British nationality law and the Republic of Ireland

This article concerns British nationality law in respect of citizens of what is now the independent state of Ireland, which was known in the United Kingdom as "Éire" between 1937 and 1949, and which was the Irish Free State between 1922 and 1937.

Prior to 1949

When the Irish Free State ceased to be part of the United Kingdom in 1922, no specific problem of nationality existed. This is because at the time the Irish Free State was a Dominion and Irishmen and -women were British subjects in common with British subjects in the United Kingdom, Canada, Australia, New Zealand, South Africa and Newfoundland.

From 1922 to 1935 the effective law on nationality in the Irish Free State was based on the common law and the British Nationality and Status of Aliens Act 1914 which remained in force as a pre-1922 statute that had not been repealed (from History of British nationality law).

In 1935, the Irish Free State became the first Commonwealth state to create a local citizenship with the passage of the Irish Nationality and Citizenship Act 1935, which came into force on 10 April 1935.

The 1935 Act repealed all British nationality legislation under Irish law. However, citizens of Éire did not cease to be British subjects in British law until the coming into force of the British Nationality Act 1948 on 1 January 1949.

British Nationality Act 1948

Following Canada's enactment of the Canadian Citizenship Act 1946 (in force from 1 January 1947), the Commonwealth Heads of Government agreed that every member state would enact its own citizenship law, while retaining the common status of British subject. The United Kingdom Parliament passed the British Nationality Act 1948, which created the status of Citizen of the United Kingdom and Colonies. Because of Ireland's impending departure from the Commonwealth (on 18 April 1949), special provision was made for the retention by certain citizens of the Irish Free State of the status of British subject, without being citizens of any Commonwealth member state.

As a result of the 1948 Act, Irish citizens ("citizens of Éire") lost British subject status automatically on 1 January 1949 if they did not acquire citizenship of the UK & Colonies or that of another Commonwealth country, notwithstanding that Éire 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:

* previous Crown service under the United Kingdom government;
* possession of a British passport; or
* associations by way of descent, residence or otherwise with the United Kingdom or any Crown colony, protectorate, UK mandated territory or UK trust territory.

No provision was made for the retention of British nationality by Irish citizens born in the Republic of Ireland after 1948. British subject status, as distinct from citizenship of the UK & Colonies, was not transmissible by descent.

For the purpose of the 1948 legislation, the "United Kingdom" was defined based on its post-1922 borders. Hence, birth in the Republic of Ireland before 1922 was not sufficient "in itself" to confer UK & Colonies citizenship. Persons born in the Republic of Ireland before 1949 became Citizens of the UK & Colonies "by descent" on 1 January 1949 if they had a father born in the United Kingdom or a place which was a colony at that date (provided father was married to the person's mother).

In common with those from the Commonwealth, Irish citizens resident in the United Kingdom, whether they held British subject status or not, were entitled to apply for "registration" as a citizen of the UK & Colonies after one year's residence. By the 1970s this time period had increased to five years.

Ireland Act 1949

The Ireland Act 1949 came into force on 18 April 1949, and effectively recognised the withdrawal of the Republic of Ireland from the Commonwealth, which had been effected by the Irish parliament's Republic of Ireland Act 1948. The 1949 Act legislated that despite withdrawal from the Commonwealth, Irish citizens would continue to be treated on a par with those from other Commonwealth countries instead of being treated as "aliens" in the United Kingdom.

Section 5 of the 1949 legislation conferred "Citizenship of the UK and Colonies" (CUKC) on persons meeting all of the following criteria:

* born in the Republic of Ireland before 6 December 1922; and
* domiciled outside the Republic of Ireland on that date; and
* ordinarily resident outside the Republic of Ireland from 1935 to 1948; and
* who had not registered as an Irish citizen under Irish legislation.

Such persons would generally be British citizens today if still alive.

British Nationality Act 1981

The British Nationality Act 1981, in force from 1 January 1983:

* retained the facility for those born in the Republic of Ireland before 1949 to register as "British subjects" (section 31)
* provided that Irish citizens, in common with those from the Commonwealth, would be required to apply for "naturalisation" as British citizens rather than "registration" after five years residence in the UK (or three years if married to a British citizen).
* British subjects retained the right to apply for "registration" as a British citizen after 5 years residence in the UK.

Access to British citizenship for Irish citizens

As a result of the above, there is generally no special access to British citizenship for Irish citizens. The facility for those born before 1949 to reclaim "British subject" status does not confer British citizenship, although gives an entitlement to registration as such after 5 years in the UK.

Irish citizens seeking to become British citizens are usually required to live in the UK and become naturalised after meeting the normal residence and other requirements, unless they can claim British citizenship by descent from a UK born or naturalised parent. An Irish citizen who naturalises as a British citizen does not automatically lose his Irish citizenship.

Naturalisation as a British citizen is a discretionary power of the Secretary of State for the Home Department but will generally not be refused if the requirements are met.

British subject passports

Persons holding "British subject" status may apply for a United Kingdom passport. However, the British subject passport is not eligible for the United States Visa Waiver Program. Nor is it eligible for the Australian Electronic Travel Authority or visa-free tourist entry to Canada [http://www.canada.org.uk/visa-info/visitor/e_brit.htm Details]

Irish-born "British subjects" will also qualify for a right of abode in the UK, and their British subject passport will be endorsed to this effect. Unlike other British subject passports, the passports of British subjects with the right of abode are marked "European Union", as their holders are European Union citizens.

tatistics

The July 1980 White Paper titled "British Nationality Law - Outline of Proposed Legislation" (upon which the British Nationality Act 1981 is largely based) stated that 140,000 persons from the Republic of Ireland had made claims to retain British subject status since 1949. More claims, albeit at a slower rate, have been lodged since 1980.

UK born children of Irish citizens

Prior to 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 should 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. The special status of Irish citizens in the UK comes from section 1(3) of the Immigration Act 1971, the legislative basis for the Common Travel Area.

It is not publicised by the Home Office but reference can be found in the [http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nisec2gensec/eeaandswissnats?view=Binary Home Office Nationality Instructions, EEA and Swiss citizens (pdf)]

"5.3 ... Citizens of the Irish Republic, whether exercising EEA free movement rights or not, are not normally subject to any form of immigration control on arrival in the UK because of the Republic’s inclusion in the Common Travel Area (s.1(3), Immigration Act 1971)"

and further on:

"8.3 The 2000 Regulations did not affect the position of EEA nationals entitled to remain indefinitely on some other basis, for example because they had been granted indefinite leave to remain under some other provision of the Immigration Rules, were entitled by virtue of diplomatic status to exemption from UK immigration control or because, as Irish nationals, they benefit under the Common Travel Area provisions. Persons in these categories should be regarded as having been free from any restriction under the immigration laws on the period for which they may remain." ]

ee also

*British nationality law
*History of British nationality law
*British subject
*Irish nationality law
*Ireland Act 1949

External links

* [http://www.uniset.ca/naty/BNA1948.htm British Nationality Act 1948]

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