Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018

First Stage: 21 Nov 2018
Oireachtas Link:

Bill entitled an Act to amend the law in relation to applications for a certificate of naturalisation by minors born in the island of Ireland; and to provide for related matters.

Ivana's Contributions

Second Stage: 21/11/2018

Senator Ivana Bacik

I move: "That the Bill be now read a Second Time."

I welcome the Minister of State, Deputy Stanton, to the House. I also welcome our guests arriving in the Gallery from the Migrant Rights Centre Ireland and the Immigrant Council of Ireland to hear this important debate.

On behalf of my Labour Party colleagues, Senators Ó Ríordáin, Humphreys and Nash, I move this important and sensible Bill that seeks to regularise the position of the small number of children living in Ireland who were born here and who have been resident here throughout their lives but face an uncertain legal future and, in some cases, the threat of deportation. The situation of the children has been highlighted recently in a number of cases, notably with the threatened deportation of a young nine-year-old boy, Eric Zhi Ying Xue, from Bray who was born in Ireland and who is in fourth class in St. Cronan's national school. I will speak a little more about that case, which has been widely publicised and written about.

Our Bill would regularise the position of young children such as Eric. It would not restore an automatic right to birthright citizenship. It would not go back to the position prior to 2004. This is because we are conscious a referendum was passed in 2004 to remove birthright citizenship, in other words entitlement to citizenship upon birth. That referendum was opposed by the Labour Party and I am very proud of the stance my party took in 2004. We predicted that the passage of the referendum would lead to the type of cases we are seeing arise. We also opposed the referendum on the basis there was no evidence whatsoever it was necessary and because it was in breach of our commitments under the Good Friday Agreement, as a result of which Article 2 of the Constitution was amended to declare it is the entitlement of every person born on the island of Ireland to be part of the Irish nation.

Prior to the Good Friday Agreement being put to the people, the Labour Party specifically asked that no legislation be proposed by the Government to impose restrictions on the entitlement to Irish nationality and citizenship of persons born in Ireland. Notwithstanding the Government's commitment, in 2004 we saw a referendum put to the people. There was certain proffering of no more than anecdotal evidence at best, and certainly no substantial evidence was offered, as to why such a referendum was necessary to remove an automatic birthright entitlement to citizenship. That referendum is best described as opportunistic. Having said that, it was passed and we are not seeking to change the situation or restore it to what it was prior to 2004. Rather, we seek to make a sensible, compassionate and relatively moderate change to address the key situation of injustice for those children born in Ireland who have lived here for a substantial period of time or for all of their lives and who still face deportation because of the referendum.

The referendum was implemented through the Irish Nationality and Citizenship Act 2004. However, that was not the only legislation that could have been passed, and it is important to point out to colleagues the constitutional referendum in 2004 was to insert a new Article 9.2°. This Article enables the Oireachtas expressly to legislate for citizenship. The effect of the referendum was not to deny for all time a right to birthright citizenship or birthright plus residence but rather to enable and empower the Oireachtas to legislate on it. The entitlement to legislate is what we seek to use in the Bill. Clearly, we do not need a referendum to regularise the position of the small number of children who have been most egregiously affected by the change in the law in 2004.

The other point about the 2004 law was that prior to the passage of the referendum the Minister already had the power to deport the non-national parents of Irish-born children even where those children were Irish citizens. The change to the law simply meant that in future the children could also be deported. Subsequent to this we passed a children's rights referendum, and it is in the spirit of the children's rights referendum and our obligations under international children's rights measures that we are putting forward the Bill.

All of us in the House are conscious that deportations can take place legally in Ireland but they tend to take place at the end of a lengthy asylum application process. Our processes have been very lengthy to date. The processes can take years to determine in which a child may be born, raised and educated here. The Bill seeks to regularise the situation and build on the entitlement of the Oireachtas to legislate under the Article 9.2° provision inserted to the Constitution in 2004. It would make three simple changes to our existing naturalisation law. It is not a fundamental change. Normally, someone applying for naturalisation must have a period of one year's continuous residence in the State immediately before the date of application plus a total residence of four of the eight immediately preceding years. The Bill would reduce this requirement, recognising we are speaking about children, and change the four year requirement to two years. Effectively, it would require three years' residency for an Irish-born child to be able to apply for citizenship. The Bill would also enable a child to apply irrespective of their parents' legal status. In calculating the period of residence the Bill would waive the requirement that the parent or child would have had permission to remain during the period of residence in the case of an Irish-born child. The Bill represents a sensible and compassionate approach to regularising the position of Irish-born children who have spent years of their childhood resident in this country but who face an uncertain future and, in some cases, the threat of deportation.

The principles behind the Bill have public support. Of course, we are open to amending it were the Government to agree not to oppose it on Second Stage. Recently we have had very successful collaborations with Departments where Labour Party Bills have not been opposed on Second Stage and were subject to amendment subsequently. We know there is public support for change of this nature. In the most recent edition of The Sunday Times, a Behaviour and Attitudes poll showed that 71% of the people believe those born in Ireland should be entitled to citizenship.

I was very disappointed to learn today through the media that the Government proposes to oppose this Bill and not allow it to go through to Committee Stage. It is particularly disappointing because in recent months we have seen individual Fine Gael Ministers, including the Minister for Health, Deputy Harris, from the Wicklow constituency of Eric Zhi Ying Xue, intervene with the Minister for Justice and Equality seeking permission to remain for their constituents on a discretionary, humanitarian leave to remain basis. We do not believe it is good enough that individual Ministers are seeking to get around or ameliorate the effects of the 2004 referendum for children living in their constituencies in respect of whom a campaign is being waged by their school, community or family. It is simply not good enough that children in this very precarious and vulnerable situation would be subject to an ad hoc system of discretionary leave to remain.

The Government’s statement on this, which was not provided to me but which I learned of through the media, refers to the current discretionary system being adequate. It is not and I do not think the people in the Gallery would accept it is adequate that children would face a discretionary system of entitlement to remain.

It is also a disappointing response from the Government considering that it, and indeed successive Governments, have always fought for the rights of undocumented Irish people living in America.

Senator Ivana Bacik

Senator Billy Lawless has been a proud champion of the rights of the Irish in America over many years, and I am proud that he is here to support our Bill because it is utterly consistent with Government policy in respect of our own migrants for many generations.

I am conscious, and I know the Minister will be also, that there are at least two cases currently before the courts on the issue of children’s right to remain in Ireland. They have been born and, through no fault of their own, have grown up and been resident here and yet still face deportation. Therefore, we know these cases are causing legal as well as human problems. That is another reason we say the Government should agree to this Bill on Second Stage and work with us on workable amendments, if it believes it can be improved on, to ensure we see a better legal system in place for these children and their families.

The Government suggests also that a Bill such as this would mean we would be out of line with other EU countries. I take strong issue with that. I am grateful to the Migrant Rights Centre Ireland for its briefing, which I have circulated to all colleagues, along with our own briefing. The Migrant Rights Centre Ireland points out that in 24 of 27 EU member states have regularisation programmes to enable remediation of the situation of children who are undocumented. In Luxembourg, for instance, it is where a child has completed at least four years of compulsory schooling while in many other countries it is a stated number of years in school and-or proof of residency over that period. These sorts of mechanisms are commonplace in other EU countries. In Ireland, we were out of line with other EU countries for many years in failing to provide asylum seekers with the right to work.

We have been held up internationally on that basis. I am very glad the Government has moved on that and I pay tribute to the work done by the Minister previously as Chairman of the Joint Committee on Justice and Equality on which Senator Conway and I had the pleasure of serving for some years. In that capacity, the Minister was very conscious to ensure the rights of persons here in direct provision and to ensure improvements to and reforms in our immigration system. I know the system is being made more efficient and more effective and we are seeing fewer incidents of the long delays we have seen in the past. That should also offer the Government a strong incentive not to oppose this Bill and work with us in bringing forward similar legislation because it clearly is a strong incentive to Government to ensure a fair, efficient and effective process whereby children will not languish in an uncertain legal situation for many years while asylum applications are being processed through a lengthy system.

I urge the Minister and colleagues on both sides of the House to support this important legislation.