Amendment No. 1 is related to amendments Nos. 2 to 4, inclusive. Therefore, amendments Nos. 1 to 4, inclusive, may be discussed together.
Irish Nationality and Citizenship Bill 2004: Committee Stage.
I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
2. — Within three months of the passing of this Act, the Minister shall publish the guidelines which are applied by the Department of Justice, Equality and Law Reform in determining whether to grant leave to remain to the non-national parents of an Irish born child.".
The Minister admitted in the Lower House that there are no grounds or guidelines to assist him and his officials in determining whether to grant a person leave to remain. Will the Minister indicate the type of considerations or factors that he will take into account? After all, it is a fundamental matter when the Minister is deciding a person's future. In the interests of transparency. this amendment tasks the Minister to commit these factors to paper to let us know what those procedures will be.
As regards amendment No. 2, on Second Stage we addressed the question of our sympathy with parents who came to Ireland in the belief that if their child was born here they could stay. That was the case until the Supreme Court's decision in 2003. Before that point, they had a legitimate expectation and I am asking the Minister to recognise that. He appeared to recognise it in his comments on Second Stage.
The Minister said he would deal with their applications individually and expedite the process. He also said that when the Bill is enacted he would bring a memorandum to Cabinet to deal with this matter. I am asking him to expand on his comments on Second Stage and to reassure us that these people will be dealt with expeditiously in a humanitarian manner.
Amendment No. 4 seeks the establishment of an appeals system. Some independent appeals mechanism should be put in place. It is not fair that the Minister or his officials, who decide the initial application, should then also decide on the appeal. This does not accord with anyone's view of fairness and justice. I would like to hear what the Minister has to say about this. What is the fear about introducing some independent appeals system outside the Department?
Amendment No. 3 in the name of the Labour Party Senators seeks to draw a line under what has been a difficult and painful issue for the State in recent years. The bottom line is that we were extremely poor in dealing with the influx of refugees and asylum seekers to this country over the past five or six years. We were not properly geared up to deal with it efficiently or humanely. We all acknowledge that it took us a long time — I am not sure that we are there yet — to get a system in place that would allow decisions to be made sufficiently quickly. In many cases, the individuals concerned do not speak English and do not have any sense of how things work here, so they are not in a position to go through complicated legal processes with any confidence.
One merit the Bill has — one could argue, one merit of the constitutional amendment — is that it now provides a degree of certainty. Given that is now the case, it is unreasonable to put thousands of people through a system of individual assessment. The State should draw a line and allow those who had children here prior to February 2003 to remain here.
I welcome the flexible attitude displayed by the Minister on Committee Stage. It seemed to me that he was showing good will towards many of the points that were raised in the House on that occasion. I support these amendments. Amendment No. 1 is very important because if applicants do not have access to some clear understanding of the guidelines and criteria that are being applied, it places them in a Kafkaesque situation. I am sure the Minister would regard that as regrettable.
The other amendments refer to a backlog of approximately 11,500 persons. In terms of legal administration that is an enormous number of people, but it is not a vast amount compared to the overall population. One must bear these two ideas in mind. If they all choose to go through the legal appeals process, the cost to the State could be well over €100 million, which could be much better spent.
Behind these amendments there are suggestions that an amnesty should be granted. I am not sure if a total amnesty should be granted, however, because the State is entitled to determine if some of these applicants might have a serious criminal record. That would be a reason for excluding them and, therefore, I would not support a general amnesty. We should find a mechanism for shifting this backlog and providing natural justice to those applicants, some of whom have been in the State for quite a number of years. None of them, apparently, has received a reply from the Department of Justice, Equality and Law Reform during the past two years. We do owe them something if they have reasonably good cases.
With regard to the appeals issue referred to in amendment No. 4, the Minister is, of course, entrusted with the decision-making in the first place. However, it does seem odd to appeal that decision to the same person because it is a kind of new case. The Minister is familiar with the legal doctrine that one cannot be judge in one's own case. The idea of not having an appeal mechanism, except to the same authority that decided in the first place, comes very close to the notion of being a judge in one's own case. I ask the Minister to examine this matter also.
We were asked very suddenly to deal with a very large number of people coming into the country. Therefore, I have sympathy with those who, from the early 1990s onwards, were suddenly faced with an influx of people. I have been to the various departmental off-shoots that have been established at Burgh Quay and at the Irish Refugee Council and elsewhere, and huge efforts have been made to try to accommodate people. I praise the fact that some emphasis is being placed upon privacy when such people are discussing their cases with officials.
Senator Norris said it would cost the State an enormous amount for every one of these cases to go through the courts. In addition, while it is right to state that notorious criminals must be regarded differently, nonetheless, it would be worthwhile considering a general amnesty.
As regards the appeals board situation, it seems very odd that one would have to go back to the same people if one is refused permission to remain in the State. As I said on Second Stage, I am concerned about Irish children being deported. In years to come they may have a case against the State for having been deported. It might be wiser to keep them and their parents who came here thinking they would be allowed to stay. That was certainly my view when I talked to some of the refugees and asylum seekers years ago. I hope the Minister will be able to accept these amendments.
There are some misunderstandings here. First, it is not the case that there are no criteria on which the decisions in question are made. For instance, section 3(6) of the Immigration Act 1999 and section 4(10) of the Immigration Act 2004 deal at great length with the criteria that must be taken into account in applications of this kind. Even when it comes to a decision on humanitarian leave to remain, I also have to deal with the Supreme Court and High Court jurisprudence in the area. Therefore, it is by no means the case that I can flip coins or say "I like that name" and make a decision on that basis. That is not how decisions are made in this area.
If I may say so respectfully, the fundamental misunderstanding underlying some of the comments that have just been made is that this is a judicial process. In most cases, it is not a judicial process as to whether somebody comes into Ireland and remains here. It is an executive power of a sovereign, independent State. It is for the Executive — the Government of the day under our constitutional scheme of things — to decide who does or who does not come into the State, who is allowed to remain in the State and on what terms. That is classic across the European Union. It is not the case that people have the right to be in Ireland as a matter of law, except in narrow circumstances. For example, EU citizens are entitled to live in Ireland in certain circumstances and for certain purposes.
Ireland is party to an international convention which entitles people to come here and seek asylum. Such appeals are dealt with as a matter of law under our refugee procedures. However, there is no right for a person simply to decide he or she wishes to come to Ireland because his or her situation represents a deserving case. There is no question of right in that matter. Otherwise, half the population of whichever country is suffering most from economic blight or famine could claim, as a matter of right, that a tribunal should determine their right to be in Ireland. This is a view of the world that underlies much comment and attitudinising in public debate. It is not the case, however.
The people of a country in which there is endemic famine have no right to be in Ireland to escape that famine. The Irish nation may decide to invite some of these people to the country, offer aid to them in their own country or provide some other assistance. There is no question, however, of a justiciable right to come to Ireland. That is why the final arbiter of a person's presence or non-presence in Ireland is the Executive arm of the State. The final personal arbiter as a corporation sole is the Minister for Justice, Equality and Law Reform. The notion of an appeal from the Minister to a person whose decisions are not accountable to the Houses of the Oireachtas and who second guesses the Executive is constitutionally erroneous. Such a situation would effectively confer a justiciable right on a person to come to Ireland, discount the Minister's view on his or her residency application and defer instead to three worthy people who may decide, in an unaccountable and independent way and on the basis of whatever criterion they choose, that such a person can live in Ireland. This is not a viable approach to the issue.
I indicated on Second Stage in this House that we must deal in a pragmatic and fair-minded fashion with the situation of the more than 10,000 people who were here before the decision in the L and O case. Prior to that, these people believed wrongly that they had some form of entitlement to remain in Ireland because of their Irish-born children. This erroneous assumption was based on incorrect advice from lawyers and was the basis upon which the State was operating prior to the L and O decision.
In addition, some 6,000 people have come to Ireland and begotten children since that decision. In total, therefore, we are dealing with some 16,000 cases. Anybody's guess is as good as mine in terms of the multiplier to apply, but one might well reckon that each birth involves two or three people on average. One can easily countenance that some 30,000 to 50,000 people would be comprehended by the principles we are discussing.
I make no apology for my vagueness in this matter. Based on anecdotal evidence, we are aware of many people who came to Ireland to give birth in a maternity hospital, before returning to their country of origin with the child's passport in their back pocket. Another situation I cannot verify because there are no related statistics and never will be is that of the many people living in the United Kingdom as illegal immigrants or short-stay residents who came to Ireland to have their children before returning to the UK. Such children have Irish birth certificates and are entitled to an Irish passport. There are also people who have come here and given birth but have had a spouse and three or four other children in the custody and care of a relative in the country of origin.
I cannot offer a precise figure in this matter, therefore, and I will not put out scare numbers. However, if one considers the 16,000 parents of Irish-born children and applies any common sense multiplier, one arrives at a figure of at least 30,000 and perhaps as many as 50,000. I do not intend to grant some type of statutory amnesty to these people, which would undoubtedly lead to a demand for the inclusion of family members, including brothers, sisters, aunts, uncles and so on. This is the way it goes in politics; such an amnesty would be deemed unsatisfactory if it included only a single parent of these Irish-born children. Such an approach would involve a significant number of people, depending on the extent to which the concept is developed.
I do not like to speak of individual cases but shall cite one well-know example, that of Mrs. Man Levette Chen. I understand she has never been to the Republic and the length of her residence in Northern Ireland is unknown. We do not know how many people are in her position. There is no moral or common sense prerogative to pass some Act that would entitle Mrs. Chen to live in Ireland with the child in question, along with any other children or a spouse who may be involved in the case. There is simply no basis to contend that, because of what has happened, a red line should be drawn across a page and everybody in Mrs. Chen's position should be allowed to live in Ireland.
Senator Norris has fairly recalled that we may be dealing with people of extremely bad character. There may be fathers whose input to the procreation of an Irish-born child was minimal. Perhaps we are talking of people who have never supported their Irish-born child and may be only partly aware that they are the parent of such a child. We may be dealing with traffickers of asylum seekers, or people who have brought women to Ireland for the purpose of prostitution. A significant range of people is involved and it is simply not right to contend that all of them should be entitled to reside in Ireland indefinitely because they are the parents of an Irish-born citizen. Such an approach does not add up.
If these cases are to be dealt with on an expedited basis, we cannot go on as we have done before. The files cannot continue to pile up and there must be some form of process. I will bring the criteria that will inform that process to Government in the near future. I am not in a position to express them today, except to say that there must be an element of disclosure. I will have to know that people claiming asylum are who they claim to be and that the name they give is not an invention. This is an issue that occurs frequently. The newspapers recently reported the case of an asylum applicant in the United Kingdom who came here under a false name and claiming a different nationality. His application was processed to a point before the truth was discovered and he was sent back to the UK. The authorities in that country now propose to deport him and he wishes to return to Ireland to make a case as to why I should deal with his application on a humanitarian basis. There must be some degree of common sense in the process.
If a scheme is brought forward in the near future to facilitate an expedited treatment of people who are entitled to remain in the State on a humanitarian basis by virtue of the lapse of time and their parenting of an Irish-born child, the criteria will be published at that time. In the last analysis, however, these are non-judicial matters. The non-national parents of children born in Ireland before 24 January 2003 shall be deemed to be at all times lawfully present in the State. That says Mrs. Chen is deemed at all times to have resided in Ireland, which is a novel proposition and would make her reason for litigating in the European Court of Justice and taking on the United Kingdom Government mystifying.
The third proposition is that the Minister shall make provision for the giving of permission for the non-national parents of Irish born children to remain in the State where such children were born in or prior to February 2003. That is something I intend to do but I do not need a statutory provision to enable me to do so. I am grateful to Senator Derek McDowell and others for raising this issue. I do not need a statute to enable me to make provision of some kind for those people.
The last proposal relates to the appeals committee. There is no question of my surrendering the Executive discretion in relation to immigration and residency matters to an unaccountable quasi-judicial body. That is not going to happen. If it were to happen the power of the Irish State to decide who comes into Ireland and who does not — whether Saddam Hussein does or does not come into Ireland — would be removed from the Government. That is a power for Government. It is not for three great and good people to decide so that this House cannot afterwards ask why they allowed Saddam Hussein to come and live in County Kerry. Only one institution makes that decision and that is the Executive of the State and it is accountable to the Oireachtas for the way in which it discharges those functions.
That is my position with regard to these amendments.
The Minister, as is usual, is admirably clear. I will not press him on the final amendment in the name of Senator Cummins. The Senator can do that himself. The Minister has made some very interesting points.
Some of the criteria for granting leave to remain in Ireland are contained in legislation but they are spread in different places. I welcome what the Minister said about publication of guidelines. Nevertheless, it would be helpful to those applying if this information were drawn together in booklet form so that a person making an application could have it ready to hand instead of having to root through the different regulations and pieces of legislation. The Minister said he is bringing guidelines to Cabinet. It would be a help if those guidelines were made available to the applicants and their legal advisers in easily accessible form. This would be a humane thing to do and would give applicants the opportunity to make the best possible case. There would be nothing fraudulent in this. It would simply give people greater access to their rights in making applications.
I agree with Senator Norris in that regard. The guidelines should be made more transparent than at present. They are a mishmash and spread throughout various Acts. It would be helpful if they were brought together in booklet form.
I accept the Minister's point with regard to sending a memorandum to Government when the Bill has been enacted and putting a process in place for dealing with people — 11,000 or whatever number — who were in Ireland prior to the Supreme Court decision of 2003. The Minister has stated what might be in that memorandum but he has not put meat on those bones. Will those people be dealt with expeditiously and in a different manner from people who are coming to the country at present?
The Minister clearly has strong views regarding appeals. He calls the system I proposed a quasi-judicial body. A quasi-judicial body consisting of a nominee of the Minister, a retired member of the Judiciary and a nominee of the Human Rights Commission would be a good way of dealing with appeals. The Minister could still be the final arbiter. The current appeals system is not transparent and needs to be more so. I ask for a more transparent appeals system than that currently in operation.
I come somewhat late to this debate and I am here primarily because Senator Tuffy is not. Therefore, I do not wish to drive the Minister down roads he has been down a number of times before. However, the Minister attributed to speakers on this side of the House views which we did not articulate.
I was not talking about Senator McDowell. I was talking about others.
No one said someone who was driving a taxi in Bucharest has a right to come here just because he is bored with his life. No one suggested that Saddam Hussein, if he had an Irish born child, would be brought within the contemplation of the Opposition amendments. We are talking about a very clear case of the parents of Irish citizens. The Minister may say such people do not have rights or may not be worthy of those rights, and he may be right. However, it is not fair to say those rights are not grounded in judicial decisions or entitlements. The courts have decided that while the parents of Irish citizens born in Ireland do not have an entitlement to stay here they do have some rights. Those rights are, of course, ancillary to the rights of the child but they are, nonetheless, rights. The Minister makes the case that his decision is an Executive decision. My point is that one cannot divorce that from the rights set out and duly circumscribed by the Supreme Court.
Even if we ignore the argument as to whether the appeals mechanism is a judicial process, what Senator Cummins says is correct. The decision making process is not clear and transparent. It might serve the Minister and his successors well, assuming that it takes us a few years to enact this legislation, if we had a clear and transparent mechanism. That might save the Minister from the newspaper stories which appear every two weeks. There is one in the newspapers today, although it is not particularly reflective of these amendments. Such stories usually tell of people who appear to have been hard done by. A transparent mechanism allowing for an appeal against a ministerial decision might be no harm. I recognise from the Minister's tone that he clearly has no intention of contemplating that but I thought it was worth making the point again nonetheless.
The amendments may apply to 16,000 cases and that may imply 30,000. We know that not all of those people want to be in Ireland. Many of them will want to be in other parts of the European Union. We will not be swamped by people who want to take up residence in this country. Following the passage of this Bill we will have a clear legal position. We now have an opportunity to draw the line. It is neither pragmatic nor reasonable for the Minister or his Department to be tied up, possibly for years to come, in making decisions on a range of cases, whether there are 16,000 or 30,000 or even more. At least we now know there is a finite number of cases. We should just be done with them.
It may be that——
Saddam Hussein is not the parent of an Irish born child. At least we do not think he is.
One would not know about that. I was about to make the point that Senator Cummins's proposal would allow the non-national parents of children born in Ireland before 24 January 2003 to be deemed to be, at all times, lawfully present in the State. That means that the taxi driver in Bucharest, if he made some girl in Bucharest pregnant, would be deemed to be, at all times, lawfully present in the State because she had come to Ireland and he was the parent of the child. That is the plain and simple effect of the amendment.
My interpretation would be different from that of the Minister.
I know Senator Cummins did not really mean that. He has tabled the amendment for the purpose of provoking a debate and will not stand over the exact wording of it. It casts too broad a net. The effect of amendment No. 2 would be to allow anybody anywhere who before 2003 fathered a child born in Ireland to be deemed at all times to be lawfully present in Ireland and be able to come here and go at will. That is not maintainable as a strict legal proposition and could produce chaos.
If the Bill is passed and we introduce a common sense generous and pragmatic solution, it will involve a new process. As is normal, the terms of such a process will be found on websites and in written form. I take the point that it would be a good idea to also have a simple booklet. It will require something akin to filling out a form and will require truthfulness in the whole transaction. If people are to tell me lies for a second time about their family circumstances, etc., I will not be interested. If someone really wants to rely on the humanitarian right to remain and on a moral entitlement to remain, he or she will need to come clean on his or her family circumstances as to who are his or her children, spouse, parent of the child accompanying him or her, etc.
It will not necessarily be the case that a single mother, who has a child in Ireland aged two and who turns out to be a married woman with a husband and five other children elsewhere in the world, will be allowed to have them all join her in Ireland. While I do not say this might not happen in some cases, it will not be a case of throwing open the doors and letting everybody who satisfies the mere Irish-born child criterion to do whatever they like and have the whole family come and live in Ireland. That is not a practicable or common sense way of dealing with the issue.
Whatever we put in place will be common sense, reasonable and allow genuine cases to be fairly dealt with. However, by the same token, Members here are making the argument that more transparency is needed. Transparency is a two-way process. It would involve considerable breach of privilege if one person knew exactly how somebody else was treated, as such matters would come into the public domain. If we try to reduce everything to a set of rules and criteria, which allow somebody in advance to determine he or she would qualify with the ministerial discretion more or less pre-empted by the factual matrix surrounding that application, I believe injustice will be done.
For example, if an Islamic woman were to argue on a humanitarian basis that she would be the victim of an honour killing if she were to return to her native country, in the privacy of her individual case I might be convinced and allow her to stay in Ireland. I could choose not to return her to Jordan, Saudi Arabia or wherever she came from because of the circumstances shown to me. However, if I were to publish on a website a list of the types of people who can get into Ireland more or less as of right, including those with a fear of an honour killing, how could I deal with a plane-load of people claiming such circumstances?
For example, people from the Republic of India could claim to have a romantic engagement or to have made an attempt to marry outside their caste resulting in a threat to their lives if they returned to their native country. In such individual cases in the privacy of my Department, officials would need to examine each case, come to a conclusion and make a recommendation to me. It would be a very different matter for us to make it known to all in India that someone from the lower castes involved romantically outside that caste could come to Ireland and be allowed stay. We must be reasonable.
Senator Norris raised the issue of female genital mutilation. If I were to publish on a website the proposition that anybody coming to Ireland with a well founded fear of female genital mutilation being forced on her or her child by actors in her local community, I would need to confront the reality that in places such as the Republic of Mali an enormous proportion of the women, for reasons I do not understand, have been subject to this barbarous process. This does not mean that half of the population of Mali can come here and then bring their husbands on the basis that they want family reunification. It just does not follow. I cannot start operating a system on the basis that anybody who comes to Ireland with one from a published list of stories to tell will get in. If I were to do so I would make a mockery of the asylum process.
Within that process the humanitarian grounds for leave to remain are a residual discretionary fail-safe mechanism for those who fail to establish that they are as a matter of international law entitled to refugee recognition. However, if I advertised a particular scheme, it would become effectively quasi-judicial, as it would become imposed on me by the courts in every case. If I were to publish the basis on which my discretion operated in cases, effectively people would come to Ireland in the knowledge that at the end of the process they would make the case of being subject to an honour killing. However, such a person would arrive as a refugee, go through all the processes, lose them and finally go to the Minister claiming his or her case was the same as that of another particular individual and in those circumstances the Minister must grant leave to remain.
The same would apply to the proposed appellate body. If it were to consider one case as identical to the next on the basis of transparent published criteria, the same problems would arise. I recently spoke of people engaged in the politics of comparative compassion and that everyone wants to be on the side of right. We need truthfulness and especially common sense in the way we deal with these issues. Whatever proposal I come up with for dealing with those who are in Ireland on the basis that they were the parents of an Irish-born child must be one which, in the ultimate, is based on discretion while at the same time sorts out people reasonably fairly and distinguishes between those who are genuinely deserving of a generous approach and those who are not.
It will undoubtedly put it up to some people to decide whether to stay in Ireland with an Irish-born child or return to their country of origin with the Irish-born child on the basis of having a large family there. Having the whole family repatriated to Ireland is not the only outcome arising from this circumstance. Such a person's case might not be identical with someone who has come to here on foot of a work visa and after a while is allowed to bring the rest of the family to live in Ireland. Differences may exist and distinctions may be drawn.
While I know Senator Cummins is pressing me to put more flesh on the bones I am discussing, for which I do not blame him in any sense, the nature of Cabinet government is that I go to my colleagues before I start announcing schemes and policies.
The Minister was never known for that.
The Senator would be surprised. I intend to adhere to the rubric that the Government as a whole will look at the issue before I enunciate a policy that will have significant ramifications.
Senator Norris raised the issue of €100 million in resources. The asylum seeking phenomenon, 90% of which is not legally sustainable, cost the State €350 million across a number of Departments two years ago. That is a significant sum of money. Although numbers of asylum seekers are falling, there are issues of accommodation, health and education. These decisions are not made on the back of an envelope without regard to the economic consequences. I remind the House that Mr. Ruud Lubbers, the United Nations High Commissioner for Refugees, has a budget of three times that for the entire world for the UN effort to help people and to deal with every civil war, famine and conflagration. It may be an argument for giving him more——
——but this is still a significant sum of money. There are problems in the developing world but addressing them in Ireland may not be the fairest way to deal with them. When we consider what is happening in the Congo or in Sudan and what the developed world should be doing, applying huge resources to a phenomenon 90% of which is not legally sustainable when examined in detail is not the best way to deal with these issues.
The Minister's reply illustrates the value of this process. It was illuminating and helpful for Members on all sides to confront the practical difficulties and realities of the system which the Minister and his officials have to operate. I do not envy him the responsibility, I would not like to have to make the decisions. I have known the Minister and his officials to make humane judgments in certain cases.
The Minister said, appropriately, that transparency is a two way process and those applying should tell the truth. I agree but there are circumstances where, on first applying, people may not disclose the truth or may fudge things. I have known people who came through horrendously traumatic experiences in Sabra and Chatila, when they witnessed their entire families being wiped out in front of their very eyes as children, and learned a complete distrust of authority while living in the camps. I have been in there and I know the way the Lebanese, their fellow Arabs, treat these people. They come here and do not believe that we will behave in the decent and civilised way the Minister has indicated. I hope and trust that the Minister will take the view that in a situation where someone has been badly traumatised the fact that he does not possess full information or that, in a panic, he massages it, and the situation is confirmed, he should not be punished for the initial panic. That was behind what I felt the Minister was saying and I would like him to confirm that.
If someone came to Ireland and said he thought he would be stoned under Sharia law and gave his address as northern Nigeria to give credence to that and it turns out that he is the father of two Irish children who are now at the local national school, of course we must be reasonable and say that might not have been true but at we must find out who he is and he must engage with the process, tell us he was born in southern Nigeria and provide evidence of who he is. We are not going to continue just to save face for a person. If the humanitarian issue is whether two children who are at school in Ireland should go back to Nigeria, the least the parent can do is be truthful and say where he is from and what are the true circumstances.
The Minister stated that the transparency I am seeking might mean that confidential and private matters relating to the applicant would be put into the public domain but I am not suggesting that. We all realise that it will be difficult to achieve balance in the situation and we recognise the difficulties faced by the Minister and his officials. I take the Minister at face value but we can only judge him when he has brought his proposals to Cabinet and we may have to come back if they are not reasonable. If they are reasonable, however, he will enjoy the support of this side of the House.
The Minister is saying he will deal with these applications differently from how he would have dealt with them before, that he will exercise his discretion in a fashion that is informed by the passing of this legislation and that there is a problem in the pipeline that must be addressed. He has not, however, told us the new criteria that will apply, assuming there are new criteria. The Minister suggests that it can be done expeditiously and humanely and that, therefore, there will be criteria that are different from those that have applied before the Bill is passed.
We are being asked to take the Minister at face value, although we do not know what the new criteria and processes will be, and to accept that they will be expeditious and humane. We will not get any further today so it is appropriate and generous just to accept the Minister's assurances. I am concerned, however, that we are dealing with the futures of thousands of people and to have them dealt with entirely separately from statute law and grounded in a system that will not be based on regulation is worrying. It is important that whatever measure of transparency the Minister thinks can be brought to it should be brought to it.
There are different forms of British citizenship which can be conferred on people born in Commonwealth countries that were part of the empire. Does the entitlement we are enacting apply to all British citizens? There are some British citizens who do not have an entitlement to reside in Britain and presumably the right to be an Irish citizen would not be conferred on the children of those people.
The Senator is correct in that there are certain categories of British subjects who are not invested with the right to be in the United Kingdom. One of the categories provides that a person is entitled to reside in the United Kingdom without any restriction on his or her period of residence, if he or she has what is known as the right of abode there or has a passport endorsement to the effect that "there are no longer any restrictions on your stay in the United Kingdom relating to your immigration status".
Commonwealth citizens have the right of abode if their mother, or if legitimate, their father was born in the United Kingdom, which is an interesting distinction; or in the case of a woman who at any time before 1 January 1983 had been married to a person with the right of abode and in either case were Commonwealth citizens on 31 December 1982, having ceased to be Commonwealth citizens after that date. After a number of years a person may apply to become settled in the United Kingdom and in such cases there are usually no restrictions on his or her period of residence. However, what we are discussing in general terms is people who are entitled to be in the United Kingdom as of right. That involves British nationals and people who under UK law have a right of residence without temporal restriction on them. I do not know and cannot tell the Senator whether Gurkhas in Katmandu are inside or outside this definition and I do not propose to go down that road. I am talking about British nationals who have a right to reside in the United Kingdom and non-British nationals who have, nonetheless, been granted by the British Government the right to reside there, without any restriction on their right of residence in terms of time.
The reason I ask is that in paragraph (d)(ii) it simply refers to “a British citizen”. The Minister has said what I would have understood to be the case, namely, that we are simply conferring this right on the children of British citizens who are entitled to reside in the United Kingdom. Is the phrase “a British citizen” equivalent to what the Minister has just described? Does it refer to somebody who is necessarily entitled to reside there? To put it the other way around, is it possible to be a British citizen and not have the right to——
I do not believe so. I believe it is possible to be a subject of Her Majesty Queen Elizabeth II and not to be entitled to reside in the United Kingdom, but it is not possible to be a British citizen and not to reside in the United Kingdom.
I move amendment No. 4:
In page 5, before section 4, to insert the following new section:
4.—(1) There stands established an Appeals Committee whose function is to hear appeals from non-national parents of Irish born children, against the decision of the Minister for Justice, Equality and Law Reform to refuse leave to remain in respect of either or both parents
(2) The Appeals Committee shall be comprised of——
(a) a retired member of the judiciary;
(b) a nominee of the Minister for Justice, Equality and Law Reform; and
(c) a member of the Human Rights Commission, who shall be designated as the Chairperson.
(3) In determining appeals, the primary consideration of the Appeals Committee shall be towards humanitarian aspects of each person's case.".
Amendment No. 4 has already been discussed with amendment No. 1. Is the amendment being pressed?
Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 5, line 18, to delete "person's birth" and substitute "date of the application".
I believe these amendments have been tabled largely for clarification purposes. I will deal with amendment No. 6 first, if I may, which seeks to insert the word "ordinarily" in page 5, line 19, after "been". Will the Minister clarify, for the sake of the record, whether very brief periods of absence from the State do not count? I assume there is some criteria for assessing when someone takes a holiday for a week, a month or whatever, that this is not necessarily deducted from his or her entitlement in terms of the reckonability of the previous three years. I hope not too many people will be counting up the days, but nonetheless, it should be clear that it is possible to have relatively short periods of absence from the State out of the reckoning and therefore we are importing the concept of "ordinarily resident" as opposed to "resident" into the Bill.
Amendment No. 5 simply provides that the three reckonable years can be counted back from the date the application for citizenship is made, as opposed to the date of the person's birth. In most cases, again, I believe this will not make a great difference.
To take the second point first, "resident" for the purpose of section 6A refers to actual residence in Ireland, and the Bill states: "has been resident in the island of Ireland for a period of not less than 3 years or periods the aggregate of which is not less than 3 years", during the period of four years immediately preceding the person's birth. One must be actually resident here. If the concept of "ordinarily resident" during those periods is introduced, then one could have a situation where somebody who spent 40% of his or her time abroad, but who could plead to be ordinarily resident in Ireland, might actually be here for far less than three years out of the four-year period. If somebody was resident in Ireland on a 60:40 basis, then that ratio would apply to the aggregate of three-year periods. It might well be that he or she was resident in Ireland only for a minority of the time and that would not be acceptable. I am not accepting that amendment.
As regards the person's birth and the substitution of the date of application, this is a fundamental issue and was debated at great length in the other House on Committee and Report Stages. Fundamentally what is being proposed here is that if parents have a child in Ireland and three years elapse before they make an application for citizenship for that child, even though they were here only a short time before he or she was born, they are entitled to do so. The explanation I gave in the other House is simply this. We are dealing with the right of citizenship deriving from birth. We are not dealing with the question of people who, having stayed here for a considerable period of time, opt into the Irish community. As an example of the latter case, however, a Filipino nurse comes to Ireland and in her first year here has a child with her husband. That child, under this law, will remain a Filipino citizen. However, if she and her husband remain in Ireland legally for four or five years they will, prima facie, be entitled to apply for Irish citizenship for themselves. At that time they will be able to apply to naturalise all of their minor children who are resident with them in Ireland. That couple could have a child after one year in Ireland and another, perhaps, after two years and yet another a year later. Depending on the exact timing, the last child might or might not qualify for Irish citizenship as of right, from birth.
One may ask how come we distinguish between the first child born in Ireland and the one born three years after the parents have come here. That frequently happens and it would be the case if they had brought two children with them from Manila in the first place. There would be a distinction between the citizenship of the children, depending on when and where they were born. If, however, the family is committing to Ireland long term, all the children who are citizens of the Philippines by virtue of descent from their parents, will, if the parents so opt, be entitled to become Irish citizens when the father and mother have been here for five years. That is the situation.
If I had opted for the other route, I would be saying, in effect, that a pregnant woman and her husband could come to Ireland, have the child here and citizenship would be conferred on the infant as of right if they happened to remain in Ireland for three years thereafter. That would have a radically different effect. It would introduce a new concept of opting for Irish citizenship for one's child by coming to Ireland to have the child here. We do not want to go down that road and no injustice is being done because a Filipino family, for instance, of the type I have just mentioned, which wants to commit completely to Ireland, will be able to have all their minor children naturalised if they remain, legally, for five years, whether or not they brought them from Manila or were born here.
I mentioned on Second Stage in this House that Ireland has one of the most liberal citizenship and nationality laws anywhere in Europe. In fact Senator Walsh read in to the record of the House how liberal the Irish situation is compared to other countries. Therefore, I ask the House to recognise that the principle which amendment No. 5 seeks to amend is what the people voted on. This would be a substantial departure from what they were told was involved when they were voting in the referendum, namely, that a person had to be three years in Ireland before a child born to him or her could become an Irish citizen from birth.
Amendments Nos. 7 and 8 are related. Amendment No. 9 is an alternative to amendment No. 8 and amendment No. 10 is related to amendment No. 7. Therefore, amendments Nos. 7 to 10, inclusive, may be discussed together by agreement.
I move amendment No. 7:
In page 7, between lines 7 and 8, to insert the following:
"(iv) if the person was born to parents one of whom is declared a refugee after the date of birth of that person, and the parent is thereby entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004),".
If a child is born to a person within the asylum process and the person is declared a refugee after the date of the birth of the child, that is, the child is born while the person is still in the asylum system, then the child is denied citizenship. This appears arbitrary and contrary to aspects of refugee law since a decision taken to declare a person a refugee is just an acknowledgement or a confirmation that the State agrees with this definition of their status. It does not mean that the person only starts to be a refugee from the date of recognition by the State. The State is saying, "Yes, you are a refugee, you were a refugee and we can now confirm." The refugee status commences from the date of arrival of that person in the country and is confirmed rather than rejected by the process. The effect of the Bill, without this amendment, is to give citizenship to some children of refugees but not to all, so there is a discrimination.
Amendment No. 8 seeks the deletion of certain provisions of the Bill. The Minister may have answered some of my questions in his earlier reply. I have been briefed and will put the reasons I have been given for this amendment but I will not expect him to rehearse all the material if he takes the view that I imagine he will.
The reason for the proposed deletion is that section 4(4)(b) means that a child born to an international student would not be an Irish citizen even if the student is in Ireland for three years. Similarly, a child born to a migrant worker in Ireland would not be an Irish citizen even if the migrant worker is in Ireland for six years and if four years of that period were spent in Ireland as a student. This has an arbitrary and discriminatory element to it in distinguishing between migrant workers on the one hand and international students on the other. International students are economically active in the State. They have permission to work and to contribute to the economy and often stay on and undertake postgraduate work or, in the case of medical people particularly, they may stay on, work and contribute in that sense through their employment in the State.
Section 4(4)(c) means that the time spent in the asylum system does not count towards residency. Therefore, a child born to a person who has been in the system for four years is still not a citizen. The length of time a person spends in the asylum system is dependent on the expeditiousness with which the Department is capable of dealing with this application. Therefore, it seems inequitable to punish, or at least to appear to punish, the child for the deficiencies of the Department in being unable to process the mother’s application during a reasonable period. A person may be in Ireland on humanitarian leave to remain, may have been in Ireland for a total of five years, three of which were in the asylum system, and still the child would not be a citizen.
The amendments in the names of the Labour Party Senators amount to the same as those proposed by Senator Norris. The latter point is of some importance. It would be great if we were able to deal with all applications for refugee status within six months but the reality is that we are not and have not done so in the past, although the period is shortening. While discounting a period of six months from the reckonability of three years would be fair enough, we could easily end up with people in the system for several years. If it is ultimately decided that those people were entitled to refugee status, and their entitlement derives from the day they arrived, not when the decision was made, then, retrospectively, it is reasonable to count that period while they were in the system towards the three year residency requirement.
The second issue is that of students. It seems churlish and ungenerous to exclude students from making application based on three years residence here. I do not know how many we are dealing with but I assume the number is not huge. These people are being invited in and frequently pay high fees. A number of our third level colleges depend on having international students paying tens of thousands of euro. They contribute meaningfully to Irish society during the period of their studies. In the circumstances it would be generous to allow them make an application in respect of any child they have here after three years residency as a student.
There is much merit in what has been said by both speakers. In regard to the student issue I can see from where the Minister is coming. On Second Stage he said students are transient, in that they are coming here for their studies and then returning. In a recently published article it was stated there is much abuse of the system and that unscrupulous people are profiting on students as a means of getting a visa. The Minister expanded on that issue and may expand further at this stage.
What I am trying to do with this provision is to mirror citizenship and nationality law. At present, the general rule is that if one is five years' resident in Ireland lawfully, one may apply for citizenship and naturalisation. Discounted from that is time spent in the asylum process prior to recognition and also time spent as students. The reason is that we want our asylum seekers to come here as asylum seekers, not as citizenship seekers and we want our students to come here as students, not as citizenship seekers. We want a simple system whereby the nature of their presence in Ireland, which is purely temporary, is recognised as such and is not compromised by an ulterior motive, which is to establish citizenship rights for any child born. This does not apply to anybody born until the date this Act becomes law. Everybody born in Ireland, North or South, regardless of the circumstances, until this Act is signed into law by the President and commenced, will be an Irish citizen.
Looking forward the situation will be different. In regard to asylum seeking there is a fairly rapid transformation in the time limits accompanying that process already in train. For example, what used to take a long period is taking a short period and there are prioritised countries where there is a high degree of asylum seeking which does not appear to be justified. Persons from those countries can have their status determined at first instance in approximately six weeks and an appeal can take approximately six weeks, following which one gets to the point of humanitarian leave to remain. The whole process can be reduced to three or four months. Under the old model, which is fading out, it took approximately two years to get around to people in the queue to deal with their cases. That will no longer be the case.
How far are we from that system?
I will make arrangements for the asylum service to send a letter to the Senator setting out the position in terms of numbers. I do not want to make an exaggerated claim, but there has been a fairly dramatic change in the length of time it is taking, particularly in respect of accelerated country of origin cases.
Senator Norris is proposing that when one is declared a refugee and given the right to remain in the State, and the temporary nature of one's stay is converted into a quasi-permanent right, at that stage the law should apply retrospectively to include the period of time while one's status is being determined in one's permanent residency. This is not done in respect of naturalisation law and I do not propose to do so in this context. Genuine asylum seekers get asylum in Ireland by way of a very elaborate process. If they are here for five years and the situation in their home country does not improve, they can return to the Department of Justice, Equality and Law Reform and seek naturalisation here. At that point, they can have a child born to them before they came to Ireland and who accompanied them, or who was born in Ireland during the first period, or who was born in Ireland at any point up to the point of naturalisation, naturalised. Three years is the period in question in the case of a refugee, not five years, which is a fairly generous regime.
The last point raised relates to a period of humanitarian leave to remain. If one fails in the asylum process and one applies to the Department and receives humanitarian leave to remain, it will count towards the three year period. Humanitarian leave to remain is permission to be here. One is lawfully in Ireland as an asylum seeker; it is not unlawful to be an asylum seeker. However, one is here with the consent of the Minister after one is given humanitarian leave to remain and that period counts towards the period of time necessary either to claim naturalisation or in respect of establishing sufficient residency here to confer citizenship by birth on one's child.
Sometimes this issue slips out of focus. Every child born to a non-national in Ireland, whether an asylum seeker, student or whatever, will either have citizenship by descent of their parents' country or be entitled to be an Irish citizen. For example, a child born to a Chinese student who is here to learn English and working 20 hours a week or whatever will be a citizen of the People's Republic of China. If for whatever reason a child is denied citizenship of a country with which we are dealing, the child will automatically be an Irish citizen. We are not talking about people who will be stateless unprotected citizens. Every child born in Ireland, both before and after this legislation is passed, will either be a citizen of Ireland or a citizen of some other state. For example, if someone comes from Nigeria to Ireland claiming asylum, that child is a Nigerian citizen unless the parents have resided here for three years after the end of the asylum process and the child is born at that point. If the parents remain in Ireland lawfully for a sufficient length of time to become naturalised Irish citizens, they can transform that child into an Irish citizen by applying on a derivative basis arising out of their own naturalisation for their minor children to be citizens of Ireland.
There is no great injustice here. People say that such a child is in limbo or is a second-class citizen. The child is not in that category, no more than a toddler who comes in with a genuine refugee is in limbo in Ireland, at a disadvantage or discriminated against. That is simply not the case. If a refugee brings with him or her three children and another child is born in Ireland during the first year of the refugee status, that child takes the refugee's citizenship by descent, unless there is a problem. These four children have the same nationality. They do not exist in Ireland in some sort of second-class ghetto where the State is unjust to them and they will not exist in that category after the legislation is passed. There is a suggestion that somehow a three year old child will be in a radically different position because he or she was born in Nigeria rather than in the Rotunda. There is not a significant difference in the way the State treats them. However, citizenship derived purely from birth can only happen in the case of parents who have already established a long-term connection with Ireland, which is the three year period. This is what the people voted for and it is a fair law.
I made the point on Second Stage that ours is one of the most generous laws in the European Union. There is another country in the European Union which has a variant of jus soli, namely, the French Republic. A child born to Algerian parents in France gets an absolute entitlement to apply for French citizenship when he or she is 18 years of age. The parents of a child who is lawfully in Ireland at that stage would long since have been naturalised and be full Irish citizens if they so chose. This is the most liberal of European countries in terms of the jus soli principle. After this law is enacted, I do not believe any other country in Europe will be as generous as we are in handing out citizenship to parents, including their children, who have been here for a relatively short period. Senator Walsh said recently that few, if any, countries in Europe hand out citizenship by virtue of birth on the generous basis we will when the law is enacted.
The Minister has been very helpful. It was useful that he drew our attention to the capacity of parents to engage in the process of naturalisation of their children after they have been adjudged to have refugee status or to become Irish citizens.
The Minister said I asked that the period during which the parent or parents had been in Ireland while their refugee status was being determined should be regarded as part of their permanent residency. That is obviously what it is. They start in year one, make their application, it is adjudged that they have been refugees since year one and they continue to live in Ireland without a break. I consider that as part of their permanent residency because they are here, they make the application, they stayed all that time and they have not gone anywhere. This means they have been permanently resident in the State. I do not see any illogicality in that.
I do not think there is an element of retrospection in the area I was examining because what the State is determining is not that someone became a refugee on 15 April when the decision was handed down, but that he or she was entitled to refugee status from the time of arrival in the State. I accept what the Minister said that there is not practical discrimination in many cases because the parents have a right to use the naturalisation process, which was a useful comment.
Like Senator Norris I agree with almost everything the Minister said but he did not address the net point of the amendment at any great length. He says that we want to provide citizenship for children where there is a "proven long-term commitment" and the main criterion for assessing that is that they have been here for three years. People who have been here for three years, even if two were spent in the asylum system, have proved a long-term commitment, if that is the criterion on which this is based. The Minister must make a cogent argument for discounting a period during which people were resident here particularly if it is subsequently found that they were refugees.
People come here and either are or are not refugees. That we take two years to acknowledge the fact does not mean they were not refugees for the first two years. It is because of our administrative system that we take a couple of years to confirm and acknowledge that. We are only seeking application of the principle the Minister set out, namely, that three years residency is the basis on which we acknowledge that people have a long-term commitment to the country.
I did not know one could apply for naturalisation three years after one has been recognised as a refugee. Is that application treated in the same way as one based on residence for non-refugees would be treated or is there a requirement, for example, to establish that there is still a threat to someone if he or she were to return to his or her country? Must that person go through the process of establishing his or her bona fides as a refugee all over again in order to sustain an application for naturalisation?
After three years one can apply without payment of any fee to become an Irish citizen whereas if one is a migrant worker one must pay an accompanying fee with the application for citizenship. In one sense the State treats the first person more favourably as to time and money.
Is it necessary, as part of that application, virtually to re-establish that one is a refugee?
No. We do not normally revisit the issue of whether the civil war one fled continues. That is not the normal course. If one is here and is granted asylum status one could stay here, unless there was some ordre publique reason to exclude one from the country. We do not say it is time to return to Afghanistan or wherever because the situation there has cleared up.
Are there Bosnians here who are acknowledged, accepted and welcomed as refugees?
Yes, there are Bosnians who were given repatriation grants to go back to Bosnia and as part of that package they said they were led to believe if it did not work out in Bosnia they could come back, and they have returned.
Are they here as refugees or have they been naturalised?
Many have been naturalised but they are here effectively as refugees.
I do not wish to labour this but are there any who could now be applying for naturalisation as refugees notwithstanding that we know the situation in Bosnia is infinitely better than it was and that if these people were applying ab initio as refugees we would probably say Bosnia is relatively peaceful?
If somebody came from Bosnia as a refugee and was granted refugee status and applied under this three year rubric for Irish citizenship and nationality, the first response from the Department of Justice, Equality and Law Reform is not to say that the situation in Bosnia has cleared up. Those people as a matter of practice get citizenship and we have not resorted to saying that as the emergency is over in Bosnia they should go back and make their lives there. We make strenuous efforts to integrate somebody to whom we accord refugee status into Irish society and do not then, normally speaking, unravel that process and say the time is up and send the person home. Theoretically, that could happen but as a matter of practice virtually every Bosnian refugee who opted for Irish citizenship received it. It would be very unusual for the State to inquire about the political situation in addressing whether that person should be granted Irish nationality.
Amendments Nos. 11, 12 and 13 are related and will be discussed together by agreement.
I move amendment No. 11:
In page 12, lines 5 and 6, to delete "a person is of Irish associations if--" and substitute ", reference to Irish associations shall not include the making of an investment in Ireland but shall include circumstances where a person meets one of the following criteria--".
This section seeks essentially to eliminate what was colloquially called the "passports for sale" arrangement that applied until relatively recently although it is fair to say that passports have not been awarded on that basis for several years. The Labour Party supports that. We are, however, concerned that the Minister might be closing off a discretion which we should perhaps retain, namely, the right to confer honorary Irish citizenship on people who had an association with Ireland which was not based purely on birth or blood relationship. We formulated these amendments to retain the discretion which exists to confer citizenship on people who have done service to Ireland, who have perhaps cultural or academic connections with Ireland and have contributed to the social and cultural life of the State.
The law on citizenship is as follows: the Irish State can, when the Executive advises the President, confer citizenship as a token of honour on somebody who has done signal service to the Irish nation, under section 12 of the 1956 Act. That is full citizenship, not honorary in the sense of being an honorary member of a golf club or whatever, but conferred as a matter of honour on the person.
This section gives meaning to the term "Irish associations", which now means a blood affinity or adoptive relationship with a person who either is an Irish citizen or, if deceased, would be if he or she were alive. For example, to be a relative by affinity, which is marriage, of Charles Stuart Parnell could constitute an Irish association under this rubric even though he died before the foundation of the State.
It will not be permissible, however, for someone who has absolutely no connection with Ireland to get citizenship based solely on the fact that he or she has made an investment in Ireland, without coming here and satisfying some of the other criteria set out in the 1956 Act. I do not want to mislead anybody. It is the case that somebody who was the great-grandchild of an Irish citizen or of a person who would have been an Irish citizen were they alive could make an investment in Ireland and could be granted citizenship in those circumstances. However, the controlling criteria would not be whether an investment were made but, on the contrary, whether the person had Irish associations in the first place. It will not be possible for the Mahfouz family or Mr. Kozeny or others whose citizenship caused some controversy of one kind or another to be granted citizenship on the basis of Irish associations where the association derives entirely from an investment, loan or debenture capital transaction of some kind in Ireland.
Those in that category who have no connection with Ireland will have to be dealt with under the criteria laid down in section 15 or, alternatively, if they have done some great service to Ireland, the President can make them citizens on the advice of the Government. However, if they have no connection whatsoever to Ireland, they will be excluded from being made Irish citizens by virtue of some economic transaction with an enterprise or the Government.
I welcome the fact that this scheme is being done away with completely. If persons have no association with Ireland they should not get passports, regardless of investments. The Minister has clarified the position with his remark that the situation still pertains whereby a figure such as, for example, Jack Charlton could be made a citizen of Ireland.
I was primarily interested in determining that this was the case. On that basis, I am happy to withdraw the amendments.
I move amendment No. 14:
In page 12, before section 11, to insert the following:
11.—Within three months of the passing of this Act, the Minister shall lay a Report before the Houses of the Oireachtas detailing the propriety in the operation of the passports for sale schemes in the State.".
The amendment seeks that the Oireachtas would know the number of passports issued for each year of the operation of the passports for sale scheme, whether all the necessary procedures as laid down were adhered to in all instances and, if not, how many passports were issued when the proper procedures were not adhered to and under whose watch such passports were issued. Many Members have stated that passports were given out like snuff at a wake or over a lunch. We should know this information.
I opposed the same amendment in the other House. I record my long-held opposition to the principle which informed the passports for investment scheme and my serious misgivings as to its legal propriety, even if the highest standards of procedural nicety were observed in every case. With the exception of my immediate predecessor, every Minister to hold my office since 1989 gave a wide latitude of interpretation to the term "Irish associations", which enabled acceptance of new applications under the scheme. In addition, the departmental files for a significant number of cases in the 1988 to 1994 period do not evidence compliance with all the rules of the scheme in what was then known as the statement of intent.
I am able to speculate on the conclusions to which I have just referred because, if I were to make a report, I would state those matters to this House. Shortly after becoming Minister for Justice, Equality and Law Reform, I published the report of a review group on the investment-based naturalisation scheme. The report is currently available to Members in the Oireachtas Library and on the Department's website.
Some of the cases in which the decisions made gave rise to considerable controversy were already the subject of a report. In one particular case, passports were apparently given to 11 applicants at a lunch in the Shelbourne Hotel, although the exact location is just hearsay, in circumstances where the passports were physically put in place before the application forms had been generated. I stated in the Dáil and reiterate that the circumstances in which this happened raise serious questions. That file went to and is with the Moriarty tribunal and I await the investigation and report of that tribunal in respect of that transaction.
Unlike Mr. Justice Moriarty, I do not have statutory powers to compel witnesses or produce documents from other sources — I can only outline what was in the Department's possession. I examined the files in the Department's possession and, to make sure I was considering the same material the tribunal had in its possession, had returned to me from the Moriarty tribunal the file which had been sent there. I returned the file to the tribunal when that process was completed.
My examination of the files, carried out at the request of the Taoiseach, confirmed that the 11 passports and naturalisations in question were granted in a manner which was, even by the lax standards which had frequently characterised the operation of the scheme in question, irregular and unusual. In short, the passports and naturalisations in question appeared to be effected in a manner which bypassed usual formalities and ignored failures by applicants to comply with elementary documentary requirements. It appears the passports in question were prepared in advance of the completion of the applications for naturalisation and it has been reported that they were handed over to the applicants by the then Taoiseach at a lunch hosted by them in a Dublin hotel.
As I stated in the Dáil, no departmental file is likely to carry any explicit evidence of gross impropriety or corruption on the part of any member of Government. Nonetheless, in the light of what we now know from the proceedings and reports of intervening tribunals, it would be fair to say that serious questions concerning the role of the then Taoiseach would be raised in the minds of anybody examining the file with the benefit of hindsight. I am not in a position to supply any explanation from the contents of the file, which I have examined, for the then Taoiseach's apparent interest in having the case processed with remarkable haste. These may be matters on which the Moriarty tribunal may be able to shed useful light.
Former Deputy Geoghegan-Quinn, as Minister for Justice, in the context of ongoing controversy surrounding the scheme and in the context of parliamentary questions on the 11 passports in question, was sufficiently concerned by the contents of the file to commission a report by a senior departmental official. She left office before the report was completed and it was made available to her successor as Minister, former Deputy, Nora Owen. The former Minister, Deputy Owen, received the report during her term of office and most of it was published after coming in mysterious circumstances into the possession of The Irish Times in September 1997, after the Government had changed again.
There is no cover-up in this regard. All of the material which I could put into the public domain has been put there, as I understand it, and all of it is with the Moriarty tribunal. Therefore, there is nothing I could do by way of a report on it except to reiterate that serious questions arise in the mind of any reasonable reader who considers the file as to the particular circumstances in question. It is a matter for the Moriarty tribunal, which has far greater powers and resources than I in this regard, to concentrate on this issue and to investigate whether there is evidence of gross impropriety or corruption arising from that particular transaction. That is a matter for the Moriarty tribunal. I appreciate that Members of this House would like me to express my view on the matter but my view would not be as good as that of Mr. Justice Moriarty because he at least has the opportunity to get third parties to supply him with information on these matters. I have no such powers. I can only tell what I saw when I looked into the file, which was the same as the former Deputies Máire Geoghegan-Quinn and Nora Owen saw when they looked into the file with the benefit of a report.
When Deputy Jim O'Keeffe tabled the amendment in the Dáil, it was seeking me to detail the propriety of the operation of the passports for sale scheme by the State. I think what he actually wanted me to detail was the impropriety of the scheme. I would be a long time dealing with the proprieties and could cast no greater light on the improprieties than I have done in this Chamber today.
Controversy has arisen in the media in recent times regarding a Czech national who was granted Irish citizenship in total good faith by my predecessor, the former Deputy Nora Owen. The individual produced evidence at the time from the Czech Republic and the United States to show he was of good character. No criminal convictions have since been recorded against him despite media speculation. That file is also with the Moriarty tribunal.
People have asked me if I could revoke the man's citizenship in view of the allegations of financial impropriety against him. From a legal point of view that would be very problematical. To revoke the citizenship on the basis of the current criteria seems unlikely, with perhaps one exception. If the national in question subsequently applied for nationality of another state, there is a basis in statute law for the revocation of the passport. I am considering that matter.
I accept the Minister's explanation. He gave a comprehensive reply. Hopefully the Moriarty tribunal will deal with the matter.
Regarding the 11 passports issued, the Minister has noted the difficulty in revoking such passports and citizenship. If the proper procedures were not adhered to at the time, is there a mechanism to revoke those passports?
In a sense I was teasing out the same question. I assume the passports in question were ten-year passports, as are most passports issued. On expiry after ten years a fresh application must be made. That period would now be almost up. I am wondering if applications for renewal have been made in the case of any of those individuals. Is it open to the Department to look again at the circumstances in which the passports were granted in the first place?
The Minister has raised an interesting issue, namely, the notion of revoking a passport. Is there no basis on which a passport can be revoked? Quite apart from the scheme in question, if someone makes an application and supplies information subsequently found to be wrong, in effect falsified, is it open to the Department to point out that the application contained untruths and thereby revoke the passport? If there is no such power there should be.
I thank the Minister for explaining these issues in detail. A passport must be renewed after a period of time. If misleading information was given in the initial application, there should be some mechanism in place to allow for the passport to be revoked when an application is made for renewal.
Unlike some states, Ireland does not have a general power as part of some kind of quasi-punitive process to strip a native-born Irish person of his or her citizenship. There are places in the world where a person can not only be imprisoned and so on, but also stripped of citizenship as a punishment. We do not allow for that.
There is an exception to the general rule in the case of certificates of naturalisation held by people who are not Irish citizens by operation of law, whether it be jus sanguinis or jus soli, people who, under the particular Act, apply to the Minister for naturalisation. A Minister can revoke a certificate of naturalisation if he or she is satisfied regarding five different grounds, the first being that the issue of the certificate was procured by fraud, misrepresentation, whether innocent or fraudulent, or the concealment of material facts or circumstances.
The second ground is that the person to whom the certificate was granted has, by an overt act, shown himself or herself to have failed in a duty of fidelity to the nation or loyalty to the State. The third ground is that except in cases of a certificate of naturalisation issued to a person of Irish descent or associations — which does not apply to Irish associations in investment-based naturalisation — the person to whom it is granted has been ordinarily resident outside the State for a continuous period of seven years without reasonable excuse, has not annually registered in the prescribed manner his or her name and a declaration of his or her intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister. It is an interesting aspect of our law that except in the case of Irish associations or Irish descent, I can strip someone of citizenship in effect if a person emigrates from Ireland and does not maintain contact by annual registration.
The fourth ground is that the person to whom naturalisation is granted is also, under law of a country at war with the State, a citizen of that country. I can therefore revoke the certificates of belligerent citizens. The fifth ground is that the person to whom naturalisation is granted has by any voluntary act other than marriage acquired another citizenship. That is the ground I was talking about with regard to the Czech national. If it transpires that he applied, for example, for Cayman Islands citizenship after he applied for the Irish passport, that would be a ground for revoking his certificate even if he subsequently failed to get the other citizenship.
In those cases the Minister must give notice to the person of his or her intention and must have an inquiry. There is provision in section 19 for such an inquiry and its procedure. Unfortunately, in the case of Irish associations, it does not apply to people who have emigrated and the matter cannot be dealt with in that way. Therefore, one of the other four criteria would have to be satisfied.
Senator Moylan echoed a point made by other Members today about the possibility of effectively saying "enough is enough" when a passport comes up for renewal. That is a matter for the Department of Foreign Affairs. I cannot revoke passports. The issue must be one judged on the following proposition: is the person an Irish citizen, "yes" or "no"? If the person is an Irish citizen then, prima facie , he or she is entitled to an Irish passport. If the person is not an Irish citizen either because the entire transaction was void in the beginning, which is a possibility, or because one of the five criteria mentioned in section 19 applies, another issue arises. However, I cannot telephone the Department of Foreign Affairs and say it is a somewhat unwise decision to grant citizenship to a certain person and suggest the Department should not issue further passports. One of the prima facie consequences of being a citizen is the right to the protection of the Irish State in the form of a passport when travelling abroad. I do not believe withholding a passport would be legally sustainable unless there were proper legal grounds.
There is also the question of acquiescence if one was going to quash citizenship or whatever. For example, looking at all this, it occurred to me whether it could all be set aside by a judicial review but who has locus standi to set it aside? I do not want to argue against myself here but at the very least, one would imagine that anybody who objected to a quashing order being made would point to the fact that all the relevant facts had been known for many years and that nothing had happened. It is getting a bit late in the day for action in respect of the 11 passports in question.
I do not know whether as successor in title to the Minister for Justice at the time, who was a corporation sole, it would be open to me to seek to quash an order of a predecessor in those circumstances. That is something on which one could a write a book in constitutional law. In one technical sense in legal theory, I and my predecessors are the same legal person. A Minister is a corporate sole and, therefore, whether I am entitled to seek to invalidate a decision made corporately by myself is an issue on which I would not like to express a strong view. It is a matter for the Attorney General to advise but it is by no means self-evident to me that a Minister could say that his or her predecessor should not have done something and that I, as successor, will press a button and extinguish his or her action.
This produces a very curious situation. The Minister fairly and reasonably gave us chapter and verse about the shady circumstances in which some passports were issued between 1988 and 1994. However, as I understand it, he is now effectively saying that if those guys were to come back and apply again — I assume they got time limited passports in the same way as most normal Irish citizens do — he does not believe there is any discretion to say no.
They are not applying for anything. If they came back and lived in Ranelagh, they could vote in the next general election. I cannot telephone the registrar or the man in charge of the voter register in Dublin City Council and say those people should not be on the register because they should not have been Irish citizens in the first place. I am not in a position to say they should be denied a birth certificate, a vote and so on because of a question I have over their citizenship. They are either Irish citizens or they are not. If they are Irish citizens, they are entitled to vote in a referendum or general election and to come in to Ireland subject to, I presume, some kind of extreme ordre publique argument.
A passport is a prima facie entitlement of a citizen as is the right to come to Ireland and vote in an election if one resides here. I cannot selectively start to strip citizens of normal rights because I have a question mark in my mind about whether they were appropriately granted citizenship in the first place. I am not even clear whether we could change the law retrospectively to allow different grounds of revocation but we might be able to do so. That is a point for the Attorney General too. As long as they remain prima facie Irish citizens, they cannot be stripped of the rights which go prima facie with that status.
I take it that an application for a fresh passport is merely an opportunity to update the photograph and to pay €75 and that it is not, in any sense, a fresh application for citizenship.
I agree with that proposition.
The Minister is in a curious situation. In his position as a corporation sole in succession to his predecessors, he is not in a position to do anything about an application granted in shady circumstances. Perhaps that is something we should further examine in addition to circumstances in which we would revoke citizenship.
To tease the matter out a little more in the context of this Bill, I take it the children of non-national parents who have been resident here for three years will not acquire citizenship by naturalisation but will acquire it by virtue of their birth here and the residence of their parents.
On the statutory grounds on which passports can be revoked, in the case of the 11 passports and, indeed, others, are any checks done on the people concerned? Are those who made investments, in particular those 11 people, checked to see if they comply with the statutory grounds as passports can be revoked under the headings the Minister mentioned?
Of the five grounds, one does not apply to Irish associations citizenship. The second ground is that the certificate is procured by fraud, misrepresentation, whether innocent or fraudulent, or the concealment of material facts or circumstances. I will not speculate as to whether there was fraud in this case. The question arises — again, it is an argument to be made and perhaps I should not speculate on it — as to whether fraud involves an improper inducement, but I do not know the answer. The third ground is that the person has shown himself or herself to be in breach of the duty of fidelity to the nation or loyalty to the State. That does not arise in the majority of cases. The fourth ground is that the person is a citizen of a belligerent state, which has not yet arisen. The last ground is that he or she has acquired other citizenship.
The grounds for revocation under the law as it stands are fairly narrow. I am not expressing a view that a Minister could not, in certain circumstances, seek to quash a decision made by a predecessor. I am not suggesting that is a legal proposition. I am saying there must be a question mark over it. I am not suggesting that none of these grounds would apply in this case. I must have evidence of the existence of a ground under the law as it stands before I do anything. Again, a matter on which one would need to get very considered legal advice is whether it would be permissible under our Constitution to vary the circumstances under which one could revoke somebody's citizenship acquired in this way with retrospective effect.
For example, the power of revocation here is confined to naturalised citizens and does not apply to native born Irish people. I presume it is possible under the Constitution, because acquisition and loss of citizenship are prescribed in accordance with law, to deprive a natural born Irish citizen of nationality under some law analogous to this but perhaps different. It may be that a natural born Irish person has constitutional rights to hold on to citizenship which do not apply to naturalised persons. However, all of that is really in the realms of constitutional and legal hypotheses and I am not in a position today to offer a firm or conclusive view. If I had any evidence which would allow me to do anything under my existing statutory powers, I would have to go to the Attorney General to get very comprehensive advice on the subject.
The reason for my last question was to try to tease this out. We now have an amendment to the jus soli rule whereby children born here to non-national parents must also establish residence. If information is provided to establish the residence of the parents for three years and we discover subsequently that wrong or misleading information was given on the forms to be filled in to establish the entitlement of those Irish born children to Irish citizenship, is there then a power of revocation at some future point? Earlier, I understood the Minister to say that the power of revocation applies only in the case of naturalisation, whereas this would not be such a case. It seems that we are creating a new category.
I ask the Senator to be careful in this matter and not to fall into the error, which somebody did in the Lower House, of confusing a certificate of naturalisation with a certificate of nationality. A certificate of nationality is a document which provides evidence that a person is an Irish citizen. Section 28 of the 1956 Act states that any person who claims to be an Irish citizen, other than a naturalised Irish citizen, may apply to the Minister or, if resident outside the island of Ireland, to any Irish diplomatic officer. In those circumstances the Minister can issue a certificate of nationality. It sometimes happens, although not all that often, that people are required to have a certificate of nationality. A certificate of naturalisation is somewhat different. It is the vehicle whereby one becomes an Irish citizen, if one was not beforehand.
As regards somebody born in Ireland whose citizenship from birth depends on whether his or her parents were or were not resident in Ireland, in those circumstances I could revoke a certificate of nationality if I was satisfied that the issuance of the certificate was obtained by fraud, misrepresentation — including innocent misrepresentation — or failure to disclose material information. That is the case if a certificate of nationality was issued in those circumstances. Therefore, if somebody pretended that he or she had been here for three years when, in fact, he or she had been here for two years, I could revoke a certificate of nationality if I had issued it. As a matter of law, the child would not be an Irish citizen from birth.
Even if they already had a passport?
Even if they already had a passport, yes. For instance, supposing an American arrived here tomorrow and somehow got himself or herself a birth certificate on the model of——
The Day of the Jackal.
The Day of the Jackal, exactly. If such a person presents himself at an office and gets an Irish passport by pretending to be an Irish citizen, he is not an Irish citizen and I have no doubt that the Department of Foreign Affairs would revoke his passport as soon as it discovered that the trick had been perpetrated. However, revoking the passport would not decide whether the person was or was not an Irish citizen. It is a matter of law.
Likewise, regarding a child whose parents have not been here for three out of the four years prior to the child's birth, no amount of issuing passports or waving birth certificates — or tearing up such documents — will change the child's status. Either the child was an Irish citizen from birth because its parents qualified in a particular way, or it was not.
One of the problems with this matter is that we tend to confuse a passport with evidence of nationality, which to some extent it is. However, it does not mean that whether one has a passport will conclude the issue as to whether one is a citizen.
I do not wish to press the amendment but I understood the Minister to state that the power to revoke only arose in the case of naturalisation and did not arise if somebody was seeking to claim on the basis of jus soli, now amended.
It is not a power of revocation. If someone went to Iveagh House and said they were the parent of a child who was born in Ireland, and said they had been in Ireland for four years at the time that child was born, and by doing so procured a passport for that child, the person would not be conferring citizenship on the child. On the day it was born the child either was or was not an Irish citizen. The parent would be doing something else, so it is not a matter of me revoking anything.
If I discovered that I had been duped into issuing a certificate of nationality, I would revoke it. Revoking the certificate of nationality would not, of itself, mean that the child was or was not an Irish citizen because that is determined as a matter of objective fact, which no amount of certification by me, one way or the other, can change. If the child was not an Irish citizen and I erroneously issue a certificate of nationality for whatever purpose, or the Department of Foreign Affairs erroneously issues a passport, it does not make the child an Irish citizen.
I move amendment No. 15:
In page 14, line 13, after "appoint" to insert "being not earlier than the 24th day of April, 2005".
This amendment was tabled in the Lower House by Deputy Costello. I read it a number of times to try to work out what on earth it meant. Now that I have worked out what it means, I have decided that I do not intend to progress it any further. I will pass up on the opportunity to tie myself into the rights of the unborn. I will, however, use this opportunity to ask the Minister when he intends to commence the Act.
I intend to commence the Act as soon as I have put in place the regulations, which we are now working on, concerning the formalities of proving residence in Northern Ireland. Once the President has signed the Bill and I have the regulatory machinery in place, I will commence the Act, sooner rather than later.
I commend the Senator for his wisdom and circumspection in withdrawing this particular amendment. I do not know if the record shows it but, in the Lower House, Deputy Costello ran into a barrage and was on the ropes because the amendment carried with it extraordinary connotations.
Yes, I understand that it did.
The legitimate expectation of people procreating in a certain period of time was a novel proposition.
When is it proposed to take Report Stage?
When is it proposed to sit again?
On Tuesday, 7 December 2004.