Legislation concerning the citizenship rights of foreign nationals who marry Irish people is open to challenge on a number of fronts, writes Alan Shatter.
The acquisition of Irish citizenship by children born in this State to foreign parents has been the subject of controversy over the past two years. However, there has been no public debate about the dramatic changes made to our citizenship laws which affect foreign spouses of Irish citizens and their entitlement to claim post-nuptial Irish citizenship, ie Irish citizenship as a result of marriage.
Under the Irish Nationality and Citizenship Act, 1986, a foreign national who marries an Irish citizen can acquire Irish citizenship three years after the date of marriage. This is done by the lodgement of a declaration with the Minister for Justice or with any Irish diplomatic mission or consular office "accepting" Irish citizenship as post-nuptial citizenship.
Such automatic acquisition of Irish citizenship is dependent on the marriage still subsisting at the date of the declaration and the spouse who is an Irish citizen confirming by affidavit that the couple "are living together as husband and wife".
In the four-year period between 2000 and 2003, 6,259 spouses so acquired Irish citizenship and a further 1,622 acquired citizenship in this way during the first eight months of 2004.
Fundamental changes were made to the law relating to post-nuptial citizenship by the Irish Nationality and Citizenship Act, 2001. These came into effect on November 30th, 2002. However, the new rules now applicable to all foreign nationals who married Irish citizens on or after November 30th, 2002, do not apply to couples who married prior to that date until November 30th, 2005.
As a consequence, any foreign national married to an Irish citizen before November 30th, 2002, and who has not yet "accepted" Irish citizenship, has approximately 3½ months to do so under the simple procedures prescribed by the 1986 Act.
The law applicable to couples who married on or after November 30th, 2002, no longer allows a foreign spouse married to an Irish citizen to automatically acquire Irish citizenship. The 2001 Act confers on the Minister for Justice an entitlement to determine post-nuptial citizenship applications in his "absolute discretion". Moreover, the Act requires that the couple must not only be married for at least three years and be still living together as husband and wife, but also requires that the person seeking citizenship:
(i) had immediately before the date of the application a period of one year's continuous residence on the island of Ireland; and
(ii) had, during the four years immediately preceding that period, a total residence in Ireland amounting to two years.
In addition, the Minister must be satisfied that the applicant spouse "intends in good faith to reside in the island of Ireland after naturalisation". Under the 1986 Act, no requirement was imposed on a foreign spouse seeking post-nuptial citizenship to reside in Ireland for any specific period either prior to or after "accepting" Irish citizenship.
As a consequence of these changes, it is likely that there will in future be fewer foreign spouses married to Irish citizens able to obtain post-nuptial Irish citizenship. Some of the difficulties that are likely to occur as a result of the coming into operation of the 2001 Act were anticipated in the Nationality and Citizenship Act, 2004, enacted last December 15th. It prescribes that any period of residence outside the island of Ireland by a foreign national married to an Irish citizen where the latter is "in the public service" and "the couple are residing together" shall be reckoned as a period of residence in the island of Ireland.
This provision is designed to ensure that citizenship applications by foreign spouses of Irish civil servants and those working for State agencies are not affected by any public service foreign posting.
Irish multinational companies are doing business not only within EU states but also on a global scale, and it is in the economic interests of this State that our economy continues to grow and prosper and that we maximise our exports. It is difficult to understand why we should require that foreign spouses of Irish business men and women working abroad not only reside in this State for a period of time prior to acquiring Irish citizenship, but also require that they satisfy the Minister for Justice that they have an intention to "continue to reside in the island of Ireland after Irish citizenship has been granted to them".
As the 2004 Act allows the Minister for Justice to revoke a certificate of nationality if satisfied that the issue of the certificate was obtained by "fraud, misrepresentation (including innocent misrepresentation) or failure to disclose material information", it seems that if such a spouse acquires post-nuptial citizenship under the 2001 Act and then, within a short period, resides abroad for business or other reasons, the post-nuptial citizenship granted may be revoked.
The unnecessarily complex residential requirements applied to post-nuptial citizenship by the 2001 Act are open to challenge as being discriminatory as between foreign spouses of public servants and foreign spouses of others in violation of both the Constitution and the European Convention on Human Rights.
This law is also open to challenge under EU provisions which envisage the free movement of people within member states and which do not countenance any penalties being imposed by any member state on an EU national who obtains employment or establishes a business in another member state.
In this context, the validity of a law which denies to the foreign spouse of an Irish citizen an entitlement to seek post-nuptial citizenship or which poses a threat of revocation of post-nuptial citizenship after it has been obtained is clearly questionable.
Husbands or wives who qualify for post-nuptial Irish citizenship because they married before November 30th, 2002, and who wish to obtain an Irish passport are best advised to "accept" such citizenship under the procedures prescribed by the 1986 Act without delay, to avoid becoming embroiled in the unnecessary complexities created by the new legislation.
Alan Shatter is a partner in the firm Gallagher Shatter Solicitors and a consultant on family law. He is the author of Shatter's Family Law and a former Fine Gael TD.