Policy Submission
Submission concerning amendment of the Irish Nationality and Citizenship Acts to recognise descendants of persons who emigrated from Ireland prior to 6 December 1922
Submitted July 27th 2026 by Desmond Swan – Genealogist
1. Executive Summary
This submission proposes the creation of a narrowly tailored pathway to Irish citizenship for descendants of the historic pre-1922 Irish emigrant generation.
The proposal is not based upon ethnic exclusivity, racial preference, or opposition to Ireland’s modern civic model of citizenship. It does not seek to alter or diminish existing naturalisation pathways under Section 15 of the Irish Nationality and Citizenship Act 1956 as amended for persons who acquire Irish citizenship through residence, contribution, and integration into Irish society.
Rather, this submission addresses a distinct historical anomaly arising from the constitutional and nationality arrangements adopted during the foundation of the Irish Free State.
The citizenship framework established between 1922 and 1956 unintentionally severed the legal continuity of citizenship for many Irish emigrants and their descendants, particularly those who left Ireland before the establishment of the Irish Free State on 6 December 1922. These emigrants left before an Irish citizenship legally existed and were subsequently excluded from the constitutional definition of citizenship because they were no longer resident in the territory of the State on the date the Constitution came into force.
The effect was that many descendants of the historic Irish diaspora — including descendants of famine and post-famine emigrants — lost any practical ability to transmit or retain a legal relationship with the Irish nation, despite maintaining substantial Irish familial continuity.
This submission further argues that the present discretionary Naturalisation framework under Section 16 of the Irish Nationality and Citizenship Act 1956 fails adequately to address this historical exclusion.
Although Section 16 formally recognises “Irish descent or associations” as grounds upon which ordinary naturalisation conditions may be waived, the modern administrative guidelines issued under Section 16 assess applicants overwhelmingly by reference to:
- residence within the State;
- economic establishment;
- tax residence;
- and administrative integration into Irish society.
In practice, the framework gives limited meaningful consideration to:
- the breadth and depth of an applicant’s Irish ancestry;
- the continuity of Irish familial lineage across multiple branches of a family tree;
- or whether the applicant descends from the historic emigrant generations whose citizenship continuity was interrupted by the constitutional arrangements adopted in 1922.
As a result, descendants of the pre-1922 emigrant generation continue to experience structural disadvantage under a framework that once again prioritises physical residence over historical Irish lineage.
This submission therefore proposes the establishment of a limited restorative citizenship mechanism for descendants who can demonstrate substantial Irish ancestry through the pre-1922 emigrant generation.
2. Historical Context
The revolutionary and constitutional tradition of the Irish State consistently recognised the Irish diaspora as part of the Irish nation.
The 1916 Proclamation explicitly referred to Ireland being supported by “her exiled children in America” and declared the Republic’s intention of “cherishing all the children of the nation equally.”
The revolutionary movement depended heavily upon emigrant communities for:
- political support;
- financial support;
- diplomatic influence;
- and international legitimacy.
Yet the citizenship framework ultimately adopted by the Irish Free State failed to preserve legal continuity for large portions of this emigrant nation. This tension between the cultural conception of the Irish nation and the legal definition of Irish citizenship, has remained unresolved since the foundation of the State.
3. The British Nationality and Status of Aliens Act 1914 and the Constitutional Constraints of 1922
Any examination of Irish citizenship law must begin with the legal framework inherited from the United Kingdom.
The British Parliament codified nationality law for the first time in the British Nationality and Status of Aliens Act 1914. Under that Act, British nationality could be acquired in four principal ways:
- By birth within the United Kingdom or its dominions;
- By naturalisation within the United Kingdom or a self-governing dominion;
- By descent through a British father born within His Majesty’s dominions;
- By marriage to a British man.
Had Ireland secured Home Rule under the 1914 Act, the new Irish Parliament did not have the power to make laws in respect of “Treason, treason felony, alienage, naturalisation, or aliens as such, or domicile.” (section 2(6))
At the time of partition under the Government of Ireland Act 1920, all persons born in Ireland were British subjects under this imperial nationality framework.
The Government of Ireland Act itself made no provision for separate Irish nationality because it envisaged Northern Ireland and Southern Ireland remaining within the United Kingdom, albeit with devolved institutions and with the possibility of eventual Irish union.
The Anglo-Irish Treaty of 1921 fundamentally altered this arrangement by establishing the Irish Free State as a self-governing dominion within the British Commonwealth while allowing Northern Ireland to opt out of the new state and remain within the United Kingdom.
However, the Treaty did not create a fully independent Irish nationality system detached from British nationality law. Instead, the drafters of the 1922 Constitution were compelled to operate within the pre-existing framework of British subjecthood established by the 1914 Act.
This tension is evident throughout the Treaty negotiations and constitutional debates.
British negotiators insisted upon recognition of “common citizenship” within the Empire, while Irish negotiators sought to preserve a distinct Irish nationality compatible with dominion status. The resulting constitutional arrangements therefore reflected compromise and ambiguity rather than a settled or coherent theory of Irish citizenship.
The importance of this historical context cannot be overstated.
The citizenship rules adopted in 1922 were not drafted in the circumstances of a fully sovereign republic constructing nationality law from first principles. They were instead developed within:
- the constraints of imperial nationality law;
- the political compromises of the Anglo-Irish Treaty;
- the continuing legal concept of common British subjecthood;
- and the realities of Ireland’s continued membership of the British Commonwealth.
The exclusion of large numbers of emigrants from Irish citizenship must therefore be understood within this constrained constitutional environment.
4. Article 3 of the 1922 Constitution and the Disenfranchisement of the Emigrant Nation
The most significant constitutional provision governing citizenship in the new Irish Free State was Article 3 of the 1922 Constitution.
It provided:
“Every person, without distinction of sex, domiciled in the area of jurisdiction of the Irish Free State 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 for not less than seven years, is a citizen of the Irish Free State.”
This provision had profound and lasting consequences.
Citizenship under Article 3 was tied not simply to Irish birth or Irish parentage, but crucially to domicile and ordinary residence within the territory of the Irish Free State on 6 December 1922.
The effect was that large numbers of Irish emigrants who had left Ireland before that date were excluded from citizenship because they were no longer ordinarily resident within the jurisdiction of the State when the Constitution came into force.
This included substantial portions of:
- the post-Famine emigrant generation;
- the late nineteenth-century emigrant generation;
- and the generations who had sustained Irish nationalism abroad before independence.
The “exiled children in America” whose support was explicitly acknowledged in the 1916 Proclamation were not recognised as citizens of the new Irish Free State. The 1916 Republican aspiration to cherish all the children of the nation equally was confined to resident children on December 6th 1922 only.
The exclusion was therefore not based upon:
- lack of Irish birth;
- lack of Irish ancestry;
- lack of cultural affiliation;
- or renunciation of Irish nationality.
Rather, it arose because the constitutional definition of citizenship depended upon physical residence on a single historical date.
The historical record confirms that this outcome was not universally intended. The original draft of Article 3 reportedly used the phrase “so domiciled” in the hope that Irish emigrants intending someday to return to Ireland might remain within the constitutional definition of citizenship.
However, during the drafting process, the phrase was altered to “ordinarily resident.” The practical consequence of this change was that many emigrants who had left Ireland before 6 December 1922 were excluded from Irish citizenship altogether.
This exclusion shaped the development of Irish nationality law for decades thereafter.
5. The State Recognised the Problem but Never Fully Resolved It
From the earliest years of the Irish Free State, political and legal figures recognised the difficulties and contradictions within the emerging citizenship framework.
Hugh Kennedy (1879-1936), the first Attorney General of the Irish Free State and a member of the 1922 Constitution drafting committee, later reflected that:
“Few articles in the [1922] Constitution presented more difficulties than this one on citizenship.”
Kennedy explained that the intention behind Article 3 had been:
“First, not to violate the terms of the Treaty, while preserving the integrity of the citizenship of Ireland to the Irish people. Second, to afford an easy way whereby persons of Irish birth could return to Ireland from other countries and thereby add to the development and prosperity of the Country.”
This statement is highly significant.
It demonstrates that the exclusion of emigrants from Irish citizenship was not conceived as a repudiation of their Irish identity. Rather, the framers of the Constitution were attempting to reconcile:
- the aspirations of Irish nationhood;
- the constraints of Commonwealth membership;
- the legacy of British nationality law;
- and the legal obligations arising from the Anglo-Irish Treaty.
The resulting settlement was therefore incomplete and internally contradictory. Throughout the 1920s and 1930s, Irish governments repeatedly struggled with the consequences of this constitutional compromise.
The absence of a coherent nationality framework produced numerous anomalies, including uncertainty regarding:
- the citizenship status of emigrants;
- the rights of their children;
- the status of married women;
- and the transmission of citizenship abroad.
The historical record also demonstrates that successive Irish governments sought progressively to disentangle Irish nationality from British subjecthood and to create a more distinct concept of Irish citizenship.
Patrick McGilligan (1889-1979), Minister for External Affairs, argued that although Ireland accepted membership of the Commonwealth, it could never accept:
“the complete merging of our distinctive nationality implied in the use of the term ‘British subject’ as the sole recognised and effective description of our nationals when outside our borders.”
Yet while the Irish State increasingly asserted a separate Irish nationality, it remained constrained by the broader legal and diplomatic realities of Commonwealth membership.
Modern readers may struggle to appreciate the extent to which dual citizenship was historically regarded as undesirable or even incompatible with coherent nationality law.
The international consensus during the interwar period favoured the avoidance of dual nationality. The 1930 Hague Convention on Nationality sought specifically to minimise both dual nationality and statelessness.
Consequently, Irish nationality legislation of the period reflected a deep ambivalence toward dual citizenship.
Under Article 21 of the 1935 Irish Nationality and Citizenship Act:
- an Irish citizen who voluntarily became a citizen of another country after the age of 21 ceased to be an Irish citizen;
- while persons born abroad who claimed Irish citizenship through registration were required upon reaching adulthood to renounce foreign citizenship if they wished to retain Irish citizenship.
These restrictions profoundly affected emigrant communities. Many emigrants who became citizens of their adopted countries effectively lost the ability to preserve Irish citizenship continuity for future generations. For example, in the USA, Irish citizens who joined the police could only do so as US citizens which meant they were obliged to surrender their Irish citizenship and were unable to apply to have their birth registered on the new Foreign Birth Register.
Likewise, the position of Irish women was particularly severe. The nationality framework inherited from the British Nationality and Status of Aliens Act 1914 primarily recognised descent through the male line, and Irish legislation initially followed the same model.
As a result, the children of an Irish-born woman could lose entitlement to Irish citizenship if she married a non-Irish citizen. Entire maternal lines of Irish descent were therefore extinguished from the citizenship chain despite unquestionable Irish birth and ancestry.
The historical evidence strongly suggests that the State recognised these shortcomings but addressed them only gradually and incompletely.
6. The Transformation of Irish Citizenship Policy after 1956
A major shift occurred with the Irish Nationality and Citizenship Act 1956.
The 1956 Act marked a decisive movement away from:
- the restrictive residence-based assumptions of the early Free State;
- hostility toward dual nationality;
- and the older Commonwealth-era conception of nationality.
Under the new framework:
- citizenship increasingly rested upon birth and descent rather than domicile and permanent residence;
- dual citizenship became accepted;
- and the old concepts of domicile and permanent residence were largely abandoned because they had proven impractical and difficult to administer.
Ireland was now moving toward a broader and more modern understanding of citizenship continuity.
The 1956 Act introduced the Irish-born grandparent rule and created the modern Foreign Birth Register system.
However, it is critically important to understand that these reforms occurred after decades during which many emigrant families had already lost any practical opportunity to preserve citizenship continuity.
By the time Ireland liberalised its citizenship laws:
- many pre-1922 emigrants had died;
- their descendants had already become citizens of other countries;
- and prior legal restrictions had already broken the chain of transmission.
This historical timing created a profound inequality between:
- descendants whose families benefited from the post-1956 liberalisation of citizenship law;
and - descendants of earlier emigrant generations who had no equivalent opportunity to preserve citizenship continuity.
7. De Valera’s Proposed Extension Beyond Grandparents Was Rejected
The historical record also demonstrates that broader citizenship rights for descendants of emigrants were actively considered during the drafting of the 1956 Act.
Taoiseach Éamon de Valera welcomed the liberalisation of dual citizenship rules and argued that citizenship transmission should not remain confined to narrow paternal descent rules.
Most significantly, de Valera proposed that provision should exist for persons:
“of Irish ancestry, some or all of whose grandparents or more remote ancestors were born in Ireland.”
This is a critically important historical fact. The idea that descendants beyond the grandparent generation should possess a recognised pathway to Irish citizenship is not a modern invention. It was expressly contemplated at the highest level of Irish government during the framing of the 1956 Act itself.
De Valera also proposed that citizenship by descent should pass equally through either parent and that no strict time limit should apply to Foreign Birth Registration.
However, these broader proposals were not fully adopted.
The inter-departmental committee accepted certain reforms, including transmission through the maternal line, but the wider extension of citizenship rights to descendants of more remote Irish ancestry was not implemented.
The result was that the 1956 Act liberalised Irish nationality law while still preserving strict generational limits. Thus, the exclusion of many descendants of the historic emigrant generation was not inevitable. It reflected conscious legislative choices made at a particular historical moment.
8. The Failure of April 2025 Section 16 Naturalisation Guidelines to Properly Recognise Irish Ancestry
The only alternative pathway presently available to persons of Irish ancestry who do not possess an automatic statutory entitlement to Irish citizenship (for example, those who do not have an Irish born grandparent) is through naturalisation under the Irish Nationality and Citizenship Act 1956.
Naturalisation is not an entitlement. It is a privilege granted at the absolute discretion of the Minister for Justice.
The ordinary statutory conditions governing naturalisation are contained in Section 15 of the 1956 Act and principally concern:
- lawful residence;
- reckonable residence;
- intention to continue residing in the State;
- good character;
- and fidelity to the nation and loyalty to the State.
However, Section 16 of the same Act provides the Minister with discretionary authority to waive some or all of the statutory conditions where the applicant is:
- of Irish descent;
or - of Irish associations.
The existence of Section 16 is itself highly significant. It reflects a longstanding legislative recognition that the Irish nation may extend beyond persons who satisfy ordinary residence requirements and that Irish ancestry may, in appropriate circumstances, justify a facilitated pathway to citizenship.
Yet in practice, the modern operation of Section 16 does not meaningfully assess the depth or breadth of an applicant’s Irish ancestry.
Instead, the contemporary guidelines published by the Department of Justice and Immigration Service Delivery (ISD) on 2 April 2025 evaluate applicants overwhelmingly by reference to:
- residence in Ireland;
- economic establishment within Ireland;
- tax residence;
- PRSI contributions;
- Irish educational qualifications;
- and physical integration into Irish society.
Accordingly, while Section 16 formally purports to recognise “Irish descent and associations”, the actual criteria used in practice assess whether the applicant already substantially lives as a resident within the State.
The result is that Section 16 operates less as a diaspora provision and more as a modified residency-based naturalisation mechanism.
This creates a profound historical irony. The descendants of the very emigrant generations whose citizenship continuity was interrupted by the constitutional arrangements of 1922 remain disadvantaged under the modern discretionary system because they are evaluated primarily according to residence-based criteria rather than ancestral continuity.
9. The 2025 Section 16 Guidelines
The updated Section 16 Guidelines published on 2 April 2025 require applicants first to establish eligibility through Irish descent or Irish associations.
However, once eligibility is established, the substantive evaluation process largely measures residency and establishment within the State.
Applicants are assessed under four indicative categories:
- Experiential connection to the State;
- Family connection to the State;
- Cultural connection to the State;
- Establishment in the State.
Applicants are generally expected to demonstrate a “strong connection” (i.e. score at least 50%) in at least two categories.
While these categories appear broad in theory, the scoring system heavily privileges applicants already resident in Ireland.
Under “Experiential Connection”, where maximum points are 50, applicants receive:
- 5 points for every year of residency in Ireland up to 25 points;
- 10 points for Irish tax residency;
- and 3 points for recent visits to Ireland up to a maximum of 15 points.
The category therefore primarily measures physical residence and recent presence within the State. A non-resident frequent visitor to Ireland can only score a maximum of 30%.
The “Family Connection” category, where maximum points are 60, similarly prioritises present-day residence rather than ancestral continuity.
Although the definition of family members extends to up to grandparents and down to grandchildren, the guidelines require that the relevant family member be, or at the time of death have been:
- an Irish citizen;
and - ordinarily resident in Ireland.
Great-grandparents may have been the last generation ordinarily resident in Ireland but they are excluded. It would be reasonable to assume that if your grandparent was an Irish citizen and ordinarily resident in Ireland, then they were probably Irish born, in which case the grandchild would claim Irish citizenship through the Foreign Birth Register as a right, rather than as a privilege through S.16 Naturalisation.
The “Cultural Connection” category awards points for:
- Irish educational qualifications;
- participation in Irish institutions;
- and contributions to Irish society.
The “Establishment in the State” category measures:
- Irish tax contributions;
- PRSI contributions;
- Irish pension participation;
- Irish banking arrangements;
- and other indicators of domestic residence and economic establishment.
The cumulative effect is highly significant.
The framework contains no meaningful mechanism for assessing:
- the breadth of Irish ancestry across multiple family lines;
- the density of Irish lineage within a family tree;
- the historical continuity of Irish ancestry;
- or whether an applicant descends from the specific emigrant generations whose citizenship continuity was interrupted by the constitutional arrangements adopted in 1922.
The practical result is that an applicant whose eight great grandparents were all born in Ireland has no path to citizenship under S16 because the guidelines for measuring the strength of connection to Ireland are almost exclusively biased towards residency, at the expense of personal heritage.
In the case study referenced below, James is a regular visitor to Co. Mayo, has been learning the Irish language for years, participates in the local Irish community network in Middlesborough, and actively encourages his grandchildren through Irish dancing classes. All of these pursuits are insufficient to overcome the residency bias inherent in the Section 16 guidelines.
The issue is therefore not merely one of administrative discretion. It is that the current framework contains no coherent methodology for recognising the historical realities of the pre-1922 emigrant generation or the substantial Irish familial continuity retained by many of their descendants.
10. Case Study: A Descendant of the Pre-1922 Emigrant Generation
The following case study illustrates the continuing effects of these historical and legislative anomalies.
Middlesbrough was transformed during the nineteenth century from a small settlement of 25 people in 1811 into one of Britain’s principal industrial centres following the expansion of the Stockton and Darlington Railway and the discovery of ironstone in nearby Eston in 1850.
The town attracted large numbers of Irish emigrants, particularly famine and post-famine labourers who found employment within the rapidly expanding iron and steel industries.
By 1861, approximately 15.6% of Middlesbrough’s population had been born in Ireland, a proportion exceeded at that time only by Liverpool.
Unlike certain industrial centres elsewhere in Britain, Middlesbrough developed with comparatively little sectarian segregation. Irish emigrants integrated substantially into the town while simultaneously maintaining strong Irish political and cultural identities.
James was born in Middlesbrough, Yorkshire in 1961.
His parents, William (1922–1968) and Eileen (1923–1996), were both born in Middlesbrough and remained there throughout their lives.
All four of James’ grandparents were likewise born in Middlesbrough.
However:
- three of those grandparents had at least one Irish-born parent;
- while the fourth grandparent descended from four Irish-born grandparents.
Accordingly, the overwhelming majority of James’ ancestry derives directly from the historic Irish emigrant community.
Yet James possesses no entitlement to Irish citizenship under the present Foreign Birth Register framework because neither his parents nor grandparents were born in Ireland.
11. How Irish Citizenship Law Applied to the Family in Real Time
The historical operation of Irish nationality law within this single family demonstrates the cumulative effect of the legislative restrictions described throughout this submission.
1. Exclusion under the 1922 Constitution
None of James’ grandparents or great grandparents were recognised as Irish citizens under Article 3 of the 1922 Constitution because they were not resident in Ireland on 6 December 1922.
Their exclusion arose despite the fact that:
- their parents were Irish born;
- their familial identity remained overwhelmingly Irish;
- and their emigration occurred before Irish citizenship legally existed.
2. Limited Opportunities under the 1935 Act
When the Irish Nationality and Citizenship Act 1935 came into effect, all four grandparents were still alive.
Three grandparents became theoretically eligible to acquire Irish citizenship through registration procedures.
However:
- registration had to occur within narrow statutory time limits;
- dual citizenship remained heavily restricted;
- and the broader emigrant community possessed little awareness of the new procedures.
The fourth grandparent, despite descending from four Irish-born grandparents, remained excluded entirely until the reforms introduced in 1956.
3. Delayed Liberalisation under the 1956 Act
By the time the 1956 Act liberalised citizenship transmission:
- only one grandparent remained alive;
- decades of restrictive nationality policy had already passed;
- and the practical chain of citizenship continuity had already been broken.
The historical record demonstrates how few emigrants utilised the early Foreign Birth Register system. Between 1936 and 1956 only 4,409 people registered. This was not evidence of weak Irish identity among emigrants. Rather, it reflected:
- the restrictive legal environment of the period;
- hostility toward dual citizenship;
- limited awareness of registration systems;
- and the broader historical exclusion of pre-1922 emigrants from Irish citizenship continuity.
12. The Continuing Consequence
Even though James has four grandparents who would be classified as Irish citizens under current legislation, James has no right to claim Irish citizenship as none of his grandparents were born in Ireland.
If James pursued an application for Irish citizenship via the Section 16 Naturalisation framework, He would likely receive little recognition for the extraordinary breadth and depth of his Irish ancestry because:
- his family historically integrated into British society as British subjects;
- successive generations were born outside Ireland;
- his Irish citizen grandparents are expressly excluded from consideration because they were not ordinarily resident in Ireland when they died;
- and he lacks significant residential establishment within the modern Irish State.
Yet this outcome directly reflects the historical operation of Irish nationality law itself.
The family’s exclusion from citizenship continuity was not the consequence of indifference toward Ireland.
It was the product of:
- the constitutional restrictions of 1922;
- the limitations imposed by Commonwealth nationality law;
- restrictive attitudes toward dual citizenship;
- the subordinate legal status historically imposed upon married women;
- and the delayed liberalisation of Irish citizenship policy after 1956.
Most significantly, the current Section 16 guidelines contain no meaningful mechanism for assessing the breadth, density, continuity or historical character of an applicant’s Irish ancestry.
The present framework measures:
- residence in Ireland;
- tax status;
- economic establishment;
- PRSI contributions;
- and administrative integration within the State.
However, it does not meaningfully measure:
- the extent of Irish ancestral continuity across multiple family lines;
- the historical proximity of Irish-born ancestors;
- the cumulative depth of Irish lineage;
- or whether the applicant descends from the specific emigrant generations excluded from Irish citizenship continuity under the constitutional arrangements adopted in 1922.
As a consequence, an applicant with one Irish-born grandparent, has a right to Irish citizenship under the present statutory framework, but one with 8 Irish born great grandparents has to overcome residency bias is they are to be granted Irish citizenship as a privilege under a S16 Naturalisation application.
This case study therefore demonstrates that the present legal framework continues to disadvantage descendants of precisely the emigrant generations whose exclusion originated during the foundation of the State itself.
13. The Irish Nation Beyond the State
The broader conception of Irish nationhood persisted throughout the twentieth century.
Taoiseach John A. Costello declared during the second reading of the Republic of Ireland Bill in November 1948:
“The Irish at home are only one section of a great race which has spread itself throughout the world, particularly in the great countries of North America and the Pacific.”
This statement reflected a continuing understanding that the Irish nation extended beyond the territorial boundaries of the State itself.
The present submission seeks not to create a new theory of Irish nationhood, but to reconcile Irish citizenship law more closely with this longstanding historical understanding of the Irish nation and its diaspora.
14. This Proposal Does Not Undermine Civic Citizenship
This submission does not advocate preferential treatment over modern immigrants who acquire Irish citizenship through lawful residence and naturalisation under Section 15 of the Irish Nationality and Citizenship Act 1956.
Those pathways reflect the civic and democratic character of modern Irish citizenship and should remain fully intact.
The proposal advanced here concerns a distinct historical category:
- descendants of the historic emigrant nation whose legal continuity of citizenship was interrupted by the constitutional arrangements adopted during the foundation of the State.
This is therefore not an argument for ethnic exclusivity.
Nor is it a proposal for unrestricted citizenship by remote ancestry.
It is instead a narrowly tailored restorative measure designed to address a specific historical discontinuity.
15. Proposed Legislative Reform
It is proposed that the Oireachtas consider establishing a limited citizenship pathway for descendants of pre-1922 emigrants.
Eligibility could include:
- Proof that at least four great-grandparents were born on the island of Ireland;
- Proof that those ancestors emigrated prior to 6 December 1922;
- Documentary evidence establishing descent through civil, church, or census records;
- Registration through a dedicated process administered by the Department of Foreign Affairs or Department of Justice;
- Standard good-character requirements;
- A requirement that citizenship transmission to future generations only apply where registration occurs before the birth of children, thereby preventing unlimited future extension.
Such a scheme would:
- remain administratively manageable;
- avoid open-ended ancestry claims;
- recognise the unique historical position of the pre-1922 emigrant generation;
- and restore continuity between the Irish State and the historic Irish diaspora.
16. Conclusion
The Irish State has long acknowledged that the Irish nation extends beyond the geographical territory of the State itself.
However, the citizenship framework established between 1922 and 1956 unintentionally severed legal continuity between the State and many descendants of the emigrant generations who left Ireland before independence.
Those emigrants:
- left before Irish citizenship legally existed;
- helped sustain Irish national aspirations abroad;
- and were repeatedly invoked within the revolutionary tradition as part of the Irish nation.
The current citizenship framework does not adequately reflect this history.
The modern Section 16 Naturalisation framework, while formally recognising Irish descent and associations, continues in practice to prioritise residence and establishment within the State over the historical depth and continuity of Irish ancestry. As a result, descendants of the historic emigrant generations remain disadvantaged under a framework that still does not fully recognise the constitutional and historical origins of their exclusion.
A carefully limited reform recognising descendants of pre-1922 emigrants would not create a new principle of citizenship. Rather, it would restore continuity with an older and broader conception of the Irish nation that has existed since the foundation of the State itself.
APPENDIX
IRISH CITIZENSHIP LEGISLATION
Prior to the formation of the Irish Free State, Ireland was within the United Kingdom of Great Britain and Ireland and governed by the British Parliament in Westminster. All were British subjects and there was no separate Irish nationality.
British Nationality and Status of Aliens Act 1914
The British Parliament codified nationality law for the first time in the British Nationality and Status of Aliens Act 1914. Under that Act, British nationality could be acquired in four principal ways:
- By birth within the United Kingdom or its dominions;
- By naturalisation within the United Kingdom or a self-governing dominion;
- By descent through a British father born within His Majesty’s dominions;
- By marriage to a British man.
At the time of partition under the Government of Ireland Act 1920, all persons born in Ireland were British subjects under this imperial nationality framework.
Government of Ireland Act 1914 (Home Rule Bill)
Under Section 2(6) of the Home Rule Bill, it was proposed that the new Irish parliament shall not have the power to pass laws on Treason, treason felony, alienage, naturalisation, or aliens as such, or domicile.
1916 Proclamation
“her exiled children in America” and declared the Republic’s intention of “cherishing all the children of the nation equally.”
Government of Ireland Act 1920 (Partition)
The exact same term in the 1914 Act was included in Section 4 (6) of the 1920 Act which partitioned Ireland. It was never envisaged by the British that a separate Irish nationality or citizenship would be established.
Irish Free State Constitution (Effective December 6th 1922)
Article 3
“Every person, without distinction of sex, domiciled in the area of jurisdiction of the Irish Free State 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 for not less than seven years, is a citizen of the Irish Free State.”
This provision had profound and lasting consequences. Irish Citizenship was reserved for residents of the Irish Free State on December 6th 1922 who were born in Ireland or whose parents were born in Ireland. As the 6 counties of Northern Ireland did not opt out of the Irish Free State until December 7th 1922, the definition applied to the residents of the whole of Ireland.
Irish Nationality and Citizenship Act 1935 (Effective April 10th 1935)
Article 2
The following persons shall be natural-born citizens of Saorstát Eireann, that is to say:-
1.
- every person who was born in Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act, and
- every person who is born in Saorstát Eireann on or after the date of the passing of this Act, and
- every person who was born on or after the 6th day of December 1922, and before the date of the passing of this Act in a ship registered in Saorstát Eireann, and
- every person who is born on or after the date of the passing of this Act in a ship registered in Saorstát Eireann, and
- every person who was born outside Saorstát Eireann on or after the 6th day of December, 1922, and before the date of the passing of this Act and whose father was, on the day of such person’s birth, a citizen of Saorstát Eireann, and
- subject to the subsequent provisions of this section, every person who is born outside Saorstát Eireann on or after the date of the passing of this Act and whose father was, on the day of such person’s birth, a citizen of Saorstát Eireann.
- Where –
- a person is born outside Saorstát Eireann on or after the date of the passing of this Act, and
- such person’s father is, on the day of such person’s birth, a natural-born citizen of Saorstát Eireann born outside Saorstát Eireann, or a naturalised citizen of Saorstát Eireann, and
- such person’s father is, on the day of such person’s birth, not employed, in the service of the Government of Saorstát Eireann,
such person shall not be a natural-born citizen of Saorstát Eireann unless within one year or, where the Minister because of special circumstances so permits, within two years after the day of such person’s birth the fact of such person’s birth is registered—
- if such person is born in Northern Ireland, in the Northern Ireland births register, or (in any other case),
- if such person is born in a country in which there is, on the day of his birth, a Saorstát Eireann legation or consulate, in the foreign births entry book kept at such legation or consulate or in the foreign births register, or
- if such person is born in a country in which there is, on the day of his birth, neither a Saorstát Eireann legation nor a Saorstát Eireann consulate, in the foreign births register.
- Every natural-born citizen of Saorstát Eireann whose right to such citizenship is conditional on the entry in the Northern Ireland births register or in the foreign births register or in a foreign births entry book of the fact of his birth shall cease to be a citizen of Saorstát Eireann at the expiration of one year or such longer period as the Minister (before or after the expiration of such year) shall, in any particular case because of special circumstances, permit after the day on which such person attains the age of twenty-one years, unless such person, after attaining that age and before the expiration of the said year or longer period aforesaid, makes in the prescribed form and registers with the Minister in the prescribed manner a declaration of retention of his citizenship of Saorstát Eireann and also, if he is a citizen of a foreign country, divests himself, in accordance with the laws of that country, of his citizenship thereof.
- Every person who is not a citizen of Saorstát Eireann by virtue of Article 3 of the Constitution but was born before the 6th day of December, 1922, either in Ireland or of parents of whom at least one was born in Ireland shall—
- if such person is at the passing of this Act or becomes thereafter permanently resident in Saorstát Eireann, be deemed to be a natural-born citizen of Saorstát Eireann, or
- if such person at the passing of this Act is permanently resident outside Saorstát Eireann and is not a naturalised citizen of any other country, be deemed, upon being registered in accordance with the next following sub-section of this section, to be a natural-born citizen of Saorstát Eireann.
- No person whose right to be deemed to be a natural-born citizen of Saorstát Eireann under the next preceding sub-section of this section is made by that sub-section conditional on registration in accordance with this sub-section shall be deemed to be a natural-born citizen of Saorstát Eireann unless, within one year or, where the Minister (before or after the expiration of such year) because of special circumstances so permits, within two years after the passing of this Act, the name of such person is registered—
- if such person is, at the passing of this Act, permanently resident in a country in which there is a Saorstát Eireann legation or consulate, in the register of nationals kept at such legation or consulate or in the general register of nationals, or
- if such person is, at the passing of this Act, permanently resident in a country in which there is neither a Saorstát Eireann legation nor a Saorstát Eireann consulate, in the general register of nationals.
Irish Nationality and Citizenship Act (Amendment) 1937 |
The time limit of one year was removed, so that registration shall be permitted at any time, but no person shall be registered in accordance with subsection (5) after the passing of the 1937 Act without the consent of the Minister for Justice |
- Every person born before the 6th day of December, 1922, who is, at the passing of this Act, employed outside Saorstát Eireann in the civil service of the Government of Saorstát Eireann as an established officer but is not a citizen of Saorstát Eireann by virtue of Article 3 of the Constitution shall be deemed to be a natural-born citizen of Saorstát Eireann.
- Notwithstanding anything contained in the foregoing provisions of this section—
- a person who was or is born in Saorstát Eireann on or after the 6th day of December, 1922, (whether before or after the passing of this Act) shall not be a natural-born citizen of Saorstát Eireann if such person’s father was or is, on the day of such person’s birth, envoy extraordinary and minister plenipotentiary or other the head of a foreign diplomatic mission established in Saorstát Eireann or is the secretary of legation, or other member of the diplomatic staff of such mission whose appointment as such has been officially notified to the Minister for External Affairs or is otherwise entitled to diplomatic immunities and in any case possesses the nationality of the country by which such mission is accredited, and
- a person who was or is born in Saorstát Eireann on or after the 6th day of December, 1922, (whether before or after the passing of this Act) and whose father, on the day of the birth of such person, was or is a consul-general, consul, vice-consul, or other official of another country charged with an official mission in Saorstát Eireann and possessed or possesses the nationality of the country by which he was or is appointed,
shall, if such person at his birth acquired or acquires by the laws of the said country by which his father was or is so appointed the nationality of such country, cease to be a citizen of Saorstát Eireann if and when a declaration of alienage is made and lodged with the Minister in the prescribed form and manner by such person’s father on behalf of such person before such person has attained the age of twenty-one years or by such person after he has attained that age.
1937 Constitution
“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. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.”
Irish Nationality and Citizenship Act 1956 (effective July 17th 1956)
- Every person born in Ireland is an Irish citizen from birth.
- Every person is an Irish citizen if his father or mother was an Irish citizen at the time of that person’s birth or becomes an Irish citizen under subsection (1) or would be an Irish citizen under that subsection if alive at the passing of this Act.
- In the case of a person born before the passing of this Act, subsection (2) applies from the date of its passing. In every other case, it applies from birth.
- A person born before the passing of this Act whose father or mother is an Irish citizen under subsection (2), or would be if alive at its passing, shall be an Irish citizen from the date of its passing.
- Subsection (1) shall not confer Irish citizenship on the child of an alien who, at the time of the child’s birth, is entitled to diplomatic immunity in the State.
See amendments to Article 6 under 2001 Act below |
Article 7
- Pending the re-integration of the national territory, subsection (1) of section 6 shall not apply to a person, not otherwise an Irish citizen, born in Northern Ireland on or after the 6th December, 1922, unless, in the prescribed manner, that person, if of full age, declares himself to be an Irish citizen or, if he is not of full age, his parent or guardian declares him to be an Irish citizen. In any such case, the subsection shall be deemed to apply to him from birth.
- Neither subsection (2) nor (4) of section 6 shall confer Irish citizenship on a person born outside Ireland if the father or mother through whom he derives citizenship was also born outside Ireland, unless—
- that person’s birth is registered under Section 27 [Foreign Birth Register], or
- his father or mother, as the case may be, was at the time of his birth resident abroad in the public service.
Amendment of Section 7 of the Act of 1956 2. Section 7 of the Act of 1956, which relates to formalities to be complied with in certain cases, is hereby amended by the insertion of the following proviso after paragraph (b) of subsection (2): “Provided that the citizenship of a person who, after the passing of the Irish Nationality and Citizenship Act, 1986, is registered under section 27 shall commence only as on and from the date of such registration.” |
Irish Nationality and Citizenship Act 2001
Article 3.
The Act of 1956 is hereby amended by the substitution for sections 6 and 7 of the following sections:
- (1) Every person born in the island of Ireland is entitled to be an Irish citizen. [Amended in the 2004 Act to read: “Subject to section 6A (inserted by section 4 of the Irish Nationality and Citizenship Act 2004), every person born in the island of Ireland is entitled to be an Irish citizen.”],
(2) (a) Subject to subsections (4) and (5), a person born in the island of Ireland is an Irish citizen from birth if he or she does, or if not of full age has done on his or her behalf, any act which only an Irish citizen is entitled to do. [Amended in the 2004 Act to read: “Subject to subsection (5), a person who is entitled under subsection (1) to be an Irish citizen shall be an Irish citizen from the date of his or her birth if—
- he or she does any act that only an Irish citizen is entitled to do, or
- in the case of a person who is not of full age or who is suffering from a mental incapacity, any act is done on his or her behalf that only an Irish citizen is entitled to do.”
(b) The fact that a person so born has not done, or has not had done on his or her behalf, such an act shall not of itself give rise to a presumption that the person is not an Irish citizen or is a citizen of another country.
(3) A person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country.
(4) A person born in the island of Ireland—
(a) to a non-national who at the time of that person’s birth was entitled to diplomatic immunity within the State, or
(b) to a non-national on a foreign ship or in a foreign aircraft,
shall not be an Irish citizen unless, in the prescribed manner, that person declares, or if not of full age has declared on his or her behalf, that he or she is an Irish citizen; and such person shall be deemed to be an Irish citizen from the date of birth or the date of coming into operation of this section, whichever is the later. [Section 4 was deleted in its entirety from the 2004 Act]
(5) A person born in the island of Ireland who has made a declaration of alienage under section 21 shall remain entitled to be an Irish citizen, but shall not be an Irish citizen unless, in the prescribed manner, that person declares that he or she is an Irish citizen; and such person shall be an Irish citizen from the date of the declaration.
[The following was inserted as sub section 6A in the 2004 Act:
(6) In this section ‘person’ does not include a person born in the island of Ireland on or after the commencement of the Irish Nationality and Citizenship Act 2004—
(a) neither of whose parents was at the time of the person’s birth—
- an Irish citizen or entitled to be an Irish citizen,
- a British citizen,
- a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004), or
- a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,
and
(b) at least one of whose parents was at that time entitled to diplomatic immunity in the State.”.]
- (1) A person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen or would if alive have been an Irish citizen.
(2) The fact that the parent from whom a person derives citizenship had not at the time of the person’s birth done an act referred to in section 6(2)(a) shall not of itself exclude a person from the operation of subsection (1).
(3) Subsection (1) shall not confer Irish citizenship on a person born outside the island of Ireland if the parent through whom he or she derives citizenship was also born outside the island of Ireland unless—
(a) that person’s birth is registered under section 27, or
(b) the parent through whom that person derives citizenship was at the time of that person’s birth abroad in the public service:
Provided that the Irish citizenship of a person who, after 1 July, 1986, is registered under section 27 shall commence only as on and from the date of such registration.
(4) Nothing in this section shall confer Irish citizenship on a person not an Irish citizen immediately before its coming into operation, nor deprive of Irish citizenship a person who immediately before its coming into operation was an Irish citizen.”
Irish Nationality and Citizenship Act 2004
6A.—(1) A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of 4 years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not less than 3 years or periods the aggregate of which is not less than 3 years.
(2) This section does not apply to—
(a) a person born before the commencement of the Irish Nationality and Citizenship Act 2004,
(b) a person born in the island of Ireland—
(i) to parents at least one of whom was at the time of the person’s birth an Irish citizen or entitled to be an Irish citizen,
(ii) if the person was born to parents one of whom was deceased at the time of the person’s birth and—
(I) the other parent was at that time, or
(II) the deceased parent was, immediately before he or she died,
an Irish citizen or entitled to be an Irish citizen, or
(iii) if the person was born to parents both of whom were deceased at the time of the person’s birth, and at least one of whom was, immediately before his or her death, an Irish citizen or entitled to be an Irish citizen,
(c) a person born in the island of Ireland—
(i) to parents at least one of whom was at the time of the person’s birth a British citizen or a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,
(ii) if the person was born to parents one of whom was deceased at the time of the person’s birth and—
(I) the other parent was at that time, or
(II) the deceased parent was, immediately before he or she died, a British citizen or a person entitled to reside in Northern Ireland without any restriction on his or her period of residence, or
(iii) if the person was born to parents both of whom were deceased at the time of the person’s birth and at least one of whom was, immediately before his or her death, a British citizen or a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,
(d) a person born in the island of Ireland—
(i) to parents at least one of whom was at the time of the person’s birth a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004),
(ii) if the person was born to parents one of whom was deceased at the time of the person’s birth and—
(I) the other parent was at that time, or
(II) the deceased parent was, immediately before he or she died, a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004), or
(iii) if the person was born to parents both of whom were deceased at the time of the person’s birth and one of whom was, immediately before his or her death, a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004),
or
(e) a person born in the island of Ireland—
(i) neither of whose parents was at the time of the person’s birth—
(I) an Irish citizen or entitled to be an Irish citizen,
(II) a British citizen,
(III) a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004), or
(IV) a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,
and
(ii) at least one of whose parents was at that time entitled to diplomatic immunity in the State.
(3) In this section ‘British citizen’ means a citizen of the United Kingdom of Great Britain and Northern Ireland.
6B.—(1) Where a parent of a person to whom section 6A (inserted by section 4 of the Irish Nationality and Citizenship Act 2004) applies dies before the person’s birth, the period commencing on the date of the parent’s death and expiring on the date of the person’s birth shall be reckonable for the purposes of calculating a period of residence in the island of Ireland under that section, if—
(a) the parent was, immediately before his or her death, residing in the island of Ireland, and
(b) the period in respect of which he or she was, immediately before his or her death, resident in the island of Ireland is reckonable for the purposes of that section.
(2) Where a national of—
(a) a Member State (other than the United Kingdom of Great Britain and Northern Ireland),
(b) a state (other than a Member State) that is a contracting party to the EEA Agreement, or
(c) the Swiss Confederation,
makes a declaration in such manner as may be prescribed that he or she has resided in the island of Ireland for such period as is stated in that declaration, he or she shall, for the purposes of section 6A, be regarded as having been resident in the island of Ireland—
(i) for that period, if during the entire of that period he or she was a national of a Member State, an EEA state or the Swiss Confederation, or
(ii) if he or she was such a national for part only of that period, for that part of the period,
unless the contrary is proved.
(3) (a) If a person who is the guardian of, or in loco parentis to, a person (in this paragraph referred to as the ‘second-mentioned person’) who—
(i) has not attained the age of 18 years, and
(ii) is the child of a person (in this paragraph referred to as the ‘parent’) who was, at the time of the second-mentioned person’s birth, a national of a state referred to in subsection (2),
makes a declaration in such manner as may be prescribed that the parent resided in the island of Ireland for such period as is specified in that declaration, the parent shall, for the purposes of section 6A, be regarded as having been resident in the island of Ireland—
(I) for that period, if during the entire of that period he or she was a national of a Member State, an EEA state or the Swiss Confederation, or
(II) if he or she was such a national for part only of that period, for that part of the period,
unless the contrary is proved.
(b) If a person who is duly authorised to act on behalf of a person (in this paragraph referred to as the ‘second-mentioned person’) who—
(i) is suffering from a mental incapacity, and
(ii) is the child of a person (in this paragraph referred to as the ‘parent’) who was, at the time of the second-mentioned person’s birth, a national of a state referred to in subsection (2),
makes a declaration in such manner as may be prescribed that the parent resided in the island of Ireland for such period as is specified in that declaration, the parent shall, for the purposes of section 6A, be regarded as having been resident in the island of Ireland—
(I) for that period, if during the entire of that period he or she was a national of a Member State, an EEA state or the Swiss Confederation, or
(II) if he or she was such a national for part only of that period, for that part of the period,
unless the contrary is proved.
(c) If a person (in this paragraph referred to as the ‘declarant’) who—
(i) has attained the age of 18 years, and
(ii) is the child of a person (in this paragraph referred to as the ‘parent’) who was, at the time of the declarant’s birth, a national of a state referred to in subsection (2),
makes a declaration in such manner as may be prescribed that the parent resided in the island of Ireland for such period as is stated in that declaration, the parent shall, for the purposes of section 6A, be regarded as having been resident in the island of Ireland—
(I) for that period, if during the entire of that period he or she was a national of a Member State, an EEA state or the Swiss Confederation, or
(II) if he or she was such a national for part only of that period, for that part of the period,
unless the contrary is proved.
(4) A period of residence in the State shall not be reckonable for the purposes of calculating a period of residence under section 6A if—
(a) it is in contravention of section 5(1) of the Act of 2004,
(b) it is in accordance with a permission given to a person under section 4 of the Act of 2004 for the purpose of enabling him or her to engage in a course of education or study in the State, or
(c) it consists of a period during which a person (other than a person who was, during that period, a national of a Member State, an EEA state or the Swiss Confederation) referred to in subsection (2) of section 9 (amended by section 7(c)(i) of the Act of 2003) of the Act of 1996 is entitled to remain in the State in accordance only with the said subsection.
(5) A period of residence in Northern Ireland shall not be reckonable for the purposes of calculating a period of residence under section 6A—
(a) if—
(i) the person concerned is not during the entire of that period a national of a Member State, an EEA state or the Swiss Confederation, and
(ii) the residence of the person concerned in Northern Ireland during that period is not lawful under the law of Northern Ireland,
or
(b) if the entitlement of the person concerned to reside in Northern Ireland during that period is subject to a condition that is the same as or similar to a condition which, if applicable in respect of an entitlement to reside in the State, would, by virtue of subsection (4), render a period of residence in the State pursuant to such an entitlement not reckonable for the purposes of calculating a period of residence under the said section 6A.
(6) A declaration referred to in subsection (2) or (3) shall be accompanied by such verifying documents (if any) as may be prescribed.”.