“We, the people of Eire…[d]o hereby adopt, enact, and give to ourselves this constitution.” (Preamble, Bunreacht Na hÉireann 1937)
The question of who belongs to the nation is perhaps the most significant aspect of any constitution. The constitution is a people’s document; or as best articulated by Thomas Paine, “[t]he constitution of a country is not the act of its government, but of the people constituting its government”. This is evidenced by an important feature of most written constitutions; a preamble which usually begins by proclaiming “we the people”. In defining “the people”, most constitutions will provide a provision indicating how one becomes part of that nation, or give authority to parliament to legislate to that effect. Where the constitution provides no provision, it is left to the judicial arm of the state to provide a means.
Indeed, international law mandates that individual states clarify who their citizens are as an exercise of state sovereignty. The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws is unequivocally clear on this: “[i]t is for each State to determine under its own law who are its nationals.” Take Ireland for example. The framers of the Irish Constitution were explicit in what they envisaged for Ireland as a nation. Ireland is a sovereign nation, “free to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions”. Its people includes, “every person born in the island of Ireland, which includes its islands and seas…[and] all persons otherwise qualified in accordance with law to be citizens of Ireland”. Its territory is shared with the people of Northern Ireland, but the constitution also recognises the harmonious unity of “all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions”. In defining its people, the Irish constitution makes it explicitly clear in its Article 2 that two groups of people are “part of the Irish Nation”: every person born in the island of Ireland, and; those qualified to be citizens of Ireland.
This had not always been the definition of the people as prescribed in the original text of the Constitution. Indeed, the Irish constitution has undergone substantial amendments, considering the changing Irish demographic landscape.
Between 1922 and 1935, acquiring citizenship of the Irish Free State was a constitutional right. Everyone living in the territory of the Irish Free State pre-1922, anyone born in Ireland, anyone with an Irish parent, and anyone ordinarily resident in the territory of the Irish Free State for at least seven years was entitled to become an Irish Free State citizen.
In 1937 when the 1922 Irish Constitution was replaced by the current one, the acquisition and loss of citizenship was placed in the hands of the Oireachtas, with the original Article 9(2) of the 1937 Constitution stating that “[t]he future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law”.
Following the 1998 Belfast Agreement, the 1937 Constitution was amended to recognise the birthright entitlement to citizenship. This entitlement, reflecting the jus soli (citizenship by birth) principle, was intended to enable people in Northern Ireland to identify themselves as Irish, or British, or both. However, concerns of birth tourism quickly removed such entitlement through the 2004 citizenship referendum.
Irish citizenship, since 2005, can therefore be acquired at birth, if one of the parents has Irish citizenship, or by descent (jus sanguinis), if anyone with an Irish citizen grandparent born on the island of Ireland is eligible for Irish citizenship. These are what may be referred to as “citizenship by right” where one may become a citizen as a right, either by birth or by descent, as stipulated in Article 2 and 9 of the Irish Constitution and under s. 6 of the Act of 1956. People in this category automatically become “part of the Irish Nation”, in accordance with Article 2 of the Irish Constitution.
Bheith Eireannach – becoming Irish – is a constitutional entitlement. Being born in the island of Ireland (including Northern Ireland), entitles one to be a national of Ireland, and by definition, “part of the Irish Nation”. Those who acquire Irish nationality in this manner may be categorised, as originally stated in the Act of 1935, as “natural born citizens”, to be distinguished from other citizens who obtain citizenship “in accordance with law”. The law in question are those provisions contained within the Irish Nationality and Citizenship Act, 1956. In particular, those not entitled to Irish citizenship as of right can be awarded citizenship as of privilege. That is, the award of citizenship after having satisfied specified requirements under different processes for the attainment of same: “[a]s you know there is no automatic right to Irish citizenship...Irish citizenship is therefore earned and decided upon in accordance with what is set down in law”. (Minister Frances Fitzgerald TD, Minister for Justice and Equality, speaking at her first naturalisation ceremony in 2014).
This privilege is divided into two acquisition processes; citizenship by gift and citizenship by naturalisation. As a first, “citizenship by marriage” may be classified as a gift, because the marital bond between a foreign national and an Irish citizen has the ability to circumvent some of the legal requirements of naturalisation for the foreign national. The marriage gifts upon the foreign national certain waived naturalisation requirements that allow quicker access to citizenship. For example, only three years of a reckonable period of residency is required, as opposed to the normal five-year requirement.
The second citizenship acquisition method classified as a gift is the power of the President of Ireland, under s. 12(1) of the Act of 1956, to quite literally gift citizenship to whomever, under the advisement of the Government, he sees fit: “[t]he President may grant Irish citizenship as a token of honour to a person or to the child or grandchild of a person who, in the opinion of the Government, has done signal honour or rendered distinguished service to the nation”. Citizenship by gift is therefore a rare occurrence and is not a process which may readily be pursued by foreign-nationals wishing to become “part of the Irish Nation”. The more appropriate process is to apply for citizenship by way of naturalisation.
Naturalisation is a process that transforms the immigrant, alien, outsider and stranger into a political member of society – a citizen. Once they become a citizen, Article 2 of the Irish Constitution informs that they are automatically “part of the Irish Nation”. Once the individual has been naturalised, s/he must be perceived and treated in the same manner as those who are “natural-born”: the rights, privileges and responsibilities of a “natural-born” citizen are equally bestowed upon the naturalised citizen.
However, citizens who obtain citizenship by privilege are at risk of losing their citizenship, a threat that citizens who obtained their citizenship by right are immune from. In this regard, naturalised citizens cannot be regarded as full and equal citizens, so long as there exist grounds for loss of citizenship. Indeed, it can be surmised that only those with blood affinity to the nation can be construed as being “part of the Irish Nation”. Those naturalised citizens are also “part of the Irish Nation”, but unlike their “natural born” counterparts, their membership is not absolute.
Bashir Otukoya is a PhD student in the UCD Sutherland School of Law, and also in the UCD School of Politics & International Relations. He holds a BAL, an LLB, as well as an LLM in Public Law. His current research focuses on citizenship, in particular, exploring the politico-legal process of becoming an Irish citizen (by naturalisation), and its influence on the sociological idea of being Irish.