act was intended to make it clear, in summary, that regardless of the position under Irish law, the affected persons domiciled in Northern Ireland on 6 December 1949 would not be deprived of a British citizenship status they would otherwise have enjoyed but for Irish law.
Section 5 of the 1949 Act conferred Citizenship of the UK and Colonies on any Irish-born person meeting all the following criteria:
  1. was born before 6 December 1922 in what became the Republic of Ireland;
  2. was domiciled outside the Republic of Ireland on 6 December 1922;
  3. was ordinarily resident outside the Republic of Ireland from 1935 to 1948; and
  4. was not registered as an Irish citizen under Irish legislation.
Separate to nationality law, the 1949 Act also provided that "citizens of the Republic of Ireland" would continue to be treated on a par with those from Commonwealth countries and would not be treated as aliens.

Effect on descendants of pre-1922 Irish emigrants

Under section 5 of the Ireland Act 1949, a person who was born in the territory of the future Republic of Ireland as a British subject, but who did not receive Irish citizenship under the Ireland Act's interpretation of either the 1922 Irish constitution or the Irish Nationality and Citizenship Act 1935 was deemed by British law to be a Citizen of the United Kingdom and Colonies.
As such, many of those individuals and some of the descendants in the Irish diaspora of an Irish person who left Ireland before 1922 may be registrable for Irish citizenship while also having a claim to British citizenship, through either:
In some cases, British citizenship may be available to these descendants in the Irish diaspora even when Irish citizenship registration is not, as in instances of failure of past generations to timely register in a local Irish consulate's Foreign Births Register before the Irish Nationality and Citizenship Act 1986 and before births of later generations.

British Nationality Act 1981

The British Nationality Act 1981, in force from 1 January 1983:
The 1998 Good Friday Agreement recognises "the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose". Some Irish nationalists have argued that the agreement is violated by ascribing automatic UK citizenship to those born in Northern Ireland; the UK government argues that the ability to renounce UK citizenship at a later date is sufficient. The Northern Ireland Act 1998, which incorporates the agreement in UK law, does not amend the 1981 act. The dispute informs an ongoing test case in which a Magherafelt woman is treated for spousal immigration purposes as a UK/dual citizen rather than an Irish/EEA citizen. She refuses to engage in renunciation of a UK citizenship she denies ever having had. Immigration Services took the government view; the First-tier Tribunal ruled in her favour in 2018, but in 2019 the Upper Tribunal reversed that judgment.

Current situation

Access to British citizenship for Irish citizens

As a result of the above, there is generally no special access to British citizenship for Irish citizens, except for those born in diaspora and descended from Irish persons who left the United Kingdom of Great Britain and Ireland before 1922.
The facility for those born before 1949 to claim British subject status does not confer British citizenship, although it gives an entitlement to registration as such after five years in the UK.
Irish citizens seeking to become British citizens are usually required to live in the UK and become naturalised after meeting the normal residence and other requirements, unless they can claim British citizenship by descent from a UK born or naturalised parent. An Irish citizen who naturalises as a British citizen does not automatically lose Irish citizenship.
Naturalisation as a British citizen is a discretionary power of the Secretary of State for the Home Department but will generally not be refused if the requirements are met.

British subject passports

Persons holding 'British subject' status may apply for a British passport with the nationality inscribed as a "British subject". The passport does not offer the same level of visa-free access offered by an Irish passport or a British passport that describes the holder as a "British citizen". Holders of 'British subject' passport are notably not eligible for the Electronic System for Travel Authorization Visa Waiver Program of the United States, nor the Electronic Travel Authority of Australia. Canada's Electronic Travel Authorization is only available to British subject passport holders with a vignette printed in their passport stating their right of abode in the UK.
Irish-born 'British subjects' qualify for right of abode in the UK, and their British subject passport will be endorsed to this effect.
Unlike British subjects from Commonwealth countries, Irish born 'British subject' passport holders including those with this status but currently without any British and/or Irish passport are not entitled to apply for British naturalisation at no cost under the Windrush Scheme. This is because the rules of the Scheme stipulate that only "a national of one of the Commonwealth countries or territories or groups listed in the Scheme" may apply: the British Ireland Act 1949 recognised that Ireland, by identifying itself in 1948 as a republic, had terminated its membership of the Commonwealth.

Statistics

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

British-born children of Irish citizens

Before 1983, anyone born in the UK other than the child of a diplomat was automatically British by birth.
From 1 January 1983 an additional requirement was put in place that one parent must be a British citizen or 'settled' in the United Kingdom. Irish citizens are automatically deemed to be "settled" in the United Kingdom. Since 2 October 2000, this is a more favourable status than that given to citizens of other EU and EEA member states. This special status comes from section 1 of the Immigration Act 1971, the legislative basis for the Common Travel Area.
It is not publicised by the Home Office, but reference can be found in the
"5.3... Citizens of the Irish Republic, whether exercising EEA free movement rights or not, are not normally subject to any form of immigration control on arrival in the UK because of the Republic's inclusion in the Common Travel Area "
and:
"8.3 The 2000 Regulations did not affect the position of EEA nationals entitled to remain indefinitely on some other basis, for example because they had been granted indefinite leave to remain under some other provision of the Immigration Rules, were entitled by virtue of diplomatic status to exemption from UK immigration control or because, as Irish nationals, they benefit under the Common Travel Area provisions. Persons in these categories should be regarded as having been free from any restriction under the immigration laws on the period for which they may remain."