Irish Nationality Law - History - Jus Soli and The Irish Constitution

Jus Soli and The Irish Constitution

Up until the late 1990s, jus soli, in the Republic, was maintained as a matter of statute law, the only people being constitutionally entitled to citizenship of the Irish state post-1937 were those who had been citizens of the Irish Free State before its dissolution. However, in 1998 as part of the new constitutional settlement brought about by the Belfast Agreement, the Nineteenth Amendment of the Constitution of Ireland provided (among other things) 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. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."

The introduction of this guarantee resulted in the enshrinement of jus soli as a constitutional right for the first time. In contrast the only people entitled to British citizenship as a result of the Belfast Agreement are people born in Northern Ireland to Irish citizens, British citizens and permanent residents.

If immigration was not on the political agenda in 1998, it did not take long to become so afterwards. Indeed soon after the agreement, the already rising strength of the Irish economy reversed the historic pattern of emigration to one of immigration, a reversal which in turn resulted in a large number of foreign nationals claiming a right to remain in the state based on their Irish-born citizen children. They did so on the basis of a 1989 Supreme Court ruling Fajujonu v. Minister for Justice where the court prohibited the deportation of the foreign parents of an Irish citizen. In January 2003 the Supreme Court distinguished the earlier decision and ruled that it was constitutional for the Government to deport the parents of children who were Irish citizens. This latter decision would have been thought to put the matter to rest but concerns remained about the propriety of the (albeit indirect) deportation of Irish citizens and what was perceived as the overly generous provisions of Irish nationality law.

In March 2004 the government introduced the draft Bill for the Twenty-seventh Amendment of the Constitution of Ireland to remedy what the Minister for Justice, Michael McDowell, described as an "abuse of citizenship" whereby citizenship was "conferred on persons with no tangible link to the nation or the State whether of parentage, upbringing or of long-term residence in the State". The Amendment did not propose to change the wording of Articles 2 and 3 as introduced by the Nineteenth Amendment, but instead to insert a clause clawing back the power to determine the future acquisition and loss of Irish citizenship by statute, as previously exercised by parliament before the Nineteenth amendment. The government also cited concerns about the Chen case, then before the European Court of Justice, in which a Chinese woman who had been living in Wales had gone to give birth in Northern Ireland on legal advice. Mrs. Chen then pursued a case against the British Home Secretary to prevent her deportation from the United Kingdom on the basis of her child's right as a citizen of the European Union (derived from the child's Irish citizenship) to reside in a member state of the Union. (Ultimately Mrs. Chen won her case but this was not clear until after the result of the referendum.) Both the proposed amendment and the timing of the referendum were contentious but the result was decisively in favour of the proposal; 79% of those voting voted yes, on a turnout of 59%.

The effect of the amendment was to prospectively restrict the constitutional right to citizenship by birth to those who are born on the island of Ireland to at least one parent who is (or is someone entitled to be) an Irish citizen. Those born on the island of Ireland before the coming into force of the amendment continue to have a constitutional right to citizenship. Moreover jus soli primarily existed in legislation and it remained, after the referendum, for parliament to pass ordinary legislation that would modify it. This was in fact done by the Irish Nationality and Citizenship Act 2004 (the effects of which are detailed above). It remains, however, a matter for the legislature and unrestricted jus soli could be re-established by ordinary legislation without a referendum.