British Nationality Law and The Republic of Ireland - British Subjects With Local Irish Nationality

British Subjects With Local Irish Nationality

According to Article 3 of the 1922 Constitution of the Irish Free State, "Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstát 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 (Saorstát Eireann) for not less than seven years, is a citizen of the Irish Free State (Saorstát Eireann) and shall within the limits of the jurisdiction of the Irish Free State (Saorstát Eireann) enjoy the privileges and be subject to the obligations of such citizenship ". 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". This meant that the citizenship law did not govern what the status of its holders were outside the Free State's jurisdiction. There were some remarkable manifestations of the British perspective in this matter including in the Parkes case. In the case of Murray v. Parkes (1942), the King's Bench Divisional Court decreed 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 1940 that the Court held that:

Murray was a British subject and nothing had deprived him of that status. the legislation that made him a citizen of the Irish Free State did no more than confer on him a national character as an Irish citizen within the wider British nationality. His status was that of a British subject...

The position has been commented on in the following terms:

Thus, the Constitution reflected the twin intentions of the Treaty which, on the one hand, stipulated that the privileges and obligations of Irish citizenship were to be within the limits of the jurisdiction of the Irish Free State’ (reflecting the existence of Northern Ireland and partition) and, on the other, linked them to an external power through the Oath of Allegiance to the British Crown and common citizenship of the Commonwealth. Though unique in the Commonwealth of the day, Irish citizenship, therefore, was not an autonomous status. It was not until the 1930s that ‘an Irish citizenship for international purposes was established’, independently of a Treaty and Constitution enacted as British statutes. Under the power contemplated in Article 3 of the 1922 Constitution, the Nationality and Citizenship Act, 1935 repealed the British Nationality and Status of Aliens Act, 1914 (as amended in 1918). It specified that, under Irish law, Irish citizens (or nationals) were those born in the territory of the whole island of Ireland or those who chose to activate an inherent right to the status derived from either parent, resident or not, who had been born on the island. It drew on the conclusions of the 1930 Commonwealth Conference that each member could define for itself its own nationals while maintaining mutual recognition of common status. It was considered in both Houses from November 1933, passed on 4 April 1935 and signed by the King six days later. Following its enactment, and with mutuality and reciprocity in mind, Ireland introduced its own Aliens Act under which anyone who was not a citizen of Sáorstat Éireann was an alien. This made the British as alien as any other nationality. But an exemption Order (S.R. + O. No 80 of 1935) excluded them and the peoples of the Commonwealth from the application of the Aliens Act and, hence, permitted the continuation of their free movement into Ireland....The UK, because of the common citizenship of the Commonwealth, had not amended its Nationality and Status of Aliens Act 1914 (amended 1918) which specified that persons born in what was then the United Kingdom of Great Britain and Ireland, as well as the Commonwealth, were British subjects. There being no change in UK law until 1948 meant, as McGuinness11 points out, that British judicial opinion was able to maintain - as late as 1942 - that Ireland’s 1922 Constitution ‘did no more than confer ... a national character as an Irish citizen within the wider British nationality’; and that this remained the case despite the Nationality and Citizenship Act 1935 and the new 1937 Constitution. ‘From the British point of view the peoples of all these lands have status as British subjects, and generally there is no discrimination among British subjects as to place of birth within the Commonwealth’in their access to citizenship rights in the UK. This remained contentious in Ireland.