Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018
First Stage: 21 Nov 2018
Oireachtas Link: https://www.oireachtas.ie/en/bills/bill/2018/124/
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.
Committee Stage: 25/03/2021
I welcome the Minister to the House. I welcome the opportunity to resume our Committee Stage debate on this important Bill. I wish colleagues well for Daffodil Day. I know we are all wearing the masks that the Irish Cancer Society has so kindly supplied. I thank the Minister for coming in to deal with the Bill and for her very constructive engagement with me. I have been glad to engage constructively with the Minister and her officials since the last occasion we were in this House. Since Section 2 is the substantive section within the Bill, I know colleagues will have quite a good deal to say on it. I know the Minister also wishes to speak, in particular, about section 2(1).
I thought it might be helpful if I brought colleagues up to date on what has been happening with this Bill and the context for it.
I acknowledge last night's "RTÉ Investigates" programme. Journalist Conor Ryan is to be commended for bringing forward the experience of whistleblower Shane Corr and speaking about the rights of children and their families, who were so affected by the sharing of confidential documents and reports. My colleague, Senator Sherlock, already linked that report with the topic of this Bill during the Order of Business.
This Bill deals with the rights of children in a different context, which is that of immigration and citizenship law. In this Labour Party Bill we are seeking to provide children who are born in Ireland to parents who are not themselves Irish citizens with an easier or more accessible route to citizenship through naturalisation. We come to this from the fundamental premise that two children born alongside each other in an Irish hospital, who attend school together, should not have a different legal status or entitlement to citizenship in Ireland by virtue of their parents' legal status. What we seek to do is in keeping with the provisions of Article 9.2.1°, which was inserted into the Constitution through the citizenship referendum on the twenty-seventh amendment in 2004, and which the Labour Party opposed at that time. That amendment states:
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.
There has been a good deal of commentary about our Bill online. I stress that the text of Article 9.2.1° expressly provides the Oireachtas with power to provide for citizenship rights for children born in Ireland to non-national parents. It expressly gives the Oireachtas the exclusive power to legislate for citizenship entitlements for those children. That is what we are seeking to do in this Bill, particularly through section 2, on which we are focusing in today's debate.
The effect of the twenty-seventh amendment was to change what had previously been the case, in both the Constitution and under the Good Friday Agreement, that is, that it was the "... entitlement and birthright of every person born in the island of Ireland ... to be part of the Irish nation." The twenty-seventh amendment was implemented by subsequent legislation through the Irish Nationality and Citizenship Act 2004.
The principle of birthright citizenship is one which we in the Labour Party would like to see restored. We have made no secret of that. I commend our colleagues in Labour Youth and in particular our late colleague, Cormac Ó Braonáin, who very sadly died in 2019. He championed the "Born Here Belong Here" principle, which seeks to restore birthright citizenship to our law. What we are seeking with this Bill, which we brought forward in 2018, is not to overturn the referendum but to provide some incremental progressive change for children born in Ireland to non-national parents.
The Bill would make three changes to the naturalisation regime to make it easier for children born here to achieve citizenship. Section 2 is the crucial section for the changes we seek to make. At present, a child born in Ireland who is seeking citizenship through naturalisation must have five years' residence. We are seeking to change that requirement to three years and that is, in essence, what is provided for in section 2(1) of the Bill. The Minister has indicated that she will be making some commitment to change in this area. I welcome her commitment and constructive engagement with us on that matter.
The second change is again being made through section 2, in this case in subsection (2). It would decouple the minor's or child's entitlement to apply for naturalisation from that of the parent or guardian. The Minister may say something on that and has indicated that she will look to see if it is possible to make some change in that regard.
The third change our Bill seeks to make is through section 3, which refers to the period of residency that is to be counted prior to applying for citizenship.
We believe that the Bill would not only represent an incremental progressive change if it were to be implemented, but also a sensible and compassionate approach to regularising the position of Irish-born children who have spent years of their childhoods resident in this country but who currently face an uncertain future and, in some cases, the threat of deportation. The Bill has public support. A recent Behaviour & Attitudes poll showed that more than 70% of people believe that children born in Ireland should be entitled to citizenship. It was in this spirit that we introduced the Bill in 2018. We are also motivated by the case of Eric Xue. A young boy, he was born in Ireland, goes to school in Bray and he and his family live in Bray. Despite that, his family were threatened with deportation.
The Second Stage debate took place on 21 November 2018 and colleagues will recall that Fianna Fáil and the Green Party supported the Bill. It passed Second Stage despite the then Government's opposition. Committee Stage was debated during Labour's Private Members' time on 2 December 2020, but the debate adjourned on section 1 on the basis of the Minister's commitment, for which I thank her, that we would have some engagement in the interim to determine how we could make progress. To update colleagues, I have engaged with the Minister and her officials twice since then - we met on 16 December and 10 February - which culminated in some agreement on what could be done and how we could see movement, in particular on section 2(1). We welcome that. I thank the Minister for the statement she issued on 23 March referring to this Bill and our discussions and in which she stated that she would reduce the amount of time that children born in Ireland had to be resident in the State to become Irish citizens from five years to three years. Essentially, she will be inserting section 2(1) of this Bill into a Government Bill that is to be published later this year. However, I ask that she consider the Bill's other aspects. She has committed to exploring section 2(2) and whether, in light of particular difficulties, it would be possible for Tusla to apply for citizenship on behalf of older children. I appreciate that.
The Minister and other colleagues wish to contribute, so I will finish by saying that my party and I have been grateful for the support of many NGOs, including, among others, the Migrant Rights Centre, the Immigrant Council of Ireland, the Movement of Asylum Seekers in Ireland and the Children's Rights Alliance. The Migrant Rights Centre in particular has expressed disappointment that undocumented children will not benefit from the change the Minister has indicated she will make as a result of our discussions. The centre says that a child such as Eric Xue, prior to his family getting their status, would not benefit from this change. Thus, the centre is concerned that many children born in Ireland would still be left in a vulnerable position. It is seeking clarity on the Minister's statement about her proposed change only applying to the children of parents who were legally resident in the State. I echo the centre's calls.
I am disappointed that the amendment we proposed to section 2 has been ruled out of order, but Labour will continue campaigning on the born here, belong here principle. I look forward to further constructive engagement with the Minister on that matter. I know she wants to speak on the section.
I acknowledge the work done by Senator Bacik and her Labour Party colleagues and thank them for it. Since we last discussed this Bill, I have had a good engagement with the Senator on a number of citizenship issues. I thank her for that ongoing engagement. During our previous debate on Committee Stage in December, I committed to reviewing the Bill. Further to that, I brought a memo to the Government at a Cabinet meeting earlier this week setting forth plans to amend some parts of the Irish Nationality and Citizenship Act as part of the courts and civil law (miscellaneous provisions) Bill, which we hope to progress and implement later this year. The general scheme of that Bill will include a number of amendments relevant to citizenship and immigration matters, but before I speak to those and to section 2 of this Bill, I will update the Seanad on a key development in this area.
I understand that the Labour Party's intention in introducing this Bill was to provide a solution, as well as certainty and clarity, for undocumented children in the State. I am happy to inform the House that the programme for Government commitment to introduce a regularisation scheme of the long-term undocumented is well under way.
It has progressed since we last met in December. This scheme will be broad and I think it will be generous. It will provide a pathway to citizenship through legal reckonable residence for many adults and children in the State. It is still intended, as I set out, that this scheme will be introduced and launched in the third quarter of this year with a view to accepting applications before the end of the year in line with the commitment in the programme for Government that it will be done within the first 18 months. Thereby, it will provide us with regularisation and give permission to remain legally in Ireland to a significant number of individuals. Without fully knowing the number, it appears potentially more than 3,000 children will benefit from that and a significant number more of their parents and adults.
I wish to reiterate that Ireland is a diverse, open country and it welcomes many new citizens each year. Since 2010 just under 29,000 children, including 25,000 children of non-EU nationals, have become citizens in Ireland through naturalisation. This reflects existing citizenship requirements, which are very straightforward in comparison with other European jurisdictions and require no civic or financial requirements but legal reckonable residence in the State for five years in total. I outlined earlier in a Commencement matter how we have introduced a new system to deal with the fact we cannot have in-person citizenship ceremonies. We hope to address that and to reach in excess of 6,000 people between now and the end of June. That will deal with much of the backlog that currently exists.
One of the amendments I intend to introduce through Government legislation will reflect in part section 2(1) of the Private Member's Bill as discussed and as the Senator has outlined. This will reduce, from five to three, the number of years' residence required for children born in the State to become eligible for citizenship by naturalisation. This proposal will allow children who are currently on a pathway to citizenship to attain this status at an earlier stage. It offers greater security of status to a child who can acquire Irish, and thereby EU, citizenship more easily than is currently the case. With this proposed Government-led amendment, Ireland will be one of the most generous in the EU in terms of the years of residence required for foreign national children born here to gain citizenship by naturalisation. I look forward to further debate on this amendment as the Government Bill moves through the Houses in the Oireachtas.
I also understand that while giving effect in part to section 2(1) of the Private Member's Bill in a Government Bill, it is an important collaborative effort. As Minister for Justice, I understand that to reduce the number of persons who become undocumented in this State, improvements need to be made on a wider basis in the immigration process, in particular in the area of international protection. The recommendations of the Catherine Day report, which was published by our colleague, the Minister, Deputy O'Gorman, focuses in particular on progressing significant improvements in processing procedures and in timelines for decisions to ensure the system is adequately resourced and that backlogs are addressed. A White Paper setting out the proposed approach to transitioning from direct provision accommodation, for improved living arrangements and support for those who are in there or who would generally end up and that system was published on 26 of February. I look forward to further engagement with the Minister, Deputy O'Gorman, in particular, as well as other Ministers as we progress these matters. We have already received funding for 2021 to improve our investment in ICT to try and improve and speed up those systems.
I again give that commitment that I am progressing the proposed courts and civil law (miscellaneous) Bill which captures some of the aims of this Private Member's Bill, in particular section 2(1), in supporting children born in the State. Section 2(2) of the Private Member's Bill, removes requirement for an application to be made by a parent or guardian or a person who is in loco parentis to a child. I have agreed, working with Senator Bacik, to engage further with the Minister for Children, Equality, Disability, Integration and Youth, to whom I have spoken about this already, to explore providing Tusla with a legal power to apply for citizenship on behalf of a child in the State. There is still some further work that needs to be done before we can get that commitment, but a sense of belonging and identity is crucial for children, and it is my intention that all unnecessary barriers can be removed. This is potentially another barrier that we can remove.
It is also important to stress that in some cases the acquisition of Irish citizenship may not be in the interest of a child, particularly if there was a potential loss of certain rights or privileges of the child's country of origin. Naturally this is a complex space and that is why we want to take that little bit more time to engage further with Tusla and the Department of Children, Equality, Disability, Integration and Youth.
Again, I restate my gratitude to Senator Bacik to the Labour Party and recognise the contributions of the late Labour Youth chair, Cormac Ó Braonáin. His passion for public service is an example to all young people in Ireland and one we want to ensure we can fulfil so that we can live up to the huge commitment he made in his life. I acknowledge that and thank the Senator.
Committee Stage: 02/12/2020
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.
Second Stage: 21/11/2018
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 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.