I extend a warm welcome to the House to Deputy Hanafin in her new role as Minister of State at the Department of Justice, Equality and Law Reform. I congratulate her on her appointment and wish her every success.
Irish Nationality and Citizenship Bill, 1999: Committee Stage (Resumed).
SECTION 5.
Question again proposed: "That section 5 stand part of the Bill."
Mr. Ryan
The Minister and the Department had a week to reflect on including the words "absolute discretion". Have they come up with a better reason than they offered last week for including it? They offered no reason last week. A series of rigorous conditions must be met before a person can be naturalised on grounds of marriage. In spite of our best efforts, nobody could get the Minister to focus on that phrase. The phrase reads: ". . . his or her absolute discretion may grant an application for certificate of naturalisation . . . if satisfied . . . ". Paragraphs (a) to (i) require that the Minister be satisfied. Once satisfied he may at his absolute discretion grant naturalisation. What are the circumstances in which the Minister feels it is still necessary to retain absolute and, therefore, unaccountable discretion after all the other hoops have been gone through?
I apologise to the Minister of State, Deputy Hanafin, whom I should have welcomed. I wish her well. Her father and I are old protagonists but, I hope, good friends. This is a special moment for him and one which will probably cause me to restrain myself somewhat from my usual flights of rhetoric. The House may be all the better for that. Perhaps putting some manners on me will be the Minister of State's first achievement. I wish her every success. The area for which she has primary responsibility is one of the most important in the State and is one with which she is more than capable of dealing. I apologise for not saying that at the outset.
Why retain this extraordinary phrase "absolute discretion"? Why not insert – as we have said frequently –"let the Minister have to be satisfied that the conditions are met"? We can debate the conditions but why use the phrase "absolute discretion" after all that? They had another week to think about it.
I was criticised by the Minister for my use of the word "xenophobia" in relation to the Department of Justice, Equality and Law Reform. Perhaps in this context it was wrong to use that term because we have here an example of control freakery at its worst. It is the determination that even after we create all these extra hoops, and in case we have not thought of something that might catch us out, we want the power to do it.
Last week I said to the Minister that you do not abolish a right because some people abuse it. That is a profoundly undemocratic principle. If people abuse their right to drink, smoke or drive, just to mention a few respectable, social or family activities, we do not abolish any of those rights. We penalise and punish people who abuse them but we do not abolish the right.
We are in the remarkable position where the Minister tells us that he is satisfied that the right to naturalisation by marriage has been abused but he cannot give us numbers. He cannot even tell us where it is happening. He also cannot tell us how often it happens or by whom. The only case he cited was the case of an official from the Department of Foreign Affairs in London who sold Irish passports. That case is irrelevant to this debate. We are back to where we were last week. I could deal with this issue better if the Minister would give me one good reason to retain the phrase "absolute discretion".
I welcome the Minister of State to the House. I am glad she has this opportunity to be with us. In the past I had the pleasure of working with her in the area of women's rights. I know her to be a woman of shrewd political intelligence which, knowing her father, does not come as any surprise. Also in the same manner I know she possesses a great deal of human compassion.
If the record was consulted it would show that I was in possession but I recognised the trend of what was going on. However, I was happy to yield to Senator Ryan because he has made the most significant contribution in this area, tabling amendments and arguing. I came in on this section to look at a few issues, some of which I have already dealt with. One was the question of the definition of a spouse which I felt was unnecessarily narrow. If Members consult yesterday's edition of The Irish Times they will see the question of the legal recognition of gay relationships as the centrepiece of a significant article. Astonishingly, it stated that a Roman Catholic cardinal in Germany objects to the idea of marriage but says that he accepts that there is discrimination and that there may be certain legal entitlements which ought to be granted to people in same sex relationships. This issue will have to be examined in the future.
I have something to say about "absolute discretion" but I will leave it. There was one point I wanted to make when I was reporting progress on this the last time but the debate ended. It is the fact that we seem to be establishing in this section a type of marital police. I am not happy with that. Third parties deciding on the quality of an existing marriage seems to me to be intrusive. What happens if there is a trial separation? Is there an official from the Department empowered to say that they are not cohabiting? Think of the impact of that on the human relationship. In the case of a marriage that was properly solemnised in church or duly recorded in a registry office, where the people lived together for 18 months or two years, had a child or two but then the marriage experienced some type of difficulty, they have the additional pressure of snoopers in the marital bed. That is not appropriate. I made this feeling quite clear on the last day.
I hope these sections will be looked at again by the Minister and her advisers in light of today's debate. A willingness to take on board some of our arguments does not impugn the intellectual integrity of the advisers. Everybody can learn. Even if somebody on this side of the House says something is a mistake, it is nothing to be ashamed of. Admitting to a mistake, as I read the other day, only means that one knows a little more today than one knew yesterday. I hope, after this debate, the people charged with framing this legislation will know a little more as a result of the advice from all sides of the House and that they will take this well meant advice into account.
I will support the two excellent amendments put down by Senator Ryan, Senator Costello and the Labour Party when they are put to a vote.
I welcome the Minister of State, Deputy Hanafin. It is a splendid day and I am delighted to be in the presence of my good friend, Senator Hanafin, when his daughter is occupying the Minister's chair.
Last week I asked about facts and I hope the officials have ascertained them. Have we any idea how many bogus marriages take place in this country so a person can become naturalised? We need to know at least how many cases have come before the courts in the past ten years. How many cases does the Department of Foreign Affairs suspect have occurred? It appears foolish to introduce draconian legislation without having substantial evidence that it is needed. I am sure the officials have ascertained the facts by now and I look forward to hearing them.
I join other Senators in welcoming the Minister of State, Deputy Hanafin. It is a unique and historic day that the father of the House is present to see his daughter attend the Seanad as Minister of State. It a well deserved honour. Deputy Hanafin has ploughed a political furrow far away from traditional Hanafin territory in Thurles. She is a woman of great political acumen and I wish her every success in her new office.
I spoke on this section on the last occasion but, for the benefit of the Minister of State, I will rehearse what was said. The Minister of State is new to the job and is deputising today for the Minister, Deputy O'Donoghue. The officials were present on the last occasion and I hope they will be able to throw light on the issues raised then.
My first point relates to the term "absolute discretion". It is ludicrous that a Minister should legislate to vest in himself or herself absolute discretion in a case where an applicant has fulfilled the criteria laid down in section 5. Once the conditions are fulfilled the applicant should automatically be granted citizenship. To impose the further condition of the Minister's absolute discretion is draconian, unnecessary and even undemocratic. If the applicant did not fulfil the conditions, one could understand the Minister having the discretion to grant citizenship. However, to provide for the Minister's absolute discretion even though the applicant fulfils the conditions is unacceptable.
On the last occasion I asked a number of questions about the conditions provided for in the section, in particular with regard to adjudicating on whether citizens are living together as husband and wife. Who will adjudicate on what is a husband and wife and who is a husband and wife? What criteria will be used to adjudicate on it? I gave the example of a Bahrainian girl who meets an Irish guy, they get married and come to live in Ireland. After living and working here for some time, the husband might have to leave the country to work in Bahrain or some other country while his wife remains in Ireland alone or with her children. In those circumstances, how would her application be dealt with under the proposed section 15A(1)(e)?
With regard to paragraph (i) can one imagine going before the District Court and swearing "fidelity to the nation and loyalty to the State"? I can understand swearing loyalty to the State but can one explain how a Chinese person could swear fidelity to the Irish nation? What is a nation? We should define the difference between nation and state. The nation is the people and embodies their language, traditions, music, culture and songs. A nation goes far beyond the legal or state jurisdiction. The state is the territorial area that is governed by a government. The nation is wider flung. Let us be honest about this. How can one expect a Chinese person to swear fidelity to the Irish nation? Could an Irish person swear fidelity to the Chinese nation? The reality is that we would not know the Chinese nation. This appears to be an unnecessary phrase which does not make much sense. It should be removed. Loyalty to the State should be more than adequate.
The rest of the conditions are acceptable, necessary and commendable. However, it is not acceptable that the Minister, if a person complies with all the conditions, retains absolute discretion to grant an application. That is going too far. If an applicant fulfills the conditions, the Minister should not have such discretion.
I welcome the newly appointed Minister of State, Deputy Hanafin. We worked together in the Oireachtas Joint Commit tee on Justice, Equality and Women's Rights and I was impressed by her capabilities. It is a great honour for her and her father, who is present today, and continues the long-standing Hanafin tradition in politics. Senator Hanafin is seen as a father figure in the House. I wish the new Minister of State every success and luck in her appointment. It is a challenging brief. The promotion is an indication of what lies ahead for the Minister of State and I have no doubt she will handle the brief with sincerity and ability.
I understand and have some sympathy for the points made by Senator Ryan in his ardent contribution on the amendments. I am not sure if the amendment is opposed to the notion of absolute discretion or just opposed to the concept of the discretion being held by the Minister for Justice, Equality and Law Reform. Is there such a thing as absolute discretion and does it create the cloak and dagger scenario being painted in the debate? Every Minister is accountable to the Oireachtas. Consequently, the concept of absolute discretion might not be far removed from the Houses of the Oireachtas. On the last occasion, the Minister pointed out, at great length, that the new system might be more practical and workable than what has existed heretofore.
I can understand my colleagues' sentiments in their comments about bogus marriages and so forth. The Home Office in Great Britain was seriously concerned about a scam there in the not too distant past with regard to bogus marriages. Having lived in England for a number of years I know it was common to use the register office in this way. People from outside the EU marry Irish citizens to gain the citizenship right which is built into our legislation. This abuse could create problems. It is difficult to quantify the number of times this has occurred. It may have occurred hundreds of times, and I have no doubt it has. A person who marries an Irish citizen automatically gets an Irish passport but even if the marriage has been entered into purely for convenience and is dissolved within one or two months, the person concerned, who has no interest in Ireland or in the Irish State, or in our traditions or nationality, has acquired an Irish passport for the rest of his days.
Ireland has become popular as a place to come to only in the past three to five years because of its developing economy and its greatly improved resources. Ten or 15 years ago Ireland was the back end of Europe. However, possession of an Irish passport confers rights not just here in Ireland but in the EU, and people who used this scam were thinking not about what they could get out of this little island but about what they could gain by getting into Europe through the back door. If this trick could be stamped out it would be a step in the right direction.
Let me add my words of congratulations to the Minister of State, Deputy Hanafin. Senator Hanafin has set a standard of family values, and it is great to see these values extended to a second generation, perhaps more than two generations. I do not know whether the previous generation of Hanafins had devotion to the State or to the nation. I am delighted and congratulate the Minister of State on accepting this portfolio. It will be a challenge but I am sure she will handle that challenge very well. I am honoured that she is here.
I rise to ask for explanations rather than anything else. One relates to the difference between "fidelity to the nation" and "loyalty to the State". Senator Taylor-Quinn raised it also. I want an explanation of the difference between the two. I would also like an explanation of "full age", which I should probably know but do not. I also have a query as to the term, "a marriage that is recognised under the laws of the State as subsisting". I am not quite sure of what is a marriage that is not in that position. Each of these definitions are ones on which I need some explanation. This is a Seanad Bill and, therefore, the responsibility rests on us to go through it in depth. Some quite detailed Bills have passed through this House in a rather cursory manner on occasions. Subsequently the Dáil handled them in a much more competent manner than we did. In the vast majority of cases this House has gone into Bills in great depth in order to understand them and has made very valuable corrections and additions. I am referring solely to section 5, from paragraphs (a) to (i). Almost every word, from the point of view of those of us who are not lawyers, merits explanation.
Senator Taylor-Quinn expressed great surprise at the idea of Chinese people swearing loyalty to the State. I would remind her that she comes from a county that elected an Indian to the Dáil.
I know. I am here thanks to him.
I remember giving a special welcome to the Indian. Should Clare decide to elect a Chinese Deputy, I would give him a great welcome also.
We will leave that to Tipperary.
An Leas-Chathaoirleach
Before calling on the Minister of State, I congratulate her on her appointment and wish her the best in her new role.
Go raibh maith agat a Leas-Chathaoirligh. Is mór an onóir domsa a bheith anseo ins an Teach ar mo chéad lá oifigiúil mar Aire Stáit. Níl aon áit gur fearr liom a bheith ná os comhair Seanadóirí Éireann agus go h-áirithe os comhair m'athar, athair an Tigh seo.
I particularly thank the Senators for their warm welcome and their very kind wishes which I appreciate. It is a particularly important day for me and for my family to be before the father of the House as a Minister. I look forward to working with Senators over the next couple of years.
A number of interesting points have been raised on the Bill. I will begin on the one on which the House ended last week. It related to the definition of a nation. Trying to define a nation is like trying to answer the question "What are the stars?"; it is very difficult to do. However, it has been done for us in the Constitution in Article 9.2 which states: "Fidelity to the nation and loyalty to the State are fundamental political duties of all citizens". The paragraph in question comes from there. The duties that are imposed are expected of all who were born on the island of Ireland and, in respect of the people of Northern Ireland, those who, in accordance with the entitlement set out in the British-Irish Agreement and given statutory reflection in the new section 6 of the 1956 Act, choose to identify themselves and be recognised as Irish. These duties are also expected of those who are about to become naturalised Irish citizens. Hence the requirement of the oath for applicants for citizenship under section 15 of the 1956 Act, a requirement repeated again for applicants under this new scheme for spouses. It does not enter the reckoning for people who make declarations of post-nuptial citizenship.
As to the definition of the word "nation", Chambers Dictionary, 1999 edition, defines it as “a body of people marked off by common descent, lineage, language, culture or historical tradition whether or not bound by the defined territorial limits of a state”. The word “state”, in its relevant senses, is defined as “the civil power; a political community under one government; the territory of such a community”. There is a definite division between the territorial limits and its people. Whereas Senator Taylor-Quinn says it would be impossible to give fidelity to a culture, what is being asked is to give fidelity to the people and all that embodies that people, and also to give loyalty to the State, which is the territory.
These definitions underline the approach taken in the new Articles 2 and 3 in the Constitution and reflected in the new section 6 of the 1956 Act being inserted by section 3 of this Bill. The duty of the citizen is of fidelity to his or her fellow citizens, to the people, not just to the culture, the language and all that they embody; it is to the people who share an Irish identity. There is a duty of loyalty also to the political entity that is the State.
Other questions have been asked in relation to definitions which I will deal with at this stage. Senator Quinn asked what was meant by "full age". That is taken to be the age of 18 or, if a person marries at an earlier age, from that age. He also asked for the definition of marriage. That is covered in that the marriage must be recog nised under the laws of the State as subsisting and the couple must be living together as husband and wife. The Irish citizen spouse must submit an affidavit to that effect, as in the case of post-nuptial declarations.
Senator Norris raised the issue of a definition of a spouse. That is not something I intend to enter into today as it is something Senator Norris himself will raise in another context.
The main issue which was raised by all Senators related to "absolute discretion". This is not new to this Bill. It is embodied in the previous Acts of 1956 and 1986.
I wish to remind the House of the nature of the relationship between the State and matters concerning non-nationals as set out in recent case law. Mr. Justice Gannon in the High Court case of Osheku in 1986 identified the control by the State of non-nationals, their entry into and departure from the State and the terms of their stay in the State as matters in the interests of the common good of the State. There is also the 1999 Supreme Court case of Laurentiu where all four of the judges who gave written judgments recognised this and quoted from or referred to the relevant passage from Mr. Justice Gannon's judgment with approval. However, they went further and agreed in the plainest terms that these matters were for the discretion of the Executive, and properly so.
In other words, all matters concerning non-nationals are properly matters for the discretion of the Government. That discretion has been exercised on behalf of the Executive in this State by the Minister for Justice of the day and is currently exercised by the Minister for Justice, Equality and Law Reform. Those discretionary matters include the granting of citizenship to persons who would not otherwise be citizens. This discretion in matters concerning non-nationals is not something which the Government or any previous Government has arrogated to itself.
It is internationally recognised that every state has this executive discretion. That is why the Government in 1956 obtained the approval of the Oireachtas for the Irish Nationality and Citizenship Act, which included provisions making it clear that questions of naturalisation, that is, the granting of Irish citizenship to non-nationals, were for the absolute discretion of the Minister. That is why, when the naturalisation provisions of the 1956 Act were being revised, the Government in 1986 reiterated the absolute discretion of the Minister in naturalisation matters and again the Oireachtas approved. That is why the proposal before the House in section 5 once again makes clear that the naturalisation provision proposed is to be a matter for the absolute discretion of the Minister. Senator Taylor-Quinn stated that she believed there was something fundamentally wrong with the provision. It is something which has existed since 1956 and which was reiterated in 1986 by Governments of parties other than mine. If it was not fundamentally wrong then, I submit it is not fundamentally wrong now.
Successive Ministers for Justice, Equality and Law Reform have taken seriously this absolute discretion and I assure the House that decisions to refuse to naturalise certain applicants are not taken lightly. Each application is the subject of careful consideration and there is nothing capricious about such decisions. There is no internationally recognised right for one spouse to acquire the citizenship of the other. Such right as has hitherto existed in Irish law is a creature of statute only. Its removal from statute law, brought about by section 4, infringes no canon of international law nor any recognised human right. It is a facility which was hitherto available to non-national spouses of Irish citizens in certain conditions.
The facility is vulnerable to abuse by unscrupulous people. Senator Henry asked if we had numbers, statistics and figures regarding the number of bogus cases. Unfortunately, we do not have specific figures. However, we have information from the different Departments of a number of different cases where there have been marriages of convenience and where there is a danger of citizenship being conferred on undesirables, the sale of passports, etc. We know of cases, but do not have the figures the Senator requested. This system is being replaced with a system which gives non-nationals an opportunity to acquire the citizenship of their Irish spouses and which is less vulnerable to abuse. Absolute discretion is something which has a tradition and history set out in the Acts relevant to the Bill.
The definition of the nation was probably better summed up by Senator Hanafin than it was by the Minister of State, Deputy Hanafin.
Mr. Ryan
It is very simple. The Department of Justice, Equality and Law Reform has absolute discretion and wants to keep it. That is the only logic behind the section. There is not even an attempt to explain why, just a smokescreen of verbiage. We are not dealing with strangers seeking citizenship but with the legitimate legal spouses of Irish citizens and possibly the parents of Irish citizens. Applicants must undergo a series of nine tests and conditions to be granted Irish citizenship and can then be told that even that is not enough and the Department will reserve for itself the right to say no. It is like the famous phrase, "For fear you would and in case you might". However, the Department will not tell us for fear of what and in case of what. People want to know why they are refused but the Department will not say why and that is profoundly wrong.
We are not talking about people who happen to end up here or people who came to live here by accident. We are talking about spouses, one half of the institution we regard as the defining institution for the basic unit of society, the family. We say one half of that basic unit of society and of a couple does not have the right to know with certainty when, if ever, he or she can become an Irish citizen. This means that a couple coming to live here will not bother pursuing the issue of citizenship because of these hoops and the lack of certainty, because it has now, in effect, become a lottery, because they do not want someone deciding whether they are living together as husband and wife and because they do not want the application of other criteria which did not apply previously. If the Irish spouse then dies, the surviving partner who has no citizenship is in an extremely vulnerable position even in terms of a right to reside here.
I do not know why the Department insists on this provision or why a smokescreen is being thrown up about a judicial decision on another matter. However, I know how the Department interprets absolute discretion. It means that it will tell people absolutely nothing about why it said no. I have a letter in my files from the Minister for Justice, Equality and Law Reform to Deputy Allen about a case in Cork in which he indicates that he felt the Act gave him absolute discretion and that is was the practice not to disclose any information about the reasons citizenship was refused. That is what the Department means by absolute discretion. The Minister said that is what it means and people will not be told anything.
The Minister mentioned the small number of countries where there was an almost unconditional right for a spouse to take up citizenship. He mentioned Turkey, Cyprus and Portugal. What I noticed was that most of the countries he mentioned were ones with a tradition of large-scale emigration. It was obvious that they recognised that a significant proportion of their citizens lived and married outside the countries but wished to have a complete and secure right to rear their family in the state from which they emigrated. Their states understood that situation. Of the people born in Ireland, a greater proportion live outside it than probably any other state in the EU, yet we have decided to be mean-minded and not to tell our citizens the rules.
The rules are that a person must fulfil nine criteria to apply for citizenship, which is when the real rule applies – the Department decides. A person who is refused will not know the reasons nor what they need to do to qualify if they apply again. They will not know if it is because they have a bad character, because they were convicted for the possession of cannabis in the United States or convicted of drinking and driving in Poland when they were younger. The Department will not say why it says no. An applicant may believe he is of good character and full age but the Department is not obliged to tell him why he failed the test.
This is a totalitarian interference in the right of an Irish citizen to marry. The Department of Justice, Equality and Law Reform has a tendency to react in totalitarian terms. Successive Ministers for Justice have absorbed the ethos of that Department and propose things they would not dream of suggesting in their saner moments. Only the British Home Office and the Irish Depart ment of Justice, Equality and Law Reform would come to the conclusion that the solution to the abuse of a right is to abolish the right. The principle of the freedom of the citizen is so well enshrined in the American Constitution that the US Government would not get away with such a measure. This measure will not simply refuse an alien the right to citizenship. It will destroy the life of an Irish citizen and the lives of the children of an Irish citizen. If the Department of Justice, Equality and Law Reform does not understand the difference between someone who has no Irish connection and someone who is married to an Irish citizen, then we now know what is wrong with the Department.
As a medical practitioner I have to deal with the question of confidentiality more than anyone in the House. For the Department to tell me that there is a confidentiality clause which prevents me being told how many cases of this nature have come before the courts when they are heard in public is utterly ridiculous. I am not asking the Department to provide records going back to 1956. Records going back to 1986 would be sufficient. Let us see how many cases have come before the courts since the last Bill was enacted. That is not too much to ask of the Minister of State's officials.
With regard to anecdotal evidence from other Departments, I am not asking for details of the cases. I am merely asking for numbers. I do not ask that reasons for decisions be made public although Senator Ryan is quite right when he says that we must be very concerned about the use of absolute discretion. I am beginning to think there have been very few cases. I tried to remember a few and I can remember a recent one in the west of Ireland. Perhaps Senator O'Donovan who is a lawyer can remember more cases. How often has the green card – I mentioned the film of that name last week – been played? The reluctance of the Department to give me figures leads me to think that it is played fairly rarely.
Article 9.1.2 of the Constitution says: "The future acquisition and loss of Irish nationality and citizenship shall be detrmined in accordance with law". Consequent on the enactment of the Constitution, the Irish Nationality and Citizenship Act, 1956, was passed. That Act was brought before the Oireachtas by a coalition Government of great fame and renown.
The Senator would not remember that.
I am sure that legislation was fully debated in this House. That Act includes the provision of absolute discretion and this was not included for any frivolous or vexatious reason. The Irish Nationality and Citizen Act of 1986 was also fully debated and Senator Ryan may even have spoken on that occasion. Absolute discretion was again retained in that legislation.
In view of the pressures imposed by the Freedom of Information Act and by both Houses of the Oireachtas, the discretion of Ministers and even of judges can be called into question. Last year a number of resignations were required as a result of an administrative failure in the judiciary. Unless there are very good reasons to amend legislation, we should leave well enough alone. The terminology in this legislation has worked reasonably well. We may criticise the Department of Justice, Equality and Law Reform for delays in its administration but, having regard to widespread problems which arose in England when passports were provided rather freely, we must be more cautious now than ever. This nation has become one of the most desirable places of residence in western Europe and for that reason we must tread very warily.
The concepts of nationality and citizenship are enshrined in our Constitution and, consequently, in the principal Act of 1956 and the amending legislation of 1986. I see no reason to change the wording of legislation simply for the sake of making it more liberal. Why fix something when it is not broken? I understand the argument being put forward by Senator Ryan and others but having regard to the contribution of the Minister last week, of the Minister of State today and the raison d'être given by the departmental officials, I feel the amendment should be rejected.
An Leas-Chathaoirleach
I remind Members that Standing Orders do not permit the making of Second Stage speeches.
We should not lose sight of the fact that we are dealing with absolute discretion in relation to applications for naturalisation by spouses of Irish citizens. We are not talking about the naturalisation of applicants in general. We are talking about the very specific group of people who have married Irish citizens and who are applying for Irish citizenship. To retain absolute discretion in these cases seems to be ridiculous in the extreme. The Minister of State and Senator O'Donovan have reminded us that the principal legislation relating to citizenship is the Irish Nationality and Citizen Act, 1956, which embodied the principle of absolute discretion, and that the principle was also included in the 1986 Act. I do not suggest that the only people who can make mistakes are Fianna Fáil Ministers. All Ministers make mistakes.
I am glad the Senator said that.
Regardless of who made the mistake there is an onus to correct what we consider to be a draconian measure.
The Minister of State quoted the definition of the term "nation" from the Chambers dictionary. I would like to know how it is defined in the Oxford dictionary. It would not be appropriate, however, to quote from it in the presence of the father of the House. The Minister of State also indicated that fidelity to the nation and loyalty to the State are deemed by the Constitution to be fundamental political duties. Senator O'Donovan also quoted from the Constitution. I disagree that they need to be restated in the Bill. It is not necessary to do so.
The debate on the 1937 Constitution commenced in the late 1920s. It has been dramatically amended since then and is in need of further amendment. The tendency at that time was to emigrate to the United States, Britain and Australia – there were not enough boats in Cobh and Dún Laoghaire. As Senator Hanafin and his daughter, the Minister of State, are aware the idea that a non-national would seek citizenship was unheard of. The idea that someone from China, India or South Africa would declare before a judge of the District Court fidelity to the nation and loyalty to the State was not in the minds of the legislators of the time. However, 65 years on the realities are different. I ask the Minister of State to remove the words "fidelity to the nation and loyalty to the State".
The term "the nation" is defined in the Constitution as well as the Acts of 1956 and 1986 and does not apply only to spouses. Every day of the week in the District Court in Chancery Place, in swearing the oath, hundreds of people declare fidelity to the nation and loyalty to the State in seeking naturalisation.
It amounts to hypocrisy.
If a person wants to be part of the nation—
They have to be a hypocrite as well.
—they should declare fidelity and loyalty to it.
There would have to be a referendum to change it.
It is unfortunate that more definite figures are not available. The Department of Foreign Affairs is only in a position to advise that a number of cases are under investigation. It does not have a definite number. A foreign national who was deported and barred from re-entering the United Kingdom sought post-nuptial citizenship on marrying an Irish man. She was a known associate of criminals and with her husband had pleaded guilty to fraud charges in a foreign jurisdiction. Her husband also has convictions for arson, burglary, assault, hijacking and other offences. It is wrong that a person such as this can confer citizenship on another undesirable. Another person who has sought post-nuptial citi zenship is wanted in other jurisdictions to serve prison sentences for rape, false imprisonment and robbery. Presumably he could be extradited but why should he be given the protection and privilege of citizenship? There are numerous other cases.
The Bill does not seek to exclude spouses, although Senator Ryan would like to give that impression. While it will not make it more difficult for them to obtain citizenship, it will no longer be an automatic entitlement. In dealing with something as important as citizenship, which we all hold dear, there is a need to strike the right balance. On the one hand there is a need for a mechanism to allow persons to become citizens and on the other to protect society by reducing the scope for abuse. As in all countries there are basic requirements to be met.
Mr. Ryan
At this stage I am going to give up on "absolute discretion" provided for in subsection (1). I do not want to start an argument with the Minister of State but the Minister and the Department are unwilling or unable to explain the reason they want this power. While I would not necessarily agree with all of them, I can understand the arguments for modification. We could have had a very good debate on the appropriate conditions but we do not know what the conditions are. We know the conditions that must be satisfied before a person can apply.
Senator Connor referred to people from Norway who had their applications for citizenship turned down. He knew of nothing to disbar them and could not find out what had caused them to be refused. I have mentioned the case of 15 year olds from Bradford who were refused visitor's visas to come here on a school tour by the impenetrable peculiarities of the Department of Justice, Equality and Law Reform and who could not find out, any more than I could, the reason.
I am intrigued by this. Up to about three years ago the Department would not even allow the photograph of the Secretary General to be published in the IPA yearbook because of a peculiar attitude to security. The Chief of Staff of the Defence Forces, the Minister for Defence and the Minister for Justice, Equality and Law Reform could be photographed but not the Secretary General of the Department, presumably for reasons of national security. To put it charitably it has an ethos of its own. It is determined at this stage not to discuss the issue. We cannot pursue it any further, therefore, and I do not want to have a row with the Minister of State. Tá an-mheas agam uirthi agus ceann de na fáthanna go bhfuil meas agam uirthi ná go bhfuil cumas sa Ghaeilge aici agus an dea-thoil aici don teanga. Sin buntáiste mór atá aici i mo thuairimse.
There is another part of this infernal section where absolute discretion is provided for. Subsection (2) states:
The Minister may, in his or her absolute discretion, waive the conditions at paragraph (c), (f), (g) or (h) of subsection (1) or any of them if satisfied that the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.
The coalition Government of 1982-87 granted citizenship to an acquaintance of mine. He would not have qualified because he was not of good character in the eyes of the law. He had a conviction in South Africa for planting car bombs and was very proud of what he called his military record. Unfortunately for him his wife and daughter were killed by a retaliatory letter bomb from the South African security forces in Angola. The then Minister for Justice, Deputy Michael Noonan, and the then Taoiseach, Garret FitzGerald, correctly took the view that the man's wife had been granted Irish citizenship on the basis of her descent, but he had not got around to making the declaration. The man, Marius Schoon, is dead now but he would not be granted Irish citizenship today and the clause about good character would still apply to him. Why pick certain clauses for exclusion and not others?
It is extraordinary that someone whose bodily integrity or liberty could suffer serious consequences will still have to make the oath of fidelity before being granted citizenship. Where does the Department envisage a situation arising where the Minister is satisfied that an applicant would suffer serious consequences in respect of his or her bodily integrity or liberty? The Minister could be satisfied that such a risk existed but would still be entitled to refuse to waive the conditions. Surely if the Minister is satisfied that a person would suffer serious consequences to liberty or bodily integrity, he or she could agree to waive the conditions rather than forcing people to jump through these hoops. In what circumstances would a Minister for Justice, Equality and Law Reform in this civilised democracy be aware that someone could suffer harm to their liberty or bodily integrity and still refuse to waive the conditions? How can that position be justified?
Senator Ryan is being particularly hard on the Department and, by extension, on the Oireachtas and the Government. It is the Government which is introducing this Bill and the proposals therein, not the departmental officials.
Mr. Ryan
That is the Department's usual excuse.
I say that as a Minister. The 1956 and 1986 Acts were introduced by previous Governments, not by the Department. It is particularly unfair to say that the departmental officials are faceless, hidden people, particularly in light of the publication of the Department's strategy report.
Mr. Ryan
The Minister of State should ask the kids from Bradford about faceless people.
It is in everyone's interest that the Department's dealings should be publicised in order that people should be aware what goes on within the Department.
On the question of the waiver, the circumstances are changed here to ensure that a person's bodily integrity can be respected. If that can be achieved by according them citizenship, so be it.
Could one of the departmental officials ascertain prior to Report Stage how many cases have come before the courts since 1986? It should not be very difficult to obtain that information. It would be difficult for me to obtain it given that I have very few resources other than my secretarial staff who are very stretched through Senator O'Toole accounting for three quarters of their workload. I would be very grateful if this information could be obtained.
I would like to oblige Senator Henry but, unfortunately, in these circumstances many of the cases do not go before the courts. If the Department were dealing with particular cases, it probably would be possible to bring cases before the courts. However, there are not many such cases and most of the cases of which we are aware come to light through the investigations of the Department of Foreign Affairs, which has not been able to provide complete figures in this regard.
What happens to these people if they do not even receive a judicial review? The situation is even worse than I had believed.
Mr. Ryan
I should not harp on about the Department but the officials bring the criticism upon themselves. On the numbers issue, is the figure less than ten, 100 or 500? Can we even get a ball park figure? We do not want to be told there are 46, 33 or two cases. We want to know whether the figure is greater or less than 100, 500 or 5,000. The Department must have some idea. I believe that the number is known but is so small that the Department does not want to inform us what it is. The figure is so small that its revelation would make this issue seem like an obsession of the current Government. Someone has an obsession about citizenship being accorded to the foreign spouses of Irish citizens. The numbers are so trivial that the Government or the Department would look even more ridiculous if they were to reveal them. I could live with a ball park figure but we cannot even get that. Why will the Department not tell us what the figure is?
Does it know what the figure is?
Mr. Ryan
It could undermine the security of the State if the Department were to reveal the figure. It is not in the public interest to tell us, which assertion, of itself, usually provides a good definition of what the public is interested in.
I am despairing, at least in a metaphorical sense as I would not want to sin against the Holy Spirit, of parliamentary accountability. We are dealing with primary legislation on its first airing in the Oireachtas, yet we are not aware of the parameters within which we are working. We cannot get explanations for phrases or numbers on the basis of which changes are supposed to be justified. This legislation is a fundamental change. I do not want criminals to become Irish citizens because of the abuse of an old system any more than anyone else does. However, it is the duty of Opposition to remind Government to retain a sense of proportion. This is not just a case of using a sledgehammer to crack a nut, this is a case of a JCB being used to plant a cabbage. The legislation is entirely disproportionate. It is a classic example of what is happening in all of our immigration legislation, namely the fear that the floodgates are about to open and we must build the barricades.
On a technical point, the Minister of State will be aware that Irish citizens fortunately do not have to take a pledge of allegiance. Perhaps there is a reason why naturalised citizens should take such a pledge. I am, and have always been, a defender of Éamon de Valera's Constitution. I would not allow the current generation to go near the Constitution in any fundamental way because it would take away most of the liberal interpretations. I have no doubt that the Department of Finance would abolish free primary education as it disapproves of absolute rights of any kind. However, the 1937 Constitution, as drafted, did not contain an oath of allegiance. When my good friend, John Robb, was invited to become a Member of the Seanad, his first question was whether he would be obliged to take an oath of allegiance to the State because he could not do so. He was informed that there was no such requirement. I presume John Robb held a British passport and I am almost certain Sam McAughtry did. In those days, before the Constitution was changed, people from Northern Ireland were automatically deemed Irish citizens. That is no longer the case as people from Northern Ireland must now request citizenship. As they are no longer automatically deemed Irish citizens, are they still entitled to be Members of this House if they carry a British passport? I fear that holders of British passports from Northern Ireland may find their right to be Members of this House restricted by the well intentioned changes to the Constitution, which I support. They are no longer automatically Irish citizens, but are whichever they choose to be.
I do not expect the Minister of State to address this now; I raise it because I propose to introduce an amendment on Report Stage to ensure that such a problem is not a constitutional obstacle. I am still trying to resolve this aspect. I am trying to be helpful here because I am concerned there might be a problem.
Does the Minister have a definition of what is meant by the term "of good character"? Why is an affidavit not sufficient to indicate that a couple is living together as husband and wife? Many years ago, when the House was dealing with a social welfare Bill, the word "cohabiting" had to be defined. A delicately minded Minister, when outlining what the word meant, managed to avoid mentioning the word "sex" until the last sentence of the last paragraph because it was the most indelicate part of his reply. We should at least give people the decency of accepting that if they swear an affidavit and say they are living together as husband and wife the presumption that the State can find some other way of proving otherwise is to a degree a voyeur's charter if it were to be abused. We do not want that. An affidavit is sufficient.
The Seanad deserves accurate figures I can stand over, which is why I have avoided given ball park figures. Unfortunately, the Departments have not been in a position to provide accurate figures, but given that Senator Ryan has said he will settle for a ball park figure, the Department of Foreign Affairs would give us to believe it is investigating over 1,000 cases, similar to those I have provided and to other examples I could provide. Most of those do not go before the courts.
Senator Henry asked what happens to these people. They continue to be Irish citizens because they have got their citizenship by virtue of the post-nuptial citizenship arrangement and they cannot be deprived of it, despite the fact that had there been a choice in the matter they would not have been given it. The chances are they may still be in Ireland or they may be living comfortably in another European country as Irish citizens by virtue of the way they got citizenship. These are the only figures I can provide. I cannot stand over their accuracy but I will try to obtain further details if they are available.
Senator Ryan asked about the position of former Senator Robb and if other persons born in Northern Ireland would be entitled to sit in this House. I understand there is no constitutional obstacle here. They would be entitled to sit. However, I am not definite about that and will have it clarified. The question about "of good character" is the subject of an amendment to the next section and perhaps we could deal with it then.
Question put and agreed to.
NEW SECTIONS.
An Leas-Chathaoirleach
Amendment No. 3a in the name of Senator Ryan is a new amendment on the additional list.
Mr. Ryan
I move amendment 3a:
In page 6, before section 6, to insert the following new section:
"6.–The following section is hereby inserted after section 15A of the Act of 1956:
‘15B.–In section 15A, a person shall be deemed to be of good character unless he or she has been convicted of an arrestable offence within the meaning of the Criminal Law Act, 1997, within the previous 5 years, other than a political offence.'.".
As you know, Sir, it is my natural instinct to be as helpful as possible on Committee Stage and I am, therefore, endeavouring to be helpful here. I do not like – nor should any legislator – phrases that do not have a legal definition. The desire for precision by the parliamentary draftsman is sometimes used to refuse amendments because they are not precise enough. It is, therefore, an irony of parliamentary life that this desire appears to go missing when Departments use vague language when it suits them.
The phrase "of good character" is used in the context of nuptial citizenship, that is, it is concerned with the spouses of Irish citizens. It effectively means that, unless the Department and the Minister are satisfied they are of undefined good character, applicants will not be allowed to hold Irish citizenship. It does not specify that they must have been in breach of a criminal offence either here or abroad; it merely provides that they must be of good character.
Everybody knows that many parents take the view that the first, second, third or subsequent boyfriend or girlfriend of a child is not of sufficiently good character to be worthy. Given this, I invite the Minister to consider an objective test of good character. It should not entail involvement in anti-Government demonstrations in other countries or in organisations regarded as less than acceptable. There should be an objective test, otherwise one gets involved in a very dangerous area where nobody is sure what is meant by the term.
Given that I have two or three convictions for speeding, am I of good character according to the Minister? While I have no other convictions, Members of this House have convictions. For example, two of my distinguished colleagues from the Independent benches have convictions for breaches of drink driving laws, both well recorded in the public domain from many years ago. Are they of good character? I do not know. There ought to be an objective test and it ought to be time limited. For example, those getting married at 30 years of age should not have a conviction incurred at 17 years of age hanging over them forever if they seek Irish citizenship and where all other conditions are met. They are living in the country, they intend to stay here and are prepared to take the oath, etc., yet they have a conviction going back many years. I am suspicious about terms such as "of good character". They are unchallengable in court because we do not know what is the test.
I support this sensible amendment.
The amendment is opposed. It seeks to introduce to the Bill a definition of the term "of good character" for the purposes of the special scheme of naturalisation for spouses of Irish citizens. The definition proposed is based on whether the person has been convicted of an arrestable offence other than a political offence, within the meaning of the Criminal Law Act, 1997, within the last five years. An arrestable offence under that Act is one which carried a maximum penalty of five years or more for a first offence.
I have a number of objections to this one dimensional view of what constitutes good character. First, it relates only to convictions in the State. In the nature of things, most non-national spouses will have spent a substantial proportion of their lives elsewhere than in the State. The residence requirement for naturalisation of a spouse is three out of the last five years in Ireland. The scope for such a person to have committed an Irish arrestable offence within the previous five years is, accordingly, limited. It is doubtful if the proposed provision would be effective from ruling out from naturalisation any but a small proportion of persons whose character was, by any standard, such as to make them unsuitable candidates for the granting of Irish citizenship.
Of course it would be possible to remedy this defect by adding something which would include equivalent offences committed abroad, but my objections are considerably more deep seated than that. To illustrate I will take what is admittedly an extreme example, that of the late but unlamented Arkan, the butcher of Bosnia. Let us assume that the defect I have identified in the amendment is cured. If Arkan had married an Irishwoman and in the fullness of time sought to acquire Irish citizenship under the new scheme for spouses proposed in this Bill, with the modification proposed by the Senator's amendment, it is unlikely that a Minister for Justice, Equality and Law Reform would be able to deny citizenship to him on character grounds, assuming that all of the other conditions were met. I am not aware that that gentleman had any criminal convictions and so would have been of good character by reference to the standard of the amendment, an extraordinary outcome and one I am sure not intended by those who tabled the amendment. I accept the example is extreme, but it serves to draw attention to considerations that arise more frequently in dealing with naturalisation.
Let us take the situation of an applicant for naturalisation who is the subject of a freezing order under the Proceeds of Crime Act or is under investigation by the Criminal Assets Bureau. Such a person may not have been convicted of a criminal offence. Is the Minister to ignore the order or the existence of the investigation and proceed on the basis that the applicant is of good character? Take another situation that arises from time to time where an applicant whose financial records for the previous number of years show an income barely above the tax threshold but who has been able to invest a substantial amount of unexplained cash in the purchase of a house or the setting up of a business. Is the Minister to assume that the transaction or the tax records are above board and give a certificate of naturalisation forthwith because no conviction is disclosed, or should there be some delay while the possibly shady aspects are examined further? If a person charged with an arrestable offence, but not yet convicted or acquitted, submits an application for naturalisation, is the Minister to act on the basis that the applicant is of good character? What of the person with a string of non-arrestable offences, say a lengthy catalogue of traffic offences, not just two speeding fines, or a history of convictions for prostitution or drug possession? Can such a person by any normal standard be said to be of good character? What of the person subject to a barring order, or perhaps no longer the subject of a barring order but where Garda concerns based on complaints from the spouse or neighbours remain that the domestic situation may be fraught? Is such a person of good character?
The notion of a political offence is one which exists in Irish statute law only in the context of extradition. The Extradition Acts do not say what a political offence is, but they make clear that very many offences of a serious nature are not to be regarded as political offences for the purposes of the various international extradition conventions. Such offences include murder, including murder of a head of state, genocide, aircraft hijacking and internationally recognised drugs offences. Section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, states:
any serious offence . . . of which a person is accused or has been convicted outside the State–
(i)involving an act of violence against the life, physical integrity or liberty of a person, or
(ii)involving an act against property if the act created a collective danger for persons,
and any offence of attempting to commit any of the foregoing offences.
The amendment proposed by Senator Ryan and supported by Senator Henry says that the conviction of an applicant for a political offence does not count and that the person is of good character. However, the trend of legislation is clearly away from regarding offences as political offences, so this apparent protection for the political offender would be more apparent than real. I am not sure that a blanket exclusion of political offences from the reckoning in determining good character is of itself always a good thing. It is not difficult to imagine circumstances where a crime of a particularly heinous nature, committed out of political motivation, would so repulse society as to justify a decision that the person was not of good character.
The absolute measure proposed in the amendment cuts both ways. What of the person who has one rather serious blot on his or her criminal record, but where extenuating circumstances exist which would make it perfectly reasonable to treat the person as nonetheless being of good character? A conviction for the manslaughter of a drunken or violent spouse where the court saw fit to impose no sentence or a suspended sentence might be such a case in point.
The thrust of my argument here is that the idea of attempting to give a statutory definition of "good character" is fine in theory, but when it comes to the business of drawing up the detail of that definition, as in the case of so many other well understood but ultimately indefinable legal concepts, the double danger always exists. The words used may exclude cases which should by any objective standard be included and may encompass cases which by the same objective standard should never be included.
As I have said earlier, the question of conferring citizenship on a non-national is ultimately a matter for the Executive arm of Government. The Legislature can quite properly set out guidelines for the exercise of Executive discretion. However, if the guidelines are overly defined they may well serve to bring about the opposite of what is intended to be achieved. The democratic processes involved in the choosing of the Executive arm of Government and the answerability of the Government both individually and collectively to Parliament are sufficient to ensure that discretion will be exercised in the interest of the common good. The determination of good character in the context of naturalisation applications from non-national spouses is best left in the same terms as in other naturalisation applications provided for under section 15 of the Citizenship Act, 1956 as re-stated in 1986, as a matter for the Minister to determine in each case.
Mr. Ryan
It came as no surprise when the Minister said she would not be accepting the amendment. I anticipated the argument about the offence being committed within the State. In that context it is a pity the Minister contradicts that later by citing the case of a person who might be refused citizenship because of a manslaughter charge involving a violent spouse but who might otherwise be entitled to citizenship. As the Minister said, such a person would have to be resident here for three years in any event, which would mean that the worst case scenario would be a delay of two years in a person's application in some cases. Instead of this we have an entirely arbitrary index which we will never be able to test as the Minister has said that the absolute discretion of the Executive means she does not have to tell us why citizenship is refused. The Minister can simply say "no" to an application.
I do not propose pressing the amendment. There are valid arguments in what the Minister said and I will examine the matter before next week.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 3b:
In page 6, before section 6, to insert the following new section:
"6.–A person who is the spouse of an Irish citizen or who was residing in the State at the time that he or she was the spouse of an Irish citizen but who is not an Irish citizen shall have the right to reside in the State.".
I am always happy to defer to the collective wisdom of a Department, the Attorney General and the Government on the detail of amendments and the Opposition should not spend time discussing amendments about errors or mistakes of detail. We do a good job in raising issues of policy and principle, and if there is agreement in principle the detail should be left to the parliamentary draftsman.
The Minister answered "yes" when I asked if the spouse of an Irish citizen is entitled as a right to reside in Ireland. If that is so, then let us at least reassure Irish people who marry non-nationals that their spouse has an unconditional right to reside in the State. The reservations which many of us have about this section would be considerably decreased if we were only arguing about citizenship, with an unquestionable right for the spouse of an Irish citizen to live in the State. This amendment states what I have been told is the current situation.
I support the amendment.
The amendment is opposed. It seeks to enshrine in legislation an absolute and unqualified statutory right for a non-national to reside in the State simply because he or she is the spouse of an Irish citizen. As Senator Ryan said, there is in practical terms a virtually unqualified right for non-national spouses not just to reside here with their Irish partners, but to come and go more or less as they please because the practice is to issue such spouses with multi-entry visas which ensure that if they leave the State, whether in the company of the Irish spouse, there will be no difficulty about re-entering it. This is analogous to the situation of the non-EU spouse of an EU national working here in pursuance of his or her Treaty rights. I say virtually unqualified because, in the cases of the non-national spouse of the Irish citizens or the non-EU spouse of the EU national, there remains the consideration of national security and public policy. The EU directive covering the position of the non-EU spouse specifically provides for such a limitation on the right of residence in an EU state. The advice available to me is that there is an analogous limitation on the position of the spouse of an Irish national.
I refer to the significant case in this jurisdiction regarding the position of non-national family members of an Irish citizen to remain in the State, the 1991 Supreme Court case of Fajujonu. The parents, both non-nationals, of an Irish-born minor child sought to remain in the State on the basis that their child, as an Irish citizen, was entitled to remain in the State; that they, as parents and guardians of the child, were entitled to make that choice on the child's behalf; and that the child was entitled to enjoy the care and companionship of its parents and guardians. The Supreme Court, in finding in favour of the parents in this case, made it clear that their right to remain in the State was not unqualified. There was a balance to be struck between the undoubted rights of the child on the one hand and considerations of the common good on the other. The court confirmed that the Minister could require the parents in this case to leave the State ". . . if, after due consideration, he is satisfied that the interests of the common good and the protection of the State and its society justifies an interference with. . . a constitutional right."
The constitutional right is that of the child to the company and care of its parents not, as the judgment emphasised, any right of the parents to remain in the State. The considerations outlined in that judgment are that the non-national parents have resided for an appreciable time in the State and are members of a family unit containing children who are citizens. The practical effect of the decision is that in most cases the Minister permits the non-national parents of an Irish child to remain because the contra-indications set out by the court are not present.
How do these principles apply in the case of a non-national spouse of an Irish citizen? A family without children is a family within the meaning of the Constitution. It has also been determined by case law – the case of Bouzagou in 1985 – that a non-national estranged from the Irish citizen spouse and the subject of a barring order could not claim Article 41 rights. In consequence, it appears that the right of the non-national spouse to remain in the State with the Irish citizen spouse is not absolute and is subject to the interests of the common good and the protection of the State and its society and considerations as to the nature of the relationship between the spouses. That is a properly tenable position.
I refer back to the example given on an earlier amendment. There would be a strong public policy dimension to the position of a person, such as Arkan, married to an Irish citizen. The fact of marriage should not automatically give an internationally recognised villain the unqualified right to remain here. The same logic applies to less extreme examples where there is an issue of the protection of society and the interests of the common good. These are considerations which apply not just in this but in other jurisdictions.
The Minister previously adverted to the work in hand in the Department on the development of a comprehensive set of legislative proposals to replace the Aliens Act, 1935, with a modern code of immigration and residence law attuned to the needs of today's society and in keeping with best human rights practice. He hopes to bring forward a scheme of proposals for a Bill to Government towards the middle of this year. The proposal in the Senator's amendment is properly a matter for consideration in that context rather than in this Bill, which deals not with immigration and residence matters as such, the acquisition of citizenship.
Mr. Ryan
On this side of the House we listen to the arguments and decide whether we will pursue an issue, but on the other side, unfortunately, Members have their minds made up before we start. I agree with the Minister of State that the amendment would be more appropriately dealt with in progressive immigration legislation. I am aware that the Minister wishes to remove phrases such as "aliens", etc.. Every time my 14 year old son hears a reference to the Aliens Act he draws all sorts of interesting conclusion about his father's interests in it, as he is a fan of "The X-Files", among other programmes.
He might be right.
Mr. Ryan
I am quite happy with that but I am tired of constant reference to Arkan. The Department could provide a better and more universally applicable example. The Minister of State said that the exceptions to the norm essentially only occur when the common good and fundamental issues of public policy arise. I look forward to the publication of the Bill to replace the Aliens Act. I do not propose to press the amendment.
Amendment, by leave, withdrawn.
SECTION 6.
Mr. Ryan
I move amendment No. 4:
In page 6, lines 18 to 44, to delete subsection (1).
My intention is to deal with some of the more contentious issues. I do not expect the Minister of State to accept the amendment but I wanted to ensure that we discussed the more mean minded aspect of this proposal. The section deals with the calculation of the period of residence. The more objectionable element is in the proposed section 16A(1)(b) which states:
". . . no period shall be reckoned in respect of which the non-national– . . .
(ii)had permission to remain under that Act for the purpose of–
(I)study. . . or,
(II)seeking to be recognised as a refugee. . . "
An individual goes through our rigorous procedures for evaluating whether people are entitled to refugee status and has it granted. Under the Geneva Convention this individual has a legitimate reason to fear persecution. He or she lives here while his or her case is pursued. He or she is then granted refugee status and the entire rigmarole starts all over again because even if it takes three or four years to process the application, as is currently the case, he or she is told that he or she must start back at year 0 and the years are counted a second time in order to process his or her citizenship application. Why is that the case?
I accept that there is a case to be made for somebody who has been refused refugee status to have it granted on compassionate grounds. However, we are saying that those who are granted refugee status under the terms of the Geneva Convention, which means that we accept that if they were resident in their native country they would be persecuted, will not have the time they were present in the country applying for refugee status included in their citizenship applications. That is the issue which I raise in the amendment.
I do not regard myself to be in competition with the parliamentary draftspeople. I table amendments in order to raise issues and if issues are agreed the legislation can be further refined on Report Stage. I have neither the resources nor the inclination to try to second guess the well-paid lawyers in the Attorney General's office whose job it is to write legislation. The principal point is that, first, it is mean minded in dealing with applicants for refugee status and, second, it excludes study periods. It is a legitimate activity to come here to study. Our universities made quite a tidy sum from people who came here to study medicine in particular; we could discuss that for some time. Some of these people are desperately needed because we cannot persuade Irish hospital doctors to remain in Ireland. If we did not have non-national and indeed non-EU doctors available to work in our hospitals we would have an even more serious crisis in the health services. Even though these people have studied, say, medicine here, we are now telling them that if they apply for citizenship the period during which they lived here as a student will not count.
I know the Minister will say that other countries do it this way and we should do the same, that there is no precedent for doing it the other way and that this is our attempt to define this area. They are insufficient reasons for not doing something. Reasons are put together by examining the arguments for and against, explaining them to us and then putting together a synthesis of those arguments explaining why the Government took a decision in one direction or another. The Minister will note I am saying "Government" because I do not want to fall out with the Department of Justice, Equality and Law Reform any more than I have done already. There is no reason to exclude refugees. Despite the fact that they have been working here we are now saying that does not count. The ethos behind this measure is the same obstructionist ethos that is behind many of our attitudes to immigrants and to non-nationals – to make the process awkward and slow and to retain absolute discretion within a profoundly unaccountable Department.
I ask the Minister of State to consider accepting this amendment. The section dealing with those who have applied for and obtained refugee status is niggardly because they now have to start the whole process again. There is something very wrong about recognising a person who came here because of circumstances in their country of birth which made it imperative for their own safety and then, before they can acquire citizenship, asking them to start the residency requirements procedure again.
Regarding the section on study, this is an area in which we are cutting off our nose to spite our face. I speak from the point of view of those who may have come here to study medicine and, in particular, post graduates. Those people will be employed during this time. We are facing a very serious situation in our hospitals. I am sure the Minister of State is aware that some accident and emergency units are 40% undermanned. The circumstances are so bad in some of our rural hospitals that we have to take anybody who applies for a job. We already have a problem in that people who apply to come here are given visas for six years only, but most training courses run for seven years. One of the carrots attracting people to this country is that if a person works here, even in a post graduate capacity, they could be considered for citizenship after seven or eight years, but that will no longer be the case. These people may have taken up positions in our rural hospitals where they are vital to the maintenance of services, yet they will be excluded now from counting that time for residency purposes. This is an area in which we will lose more than the people who apply for citizenship.
Senator Ryan predicted what I am about to say so he will not be surprised when I say the amendment is opposed. Having been very unpredictable as a backbencher, I hope I will not become too predictable as a Minister. The amendment is opposed because it seeks to delete from the Bill the substance of section 6 which deals with what is to be understood by residence in the State for the purposes of meeting the conditions of naturalisation.
Section 6 inserts a new section 16A into the 1956 Act which provides that when periods of residence are being calculated for the purposes of an application for naturalisation, account will be taken only of those periods of residence which were in compliance with immigration laws and regulations and which were not for temporary purposes. The aim of this provision is to clarify for applicants the periods of residence in the State that will and will not be reckoned.
Rather than go through all the details of the section I will refer only to the sections raised by Senators Ryan and Henry, particularly paragraph (b)(ii) of subsection (1) which states that permission to remain, given for certain temporary purposes, will not reckon for naturalisation purposes. These temporary purposes are study, including study periods which involve an element of paid work experience, and temporary permission to enter and stay in the State while awaiting a decision on an asylum claim.
There are good reasons such periods should be excluded. In the case of a person coming to the State to pursue studies, the duration of his or her permission to remain is limited to the length of the study course, taking on board what Senator Henry said about the six or seven years. The person can have no expectation that by coming to the State for a limited period, his or her time here will reckon for naturalisation purposes. A person admitted as a student is, by definition, here for the limited period of duration of the course of study and should not have an expectation of being able to acquire citizenship on the strength of such a stay or of having that stay reckonable towards qualifying for citizenship. A student comes here for the primary purpose of obtaining a qualification, with perhaps an element of work experience, and then to return home where that qualification can be put to good use in his or her own community.
Were periods of study taken into account for naturalisation purposes, it could have a number of undesirable effects. Many students who come here are sponsored by their own governments or by our overseas aid programme; that is particularly so in the case of students from less developed countries. The purpose of their coming here is to develop skills and knowledge which can then be usefully applied to assist in the development of their own countries. It would clearly be a disincentive to many such students to return to their home countries were they in a position to seek citizenship on the basis of their time here as students and clearly contradictory in policy terms.
Senator Ryan spoke particularly about people seeking refugee status. Periods in the State where a person is seeking refugee status will also not reckon for the purposes of naturalisation. Under section 9(3)(a) of the Refugee Act, 1996, due to be implemented shortly, an applicant for refugee status is to be given a temporary residence certificate. Under the current arrangements for dealing with asylum seekers, an applicant is allowed to remain in the State on a temporary basis pending the outcome of the application. In either case, the basis for the stay in the State is temporary only, and an asylum applicant can have no expectation of being able to acquire citizenship on the basis of that temporary stay.
Until the consideration of the asylum claim has been finally completed, whether under the current UNHCR approved procedures or, soon, under the Refugee Act, it is not possible to determine what the applicant's status will be. He or she may be recognised as a refugee, may fail to be recognised as a refugee and be required to leave the State, or may fail to be recognised as a refugee and be permitted to remain on other grounds, including grounds which may have no bearing on the asylum claim.
It is important to stress that an asylum applicant is admitted to the State for the purpose of determining whether he or she qualifies for recognition as a refugee, but the fact that a person is admitted for this purpose cannot guarantee the right to reside indefinitely in the State or to seek citizenship of the State. The person's status is determined by the outcome of his or her application. Where a person is recognised as a refugee, there is power in the existing citizenship laws to provide a waiver from the normal naturalisation provisions for the person concerned. Where a person is recognised as a refugee the Minister may exercise his or her powers under section 16(g) of the 1986 Act to grant a certificate of naturalisation where all the conditions of naturalisation are not met. In practice, this option is often exercised by the Minister in his or her discretion agreeing to accept applications for naturalisation after three years residence in the State rather than the normal residence requirements of one year's continuous residence in the State immediately prior to the application and four years residence in the eight years prior to that period. This is only proper and can greatly assist the integration of refugees into Irish society.
This is the first time that rules for the calculation of periods of residence for meeting the residence requirement have been set out in statute. It will provide clarity for future applicants by removing doubt as to what periods do and do not qualify. In addition, the position regarding residence permits and permission to remain will provide a useful additional incentive to non-nationals to comply with Irish immigration and residence requirements.
Mr. Ryan
Elements of the Minister's reply deserve serious debate. To suggest that one of the reasons for this provision is an altruistic concern for the state of developing countries is pushing credulity a little far. If the Minister wants to pursue this line of argument, then we should say we will not allow them to take up employment here when they are qualified. If we are concerned about such people, sponsored by their Governments to come here to acquire skills and return home, then the logical consequence is to say that they must leave the country when they are qualified, irrespective of labour shortages. We will not do that. Once such people obtain high level qualifications, be they medical, technical etc., pressures will be brought to bear by health boards and multinationals to allow them to remain here because the economy needs them. We will permit them to remain. The argument that we are concerned about the disincentive effect is not real. If we were consistent we would say people who come to Ireland under such conditions must take the first plane home after they qualify. The Minister's argument carries no weight.
The real issue, as the Minister said, is that people come here with no certainty of their future and because this economy needs them they get a job. They are then told they can live here, pay taxes and meet all other conditions, but when it comes to citizenship we will not start counting their period of residence until after they are qualified, even though they are making a contribution to the development of Irish society. Their contribution, based on their studies here, is only measured from the period they took up employment.
In most cases such people are paying full economic fees for their studies. We are not producing large numbers of generous overseas development scholarships. These people pay for their education. It is a commercial arrangement, they pay the full economic cost. The education sector makes money while they are studying here. When they qualify we tell them they cannot go home because we desperately need them to man our accident and emergency services and country hospitals. When they do agree to remain we tell them they cannot apply for citizenship. There is no logic to this argument. We have had up to six years to observe the behaviour of such people. We know they are of good character. The Garda Síochána will know all about them because they will probably have been signing on every month for the past six years. The Garda know more about such people than they do about our citizens because of the degree of routine contact which must be made. We suddenly get mean-minded about our citizenship.
The Minister laid great emphasis on the fact that people who apply for refugee status are given temporary residence. There is nothing else they could be given. Nobody – even I in my liberal position – is suggesting that everybody who applies for political asylum should be given permanent status. The Minister feels the system is very fair, though the former member of the Appeals Board did not share his view. It is a rigorous system which turns down about 80 per cent of applicants on first hearing. A victim of persecution – a fact confirmed by institutions of this State – has an unqualified right to live and work here under the Geneva Convention and has a right not to be discriminated against on any matter. Once afforded refugee status such people must be treated as citizens in all matters, yet we tell them they cannot apply for citizenship. Why? We know all about them. We have given them the right to reside here. We are not dealing with the floodgates argument again. We are talking about people who meet, in my view, the quite narrow criteria of the Geneva Convention, yet we will not give them citizenship. Why? Do we want to maintain discrimination? Ireland is trying to develop a multicultural ethos. We will have to liberalise our immigration laws. A person who comes here from Romania and does not apply for refugee status could, having lived here for a short time, qualify for naturalisation before the victim of persecution. That is turning logic on its head.
I do not propose to pursue the amendment, which is badly drafted. I will return to it when we come to dealing with the section.
I hope the Minister of State will take into account my tales of fresh disasters. The Medical Council has decided that some of our rural hospitals' teaching standards are not up to those required for post-graduate teaching. They have decided not to recognise some of these hospitals as places of study for people doing post-graduate surgical or medical work. However, these hospitals are so desperate to recruit people that they will take on people from non-EU countries whom we are most grateful to have. There are advertisements in the medical press for posts which have not been filled since the beginning of January. We have warned of this shortage of staff for about three years. Will those people who take up posts in unrecognised hospitals be in a better position than those who take up posts in recognised ones? Their training and work in recognised hospitals will be considered part of study. Those who are in hospitals of a lower calibre will be in a position to have their residency in the country recognised for naturalisation. This is an extraordinary position. It would be better for hospitals to downgrade. It would be better for them to close their libraries and economise by not taking any more medical journals and have their hospitals downgraded. The people they employ would then have their time recognised for naturalisation. Perhaps the Minister of State would clarify this.
With regard to Senator Henry's point and the shortage of doctors, she will know better than I that the Medical Council insists on a qualifying examination but issues temporary licences. In this context the immigration authorities offer every facility to people who wish to come here to study medicine. The point she raised about where they do their work experience is a relevant one. It would be grossly unfair if one group of people could qualify while another group would not. I will inquire from the Department of Health and Children about the situation and report back to the Senator.
I hope Senator Ryan will not attach too much significance to the provisions for refugees in the Act. I will repeat what I said earlier and refer to section 16 which provides that the Minister can waive some of the conditions in relation to residency. In practice he does that on a liberal basis. Previous Ministers have also done it. That waiver might cover some of the issues raised by the Senator.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
Mr. Ryan
There is a strange thing about all of our attitudes to foreigners. I say "our" and include myself in that. We are prepared to provide concessionary rights so that the Minister can apply a waiver. I do not know if he sees what is underlying this provision. He can waive it in some circumstances, and often does, but he does not always waive it. In this section the Minister is attempting to second guess the procedures we have set up to judge whether people are entitled to refugee status and still keep some people waiting because they are not as deserving as others. Therefore, they are not all the same any more. They are all supposed to be refugees under the Geneva Convention but some of them will be allowed a waiver in terms of the time element of qualification to apply for naturalisation. They have all gone through the same procedure and their cases have been adjudicated upon in the same way. What will happen now? The 6 per cent to 10 per cent of people who get through on their first application may be allowed benefit from a shortcut. The people who go through the appeals procedure, which is not under the Department's control and which we have been assured is independent, will have to wait longer because they are not considered to be quite as good as the cases approved by the Department after the initial hearing. I do not know if this will happen but I do know that we now have two peculiar provisions. One section of the 1956 Act provides that the period a person has to wait for their claim to be processed cannot be counted. Yet another section states that if the Minister thinks otherwise it does not have to be like that. What is the logic of legislation like that? It all comes back to a catalogue of provisions that are supposed to be rights or conditions, but most of them are not. They are things we aspire to but if they do not suit us we will not use them. Some of them are positive while others are not. That is not the way to run the law.
The Department has run into trouble with the courts for attempting to make laws without going through the Houses of the Oireachtas. Remember it was the courts which told the Department that it could not keep asylum seekers locked up in jail while it processed their claims. The Department did not understand even that basic principle. One of the refugees fleeing from the consequences of Tiananmen Square spent 18 months in Mountjoy Prison until the courts decided that that was an inhuman way to treat anyone. I thought it was obvious that it was inhuman.
We cannot keep making laws and inserting little sub-clauses which mean that it does not happen like that. The phrase "absolute discretion" riddles our law. We now have a stated condition that a person cannot use the time they had to wait for a decision on refugee status but if the Minister thinks otherwise they can. That is not the way to make law. It is also not the way we should make law.
Question put and agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
Government amendment No. 5:
In page 8, to delete lines 13 to 15, and substitute the following new subsection:
"(3) Section 2(a)(iii) and (d) and section 3 of this Act shall be deemed to have come into operation on the 2nd day of December, 1999, being the day of the making of the declaration by the Government under Article 29.7.3WP extended char 1,14 of the Constitution.".
Amendment agreed to.
Government amendment No. 6:
In page 8, subsection (4), line 16, to delete "section 3" and substitute "section 2(a)(iii) and section 3".
Amendment agreed to.
Section 9, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
Next Wednesday.
Acting Chairman
Is that agreed? Agreed.
Sitting suspended at 5.20 p.m. and resumed at 6 p.m.