This Bill is an important legislative step forward in recognising Ireland as a society of inward migration and in redefining the legal relationships between the State and the society and those who come to our shores as migrants. An increasing number of people see Ireland as a place to which they can come, not just for a holiday or a short educational course, but for a more long-term and settled purpose. We are now in a comparatively novel situation in that Ireland needs immigrants to share in our prosperity and make their own contribution to that prosperity.
As a result of our economic improvements, Ireland is now a country of net inward migration and we must adapt our thinking, policies and laws to that important changed state of affairs. I do not underestimate the nature of the challenge this presents in some respects but it is more an opportunity than a challenge or a problem.
In dealing with aspects of citizenship law, this Bill is part of the Government's response. The next step is already under way, which is the development of a comprehensive immigration and residence Bill which will provide a fair and sensible legislative framework for dealing with all aspects of the entry and stay in the State of non-nationals, whether as long-term migrants who wish to establish themselves and their families here in employment or enterprise, or as temporary visitors for work, study or recreational purposes.
The people have a right to expect that there are measures in place to regulate effectively the arrangements which apply to non-nationals seeking to enter or remain on our territory. This is central to achieving the correct balance in ensuring the integrity, security and authority of the State and that its economic and social fabric are protected as well as ensuring that the rights and interests of our immigrant community are upheld and enhanced.
That Bill will provide Government with effective tools for managing inward migration and for developing and implementing policies to meet the evolving needs of Irish society. Preparatory work for that Bill is advancing in my Department and I expect to launch a discussion document on that legislation soon. Across the spectrum of our dealings with, and our legislative responses to, inward migration and inward migrants, we owe it to our society to ensure that there is a coherent approach so that all aspects contribute to our ability to manage and benefit from migration. This applies also to our nationality and citizenship laws.
When I refer to our responsibilities to society, I am conscious that now more than ever before, it includes people who are not Irish themselves by nationality but who in many cases make as important a contribution to Irish life as the Irish themselves. The changes we make to citizenship law must show that there is a continuing céad míle fáilte for those who migrate legitimately to Ireland with a view to establishing a substantial connection with the State by creating new livelihoods for themselves, contributing to the development of society, sharing in our prosperity and founding families and raising children here. Migration may be a phenomenon but migrants are people — flesh and blood — first and foremost, which fact we cannot allow ourselves to forget. We already have a generous, managed way for migrants who have established themselves here to become Irish citizens through naturalisation. Our naturalisation entitlements for people who have remained in the State for five years are among the most liberal in the European Union.
The Bill provides a managed way in which children born here to established migrant parents will acquire an entitlement to Irish citizenship in a way that acknowledges properly the contribution their parents make. The Bill provides a new statutory framework within which the entitlement to Irish citizenship of persons born in the island of Ireland to non-national parents can be determined. In policy terms, it is the same as the draft legislation published last April in the document that set out the Government's proposals in the run-up to the June referendum, the acceptance of which made it possible to put forward this legislation. The electorate knew what the Government had in mind at that time, and this Bill keeps faith with that commitment. The Bill also removes any future possibility for an investment-based naturalisation system and includes some other additional features to which I will return later.
I do not need to spell out for Deputies in any great detail the background against which this Bill has evolved. Suffice to say that it is intended primarily to deal with the abuse of our citizenship code whereby persons with the most tenuous of links to Ireland have been arranging their affairs so as to have their child born in Ireland, even if they have no particular intention of staying here, and thereby securing EU rights of residence deriving from the child's Irish and EU citizenship. In addition, our asylum system has been used by people who do not have a genuine need for protection under the Geneva Convention as a vehicle to gain entry into the State, in circumvention of normal immigration controls, for the very purpose of giving birth here and availing of what hitherto has been a universal entitlement to Irish citizenship derived from birth in Ireland.
The policy features of the Bill are in line with the earlier draft. Prime among those features is the need to ensure continuing respect for the guarantees of entitlement to Irish citizenship made to the people of Northern Ireland by the two Governments as part of the British-Irish Agreement. The Government has also been at pains to ensure that the proposals in this legislation offer equality of treatment to persons asserting an entitlement to Irish citizenship whether they were born or their parents reside in this State or in Northern Ireland, with some limited differences of a purely procedural nature that take account of differences in the immigration regimes, North and South.
The principal innovation in the Bill, made possible by last June's constitutional change, is the rule for the entitlement to Irish citizenship of a person born in Ireland, North or South, to parents neither of whom is Irish or entitled to be Irish. With this Bill, that entitlement will now depend on the length of time a parent has lived here lawfully, that requirement being at least three out of the four years immediately preceding the birth. That will be the general rule.
If the general rule were to be applied without exception, we would be in breach of our obligations under the British-Irish Agreement because its strict application would exclude from Irish citizenship some of the people of Northern Ireland. The British-Irish Agreement defines the people of Northern Ireland as "all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence". To ensure that commitment continues to be honoured, the Bill excludes from the general three-year residence rule those born in Northern Ireland to British parents or non-national parents who have permission to remain without restriction as to time. To mirror the situation so as to apply equally, North and South, this exclusion from the new general rule will apply under the Bill wherever in Ireland the child is born. I will touch later on other aspects of the Bill that qualify the general rule.
Those children born in Ireland to parents at least one of whom is an Irish citizen or entitled to be an Irish citizen will continue to have an entitlement to Irish citizenship, as at present. Anyone born before this new Bill comes into effect will continue to have exactly the same entitlement to Irish citizenship as before. I stress the Bill will not take Irish citizenship or the entitlement to it away from anybody who has it at present.
The Bill will continue to reflect the State's commitments against statelessness. No one born in Ireland can end up without a nationality at present, and that will continue to be the case in the future. The only children who will be affected by this Bill are those born to short-stay parents who already have citizenship of another country available to them by descent from their parents, or by virtue of what the lawyers callius sanguinis.
Before I go into the detail of how the Bill achieves these policy ends, I wish to turn briefly to the question of investment-based naturalisation, which the Bill also addresses. Deputies will be aware that in October 2003 in the other House, I declared the Government's support for the principle of a Private Members' Bill, tabled by Senator Quinn, which sought to end the possibility of such a scheme being re-introduced, and I undertook then to avail of the first opportunity for amending the statutory citizenship code to bring forward proposals to ensure that outcome. That undertaking has been fulfilled by the provisions of section 10 of the Bill.
The investment-based naturalisation scheme was a product of another time, when the economic climate was quite different and when there were genuinely held concerns in Government and on nearly all sides of the House about the future prospects of companies and enterprises experiencing real difficulties. I do not doubt the sincerity with which the devisers of the scheme put it in place, but my reservations, in principle, about it are long held and a matter of public record. There is widespread agreement that the scheme was abused in some instances.
Citizenship is not only an entitlement to a passport with a particular symbol on its cover, although possession of a passport is undoubtedly an important attribute of entitlement to a particular citizenship, it is a complex of rights and obligations shared by people of a common nationality and a symbol of the sovereign nature of the nation state. Governments have a duty therefore to safeguard the institution of citizenship to ensure that it continues to fulfil the requirements of its role as a manifestation of a nation where membership of that nation has an intrinsic value, not just a price. It is fitting therefore that this proposal to end one undesirable form of acquisition of Irish citizenship should be accommodated in a Bill whose primary purpose is to eliminate another form of potential abuse of Irish citizenship law.
I propose to examine in more detail some of the more significant provisions of the Bill without getting too bogged down in the technicalities at this stage. Some aspects of the Bill are unavoidably expressed in technical language, but I am confident Deputies will find their understanding of the Bill eased by the document which I circulated recently to all Deputies and Senators and which is available on my Department's website. It is an informal consolidation of the Irish Nationality and Citizenship Act 1956, as proposed to be amended by the Bill, and it includes, as footnotes, the material from the explanatory memorandum. I hope to publish it as a formal restatement under statute law restatement legislation so that it can be used by practitioners and citizens alike as an authoritative statement of the law.
Section 6 of the 1956 Act is the section that reflects in Irish statute the entitlement to Irish citizenship arising out of Article 2 of the Constitution. Since the circumstances in which that constitutional right will arise are now being modified, section 3 of the Bill makes a number of amendments to section 6 of the 1956 Act. A feature of section 3 of the Bill, which did not appear in the earlier draft, relates to children born in Ireland to parents who are foreign diplomats serving here. Until the 2001 changes to citizenship law, which implemented the changes arising out of the new Articles 2 and 3 of the Constitution, the children of foreign diplomats were excluded from citizenship here as they are in many other countries throughout the world. This was and is a matter of international custom and practice. The wording of the new Article 2 was such, however, that such exclusion could not, as a matter of constitutional law, continue in that context, and so the 2001 Act provided a special procedure whereby the children of diplomats could, if they wished, exercise their entitlement to be Irish citizens, but they would not automatically become Irish citizens. With the change made by the most recent amendment last June, we are now able to revert to the former position, and section 3 of the Bill brings about that change. The 2001 version of section 6 also had a special procedure for exercising the entitlement to Irish citizenship by or on behalf of children born to non-national parents in foreign vessels or aircraft in Irish waters or airspace. That does not need to be reproduced here as the new general rule regarding the parents' period of residence in Ireland will apply in those cases as it would to any other birth in the island of Ireland.
Section 4 contains the main changes directly flowing from the amendment to the Constitution in June. It provides for the insertion of two new sections into the 1956 Act which deal with the citizenship of children of non-nationals. These are section 6A, which deals with the entitlement to Irish citizenship of persons born to certain non-nationals, and section 6B, which specifies what periods of residence in Ireland are to be reckoned where that is a factor under the new section 6A.
Section 6A(1) provides that a person born, whether in the North or in the South, to non-national parents, either of whom has been lawfully resident in the island of Ireland for at least three out of the four years immediately preceding the birth, will have an entitlement to Irish citizenship. This is the general rule for the children of non-national parents to which I referred. Deputies should note this provision allows people to have holidays, to come in and out of the country on an intermittent basis and is not mechanically based on a continuous period of residence here.
I have referred to exclusions from this general rule. These are set out in subsection (2) of the new section 6A. Naturally, the first of these exemptions, at paragraphs (a) and (b), covers those children whose continuing entitlement to Irish citizenship remains unaffected by the proposals in the Bill. Paragraph (a) refers to those who were born before the commencement of the Act, irrespective of the nationality or period of residence in the State of their parents, and paragraph (b) refers to those born to an Irish citizen parent. Next, section 6A(2)(c) covers a person born, whether in the North or South, to parents one of whom is a British citizen or has an entitlement to reside in the UK, and thus Northern Ireland, without any restriction on his or her period of residence. This exemption from the general rule is dictated by our commitments in the British-Irish Agreement to the extent that it relates to persons born in the North. By applying it also to persons born in the South to such parents, we are ensuring that the rules that must apply in the North are mirrored in the same circumstances in the South. This is also the reason for the next exemption, in paragraph (d) of the subsection, which applies to a person born anywhere on the island to parents either of whom has an entitlement to reside in the State without any restriction on his or her period of residence.
It must be said that Irish immigration practice differs from UK immigration and citizenship law in that we grant permission without condition as to time after the person has already completed a number of years of satisfactory residence on foot of regularly renewed permissions, whereas the holders of certain nationalities have permission to remain in the UK without restriction as to duration from the moment they arrive in the UK. Persons granted refugee status in the State, however, have an entitlement to reside in the State without restriction as to the period of residence from the date of granting of such status. Thus, parents covered by paragraph (d) of this subsection would almost certainly have completed sufficient years’ lawful residence to meet the requirement of the general rule anyway. There are special provisions regarding each of these exemptions safeguarding the entitlement to citizenship where one or both of the parents are deceased at the time of birth.
The last of these exceptions, at paragraph (e) of subsection (2), is a technical requirement arising from the amendment in section 3 regarding children of foreign diplomats born in Ireland. Without this, such a person might otherwise acquire an entitlement to Irish citizenship based on the residence of the non-national parent who is not a diplomat accredited in this country.
The proposed new section 6B sets out what periods of residence are reckonable for the purposes of the new rule at section 6A(1). Section 6B(1) covers another aspect of the question of pre-decease of a parent. Its effect is that if a parent who dies before the child is born was residing in Ireland, North or South, and the period immediately prior to the death was reckonable for the purposes of section 6A, then the period between the death of the parent and the birth of the child is also reckonable.
Section 6B(2) provides a means whereby the reckonable residence in Ireland, North or South, of parents who are EU, EEA or Swiss nationals can be verified by declaration. Citizens of EU member states are entitled to be present in Ireland in exercise of their treaty rights of free movement and establishment. Nationals of the three other countries of the European Economic Area and of the Swiss Confederation have analogous rights arising from international agreements to which Ireland and the other EU member states are parties.
While we have in place a statutory procedure whereby such nationals can obtain residence permits, European law on the matter is very clear. The residence permit is merely evidence of the exercise of a treaty right, and not a precondition in that exercising treaty rights derives directly from the treaties themselves and not from domestic laws that implement or facilitate those rights. There is no obligation on nationals of these countries to register all of their lawful presence in the State or to seek permission from the State to be here. In those circumstances an attempt to exclude a child from a citizenship entitlement on the basis of an absence of an official record of his or her parents' residence in the State would be incongruous. The declaration process provides a means whereby they can overcome the documentation gap. Deputies will note, however, that this section does not apply to British citizens, since their children born in Ireland will anyway be entitled to be Irish citizens without the question of periods of reckonable residence having to be considered.
Section 6B(3) covers the circumstance in which an EU, EEA or Swiss national parent whose residence is reckonable under subsection (2) is not in a position to make the declaration himself or herself.
Section 6B(4) sets out the circumstances in which a short period spent in the State by a parent is not reckonable. The first of these, at paragraph (a) of the subsection, is the most obvious. A period of residence will not count if it is unlawful, that is, if it is in contravention of section 5(1) of the Immigration Act 2004. Some of the comments I received during the summer on the earlier draft of the Bill expressed concern that this might operate to deny an Irish citizenship entitlement to a person whose parent had, perhaps inadvertently or through oversight, allowed an interval to elapse between the expiry of permission to remain and its renewal. It is precisely to cover this sort of temporary oversight, and to cover short absences from the country on holiday, business or family trips, that the basic period of qualifying residence is set at three out of the four years, rather than three consecutive years, preceding the birth.
Paragraph (b) excludes from the reckoning periods instances where the parent’s permission to be in the State was for the purposes of study. Paragraph (c) excludes periods in which the person’s only basis for being in the State was on foot of a temporary residence certificate issued to asylum seekers to cover the duration of their claim. Both of these exclusions apply where the parent in question is a non-EEA national at the relevant times. They apply to asylum seekers expressly, and to students by implication since EU, EEA and Swiss nationals need no express permission to be in the State in pursuance of the treaty right to study. These exclusions mirror the provisions in section 16A of the Citizenship Act, inserted in 2001, dealing with reckonable periods towards meeting the residence conditions for naturalisation.
The exclusions at paragraphs (b) and (c) were also the subject of criticisms in commentary on the earlier draft Bill. While I acknowledge the basis on which the criticisms were made, I have no proposals to deviate from this policy in either respect. Permission to reside in Ireland for the purposes of study is purely temporary in nature. It is given for the expected duration of the course of study only and the expectation is that the person will return at the end of the course or, in the case of a multi-year course, at the end of each academic year. As for asylum, any proposal to include in the reckoning a period spent as an asylum seeker would serve to encourage false claims and the protraction of the asylum process.
The reckonability or otherwise of periods of residence in the State by non-EEA or Swiss nationals can be easily ascertained by examining the passports of the persons concerned for stamps affixed by the Irish immigration authorities. What of periods in Northern Ireland? As I said, our aim is to mirror conditions for the entitlement to Irish citizenship North and South. Subsection (5) of the new section 6B does just that as regards this category of parent. However, immigration laws and practice in Northern Ireland are not the same as those in the State. In particular, the immigration stamp in the passport of a non-EEA national legally residing in the North records a permission to remain in the UK, not in a particular part of it, and therefore we must put in place a means whereby the Irish authorities can verify that the period of residence of a non-EEA national parent before the birth of a child was lawful and reckonable, and that it was in the North as against some other part of the UK.
The Bill deals with this in section 11. The section inserts a new section 28A into the 1956 Act, which is an adaptation of the procedure already at section 28 of that Act whereby a person can seek a certificate of Irish nationality. In any case, where the question of the entitlement of a person to Irish citizenship depends on an assertion of reckonable residence of a non-EEA national parent in the North, whether that be for all or part of the three-year period, the first step will be to apply for a certificate of Irish nationality and to support that application with a statutory declaration together with whatever verifying documents are necessary. It is not possible to set out in the primary statute what those documents might be since some of them will be UK immigration documents or stamps that the UK authorities have the right to change from time to time to suit their own convenience. It would obviously be impractical for me to bring amending legislation before the House every time such a change took place. Instead, there is a power to prescribe documentation by statutory instrument. There is also a power to require further documentation as may be necessary in particular cases.
The category of person regarding whom the Irish citizenship entitlement depends on a period of residence of a non-EEA national parent in the North is the only one in respect of which a form of administrative intervention is required to establish Irish citizenship. In all other cases, the official documentation necessary to show the entitlement is either readily available in the form of birth certificates, immigration documents and the like or else can be generated by way of statutory declaration supported by the appropriate documents. There is no way around this. It is a practical difference dictated by the fact that the North is another jurisdiction, while at the same time implementing the Government's policy of ensuring that an entitlement to Irish citizenship will arise out of similar conditions whether North or South.
I have today received a request from Mark Durkan, the SDLP leader, whose views I sought on the legislation in accordance with a public undertaking given by me regarding the regulatory framework for proof of residence by non-nationals in Northern Ireland. I am glad to confirm that I will be happy to keep in touch with all those in Northern Ireland who wish to be consulted on the detailed out-working of this aspect of the legislation, as requested by Mr. Durkan.
In section 9, I am taking the opportunity to address a potential anomaly that could arise in the operation of the special naturalisation conditions for spouses of Irish citizens in which the non-national spouse is living with his or her Irish-citizen spouse who is resident abroad as an employee of the public service, for instance, in an Irish embassy. The nature of postings abroad is such that, without the change I am proposing to deem time spent abroad in the public service as time spent in the State, the non-national spouse might never build up the periods of residence in Ireland itself that are required under sections 15A or 15.
Section 10 is the provision designed to address investment-based naturalisation. I already addressed the principle. The technique adopted here to achieve the desired result of putting such schemes beyond possibility for the future is to assign a clearly defined meaning to the phrase "Irish associations" in section 16 of the 1956 Act, which was the phrase used as the basis for the former scheme. I have never been convinced by the line of argument that the phrase, in the context of its use in section 16(a), was wide enough to cover naturalisation based primarily on an investment in an Irish enterprise, but that will not matter now. This provision in the Bill providing for a narrow interpretation of "Irish associations" in terms of blood relationship, affinity, that is, relationship by marriage, or adoption to an Irish citizen, or a person who would if alive have been an Irish citizen, represents the final nail in the coffin of the investment-based naturalisation scheme. A descendent of an Irish person, or a person who if alive would be an Irish citizen, will qualify as having Irish associations among the other categories to which I referred. Simply investing money in Ireland will not suffice. Previous Ministers for Justice, going back to 1956, resisted defining this phrase on the basis that the provision should be made for, and I quote from the Dáil debates on the 1956 Act as follows:
the grant of certificates of naturalisation in special circumstances — some of which, of course, we cannot foresee — where the Minister for Justice considers that the Irish descent or Irish association of the applicant justifies a departure from the normal procedure, relating to residence, set out in paragraphs(c), (d) and (e) of section 15. That is all that is involved under the section.
Unfortunately, we now know there was much more involved. I am satisfied that the approach now being taken provides an appropriate and non-controversial amount of latitude for the issue of a certificate of naturalisation by any future Minister for Justice, Equality and Law Reform in circumstances where any or all of the conditions of naturalisation have not been complied with.
Deputies will be aware that I asked the Irish Human Rights Commission for its comments on the earlier draft of the Bill published last April. I received its comments on the referendum proposal without asking for them. One of the aspects on which it commented was a concern that there was no provision in the 1956 Act for the naturalisation of minors. While this concern is mistaken — section 16 contains specific provisions addressing the naturalisation of minors — one side effect of the new narrow definition of "Irish associations" in section 10 of the Bill would be to limit the power to naturalise some classes of children. While section 16 envisages applications made on behalf of minors who are of Irish descent or Irish associations or who have a parent who has been naturalised, without the change proposed in section 8 of the Bill, other children could not be naturalised. This change permits the possibility of naturalising a child born to non-national parents after the coming into effect of the new rules for entitlement to Irish citizenship in the Bill but whose parents did not at the time of the birth meet the residence requirement for that entitlement. This will ensure that the matter raised by the Human Rights Commission will not give rise to the concern it voiced. I should mention that section 5 genderproofs section 9 of the 1956 Act, dealing with the citizenship of posthumous children.
The Human Rights Commission raised a number of general points in its observations on the draft legislation, which I would like address. The commission adverts to the principle of the best interests of the child, which is at the core of the UN Convention on the Rights of the Child, a convention to which Ireland wholeheartedly subscribes. I assure the House that this legislation respects that principle, and adherence to the principle does not oblige the State to confer its citizenship or a right to citizenship on every child born in the State. The commission goes on to advert to the non-discrimination principle in the International Covenant on Civil and Political Rights, another instrument to which Ireland is a committed party. The commission quotes in particular article 6 of that covenant as follows:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
I assure the House that this legislation is fully consistent with the State's commitment to that principle. The principle does not oblige us, or any other State which is an adherent to the convention, to confer Irish citizenship on everyone within the State, or on everyone born within the State. Ireland respects, and will continue to respect, the human rights of everyone within its territory irrespective of nationality.
The Human Rights Commission also reminds us of the provisions of article 8 of the European Convention on Human Rights. The Bill is consistent with our obligations under the European convention. This country, like all the other countries, has many families who are wholly non-national, including many families who contain Irish and non-Irish members and many families consisting exclusively of Irish nationals. Our laws at present operate to guarantee respect for the family life of this kaleidoscope of nationalities, and will continue to do so.
Lastly, the Human Rights Commission drew attention to our commitments under the UN Convention on the Elimination of All Forms of Racial Discrimination. I assure Deputies that the Bill contains not one shred of racial discrimination. It cannot and will not be operated in a way that smacks of racism. It is worth noting that the Human Rights Commission adverts to these international instruments and principles in a general way and it does not attempt to relate these principles to particular aspects of the Bill. That it does not do so confirms that the Bill is wholly consistent with the principles to which the commission adverts.
I am satisfied that the proposals in the Bill will result in a fair and sensible citizenship law, which will acknowledge the stake that non-nationals established here have in Irish society by ensuring that their children born here will have the entitlement to be Irish citizens. We are not concerned with their skin colour, the language they speak or their appearance. What matters is that they have a substantial connection with Irish society and that, accordingly, their children will be part of the Irish nation by operation of law.
These proposals reflect Ireland's high regard for those who have come from abroad to establish themselves in, share in, contribute to Irish society and have families here by entitling their children born here to be Irish citizens by operation of law. At the same time, the proposals will ensure that Irish citizenship is not something which can be bought, sold, bartered or acquired on foot of an arranged birth in order to secure a passport to a wider Europe, but means something important to those who hold it, namely, a sense, as the Constitution says, of fidelity to the Irish nation and loyalty to the Irish State. I commend this Bill to the House.