Irish Citizenship I
Citizenship grants the most extensive rights to be in the State and enjoy the benefits of its laws and protection. Nationals and naturalised residents are citizens. A wide range of persons potentially qualify for Irish citizenship. In some cases, qualification is automatic, while in others, the Minister for Justice has an element of discretion in the matter
Article 2 of the Constitution declares that it is the entitlement and birth right of every person born in the island of Ireland, which includes its islands and seas to be part of the Irish nation. It is the entitlement of all persons, qualified in accordance with law, to be citizens of Ireland. The Constitution declares that the Irish nation cherishes its special affinity with people of Irish ancestry living abroad, who share its cultural identity and heritage.
A person born in the island of Ireland including islands and seas, who does not have at the time of that birth, at least one parent who is an Irish citizen or who is entitled to be an Irish citizen, is not entitled to Irish citizenship or nationality, unless provided for by law. This provision which was introduced into the Constitution by referendum in 2004, does not apply to persons born before its introduction
Irish Citizenship II
The Irish Nationality and Citizenship Acts 1956-2004 determines the right to Irish citizenship. In the case of person born before 2005, every person born in Ireland became an Irish citizen from birth. Every person became an Irish citizen if his father or mother was an Irish citizen at the time of that person’s birth. The entitlement did not apply to the child of an alien who, at the time of the child’s birth, is entitled to diplomatic immunity in the State.
The automatic conferral of citizenship did not apply to a person, not otherwise an Irish citizen, born in Northern Ireland on or after the establishment of the Irish Free State, unless he (or if a minor, his parents or guardian) declared himself to be an Irish citizen in the prescribed form declared himself to be an Irish citizen.
After 1st January 2005, a person born in the island of Ireland after 1 January 2005 to parents, at least one of whom was an Irish or British citizen or entitled to reside in the State or Northern Ireland without any restrictions on his or her residence, has an entitlement of Irish citizenship.
A person born in the island of Ireland after 1 January 2005 is entitled to Irish citizenship only if, during the four year period immediately preceding the person’s birth, one of the parents has been resident in the island of Ireland for a period of not less than three years and neither parent was entitled to diplomatic immunity in the State.
EU Treaty and Citizenship
Basic European Union treaty rights provide rights for nationals of EU (strictly fact EEA) States to come to Ireland in order to establish a business or to take up employment in Ireland. EU nationals and their families who exercise “Treaty” rights enjoy equality of treatment in the host state, which are directly applicable under European Union law.
The European Union has legislated for so-called European citizenship. This provides comprehensive freedom of movement and rights to establish both for business and personal purposes within other EU states. There are directives which facilitate family settlement.
Since the mid-1990s, the European Union has acquired competence in the areas of home affairs and immigration. Ireland has not opted into some EU directives in relation to immigration and asylum, adopted under the Home Affairs and Justice competence of the European Union.
Common Travel Area
Ireland shares a common travel area with the United Kingdom, arising from its history as part of the United Kingdom and the existence of the land border. Ireland has tended to follow the United Kingdom in its immigration and asylum laws and policies, in order to maintain the integrity of the common travel area.
The Common Travel Area (CTA) arrangements enable citizens of the UK and Ireland to move between the jurisdictions without a requirement to carry a passport and to establish themselves and enter the labour market in either jurisdiction as if they were citizens of that jurisdiction. The arrangements also apply to the Isle of Man and the Channel Islands.
The arrangements are not an agreement and do not have a formal basis in the international arena. They are recognised internationally, including in the EU Amsterdam Treaty which allowed Ireland to remain outside the main provisions of the Schengen agreement so that the CTA arrangements could be maintained. Ireland has declared its intention to participate in Schengen to the extent consistent with the maintenance of the CTA arrangements (prior to Brexit).
The CTA is upheld in public policy. Irish immigration practice seeks to prevent “back-door” illegal immigration into the UK through initial entry into Ireland and the use of common travel area. Regard is also had to European Union law, which accepts that the CTA is a legitimate public policy and permits its maintenance as a derogation from ordinary EU law.
The following categories of long-term residents are provided for
- Long-term residence status applicable to persons legally resident for five years. This is valid for five years.
- Residence without time conditions. The applicant must live legally in the State for eight years. It is not available to certain students, trainees and temporary transfers. No working permit is required. It is valid until expiry of passport. It may be renewed.
Certain persons may reside without conditions. They include persons who are entitled to naturalisation, children of Irish citizens, children of certain parents and grandparents born in the State.
A range of social benefits and are subject to habitual residence requirement. These include the following.
- the state pensions
- one parent family payment;
- job seekers allowance
- disability allowance;
- supplementary welfare allowance (other than one-off exceptional and urgent payment needs)
A person is presumed not to be habitually resident in the State at the time of making the application, unless he has been present in the State or any part of the common travel area, for at least two years. EU and EEA nationals may qualify for social welfare and social security entitlements under EU laws.
The two-year time limit for habitual residence is not definitive. International obligations may require that an inflexible time limit cannot be applied.
Habitual Residence II
In deciding whether an applicant is habitually resident, the Department of Social Protection considers the following.
- length and continuity of residence in the State and other countries;
- length and purpose of absence
- nature and pattern of employment;
- the person’s main centre of interests;
- future intentions as they appear.
A person who does not have a right to reside in the State is not regarded as habitually resident. The following are not regarded as habitually resident for the purpose of social welfare legislation.
- asylum applicants;
- persons proposed to be deported;
- unsuccessful asylum applicants;
- unsuccessful applicants for subsidiary protection;
- persons subject to a deportation order.
Non-nationals are subject to the law of the State, in the same way as nationals. The Aliens legislation applies to persons who are not citizens of Ireland. Non-nationals may hold and dispose of the property in the same manner as nationals. Title or ownership of any property may be derived through non-nationals.
There were formerly restrictions on the ownership of Irish registered ships and aircraft by non-national. The position has been modified by European Union rights.
The Aliens legislation does not apply to members of diplomatic missions, embassies, consulates and other persons declared immune.
A person guilty of an offence under the legislation may be arrested by a member of an Garda Siochana without an arrest warrant. There are similar provisions in respect to breach of employment permit legislation.
The Minister may require by notice in writing, that a non-national who does not have permission to be in the State comply with conditions in relation to residence within a particular district and reporting to immigration officers or Garda Siochana. Failure to comply with the condition is an offence.
An immigration officer may examine a non-national arriving in the State by sea or air or through other means. A non-national coming by sea or air from outside the State may not, without the consent of the Minister, land elsewhere than at an approved port. A non-national who arrives in the State, other than at an approved port is deemed to be refused permission to enter and is guilty of an offence.
There are comprehensive powers to obtain search warrants for the purpose of enforcement of the aliens and immigration legislation. Evidence and documents may be seized and retained. It is an offence to obstruct or impede the Garda Siochana in executing a warrant.
An immigration officer or a member of an Garda Siochana who with reasonable cause suspects that a person is one against whom a deportation order is in place may arrest that person without a warrant. The person may be detained in a prescribed place. This does not apply to a person under the age of 18.
The person detained may institute proceedings challenging the validity of the deportation. The court may determine whether the person should be detained or released. Conditions may be imposed on release, including that he or she remain in a particular district, report to the Gardai or immigration offices and/ or surrender his passport. The person must not be detained for more than eight weeks in total.
Duties of Carriers I
A carrier from outside the United Kingdom must ensure that all persons on board, who seek to land in the State or to pass through a port in the State in order to travel to another state, comply with directions given by immigration officers. They must that ensure all persons on board are presented to immigration officers for inspection and that each non-national aboard seeking to land or pass through the State has a valid passport or equivalent document establishing his identity and nationality and if required by law, a valid Irish transit visa or valid Irish visa. Contravention of this provision is an offence.
Where a vehicle arrives in the State, the carrier concerned, must if requested by an immigration officer, furnish a list specifying the name and nationality of each person on board the vehicle containing information as to identity as may be prescribed, together with details of the members of the crew. Failure to comply is an offence. There is a defence, where the person concerned has taken all reasonable steps to ensure compliance.
There are provisions for fixed penalty notices in respect of the above offence. If the amount specified in the notice is paid within the prescribed period, proceedings for the offence will not be taken.
Duties of Carriers II
The master of a ship arriving in the state may detain any non-national from a place outside the State until the non-national is examined or landed for examination. On the request of an immigration officer, he must detain any non-national, whether seaman or passenger, whose application for permission has been refused. That person is deemed to be in lawful custody. Breach of such a requirement by the master of the ship is an offence.
A non-national who embarks in the State, on being so required by an immigration officer or member of an Garda Siochana, may make a declaration as to whether he is carrying or conveying documents and if so required, shall produce them to the officer or member. The officer or member may search the non-national and any luggage which belongs to him or is under his control, with a view to ascertaining whether he is carrying any documents. Documents may be examined and detained. Documents include currency, photographs, audio or video recording equipment, information in non-legible or written form.
Notices of the provisions of the Act must be displayed on trains and passenger road vehicles in accordance with regulations laid down from time to time.
Registration / Identity Card I
Legally resident non-EEA nationals who have entered the State with the intention of residing in Ireland for a period of more than three months must register with their local immigration registration officer. This is the officer in charge of the Garda National Immigration Bureau in the Dublin area or the superintendent of the Garda Siochana outside that area. The obligation to register applies, even if the non-national has no residence in the State.
An immigration certificate of registration (GNIB Registration Card) is issued by the Garda National Immigration Bureau to a non-EEA national who so registers. This was replaced on December 11th 2017 by the Irish Residence Permit (IRP). This is based on EU standards, including:
- New design, based on EU colour and layout rules
- New information, including a brief description of your immigration permission
- New features, including robust security and identity protection
The IRP does not give any new rights or entitlements. All existing travel and immigration rules still apply. The holder must carry his IRP with you all times and present it to an immigration officer or a member of An Garda Síochána (police) if requested. This includes whenever on leaving and re-entering the State.
Registration / Identity Card II
The obligation to register does not apply to
- a non-national under 16 years;
- a non-national born in Ireland;
- a non-national not resident in the State who has been in the State, for less than three months since the date of arrival;
- a non-national seaman who remains with the ship and does not land in the State for discharge.
A fee is charged (€300) in respect of each immigration certificate of registration issued to a non-EEA national. Certain classes of person are exempt from payment, including Convention Refugees; persons who are under 18 years of age at the time of registration, spouses, widows and widowers of Irish citizens; spouses and dependents of EU nationals who receive a residence permit, programmed Refugees.
A person shall furnish to the registration officer, the required particulars and produce a valid passport to establish his identity and nationality. The registration officer for the district in which he is a resident must be furnished with particulars of any matter affecting the accuracy of particulars previously furnished, within seven days of the change. Such information as shall be required to maintain the register up to date and accurate must be furnished.
If a person proposes to change residence, he must furnish the relevant information to the registration officer of the area in which he was resident. He must notify the new registration area officer, within 48 hours of arrival. On every relevant change, the certificate / card must be produced and the required alteration made.
A non-national resident, absent from his residence for a period exceeding one month, must report to the registration officer of the district of his address and change of address.
Where a non-national who is required to register or report, is living as a member of a household of any other person, it is the duty of that latter person to take reasonable steps, whether by giving notice to the registration officer of the presence of the non-national in his household or otherwise, to ensure compliance with the registration obligation.
Hotels must maintain registers of non-nationals, staying at the premises. Regulations provide for the duties of hotel keepers in relation to the information required, the format and period for which the registrar must be kept. Breach is an offence.
Change of Name
It is not lawful for a non-national over the age of 18 years, to assume or use a different name without a licence from the Department of Justice. The assumption on marriage of a spouse’s name is not subject to this provision.
It is not lawful for a non-national to assume or use or purport to assume or use or to continue the assumption or use of any name other than the name by which he was ordinarily and usually known on the day before the date on which he attained the age of 18 years.
British citizens are not required to obtain a change of name licence in order to effect a deed poll. However, the High Court office, which registers Deeds Poll may require evidence of British citizenship.
Agencies in Irish immigration
The Garda National Immigration Bureau is an office within an Garda Siochana. Its immigration officers grant permission to land and to remain in the State. They carry out residency registrations, deportations, border control and investigations into illegal immigration and human trafficking.
The Department of Justice and Equality is responsible for immigration policy. Branches within the Department are responsible for the administration of particulars areas of immigration and asylum. The Irish Nationality and Immigration Service (INIS) is an executive office of the Department, which is responsible for administration in relation to asylum, immigration, visa, nationality and citizenship matters.
INIS includes a number of divisions;
- citizenship sections
- European Union Treaty rights unit;
- asylum and immigration policy;
- repatriation unit;
- visa appeal unit
Residency and Integration Agency
The Reception and Integration Agency coordinates services to asylum-seekers and refugees. It is a unit of INIS and is charged with providing accommodation and ancillary services to asylum seekers under the direct provision system which provides asylum seeker residents with full board accommodation free of other cost. Under this system, RIA seeks to ensure that the material needs of residents, in the period during which their applications for international protection are being processed, are met.
One of the tasks of RIA under the Government’s policy of direct provision and dispersal is to provide residential accommodation and ancillary services to asylum seekers in locations throughout the State while they await the outcome of their application for asylum. To meet accommodation requirements, RIA has entered into agreements with commercial contractors throughout the State to provide these services.
Contracts are drawn up between RIA and the provider to ensure that the accommodation centres comply and operate in accordance with all statutory requirements in relation to, (e.g.), bedroom capacity, food, food hygiene, water supply, fire safety and general safety etc. RIA monitors contract service delivery using a number of tools.
International Protection Office
On the commencement of the International Protection Act 2015 on 31 December 2016, the Office of the Refugee Applications Commissioner (ORAC) was abolished and responsibility for the investigation of applications for international protection is transferred to a new International Protection Office (IPO) (www.ipo.gov.ie) within the Irish Naturalisation and Immigration Service.
The Office is an independent body responsible for deciding refugee status in the first instance. Its functions were
- to investigate applications from persons seeking a declaration of refugee status and to issue appropriate recommendations to the Minister for Justice and Equality;
- to investigate applications by refugees to allow family members to enter and reside in the State and report to the Minister for Justice and Equality on such applications;
- to investigate applications for subsidiary protection, and issue appropriate recommendations to the Minister for Justice and Equality on such applications
The IPO also considers, as part of a single procedure process, whether applicants should be given permission to remain. The IPO comprises, inter alia, a chief international protection officer and international protection officers who are independent in the performance of their international protection functions. ORAC staff will be transferring to the new IPO.
Appeals and Human Rights
The International Protection Appeals Office is an independent body, which decides asylum appeals whose applications for refugee status have not been recommended by the IPO. It is a statutorily independent body and exercises a quasi-judicial function. It replaces the former Refugee Appeals Tribunal in 2016.
The law in relation to immigration and asylum has been tested by reference to fundamental Constitutional rights and the European Convention on Human Rights on numerous occasions. These fundamental and human rights exert a significant feature on immigration law.
Civil legal aid may be available for asylum or subsidiary protection applications in Ireland. The refugee legal service within the Legal Aid Board provides legal services for persons applying for asylum and in appropriate cases, in relation to immigration and deportation.