The Department of Health has insisted there is no anomaly in the Covid-19 regulations but accepts there could be an issue with people from Northern Ireland travelling to their holiday homes.
The regulations were brought in to restrict people's movements and prevent the spread of Covid-19.
Earlier, Garda Headquarters informed senior officers all over the country that the restrictions on movement to stop the spread of the coronavirus do not apply to people on day trips from Northern Ireland and that powers of enforcement cannot be used on them.
Gardaí in the border region have also been ordered not to arrest anyone from Northern Ireland for suspected breaches of the Covid-19 regulations because they do not have the power to do so under the emergency legislation introduced by the Government.
RTÉ News has learned that there is a lacuna in the regulations signed by the Minister for Health which gardaí have been told means they do not apply to people who live outside the State.
The Garda's policing policy to stop the spread of the coronavirus has been to engage, explain, encourage and only if necessary enforce the emergency legislation.
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However enforcement is now no longer an option for people from Northern Ireland or others who live outside the State who may travel more than 2kms from their homes to walk on the beaches or shop in this country.
The regulations signed by the Minister for Health just before the Easter weekend state that the restrictions on movement apply to people "whose place of residence is located within a relevant geographical location" and that a place of residence means "a person's home".
A senior officer serving on the border noticed earlier this week that people from Northern Ireland or outside the State do not live in a geographical location to which Irish law can apply and sought clarification from Garda Headquarters.
Garda Headquarters recognised there was a lacuna in the legislation and consequently informed senior garda management all over the country that the Covid-19 regulations do not apply to people who live in Northern Ireland when making day trips to the Republic of Ireland.
However the Garda Commissioner said that if a person from the North comes to a holiday home here, then that becomes their place of residence and the legislation applies.
Senior officers in the border region have now ordered gardaí not to arrest people from outside the State including people from Northern Ireland.
One officer told gardaí, sergeants and inspectors in his area of responsibility that these people "are not open to arrest for breaches of these regulations" and that "under no circumstances does a member have the legal authority to arrest a person not ordinarily resident in this jurisdiction for a breach of the Health Act 1947 (Section 31A of the Temporary restrictions Covid 19 regulations 2020)".
The senior officer conceded that the situation was "less than ideal" and although "clarification from the Department of Justice is awaited" "at the time of the reporting there is no movement" to address the anomaly in the legislation.
Garda Headquarters said this evening it does not comment on legal advice it receives on specific issues nor on consultation with Government Departments on relevant legislation.
However, it said it urges everyone resident or visiting this State to adhere to the public health guidelines to protect themselves and others from Covid-19.
It also points out there is a wide range of other legislation available to gardaí and that people visiting the State, even temporarily, are amenable to such criminal laws of this State during their time here.
The Department of Health has insisted there is no anomaly with the regulations.
It accepts however that an issue could arise where someone from the North was travelling to their temporary residence but said the department was always aware of that issue and points out there is also movement restrictions in Northern Ireland.