I move: "That the Bill be now read a Second Time."
When I introduced this Bill in the Seanad on 8 December last, it was at a time when the processes and institutions established by the Good Friday Agreement were beginning to show their potential to bring positive changes and opportunities to the lives of all on this island. The Government had just made the necessary declaration under Article 29.7.3º of the Constitution bringing the new Articles 2 and 3 of the Constitution into effect and a devolved power-sharing government was in place in Northern Ireland demonstrating how diverse and conflicting views can work together in a democratic and accountable forum. While subsequent events may not have developed as we would have wished, there cannot be any doubt that all responsible political leaders, both North and South and in the United Kingdom, remain committed to achieving the aims of the Good Friday Agreement.
The Agreement is a remarkable achievement, expressing positive new relationships for the people of Ireland and mapping a peaceful political path to the future and away from the violence and misery that has blighted so many lives for far too long. I assure the House that the Government remains committed to overcoming any obstacle on the road to the implementation of the Agreement.
The Bill owes its genesis primarily to the changes to Articles 2 and 3 of the Constitution and the Good Friday Agreement. Existing citizenship law, as contained in the Irish Nationality and Citizenship Act, 1956, was drafted against the backdrop of the former Articles 2 and 3 of the Constitution. It contains a definition of "Ireland" based on the former Article 2 definition and, at section 7, quotes the opening words of the former Article 3. The territorial definition of Ireland is not reproduced in the new Article 2, and the language used in that Article refers to the people of "the island of Ireland, which includes its islands and seas".
In amending the Citizenship Acts, this Bill takes on board that language by providing in section 2 that the expression "the island of Ireland" is to be construed as including its islands and seas, and by making other changes throughout the Citizenship Acts, replacing references to Ireland with references to the island of Ireland or to the State, as appropriate in the context of each occurrence. At a minimum, the new legislation must reflect the letter and substance of these changes to the Constitution. However, the Bill goes beyond mere drafting amendments to reflect the more fundamental changes contained in new Article 2 of the Constitution and the Agreement itself. The new Article 2 of the Constitution states that "[i]t is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."
The British-Irish Agreement, which itself forms part of the Good Friday Agreement, contains an important provision in relation to citizenship at paragraph (vi) of Article 1 by which the Irish and British Governments recognise:
the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.
To ensure that our citizenship law reflects the new constitutional position and respects the right of those born in Northern Ireland to regard themselves as Irish or British or both, as they so choose, I have not confined myself to making mere drafting changes in the Citizenship Acts. Rather, I have undertaken an extensive re-examination of the law as it relates to Irish citizenship deriving from birth in the island of Ireland to ensure that both those interlocking parameters will be met by our statute law.
The most significant change which has resulted from this is that Irish law will no longer make the overt declaration contained in section 6 of the 1956 Act that "every person born in Ireland is an Irish citizen from birth." Instead, the Bill starts out from the premise that every person born in the island of Ireland is entitled to be an Irish citizen. This entitlement in the new section 6(1) of the 1956 Act inserted by section 3 of the Bill is a new concept in Irish citizenship law. This new concept is dictated by the new Article 2 of the Constitution, and reflects the entitlement and birthright set out there for every person born in the island of Ireland to be "part of the Irish nation". By taking this approach, we ensure respect for the position of those who do not wish to exercise that entitlement. At the same time, those who wish to assert their Irish citizenship are free to do so.
The remaining subsections of the new section 6 go on to deal with the exercise of the entitlement to Irish citizenship arising out of birth on the island of Ireland. Sections 6(2) and 6(3) are essentially evidential provisions. The effect of section 6(2)(a) is that a person born in the island of Ireland who does an act which only an Irish citizen is entitled to do thereby demonstrates that the entitlement to Irish citizenship is being exercised. Such an act might be, for instance, applying for an Irish passport or applying to have one's name entered on the register of electors as eligible to vote in presidential elections. However, the fact that a person born on the island has not done any such act cannot be taken to mean that the person is not an Irish citizen or is a citizen of any other country.
An example I used on Second Stage in the Seanad may help to illustrate how this works. If I am born in Belfast, I am entitled to be an Irish citizen. The new provision says so but does not say definitively whether I am an Irish citizen. If I obtain a UK passport, I am still entitled to be an Irish citizen, and the provision is still silent as to whether I am an Irish citizen. I may or may not be and it is my entitlement to perceive myself as British or Irish or both. I can still apply for an Irish passport and, as soon as I do, the law will recognise that I am exercising my entitlement to be an Irish citizen. Furthermore, if I apply for an Irish passport, all I have to do is to produce the birth certificate which shows that I was born in the island of Ireland, in this example, in Belfast.
This contrasts with the procedural requirement for those born in Northern Ireland under the current section 7(1) of the 1956 Act, a requirement which does not apply to those born in the State. That requirement is that a person born in the North wishing to assert Irish citizenship must either make a declaration of Irish citizenship or else show, usually by producing the birth certificates of parents and grandparents, that that person is an Irish citizen. This anomalous provision, expressed to be "pending the reunification of the national territory", in the words of the former Article 3 of the Constitution, has been regarded by those in the North who see themselves as Irish citizens as discriminating between them and Irish citizens born in the State. Section 3 gets rid of that procedure as well as the now outdated quotation from the old Article 3.
That the new provision is silent as to whether the entitlement to Irish citizenship is being exercised in the case of any person born in the island of Ireland could be regarded as giving rise to uncertainty as to the citizenship status of any person. A feature of citizenship provisions in many countries throughout the world, and one reflected in a number of international instruments on the subject of nationality and citizenship, is the importance of avoiding situations where a person might be deemed to be stateless. To deal with that concern and reduce the scope for potential uncertainty, the new section 6(3) provides that any person born in the island of Ireland who is not entitled to citizenship of another country is an Irish citizen from birth. That is not to say that a person born in the island of Ireland who has an entitlement to citizenship of another country is not entitled to Irish citizenship. This subsection simply puts the matter out of the realm of uncertainty for those who have no such other entitlement. As with section 6(2), this is primarily an evidential provision.
The current statutory provision – section 6(1) of the 1956 Act – provides, with certain exceptions, that any person born in the island of Ireland is an Irish citizen. The new provisions regarding citizenship by birth in the island of Ireland in the proposed section 6 of the 1956 Act will not operate to deprive anyone who, by operation of the 1956 Act as it stands, is already an Irish citizen. However, Article 2 of the Constitution declares the entitlement of everyone born in the island of Ireland, without exception, to be part of the Irish nation. It is necessary for this legislation, therefore, to ensure that the exceptions in the 1956 Act which would be inconsistent with Article 2 are removed, and that is achieved by the new section 6(4). The exceptions at present relate to the children born here of foreign diplomats and to children born to non-national parents in a foreign aircraft or vessel in Irish airspace or waters. Such children are not Irish citizens under current law.
Subsection (4) of the new section 6 provides a means whereby persons born in either of those circumstances can exercise their right to be Irish citizens by making a declaration to that effect, or having it made on their behalf if they are under age.
Where the person born in the island of Ireland has made a declaration of alienage under section 21 of the 1956 Act renouncing Irish citizenship, that person will not, of course, be regarded as an Irish citizen. Even then, however, there remains the constitutional entitlement and birthright to be part of the Irish nation, an entitlement which cannot be renounced. Accordingly, subsection (5) of the new section 6 provides that a person who had made a declaration of alienage can resume Irish citizenship by making a declaration to that effect. Citizenship in that case dates from the date of the declaration.
The present sections 6 and 7 of the 1956 Act deal with citizenship by birth in Ireland and by descent in an intertwined way. As a matter of drafting style, we have chosen at section 3 of the Bill to separate the two strands of citizenship so that the new section 6 deals with citizenship by birth on the island of Ireland alone, and the new section 7 is a restatement of the existing law on citizenship by descent. One feature of interest in the new section 7 is the clarifying provision at subsection (2) which ensures that the fact that a person born in Ireland may not have done an act demonstrating that the entitlement to Irish citizenship was being taken up does not of itself act to prevent the transmission of Irish citizenship to the next generation.
The new sections 6 and 7 of the 1956 Act at section 3 of the Bill are designed to have effect as on and from 2 December 1999, the day on which the Government marked the coming into full effect of the Good Friday Agreement by making the declaration which brought the new Articles 2 and 3 of the Constitution into effect. The commencement date is spelt out at section 9(3) of the Bill.
The new Articles 2 and 3 dictated that there be consequential changes in the Citizenship Acts. In devising the necessary changes, I took the opportunity to undertake a thorough review of the law on citizenship by birth in the island of Ireland and the fruits of that review are set out at sections 2 and 3 of the Bill. The approach I have taken to that question is inclusive, proactive and considerate of the full spectrum of views in this island, regarding an individual's own identification with one state or another or both.
I have also taken the opportunity provided by the Bill to look more closely at other aspects of the Irish Nationality and Citizenship Acts. In particular, I am proposing substantive changes in relation to the acquisition of Irish citizenship by non-nationals who marry Irish citizens and also to make provisions setting out clearly those periods of residence which qualify for naturalisation purposes. I have also made a number of technical changes which I will detail briefly later.
The current law governing citizenship based on marriage to an Irish citizen is set out in section 8 of the Irish Nationality and Citizenship Act, 1956, as inserted by section 3 of the Irish Nationality and Citizenship Act, 1986. The original provision in the Act of 1956 permitted a woman who married an Irishman other than one who was a naturalised Irish citizen to obtain Irish citizenship even before the marriage took place by making a declaration. This facility did not apply to male non-nationals who married Irish women. The amendment contained in the Act of 1986, which represents the law as it now stands, removed the sex discrimination by enabling husbands as well as wives of Irish citizens other than those who were naturalised to make declarations of post- nuptial citizenship. A number of restrictions were also introduced at that time in an effort to limit the scope for abuse of this process. First, a declaration cannot be made until three years has elapsed since the marriage. Second, it is necessary for the marriage to be lawful and subsisting; and finally, the parties must be living together as husband and wife, with an affidavit provided by the Irish citizen to that effect.
Unfortunately, the 1986 Act provisions still leave considerable scope for abuses. These abuses involve marriages undertaken for the sole purpose of obtaining an Irish passport where in many cases the parties may not have met until the day of the ceremony. It is believed that many of these sham ceremonies have criminal involvement, are well planned with considerable sums of money changing hands and sometimes involve the exploitation of Irish citizens in vulnerable situations.
An Irish passport is a valuable acquisition which gives access not only to the territory and economy of Ireland but also to that of the European Union. There is considerable incentive to obtain access to the opportunities available here and in Europe by fair means or foul. That there is abuse is not in doubt and is confirmed by the experiences of our embassies abroad which handled many of these applications. The Bill puts forward a fair and appropriate alternative to post-nuptial declarations of citizenship which it is intended will greatly curtail the scope for abuse.
My examination of existing citizenship law in this and other jurisdictions has led me to the view, shared by the Government, that we should move to a system which involves a period of residence by the spouse on the island of Ireland. Such a system is in line with most of our European neighbours, for example, Greece, Denmark and Estonia, who have a requirement of residence for a minimum period as an absolute precondition to naturalisation, whether the applicant for naturalisation is married to a national of the country, and also apply other conditions, such as good character, intention to remain in the State and language competence.
Canada is a common law jurisdiction with a similar absolute requirement. Some countries have such absolute requirements, but with a shorter minimum residence period for spouses of nationals than for other applicants for naturalisation, for example France, Germany and the United Kingdom. The USA is a common law jurisdiction with similar more favourable residence requirements for spouses. A small number of European states, namely, Austria, Belgium and Italy permits the naturalisation of a spouse after a certain period of marriage without regard to residence in the state in question, but reduce the marriage period required if the spouse is resident in the state.
Ireland is one of a small number of Council of Europe states, together with Turkey, Cyprus and Portugal, where the only consideration for natu ralisation of a spouse is marriage for a greater or lesser period. Accordingly, sections 4 and 5 of the Bill repeal the provisions dealing with post-nuptial declarations of citizenship and replace them with a special system of naturalisation for the non-national spouses of Irish citizens. This system is modelled on the normal requirements for naturalisation, which are set out at section 15 of the 1956 Act, but has special, more favourable residence conditions. It also includes provisions adapted from the present post-nuptial citizenship arrangements.
The normal naturalisation process requires residence in the State for a total of five out of the previous nine years, of which the most recent year's residence must be continuous; the applicant must also have an intention to continue to reside in the State after naturalisation. The revised system will, instead, require the shorter residence period of three out of the previous five years, once again with continuous residence during the most recent year, and that period of residence is not confined to the State but can be anywhere in the island of Ireland. An applicant spouse must have the intention to continue to reside in the island of Ireland after naturalisation.
This revised system will be available to a non-national spouse who is in a valid subsisting marriage to an Irish citizen for at least three years where the couple are living together as husband and wife as applies in the present system of post-nuptial declarations of marriage. The usual conditions for naturalisation regarding age, good conduct and so forth will apply in these cases as they do to other applicants for naturalisation. There is discretion to waive the residence and duration of marriage conditions in special circumstances where the liberty or bodily integrity of the non-national spouse would otherwise be at risk.
I might add that for non-national spouses who have married Irish citizens in the recent past or who do so between now and the passing of this Bill, there is a built-in three year period of grace at section 4(2), within which post-nuptial declarations of citizenship can continue to be made.
Where abuses are taking place it is our duty to eliminate, as far as possible, the potential for those abuses. My concern is to ensure that Irish citizenship is not demeaned by people who would seek to abuse the post-nuptial declaration process to acquire an Irish passport. At the same time, I wish to have in place a system which is fair to non-national spouses and offers them an appropriate method of acquiring Irish citizenship. By treating spouses of Irish nationals more favourably within the naturalisation process, we recognise their special position while protecting the integrity of our citizenship laws. I believe that my proposals are balanced and fair and are in line with similar provisions in the law of many of our European neighbours and of other democratic jurisdictions throughout the world.
I have also taken the opportunity presented by this Bill to clarify what periods of residence in the State are reckonable for naturalisation purposes. It has been the general practice of successive Ministers for Justice, when considering the question of compliance with the residence requirement in the context of individual applications for naturalisation, to leave out of the reckoning periods of residence in the State which are undocumented and thus, technically, illegal or where the permission given to the applicant to remain in the State is for a temporary purpose. Exceptions to this general rule have, from time to time, been made in particular cases. The Citizenship Acts do not define or qualify the concept of residence in the State, and this has led to uncertainty. I am, in section 6 of the Bill, clarifying the law in this area so that applicants for naturalisation will have advance knowledge of what considerations are going to be taken into account when their naturalisation applications are being considered.
The effect of this new provision is that in respect of an application for naturalisation from a national of a European economic area state, which includes EU member states and Norway, Liechtenstein and Iceland, no period will reckon for naturalisation purposes where for that period the person did not hold a residence permit or residence document issued under regulations governing their rights of residence in the State. The position for non-European economic area nationals is that any period of residence where the person was supposed to have permission to remain, but did not have such permission, will not count towards meeting the requirements of residence in the State.
In addition, periods of permission to remain given for certain temporary purposes will not reckon for naturalisation purposes. These periods are for study, including a course of study which involves an element of work experience, and temporary permission to enter and stay in the State while awaiting a decision on an asylum claim.
It is right that a person seeking naturalisation should have his or her period of residence calculated on the basis of properly documented permission to remain and that periods of temporary stay should not qualify for this purpose. Exceptions can continue to be made by the Minister through the use of the discretion given to him or her to waive the conditions for naturalisation, or any of them, already provided in section 16 of the 1956 Act, as inserted by the 1986 Act.
Section 7 makes technical changes to the provisions governing the maintenance of foreign births entry books and the foreign births register. At present, all diplomatic and consular missions are required to maintain a foreign births entry book. There is scope for error in the very small consular posts which are rarely called upon to make such entries, sometimes years apart. For practical reasons, it is simpler that in such cases the entries can be made directly in the central foreign births register maintained by the Department of Foreign Affairs. The proposal is that, in the interests of efficiency, the Minister for Foreign Affairs will have the flexibility to designate which posts should maintain such books. In addition, the section provides for the making of regulations permitting the correction or deletion of erroneous entries in the foreign births entry books or in the register, with provisions for advance notice to appropriate persons of proposed changes.
Various other drafting changes are being made throughout the Citizenship Acts, including the change from the term "alien" to the more modern expression "non-national". This is the term also used in the Immigration Act, 1999.
The Bill is detailed and complex legislation which fundamentally restates the basis of citizenship by birth on the island of Ireland in line with new Article 2 of the Constitution. Any person born anywhere on the island of Ireland is entitled to be an Irish citizen. As far as any person born in the North of Ireland is concerned, the Bill enables him or her to exercise that entitlement as a matter of personal choice, whether that person also chooses to be a citizen of the United Kingdom or of any other country by whose laws he or she is a citizen.
This Bill brings about a generous and encompassing change which will serve to promote good relations among the peoples of these islands as we continue to work for a peaceful resolution of our differences. The further changes I am proposing to the Citizenship Acts will protect our citizenship from abuse and maintain its dignity and respect. I commend the Bill to the House.