Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018: Committee Stage Speech

I welcome the Minister. I want to first thank her for her very constructive engagement with me on this Bill, which I welcome. It is a very positive way to approach Private Members' legislation. I thank colleagues across the House for their support for the Bill. I will speak briefly about the history of the Bill and the reason we brought it forward.

The principal Act we are seeking to amend, as section 1 sets out, is the Irish Nationality and Citizenship Act 1956, so it is helpful at the outset of Committee Stage to refer back to the reason we are seeking to amend that principal Act in this legislation and to chart a way forward in keeping with that principal Act and the legislative framework set out in that Act as per section 1.

It was wonderful to get such support from across the House but we had support across the House before when we in the Labour Senators group brought this Bill forward on Second Stage in the Seanad on 21 November 2018, which was passed, and we had hoped then to make further progress with it.

We restored it to the Order Paper this summer and were indeed prompted to do so and to take further action on it in memory of our dear colleague and comrade, Cormac Ó Braonáin, who was chairperson of Labour Youth and who died very tragically almost exactly one year ago. He had been passionately exercised by the need for us to do more for the rights of children born here in Ireland and to secure a pathway to citizenship for those children. Cormac and I had many conversations about how we would make progress with this very Bill. We are bringing it forward in his memory and Labour Youth, led by Cian Kelly-Lyth and others, have instituted a great ‘Born Here Belong Here’ campaign seeking support from across the country for a more generous approach to citizenship laws. We are also very grateful for the great support we have received from NGOs working in this area, in particular the Migrant Rights Centre and Mairéad Mc Devitt who has been tirelessly campaigning on this in recent weeks and emailed just yesterday from the centre, including to Senators, a very helpful background briefing to help in this debate. The Immigrant Council of Ireland and Brian Killoran, Nasc and the Movement of Asylum Seekers in Ireland, MASI, are all very anxious to see some change in the law in this area.

One of the initial motivations for bringing the Bill forward in 2018 was the case of Eric Xue, the nine-year-old boy from Bray in County Wicklow who, colleagues will recall was born and had lived all his life in Ireland but whose family were then threatened with deportation in 2018. His classmates in fourth class in Saint Cronan’s National School in Bray organised a campaign to enable Eric and his family to stay. It was successful as it turned out and the Minister for Justice and Equality at the time granted humanitarian leave to remain as it was within the discretion of the Minister to so do. Our concern as Labour Party members and parliamentarians who had opposed the citizenship referendum in 2004 was that our law following that referendum had been drafted too restrictively, which meant that children who had such a strong stake in Ireland, like Eric, were not being given any pathway to legal citizenship or protection against deportation. Unless they could organise a campaign and the Minister was willing to grant this discretionary leave to remain, it would be impossible for them to secure a route to citizenship. We were anxious to try to provide such a route to citizenship.

Colleagues will recall that the 2004 referendum that I referred to inserted the 27th amendment into the Constitution amending Article 9. This is crucial when one looks at section 1 in the legislation that we have just referred to because the text of Article 9.2.1° of the Constitution following the 2004 referendum says:

“Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.”

That final clause is the clause that enables or empowers the Oireachtas to legislate for citizenship entitlements up to and including citizenship by virtue of birthplace or lus soli citizenship, based on the place of birth. In fact, the Oireachtas, following that referendum - which the Labour Party opposed as we believed that we should have retained our right to citizenship on birth which is the lus soli citizenship - and its passage, passed the Irish Nationality and Citizenship Act 2004. This Act amends that principal Act mentioned in section 1, which is the 1956 Act, and effectively denied children born in Ireland an automatic right to citizenship by virtue of birthplace. What we see in the legislative framework since the principal 1956 Act, and following in 2004, in particular, is a very generous citizenship law when it comes to lus sanguinis, the old idea of birthright citizenship by bloodline rather than place of birth. Someone who has a parent who is an Irish citizen or is entitled to be one, is entitled to apply for Irish citizenship, whether or not they are born or are indeed resident in Ireland.

We have generous laws on that basis but what we lack now is that sort of generosity of approach when it comes to children born here in Ireland. What it has meant in practice and outcome, not so much because of the referendum itself which simply removes the constitutional provision entitling citizenship by virtue of birthplace but more by virtue of the subsequent legislation, is that we have seen that the children who have been born in Ireland, have grown up here and have known no other home but here are effectively stateless if they do not have Irish citizenship. They are being threatened with deportation along with their families. We have seen that deportations can and have taken place at the end of lengthy immigration or asylum application processes that could take years to determine, years in which a child is born, raised and educated here. We do not need another referendum to reverse or address this situation for this small number of children and their families. The 2004 referendum amendment, as I have said, gives the Oireachtas exclusive power to legislate for citizenship pathways.

Many of those who first supported that referendum in 2004 have agreed that this sort of legislation is required to enable children born here, and their families, to have a pathway to citizenship provided for in law. I am sure that our colleague and friend, Senator McDowell, will not mind me quoting his speech on this Bill on Second Stage on 21 November 2018 when he said:

“I support this Bill and it should be given a Second Reading. It is well-intentioned and addresses an aspect of our current law which needs to be addressed by the Oireachtas. [...] I believe Senator Bacik's Bill is timely and appropriate and there has to be a mechanism for children in these circumstances to enter into a process where discretion will be exercised rather than just sit in a limbo for years, wondering if a knock will ever come at the door. That is not appropriate and it is the situation that Senator Lawless [Senator Mc Dowell was referring to then Senator, Billy Lawless] is dealing with in America. It is unjust and inhuman and we have to provide for it.”

He then, having spoken about being the architect of the 2004 referendum, said:

“The effect of that referendum was to vest in the Houses of the Oireachtas total responsibility for our citizenship laws to deal with it in any way it likes. That is not mean-minded but democratic.

“It is important to emphasise the power of the Oireachtas because it is within the terms of the Constitution to provide for legislation of the sort that we are seeking to bring forward today. I welcome the Minister’s support for progressing the legislation further.”

I also quote from the current Tánaiste, who responded to my party Leader, Deputy Alan Kelly, on 12 November in the Dáil that he would see what he could do, saying:

“We have found solutions to these issues in the past. Only last year we brought in a scheme to regularise people who came here on a student visa, whose student visa lapsed and who ended up in the workforce. Many have been here for years. This is pretty much what happens to the undocumented Irish in America.

[...]

“Perhaps we can come up with a scheme to facilitate these young people as well.”

The Tánaiste was talking about allowing people to apply for regularised status and was speaking just a few weeks ago.

I also welcome the very positive comments made about this legislation by the Seanad Leader, Senator Doherty, and by the Deputy Leader, Senator Chambers, and indeed by my Green Party colleagues here in the House. Fianna Fáil and the Green Party had in fact supported the Bill on Second Stage in November 2018.

How then would our Bill, if it were passed, change things and the regime as set out in the principal Act and the amending legislation? It would make three key changes to our naturalisation regime, remembering that naturalisation is also covered in this Bill and it is not just about citizenship. This is made clear in the title and section 1.

First, someone normally 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 at least four of the eight immediately preceding years. Our Bill would, just in the case of an Irish-born child, change that four-year requirement to two years, effectively replacing a five-year residency with a three-year residency requirement.

Second, we would lift the requirement that the parent or guardian of the minor or child must satisfy eligibility criteria. We are seeking to ensure that the child's status is the determinant for an application for citizenship.

Finally, in calculating a period of residence, we know that under the current legislative framework, periods of residence where the person was supposed to have had permission to remain but did not have permission, or where it was for a temporary purpose, are disregarded. Our Bill would lift that requirement, but just in the case of an Irish-born child.

We believe that this modest 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 currently face an uncertain future and even threat of deportation. We know from more recent surveys since 2004 and, indeed, from a 2018 behaviours and attitudes poll that more than 70% of people believe that those born in Ireland should be entitled to citizenship.

I have received great correspondence that is very supportive of the legislation but some correspondence suggesting that the current legislation reflects a more European-wide practice or framework for enabling citizenship and naturalisation. In response, I would say that there is a very helpful document that was produced in July 2020 by the European Migration Network called "Pathways to citizenship for third-country nationals in the EU". I am very grateful to Chloe Manahan, my assistant in the Seanad, for bringing it to my attention because it is really useful as a guide to what are European-style laws for citizenship. The first thing that is pointed out in the document is that "the conditions of acquisition and loss of citizenship fall within the remit of national competence" so it is a matter for each national government of each member state. Ireland has sovereignty over its own citizenship laws so there is no EU legal template as such. It states "all Member States offer the possibility for third-country nationals to acquire citizenship of their jurisdiction through ordinary naturalisation, although the rules regulating this process differ across countries". It is a very helpful guide on the sort of rules that apply.

In some countries, residency requirements range from three years up to ten years in some cases. Some countries have special provisions for children born in the country to parents neither of whom are nationals, which is essentially the sort of provision that we seek to introduce. Some countries provide citizenship on an unconditional Ius soli basis for specified groups of individuals born on the territory at predefined times. This is of interest because there is a perception that this is not the case. In fact, Luxembourg and Malta have some unconditional Ius soli provisions or birthright of place provisions.

I am conscious that I have spoken for a good deal of time about section 1 but it is hugely important to set out the context for the Bill, the reasons we have brought it forward and seek to amend the principal Act referred to in section 1, namely, the Irish Nationality and Citizenship Act, and the reasons to amend further legislation subsequent to the referendum. This is a Bill that is entirely within the terms of the referendum. It does not seek in any way to be undemocratic or rewrite the referendum. Clearly, the referendum on the 27th amendment gives the Oireachtas the power to legislate.

Before I sit down, I note the Migrant Rights Centre has provided us with some testimonials from parents affected by the current citizenship laws and the absence of a clear pathway to legal citizenship here. One testimony that was written by a parent whose daughter was born and raised in Ireland simply says:

“My five-year-old daughter was born in Ireland, she's now going to primary school here. She's a bubbly, fun and creative person. She says ‘I was born in Ireland. This is my country.’ She doesn’t know any other home than here. She is very smart and when she grows up, she wants to be a teacher and dancer. I hope that dream will come true for her. This bill would be a dream come true for my daughter and our family because it will help us live without fear and mean she has a bright future. I see the impact of growing up undocumented and I worry about the affect this is having on her– it breaks my heart every day.”

That is just one of the testimonials. I have heard from others, including one man whose three children have been born here, and go to school and preschool here, about whom I have written separately to the Minister. He stated that he just wants to see his children happy, “not live the life as we are now and to be allowed to stay in Ireland because we feel safe here” and his children are “at home here”. There is a clear need, which has been acknowledged by the Tánaiste and Government spokespeople in this House, for us to address the situation of undocumented children in Ireland in keeping with the spirit of our Born Here Belong Here campaign.

I am delighted to engage with the Minister here. I look forward to working with her and her officials. I know we have an agreement that we will meet over the coming weeks and that, early in the new year, we will have Government time to progress this Bill further on Committee Stage. Today, we hope to adjourn Committee Stage just after 5 p.m. I also look forward to engaging with other colleagues across the House on ways to make progress with this important legislation.