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Seanad Éireann debate -
Wednesday, 8 Dec 2004

Vol. 178 No. 24

Irish Nationality and Citizenship Bill 2004: Report and Final Stages.

Before we commence, I remind Senators that they may speak only once on Report Stage except for the proposer of an amendment who may reply to discussion on the amendment. Each amendment on Report Stage must be seconded.

I move amendment No. 1:

In page 3, between lines 14 and 15, to insert the following new section:

"Irish children born to non-national parents.

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.".

When I raised this matter on Committee Stage, the Minister said he would send a memorandum to Cabinet immediately on the passing of the Bill with a view to having proper guidelines and so on put in place. I again seek that assurance this evening. The matter needs to be clarified. How long will it take for proper guidelines to be put in place? Surely at this stage of proceedings, the Minister should be in a position to say all the guidelines will be in place within one or two months and that everything will be dealt with. The Minister said he would expedite matters and all we ask is that he would be more specific on this matter.

I second the amendment. The reason I let my two amendments go forward is that I wanted to make sure this issue was covered. During the debate on Second Stage, particularly with regard to the question of guidelines, the Minister appeared to give an indication that he would pick up on a suggestion I made, which was to publish the guidelines, after the memorandum had gone to Government and so on, in booklet form so that this would be of use to people making applications, in that they could make a directly targeted application and include the correct information. It is not intended in any sense to facilitate people who are not entitled to get this status. Can any more concrete news be given to the House this evening with regard to the publication of this booklet?

This amendment is opposed. The effect of it would be to impose a legal obligation on the Minister for Justice, Equality and Law Reform to publish the guidelines which are to be applied in determining whether leave to remain should be granted to the parents of Irish-born children. The amendment does not just cover the parents of Irish citizen children, it also covers the parents of children who, although born in Ireland after this Bill will come into operation, will not be Irish citizens. It is clear, therefore, that one set of guidelines would not apply in both cases. If the exact same set of guidelines were to be applied in both cases then a certain amount of the clarity which the Bill will bring to the area would be lost.

I presume, however, that the amendment is targeted at, first, those 11,000 parents whose applications were in the pipeline in February 2003, second, those estimated 6,000 or so parents who have had Irish-born children since and, third, those other non-national parents who had children here in the past and who may seek in the future to obtain residence permission should the possibility of their existing permission to reside in some other jurisdiction cease, or, indeed, should they develop a wish to reside in Ireland for other unrelated reasons.

Underlying this amendment is the assumption that the Minister has free rein in regard to these matters at present. That is an incorrect assumption. Section 3(6) of the Immigration Act 1999 sets out in statutory form a range of 11 different factors which must be taken into account by the Minister in determining whether to make a deportation order. These include humanitarian considerations, family and domestic circumstances, employment prospects, duration or residence in the State and any representations made.

On 18 July 2003, my Department published in the national newspapers an advertisement entitled, "Notice to the non-national parents of Irish born children", which drew attention to these provisions and which provided a lo-call telephone number, 1890 457 032, for persons who wished to discuss them. Since its establishment, over 9,300 calls have been received on that helpline, in some cases from members of the legal profession acting on behalf of applicants.

Furthermore, under section 4(10) of the Immigration Act 2004, the Minister is required to have regard to all of the circumstances of a particular case in determining whether permission to remain should be granted, including, for example, any family relationships with other persons in the State and the financial needs, obligations and responsibilities which the person or the family is likely to have in the future. In fact, when this provision was introduced into the Immigration Bill 2004 by way of amendment on Committee Stage in this House on 30 January 2004, it was unopposed, presumably on the basis that its purpose was to place on a statutory footing the guidelines which would inform the exercise of ministerial discretion. Furthermore, the Minister is required to have regard to the Supreme Court and High Court jurisprudence in the area. For example, the L and O case imposes an obligation on the Minister to have regard to the constitutional rights of the Irish citizen child as part of a family unit.

The website of the Department of Justice, Equality and Law Reform contains a host of information in regard to immigration and citizenship matters. All of this was done not because there was any statutory obligation on the Minister's part to provide it — there is no such obligation — but because it is good practice. The Minister sees no good reason that he should be under a legal obligation to provide information regarding one issue, affecting one class of immigrant in the State, where he is not under a legal obligation to provide similar information regarding any other non-nationals who are resident here or any other such issue. In line with the undertakings he has already given in this House and elsewhere, the Minister fully intends to publish information in regard to claims to remain in the State on the basis of an Irish citizen child. He is not in a position to go further than that at present.

Senator Norris sought concrete news on the matter.

The Minister said he might collect the information for the different sections of the legislation——

Order, please.

——and put them in an accessible format.

He said he would give consideration to that, which he will do. He remains firmly committed to what he said so I do not think the Senator need have any worries in that respect.

I would be worried about commitments because we got the definition of a commitment yesterday in the newspapers; it is not legally binding.

I have just arrived in the Chair and, as far as I can see——

You are very welcome.

——we are dealing with Report Stage.

That is right. Well done.

That means we do not have a dialogue. It is not Committee Stage.

It is always a pleasure to have a dialogue with Senator Norris. In any event, in those circumstances, I cannot accept the amendment.

Is the amendment being pressed?

We are not pressing it but we hope the Minister will honour the commitments he gave in this House on Committee Stage. We have no reason to believe he will not honour them. The reason we tabled the amendment again was to secure further assurances. However, the reply given by the Minister of State is as clear as mud. Nonetheless, we will take him at his word.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 3 are related. Amendment No. 4 is an alternative and amendment No. 5 is related to amendment No. 3. Amendments Nos. 2 to 5, inclusive, may be discussed together by agreement.

I move amendment No. 2:

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),".

I do not wish to take up too much of the House's time and acknowledge the Minister gave answers to the questions raised on Committee Stage. However, I wonder whether there has been time for what a distinguished member of the Minister of State's party described as "mature reflection".

Amendment No. 2 relates to a question of straightforward discrimination, particularly because it affects a child born to a person while in the asylum system, when that parent is subsequently determined to have legitimately become a refugee; the matter involves a calculation of time. The point is that the parent was always a refugee and the subsequent determination does not mean the person was not a refugee from the time the application was made but rather that the determination would mean that the person was a refugee all along, which fact should be taken into account in the calculation of the period.

The other amendment also related to a question of discrimination between, for example, migrant workers and international students. It would be futile for me to rehearse the entire argument. However, the Minister understood my point that a certain level of discrimination existed, which was unfortunate and regrettable given that students contribute enormously to our society in terms of the exaggerated fees they pay. For example, I was part of a group that originated a diploma which became an M.Phil in Anglo-Irish literature, for which the college milked fees from the students. Students at the Royal College of Surgeons in Ireland also pay enormous fees, some graduates of which continue to work and give their service here and form attachments and so on. It seems somewhat arbitrary that all this time spent in college in Ireland should be just wiped off the slate.

The other argument I made about the way in which the Bill was framed was that two persons, one of whom was a migrant worker and the other a student, might be treated differently although they might have spent the same amount of time in the country. I am happy to support amendment No. 4 in the interests of the Labour Party if the House wishes it, although it is slightly less swingeing than my own amendment No. 3, which is roughly similar in intent but seeks to delete lines 6 to 19, whereas the Labour Party amendment proposes to delete only lines 6 to 10.

I second the amendment.

The amendments are opposed. As the House is aware, the referendum in June was successfully carried with the support of more than 80% of the electorate. At the time, we published the Government's proposals on what legislation would be proposed in the event of the referendum being passed. The Government document made it clear that while it was committed to the basic principles of the draft, it would be disposed to propose and accept amendments which were considered to improve the final product consistent with the Government's policy on citizenship.

A central feature of the policy underpinning the Bill is that where Irish citizenship depends on the reckonable residence of a parent, all of the periods of reckonable residence must precede birth. If we deviate from that general principle, the problem will be that non-nationals will have no connection with Ireland and will have a continuing incentive to come to the State to have children and an increased incentive to claim asylum speculatively in pursuit of that goal, with which no Senator can argue.

It seems obvious that every asylum seeker hopes to be granted refugee status. If the Minister includes a provision which retrospectively confers automatic citizenship on the child of an asylum seeker who attains refugee status, then all pregnant asylum seekers will have a continuing incentive to come and have children here. This includes even the vast majority of asylum seekers who never attain refugee status. At the time of birth, they will retain the hope that they will be granted refugee status.

It is not the case that the children of asylum seekers who turn out to be refugees will be excluded from Irish citizenship forever. Section 16(g) of the Irish Nationality and Citizenship Acts, which will remain unchanged after this Bill, provides that the Minister may, in his or her absolute discretion, waive the normal conditions for naturalisation in certain circumstances, including where the applicant is a person who is a refugee within the meaning of the United Nations convention on the status of refugees.

It has been the general practice of the Minister and of his predecessors in office for many years to waive the normal residence condition of five years' legal residence and shorten it instead to three years from the date the refugee entered the State. It should be noted that this provision facilitates the naturalisation of children born abroad as well as future children born in Ireland. No fee is charged in respect of naturalisation applications from refugees. The regulations for fee exemption for refugees and stateless persons were introduced by former Minister for Justice, Máire Geoghegan-Quinn, in 1993 and extended by former Minister, Nora Owen, to programme refugees in 1996.

In regard to the position of students, as the Minister pointed out on Committee Stage, the provisions in the Bill will introduce similar conditions for reckonable residence for citizenship by birth to those which currently apply for naturalisation purposes. Under the current provisions of section 16A, subsection (1) of the 1956 Act, temporary residence in the State for study or asylum purposes is excluded from reckonable residence for naturalisation purposes. The problem of students overstaying or seeking to extend artificially their permission to remain is well canvassed at this stage and is known to every Member of this House.

In April 2002, that highly respected international institution, the International Organisation for Migration, published a report which is intended to inform the development of Irish immigration policy with research on the policy and practice in other jurisdictions. That report highlighted the fact that it was internationally recognised that the downside of the export education industry was that of students overstaying and using the pretext of initial entry as a student as a de facto means of illegal migration. It also highlighted the fact that particular features of a country’s citizenship laws can influence inward migration pressures.

Last month, the Minister for Education and Science published an interdepartmental report on the internationalisation of Irish education services. The report, which is designed to promote Irish education services abroad as an export product, also highlights the problem of overstaying. If we are to take this matter seriously, we must act in accordance with these widely recognised concerns. The Minister does not want a situation to arise where persons, who knew they were in the student category from the day they arrived, plan to have a child after three years in order to prolong their stay. If, by chance, they become doctors or nurses or whatever in the future, then their immigration status will change and they will be able to build up reckonable residence from that point. They will also be able to apply for citizenship for themselves and their children after five years reckonable residence in that case.

Therefore, we want our asylum seekers to come here as asylum seekers, not as citizenship seekers. We want students with extended stays here to be here for the quality of the Irish educational experience, not for the potential that birth on the island of Ireland might bring. This forms a comprehensive case and no "mature recollection" is necessary because the Minister and the Department have taken a very reasonable approach to this issue.

During my time as Minister of State with responsibility for labour affairs, I witnessed the significant problem we have with the numbers of young people who have been coming to this country in recent years under the pretext of wishing to become students and participate in Irish education, but having no intention of doing so. Thousands of such people are here illegally, which cannot be accepted or underwritten by legislation. For these reasons, I cannot accept these amendments.

To deal with the Minister of State's last point, that is a slightly different matter. People who come in and use education as a subterfuge and disappear into the undergrowth are very different from those who spend five years studying here. Although I respect and accept the Minister of State's experience, it is not directly applicable in this case and I am sure that, on mature reflection, he would agree. The one point the Minister of State made in this regard that I welcome was that if people were granted asylum without citizenship and then conditions appeared to change in the country from which they were fleeing, there would not be any great alacrity on the part of the Government to say to them that conditions at home are much better and they should return there.

I do not see why there is this fear of students, if they are bona fide students. I accept what the Minister of State, Deputy Fahey, said. If they come to Ireland in an unauthorised fashion, are only posing as students and then disappear, that is a very different matter.

On a point of clarification, they come in as bona fide students. That is the basis on which they receive their visas.

However where they do not remain as students and welsh on that agreement there is a good case for expelling them. They are not the kind of people of whom I am thinking. It depends on the definition of "student". If people are taking courses at reputable third level centres of learning, then it seems they are precisely the kind of people who would be useful in this country.

The Minister of State seemed to suggest that if one allowed the children the period of reckonable residence and citizenship to come into operation, then this might act as a lure and we would get more asylum seekers. I do not see how this would be so because if it is subsequently determined that they are not refugees, then they will not have any significant advantage. Therefore, spurious claims of asylum or refugee status would not confer any advantage on either them or their child. I do not see how it could be an inducement for them to take up this position. I recognise that the Minister of State will not change his mind but at least I will have this on the record, not that it will be a great comfort to the people who have briefed me on this matter.

The simple answer is that when the baby is born the parents live in hope and we do not want to anticipate that situation. I am a great admirer of the eminent professor, who has impressed many students. I cannot help saying——

Me? I never scaled those dizzy heights. I am a mignon.

The Senator has a reputation of being an eminent professor with many of his former students——

Did the Senator say mignon or minnot?

Mignon. Mignonette, if you like.

——who are good friends of mine. I would never suggest that Senator Norris would be naive but I think he is being a little naive on purpose in the case of the bona fides of many of those students. The reality is that across the world, in Canada, the United States and Australia, there is ample evidence to show that the student visa system operates on the premise that study abroad is counternanced as a temporary phenomena. It is designed to last as long as the course. The fact of the matter is that we must continue to insist on the temporary nature of such students living in Ireland. We cannot in any way give them a false hope that there are possibilities for them to remain here. Therefore, it makes good common sense to have these provisions in the Bill. While we would all perhaps empathise with the case being made by Senator Norris, it is not on. We would be leaving ourselves wide open for much abuse of our visa and citizenship processes. Unfortunately, I must reject the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 3 to 5, inclusive, not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

We should compliment the Minister of State, Deputy Fahey, and indeed the Minister, Deputy Michael McDowell, who pioneered the legislation through the House and who has been forthcoming with answers and explanations on queries and amendments raised. It is the ultimate manifestation of democracy. The House is giving effect to the will of the people which was decided by an overwhelming majority in the referendum in the summer. The fact that the draft legislation was on display prior to the referendum gives great weight to what we have decided here. It is a significant step forward in how we handle the growing multiculturalism within the country.

I also thank the Minister of State for attending the House and especially thank the Minister, Deputy Michael McDowell. We had a healthy and robust debate on the Bill and, as Senator Walsh stated, we are implementing the will of the people. We have done everything possible to expedite this legislation through the House. We needed proper balance and I hope we secured that in the Bill as passed. I thank the officials who prepared this legislation. We have had many disagreements in the debate on the Bill but it has been a difficult one on which get proper balance. I hope for all our sakes that we got that balance and are implementing all the wishes of the people.

I join in what my colleagues have said. I thank the Minister of State and also the officials, who were helpful and gracious during the passage of the Bill. I very much thank the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, because he showed great respect, coming into the House, spending a long time here and teasing out the issues on Committee Stage. He did not see his way to accepting amendments but what he did was interesting. He gave his views and he gave the context within which decisions would be taken. Of course he gave some interesting and helpful information to the House, for example, the idea that if he was to give particular instances, then he might be, in law, held to those. He gave the instance of female circumcision, that if he accepted one case and gave specifically that as a reason or as a guideline, he might have half sub-Saharan Africa landing on our doorstep. That was a useful illustration and I am grateful for it. I learned a good deal during the progress of the Bill.

The Minister made what, I suppose, one could call commitments and undertakings about the particular way in which these matters would be handled. He felt he could only do so in general terms, not by accepting amendments. This Minister, despite the political reputation that he has sometimes developed, has shown himself in the past to be sensitive, humane and decent. I serve notice that those of us who tried to table amendments will be watching during the application of the Bill once it becomes law. We very much hope and expect that the Minister will live up to the humane commitments he gave to this House on Committee Stage.

I assure the House that the Minister will be delivering on the commitments. Now that the Bill is finally passing into law it will not be long before Members will see action on the part of the Minister. I thank the Members for a very interesting debate on this legislation. I thank the Cathaoirleach and Leas-Chathaoirleach and the staff of the House. I know the Minister particularly enjoys the debates in this House and that is probably the reason he gives it so much time. As a former Member of the House I agree it is important the Minister attends. He asked me to attend on his behalf only because he is taken up with very important business in Belfast today.

As Senator Norris pointed out, this is a very complex piece of legislation. Our officials in the Department did an excellent job in the preparation of this legislation. I thank them for the comprehensive briefing given to me as I came to the debate at a late stage. The people have made their choice and this legislation implements that choice. I hope it gives genuine people the right to Irish citizenship while at the same time protecting Irish citizenship from those who do not deserve to have it.

I thank the Minister of State, Deputy Fahey, and the Minister, Deputy McDowell, and their officials for their work on the Bill.

Question put and agreed to.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.