Following the decision of the Supreme Court on 23 January 2003 in the case of L and O which held that no automatic residency rights obtain in respect of non-national parents of Irish-born children, the Government decided that the separate procedure which had then existed to enable persons to apply to reside in the State on the sole basis of parentage of an Irish-born child would not apply to cases which were outstanding on 19 February 2003, namely, in cases where applications were lodged but no decision had been made.
In regard to outstanding claims to reside in the State on the basis of parentage of an Irish-born child and future claims for leave to remain in the State from the non-national parents of Irish-born children, the Government decided that every such case would be examined and decided individually. The Government's policy in this regard was stated in public notices issued on 18 July 2003.
In respect of every person, including a parent of Irish-born children, who has no legal entitlement to remain in the State, a letter issues under the terms of section 3(3) of the Immigration Act 1999, as amended, informing him or her of the Minister's intention to deport. The person is allowed 15 days in which to opt for one of the following: make representations to the Minister setting out the reasons he or she should not be deported, that is, be allowed to remain temporarily in the State; leave the State before an order is made; or consent to the making of a deportation order.
In regard to the option of voluntary return, it should be noted that an agreement has recently been reached between my Department and the International Organisation for Migration, IOM, by which the IOM will provide, inter alia, a specifically tailored voluntary return programme for non-national families with children born in Ireland. The registration for this programme is open until the end of January 2004.
If the person, in respect of whom a letter issued under the terms of section 3(3) of the Immigration Act 1999, as amended, opts to make representations as to why he or she should not be deported, a range of factors specified in section 3(6) of the Immigration Act 1999, as amended, is taken into account in making a decision in the case.
Additional information.These factors include the person's individual family and domestic circumstances and humanitarian considerations. In the case of a parent of an Irish-born child, particular regard is given to the Supreme Court judgment in the L and O case and the subsequent judgments in this area.
From 1996 to 23 January 2003, 10,584 persons were granted permission to remain on the basis of an Irish-born child. Figures for refusal of permission are only available from 2000. From 2000 to the 23 January 2003, 40 persons were refused permission to remain.
As at 19 February 2003, 11,493 such cases were on hand. Of this number, 996 applications have been returned as the applicants had an alternative legal basis to remain in the State, for example, valid work permit, business permission to remain, full refugee status and so on. Depending on the circumstances of the individual cases it is likely that the majority of the remaining applicants will be issued with letters under the terms of section 3(3) of the Immigration Act 1999, as amended, informing them of the Minister's intention to deport.
Given the complexity of the task which the individual consideration of each of the outstanding Irish-born child cases will involve, it was agreed that additional staff resources would be provided, by way of a levy on Departments, to process these cases. These staff will shortly come on stream to begin work on case processing.
In advance of the additional levied staff coming on stream some preliminary work has been done. In September and October 2003, 353 letters issued under the terms of section 3(3) of the Immigration Act 1999, as amended, to parents of Irish-born children whose claims were outstanding at 19 February 2003. Of these, 171 submitted representations as to why they should not be deported, that is, be allowed remain in the State; 62 applied to re-enter the asylum process; five applied for voluntary return; six provided an alternative basis for remaining in the State; and 109 either did not respond or the letters were returned on the basis that the individual no longer lived at the address. Deportation orders have been signed in respect of seven individuals of which two have been effected.
As regards the views expressed by the Human Rights Commission, I issued a detailed response setting out the reasons for the policy indicated above. The policy is fully in accord with the Supreme Court decision in the L and O case. I reiterate that every application for leave to remain in the State based on the parentage of an Irish-born child will be examined and decided individually. In regard to the provision of legal advice, at no stage did I indicate that State-funded legal advice would be provided for those who receive notifications under section 3 of the Immigration Act 1999. As in general immigration matters, the position is, as it always has been, that persons seeking legal advice may make their own arrangements with any legal adviser they choose.
The Government remains concerned at the abuse of Irish citizenship law by persons with no connection to the State arriving in Ireland with the sole objective of giving birth to a child who will, as a result of being born in Ireland, be entitled to Irish citizenship. In this regard, I am cognisant of the concerns of the masters of the maternity hospitals in regard to the number of non-nationals arriving in Ireland in the late stages of pregnancy. I continue to monitor the situation in regard to this issue, including the question as to whether constitutional and legislative change may be necessary. Ireland is the only member state of the European Union which grants citizenship to a child based solely on its birth on the national territory. In all other member states the citizenship of a child is dependent on the citizenship of the parents and-or the status and duration of residence in the member state concerned.
