Background Information on the Citizenship Referendum

The booklet issued by the Referendum Commission is being sent to all households in the country.  It contains the Commission's definitive statement of the meaning of the proposal in the referendum.  In this section, we answer a number of questions which voters have raised.

The wording in the answers is as plain and simple as possible.  This sometimes means that each individual answer, while correct, does not cover all aspects of the question.  For example,

·    the phrase "born in Ireland" includes born in Northern Ireland

·    the phrase "is an Irish citizen" includes "is entitled to be an Irish citizen"


What are we being asked in the referendum?

You are being asked if you wish to add new wording to Article 9 of the Constitution.

There are two articles n the Constitution dealing with citizenship.  Article 2 of the Constitution states:

"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."

At present, Article 9 of the Constitution states as follows:

1.          1° On the coming into operation of this Constitution any person

who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.

2° The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

3°  No person shall be excluded from Irish nationality and citizenship by reason of the sex of such person.


2.    Fidelity to the nation and loyalty to the State are fundamental

political duties of all citizens.

 
If the majority of the people vote Yes, then the new Article 9 will be as

follows:

1.          1° On the coming into operation of this Constitution any person

who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.

2° The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.

3° No person shall be excluded from Irish nationality and citizenship by reason of the sex of such person.


2.    1° Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.

  2° This section shall not apply to persons born before the date of the enactment of this section.


3.    Fidelity to the nation and loyalty to the State are fundamental

political duties of all citizens.

The new sections are shown above in bold and italics.

If this proposal is not passed, what will it mean for people born in Ireland?

If a majority vote NO to this proposal, the Constitution will not be changed and the present wording will remain as set out above. This will mean that any person born in the island of Ireland will continue to have a constitutional right to be an Irish citizen. It will not be possible to introduce a law restricting that right.

If this proposal is passed, what will it mean for people born in Ireland?

 

First of all, it will not affect people who are already born and are Irish citizens.  It will affect certain people born in Ireland after it comes into effect. The next question explains when it will come into effect if it is passed.


At present, everyone born in Ireland is entitled to be an Irish citizen.

This entitlement is provided by the Constitution and by law. If the referendum proposal is passed, then people born in Ireland will have a constitutional right to be an Irish citizen only if, at the time of their birth, one of their parents was an Irish citizen.

It will also mean that new laws may be passed which will set out how people born in Ireland who do not have an Irish parent may become entitled to be Irish citizens.

If this proposal is passed, when will it come into effect?

It is not possible to be certain about this but, if the proposal is passed, the Constitution will not be changed for at least eight days after the referendum and probably more than that.

What happens is as follows:

The votes in the referendum are counted in each constituency on the day after the referendum and the results are reported to the referendum returning officer (the person in charge of the referendum). The returning officer then issues a provisional referendum certificate which states the result of the voting in all constituencies. This is formally published in Iris Oifigiúil. This is the official government gazette which is published twice a week and is available at http://www.irisoifigiuil.ie
 
Anyone whose name is on the electoral register is then entitled to challenge this provisional certificate. This right exists for seven days after the formal publication. It may be exercised by applying to the High Court. If there is no challenge within those seven days, the certificate becomes final. If it shows that the majority of votes cast were in favour of the proposal, the Bill which provided for the referendum is signed by the President and the Constitution is amended accordingly.
 

In this case, the Bill is called the Twenty-seventh Amendment of the Constitution Bill 2004. It has been passed by the Dáil and Seanad. It will be signed by the President only if a majority of the people vote in favour of the proposal in the referendum
 

The Constitution is changed when the President signs the Bill. After that, people born in Ireland who do not have at least one Irish parent will not have a constitutional right to be an Irish citizen.

 
The change in the Constitution will not result in an immediate change in the law. It will allow the law to be changed. It may take some time for any change in the law to be brought into effect. Everyone born in Ireland has a right under the law to be an Irish citizen and that will not change unless and until the law is changed.

The Constitution is more important than laws so why does the change in the Constitution not change the law?


It is true that the Constitution is superior to ordinary laws. That means that ordinary laws cannot be in conflict with the Constitution. In general, the Constitution sets out the general principles and the laws deal with the details.


The specific change to the Constitution which you are being asked to decide provides that the laws on entitlement to citizenship by birth may be changed. It does not provide that they must be changed. The government has announced its intention to ask the Oireachtas to change those laws if the proposal is passed. However, if the proposal is passed, the Government is not obliged to try to change the laws and the Oireachtas is not obliged to pass any changes the government proposes.

How are laws changed?

The Government (the Taoiseach and Ministers) put forward proposals to change the law in a particular area - the proposal is called a "Bill". The Bill is debated in the Dáil and Seanad. The TDs and Senators may propose amendments and these may or may not be agreed. (Senators have less power than TDs to change proposed laws) . If the Bill is agreed by the Dáil and Seanad, it is signed by the President. It is then called an Act.

The Dáil, Seanad and President are together known as the Oireachtas.

The length of time it takes to change laws ranges from one day to several years.

If the referendum proposal is passed, the Government intends to propose new legislation. If it does, it may take some time for any change in the law to be brought into effect.

Is it true that the Irish version of the Constitution is more important than the English version?

Yes.  The Constitution includes an article about this. Article 25.5.4° provides that, if  there is a conflict between the English and Irish language versions of the Constitution, the Irish text prevails.

The Irish text of the proposed changes is included in the Commission's booklet.

Who is entitled to be an Irish citizen at present?

The right to be an Irish citizen is governed by the Constitution and by law.

The Constitution

There are two groups who have a constitutional right to be Irish citizens.

You may be an Irish citizen because you were a citizen at the time the Constitution came into effect (29 December 1937).

You may be an Irish citizen if you were born in Ireland

 

The Law

The law provides that you may be an Irish citizen by birth, descent, marriage or naturalisation. It is also possible to be awarded honorary citizenship but that is rare.

Citizenship by Birth

Everyone born in Ireland and Northern Ireland is entitled to be an Irish citizen.  (Before 1999, people born in Northern Ireland had to fulfil certain formalities if they wished to be citizens of Ireland). This has been the case since 1922. This has been a constitutional right since 2 December 1999.  It has been a right set out in law since 1922. Between 1922 and 1999, the right could have been changed by law but since 1999, this has not been possible.
 
There are two groups who, even though they were born in Ireland, have to make a declaration in order to claim citizenship. These are:

·    children born in Ireland to non national diplomats

·    children born to a non-national in Irish sea or air space on a foreign ship or a foreign plane

Before December 1999, these two groups were generally not entitled to Irish citizenship.

Citizenship by Descent

Citizenship by descent means that you are a citizen because you inherit the right from a parent.
 
If, at the time of your birth, one of your parents is a citizen of Ireland, then you are also entitled to citizenship.  So, if you were born outside Ireland, you may be a citizen if:

·    one of your parents was an Irish citizen at the time of your birth

 
·    one of your grandparents was an Irish citizen and you register in the Foreign Births Register at the Department of Foreign Affairs or at an Irish Embassy or Consular office abroad.

 
·    one of your great grandparents was an Irish citizen and your parent (who was entitled as a grandchild) had registered for Irish citizenship before you were born. If your parent had registered before 31 December 1986, then you may become an Irish citizen even if you were born before the registration.
 
If you want more information on the Foreign Births Register, see http://foreignaffairs.gov.ie/home/index.aspx?id=267#for

Citizenship by Marriage

The rules about citizenship by marriage were changed in 2002 and the rules which apply to you depend on whether you were married before or after 30 November 2002.

Marriages before 30 November 2002

If you married an Irish citizen before 30 November 2002, you may make a

"post nuptial declaration" of Irish citizenship. The facility to do this

will end on 29 November 2005. After that, you must meet the new rules

about citizenship by marriage. You are entitled to make this post nuptial declaration if:


·    you married an Irish citizen before 30 November 2002 and your spouse was an Irish citizen before that date


·    your spouse did not acquire Irish citizenship through naturalisation or a post-nuptial declaration of citizenship


·    you have been married for at least three years

 
·    your marriage is valid and subsisting, and


·    you are living together as husband and wife at the time you make the declaration and your spouse swears an affidavit that this is so.
 

If you meet the conditions, you are entitled to Irish citizenship from the time you lodge this declaration.

Marriages on and after 30 November 2002

If you married an Irish citizen on or after 30 November 2002, you are entitled to citizenship only if you have lived for some time in Ireland and meet a number of other requirements. It is broadly similar to citizenship by naturalisation but it is easier to meet the residence requirements.

Among other things, this means that there is no absolute entitlement and the Minister for Justice, Equality and Law Reform has discretion to grant or refuse citizenship.

 

In order to become an Irish citizen by marriage, you must meet the following conditions:


·    You are married to the Irish citizen for at least 3 years


·    You are of good character


·    The marriage is recognised as a subsisting marriage under Irish law


·    You and your spouse are living together as husband and wife

 
·    You have been living on the island of Ireland continuously for a year prior to applying for citizenship


·    You were living on the island of Ireland for at least 2 of the previous 4 years


·    You intend to continue to live in Ireland


·    You make a declaration of fidelity and loyalty to the state.

The conditions relating to residence and duration of marriage may be waived if it is considered that you would suffer serious consequences in respect of bodily integrity or liberty because of not being granted Irish citizenship.

Citizenship by Naturalisation

You may also become an Irish citizen by "naturalisation".  To do this, you must apply to  the  Minister for Justice, Equality and Law Reform for a Certificate of Naturalisation. In order to get this you must fulfil a number of conditions ? you must

·    be legally an adult (that is, you must be aged 18 years or married),


·    be of good character (you usually have to supply a Garda report),


·    have lived in Ireland continuously for a year immediately before applying and for at least 4 of  the previous 8 years,

 
·    intend to continue to live here, and

 
·    make a declaration of  fidelity and loyalty

 
There are circumstances in which the Minister may grant a certificate where all the conditions are not met.


The granting of citizenship by naturalisation is at the absolute discretion of the Minister and he does not have to give reasons for a refusal.

Meeting the statutory requirements does not, in itself, give you a right to become a citizen.

 
Further information on citizenship, how to apply for citizenship by naturalisation, the costs involved and the documentation required is available at www justice.ie