Section 6A Citizenship

    More than a decade after the enactment of the Irish Nationality and Citizenship Act 2004, in which new criteria were established for entitlement to Irish citizenship at birth, some immigrant parents are still finding obstacles in their path when they seek to assert that right on behalf of their eligible child.

    Under Section 6A(1) of the Irish Nationality and Citizenship Act 1956 (as amended), a child born in Ireland to parents who are neither Irish nor British citizens is entitled to Irish citizenship if at least one parent (hereinafter the “qualifying parent”) has been lawfully resident in Ireland for three of the previous four years. The entitlement to Irish citizenship must be asserted by presenting at the Passport Office with evidence of the qualifying parent’s three years of lawful residency. In some cases, we have seen children refused a passport because the Passport Officer was unaware of Section 6A, or was unaware of the Supreme Court decision in Sulaimon (A Minor) v Minister for Justice, Equality and Law Reform - a case brought by Ángel Bello Cortés of KOD Lyons - which dealt with the evidence required to establish residency for the purpose of Section 6A(1).

    We have also seen several cases where the relationship between the parents has broken down and the qualifying parent is unwilling to provide this evidence. This will create further difficulties if the other parent has an insecure status and wants to apply for residence as the parent of an Irish citizen child, as the Irish Naturalisation and Immigration Service will not process such applications without a copy of the child’s Irish passport. While the non-qualifying parent may have recourse to the courts in such cases, this is a difficult step and one that many parents are reluctant to take - particularly if they have not separated from the other parent. We are aware of at least one case in which the mother of an Irish citizen child was unable to regularise her status for more than a year after the child’s birth because of her abusive husband’s refusal to provide the evidence of his three years of residency.

    Section 28 of the same Act states that “Any person who claims to be an Irish citizen, other than a naturalised Irish citizen, may apply to the Minister [for Justice and Equality] … for a certificate of nationality stating that the applicant is, at the date of the certificate, an Irish citizen”. However, the Department of Justice and Equality has told us that it will not issue such a Certificate without written evidence that a passport has been refused. The reason for this is the Department’s view that determination of a child’s entitlement to Irish citizenship is first and foremost a matter for the Passport Office. Incongruously, however,  we have also seen cases where the Department has refused to accept a child’s Irish passport as proof of the child’s Irish citizenship.

    The 2004 Act, like the referendum that enabled it, was intended to reduce the number of Irish-born children entitled to Irish citizenship. An unfortunate but inevitable consequence of this is that children entitled to Irish citizenship because of Section 6A(1) face hurdles to establish their eligibility that are not faced by the children of Irish and British citizens. But the Departments responsible should be doing all they can to minimise these hurdles.  When unnecessary barriers are placed in the way of these children’s access to Irish passports, the effect on them is discriminatory: they are treated less favourably than other Irish citizen children. This is unacceptable whether the barrier is created by administrative procedures and practices, or by state officials’ misunderstandings of the law.

    Wendy Lyon is a solicitor in our Immigration and Asylum department.

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