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Anyone born on the island of Ireland is entitled to Irish citizenship. That right was enshrined in the 1956 Irish Nationality and Citizenship Act. Since December 1999, under Articles 2 and 3 of the Irish Constitution, that entitlement has been a Constitutional one and may only be removed by a Constitutional referendum.
A person whose father or mother was an Irish citizen at the time of his or her birth is also an Irish citizen from birth. A person whose grandparent was born in Ireland may become an Irish citizen by registering in the Foreign Births Register at an Irish embassy or consular office, or at the Department of Foreign Affairs in Dublin.
A person whose great-grandparent was born in Ireland may register for Irish citizenship, provided that the applicant's parent had registered in the Foreign Births Register before the person's birth.
A non-national who marries an Irish citizen in any of these categories may claim post-nuptial Irish citizenship by lodging a declaration three years or more after the marriage (or three years after the date when the applicant's spouse became an Irish citizen through registration in the Foreign Births Register, whichever is the later).
The Irish Nationality and Citizenship Act was amended in 1986 to give the Minister for Justice discretion to grant a certificate of naturalisation. The applicant has to fulfil certain requirements, including having lived for at least five of the previous nine years in the State. The Act allows the minister to dispense with the conditions in certain circumstances.
What is the status of non-nationals who stay in Ireland with their Irish-born children?
There are no specific laws about the rights of residence of foreign parents of an Irish-born child. The non-national parents of such a child do not have a legal right to Irish citizenship. The case law in this area was set out by the Supreme Court in the Fajujonu case in 1990. The Court found that an Irish-born child had the right to the company of its non-national parents, and that such parents had a strong claim to be allowed to stay in the State.
Non-EU parents of a child born in the Republic of Ireland or Northern Ireland must apply to the Minister for Justice if they wish to live in the State. The minister must consider the principles in the Fajujonu judgement in making his decision. If permission is granted, the parents must register with the Garda Siochana (police).
The minister can review his decision if the applicant is not living with the child as part of a family unit and ceases to play a significant role in the upbringing of the child. The minister might also review the permission to remain if he decides that the common good and the protection of the State and society justify interference with the parent's Constitutional family rights.
Who can apply for Irish citizenship?
Any non-national can apply for Irish citizenship, whether or not he or she is the parent of an Irish-born child. The acquisition of Irish citizenship is not directly related to parentage of an Irish-born child.
Are children born in Ireland automatically entitled to be citizens?
Yes. The entitlement to Irish citizenship is not related to the constitutional position of the family, but to the constitutional entitlements of a child born on the island of Ireland.
This feature of Irish citizenship law is unique in the European Union. The citizenship of a child born in other EU member states is generally dependent on the citizenship of the parents, or on the status and length of their residence in the state concerned.
Where a person applies for residency in Ireland on the sole basis of parentage of an Irish-born child, the Department of Justice will make enquiries to find out whether that person is living as part of a family with that child. If that condition is satisfied, the person will have a strong claim to be allowed to stay in the State (in line with the Fajujonu judgment).
Where the person is not living with the child as part of a family unit, the Department enquires whether the applicant plays a significant role in the child's upbringing. The type of evidence required would include evidence of regular contact with the child (including access orders, joint custody orders, guardianship orders or joint guardianship declarations) and may also include evidence that the person is maintaining the child. Any such evidence would indicate that the person's presence in the State would be in the interests of the child.
There must be stronger grounds than a mere biological link to satisfy the requirements set out by the Supreme Court in the Fajujonu case.
In March 2002, the High Court ruled that the minister was entitled to deport parents of a child born in Ireland, even where that could result in the Irish-born child being removed from the State. This confirmed the minister's obligation to maintain an immigration system in accordance with previous decisions of the Supreme Court, in particular in Fajujonu and the decision on the Illegal Immigrants Trafficking Bill 2000.
The Court said the rights of non-national parents who gave birth to a child in Ireland, the rights of a family predominantly comprising non-nationals which includes an Irish-born child and the right and obligation of parliament and the minister to control immigration must all be examined in each case. An Irish-born child has a right to live in Ireland, and the right to the care and protection of his or her parents, but may not always be entitled to exercise both rights simultaneously.
Can a non-national with an Irish-born child live in another EU country?
Non-EU nationals who are given permission to remain in Ireland as the parents of an Irish-born child do not have rights of residence in other EU countries, though they might be allowed to reside in EU countries when the child becomes an adult.
Citizens of EU states enjoy extensive rights of residence under the EU Treaty and a series of Directives and Regulations. Persons covered include workers, business and self-employed persons, providers and recipients of services, self-sufficient persons, retired persons and students.
EU nationals who exercise such rights may also be joined by certain family members, even if those family members include non-EEA nationals. For example, an Irish citizen worker who is exercising EU Treaty rights in another EU state has the right to be joined by his or her parents where the parents are dependent on that worker. This applies whether or not the parents are EU nationals.
Can a non-national come from the UK to Ireland, have a baby then return to the UK without having entered the asylum process in Ireland and then apply for status for their child while living in the UK?
Every child born on the island of Ireland is entitled to Irish citizenship irrespective of where the child lives. Such a child cannot be subjected to immigration control on arrival in the State. While the child enjoys an automatic entitlement to reside in the State, non-EU national parents do not enjoy that automatic entitlement just by virtue of their biological links with the child. However, it would be open to either parent to apply to the minister to enter and stay in the State on the basis of parentage of an Irish-born child.
Can a pregnant asylum-seeker attempting to enter Ireland be turned away by an immigration officer?
Irish law requires that every asylum applicant be allowed to enter the State.
02 Jul 2018
04 Apr 2018