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Seanad Éireann debate -
Wednesday, 21 Nov 2018

Vol. 261 No. 7

Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018: Second Stage

I move: "That the Bill be now read a Second Time."

I welcome the Minister of State, Deputy Stanton, to the House. I also welcome our guests arriving in the Gallery from the Migrant Rights Centre Ireland and the Immigrant Council of Ireland to hear this important debate.

On behalf of my Labour Party colleagues, Senators Ó Ríordáin, Humphreys and Nash, I move this important and sensible Bill that seeks to regularise the position of the small number of children living in Ireland who were born here and who have been resident here throughout their lives but face an uncertain legal future and, in some cases, the threat of deportation. The situation of the children has been highlighted recently in a number of cases, notably with the threatened deportation of a young nine-year-old boy, Eric Zhi Ying Xue, from Bray who was born in Ireland and who is in fourth class in St. Cronan's national school. I will speak a little more about that case, which has been widely publicised and written about.

Our Bill would regularise the position of young children such as Eric. It would not restore an automatic right to birthright citizenship. It would not go back to the position prior to 2004. This is because we are conscious a referendum was passed in 2004 to remove birthright citizenship, in other words entitlement to citizenship upon birth. That referendum was opposed by the Labour Party and I am very proud of the stance my party took in 2004. We predicted that the passage of the referendum would lead to the type of cases we are seeing arise. We also opposed the referendum on the basis there was no evidence whatsoever it was necessary and because it was in breach of our commitments under the Good Friday Agreement, as a result of which Article 2 of the Constitution was amended to declare it is the entitlement of every person born on the island of Ireland to be part of the Irish nation.

Prior to the Good Friday Agreement being put to the people, the Labour Party specifically asked that no legislation be proposed by the Government to impose restrictions on the entitlement to Irish nationality and citizenship of persons born in Ireland. Notwithstanding the Government's commitment, in 2004 we saw a referendum put to the people. There was certain proffering of no more than anecdotal evidence at best, and certainly no substantial evidence was offered, as to why such a referendum was necessary to remove an automatic birthright entitlement to citizenship. That referendum is best described as opportunistic. Having said that, it was passed and we are not seeking to change the situation or restore it to what it was prior to 2004. Rather, we seek to make a sensible, compassionate and relatively moderate change to address the key situation of injustice for those children born in Ireland who have lived here for a substantial period of time or for all of their lives and who still face deportation because of the referendum.

The referendum was implemented through the Irish Nationality and Citizenship Act 2004. However, that was not the only legislation that could have been passed, and it is important to point out to colleagues the constitutional referendum in 2004 was to insert a new Article 9.2°. This Article enables the Oireachtas expressly to legislate for citizenship. The effect of the referendum was not to deny for all time a right to birthright citizenship or birthright plus residence but rather to enable and empower the Oireachtas to legislate on it. The entitlement to legislate is what we seek to use in the Bill. Clearly, we do not need a referendum to regularise the position of the small number of children who have been most egregiously affected by the change in the law in 2004.

The other point about the 2004 law was that prior to the passage of the referendum the Minister already had the power to deport the non-national parents of Irish-born children even where those children were Irish citizens. The change to the law simply meant that in future the children could also be deported. Subsequent to this we passed a children's rights referendum, and it is in the spirit of the children's rights referendum and our obligations under international children's rights measures that we are putting forward the Bill.

All of us in the House are conscious that deportations can take place legally in Ireland but they tend to take place at the end of a lengthy asylum application process. Our processes have been very lengthy to date. The processes can take years to determine in which a child may be born, raised and educated here. The Bill seeks to regularise the situation and build on the entitlement of the Oireachtas to legislate under the Article 9.2° provision inserted to the Constitution in 2004. It would make three simple changes to our existing naturalisation law. It is not a fundamental change. Normally, someone applying for naturalisation must have a period of one year's continuous residence in the State immediately before the date of application plus a total residence of four of the eight immediately preceding years. The Bill would reduce this requirement, recognising we are speaking about children, and change the four year requirement to two years. Effectively, it would require three years' residency for an Irish-born child to be able to apply for citizenship. The Bill would also enable a child to apply irrespective of their parents' legal status. In calculating the period of residence the Bill would waive the requirement that the parent or child would have had permission to remain during the period of residence in the case of an Irish-born child. The Bill represents a sensible and compassionate approach to regularising the position of Irish-born children who have spent years of their childhood resident in this country but who face an uncertain future and, in some cases, the threat of deportation.

The principles behind the Bill have public support. Of course, we are open to amending it were the Government to agree not to oppose it on Second Stage. Recently we have had very successful collaborations with Departments where Labour Party Bills have not been opposed on Second Stage and were subject to amendment subsequently. We know there is public support for change of this nature. In the most recent edition of The Sunday Times, a Behaviour and Attitudes poll showed that 71% of the people believe those born in Ireland should be entitled to citizenship.

I was very disappointed to learn today through the media that the Government proposes to oppose this Bill and not allow it to go through to Committee Stage. It is particularly disappointing because in recent months we have seen individual Fine Gael Ministers, including the Minister for Health, Deputy Harris, from the Wicklow constituency of Eric Zhi Ying Xue, intervene with the Minister for Justice and Equality seeking permission to remain for their constituents on a discretionary, humanitarian leave to remain basis. We do not believe it is good enough that individual Ministers are seeking to get around or ameliorate the effects of the 2004 referendum for children living in their constituencies in respect of whom a campaign is being waged by their school, community or family. It is simply not good enough that children in this very precarious and vulnerable situation would be subject to an ad hoc system of discretionary leave to remain.

The Government’s statement on this, which was not provided to me but which I learned of through the media, refers to the current discretionary system being adequate. It is not and I do not think the people in the Gallery would accept it is adequate that children would face a discretionary system of entitlement to remain.

It is also a disappointing response from the Government considering that it, and indeed successive Governments, have always fought for the rights of undocumented Irish people living in America.

Senator Billy Lawless has been a proud champion of the rights of the Irish in America over many years, and I am proud that he is here to support our Bill because it is utterly consistent with Government policy in respect of our own migrants for many generations.

I am conscious, and I know the Minister will be also, that there are at least two cases currently before the courts on the issue of children’s right to remain in Ireland. They have been born and, through no fault of their own, have grown up and been resident here and yet still face deportation. Therefore, we know these cases are causing legal as well as human problems. That is another reason we say the Government should agree to this Bill on Second Stage and work with us on workable amendments, if it believes it can be improved on, to ensure we see a better legal system in place for these children and their families.

The Government suggests also that a Bill such as this would mean we would be out of line with other EU countries. I take strong issue with that. I am grateful to the Migrant Rights Centre Ireland for its briefing, which I have circulated to all colleagues, along with our own briefing. The Migrant Rights Centre Ireland points out that in 24 of 27 EU member states have regularisation programmes to enable remediation of the situation of children who are undocumented. In Luxembourg, for instance, it is where a child has completed at least four years of compulsory schooling while in many other countries it is a stated number of years in school and-or proof of residency over that period. These sorts of mechanisms are commonplace in other EU countries. In Ireland, we were out of line with other EU countries for many years in failing to provide asylum seekers with the right to work.

We have been held up internationally on that basis. I am very glad the Government has moved on that and I pay tribute to the work done by the Minister previously as Chairman of the Joint Committee on Justice and Equality on which Senator Conway and I had the pleasure of serving for some years. In that capacity, the Minister was very conscious to ensure the rights of persons here in direct provision and to ensure improvements to and reforms in our immigration system. I know the system is being made more efficient and more effective and we are seeing fewer incidents of the long delays we have seen in the past. That should also offer the Government a strong incentive not to oppose this Bill and work with us in bringing forward similar legislation because it clearly is a strong incentive to Government to ensure a fair, efficient and effective process whereby children will not languish in an uncertain legal situation for many years while asylum applications are being processed through a lengthy system.

I urge the Minister and colleagues on both sides of the House to support this important legislation.

I welcome the Minister to the House. I also acknowledge his previous work of which I have always been an admirer. I ask him to work with the Labour Party on this legislation, which is very important. Discretion is not good enough. It is not good enough for a child to be dependent on whether the Minister, Deputy Harris, or the Minister, Deputy Flanagan, represent his or her constituency in terms of discretion to allow him or her to stay. What happens if that child is in a DEIS school or in an area of disadvantage and does not have friends with influence to access a Minister who might act with discretion? On many occasions, I have made very strong arguments for undocumented people who have been in Ireland for a long time but because of their background or because they work in the retail sector in low-paid employment, they got a very poor hearing. It is not good enough that a child born in this State and going to school here would constantly wait for a knock on the door from An Garda Síochána to tell him or her that he or she must go. What if the child does not have power, influence, a circle or a network to run an effective campaign to get a Minister, if there is a Minister based in his or her constituency, to exercise discretion? That is no way to treat a child. In 2016, the UN Committee on the Rights of the Child criticised Ireland's immigration system for failing to protect the needs of undocumented children and failing to adhere to the UN Convention on the Rights of the Child.

I do not know whether the Minister has to deal with cases like this but it is disheartening when one is approached by someone, especially when he or she has spent some time in Ireland. When it is a child it is even worse. As an undocumented child moves into education or into employment, he or she will be treated as second class and will be exploited and abused in the workforce. That is not acceptable.

Each year on St. Patrick's Day Irish politicians travel to America and make representations for the undocumented Irish. They work, as they should, to ensure that Irish citizens who have been in America for a long time get some acknowledgement. For Members of this House to not support this Bill would be hypocritical. We are talking about basic, fundamental human rights for children. A situation where it depends on whether a Minister lives in the constituency cannot continue. This must be done through legislation. This Bill provides a formal process for a child born in this State. It is by no means liberal, because it is constrained by the constitutional amendment arising from the 2004 referendum. It is the bare minimum we can do. I would prefer if it went much further and if it was possible to re-run that referendum.

I campaigned against that proposal. The lies articulated during that referendum were despicable and it was the forerunner of what we have seen with Trump in the United States. There was no evidence to show that thousands, or even hundreds, of immigrants waiting to run to Holles Street Hospital to have their child so that they might become citizens of Ireland.

I thank the Immigrant Council of Ireland and the Migrant Rights Centre Ireland for being here this evening. Their advocacy and lobbying shows the best of our country and what it means to be Irish. I am bitterly disappointed at the Government’s reaction to this Bill, which I genuinely did not expect, but I will start on a point of unity. No mainstream political party has ever done this. Immigration never comes up in general elections.

The race card has only been played once during my political career. That was in 2004 during an unnecessary referendum. It was a despicable gesture by the Fianna Fáil-Progressive Democrats Government of the day. I remember it, as do other candidates who ran in the local elections held on the same day. I remember reports of African-Irish families being booed at polling stations. I swore when I got elected to the city council on that day that I would never forget the emotions I felt during that referendum campaign, which my party and others on the left stood against.

The Bill does not overturn the result of that referendum. It does not give automatic citizenship rights to Irish-born children. What it does is allow that a child born on this island, that is, in Ireland, North or South, has the right to citizenship after residency of three years. As has been said, if the Government is opposing this, what the Minister for Health, Deputy Harris, did in Wicklow was a lie and what the Minister for Justice and Equality, Deputy Flanagan, who was in this Chamber only moments ago, did in Laois was a lie. They are well able to accept the applause of their constituents when it comes to a popular campaign around an individual who was facing deportation. However, when it comes to regularising the situation and having legislation to underpin the rights of all children in that situation, regardless of whether they can run a media campaign and regardless of how influential they are, they are turning it down.

Despite all these launches relating to children's rights for the next five years and all this talk about a new republic, about getting up early in the morning and about a republic of opportunity, what opportunity are we handing to a child who is eight years old, Irish-born, knows no other country but Ireland and who faces deportation? The only chance they have is if they have a campaign group that is willing to go to a local Minister, who might step in and save the day on an individual basis.

What disappoints me most is that this is happening despite the Seanad having been really progressive, across all parties, Government parties included, on issues such as direct provision and advocating for the rights of undocumented workers. All of us have collectively called out the hypocrisy of going to the White House and advocating for undocumented workers in the United States and advocating for the rights of dreamer children. Dreamer children are dealt with in the Bill before the House. How dare we suggest that Trump is not doing the right thing when it comes to dreamer children and taking them away from their families, when this is exactly what we are dealing with here? We are dealing with dreamer children. We are dealing with children whose position here needs to be regularised. What the Government is stating is that they are not important enough, that they do not have access or influence and that it will do this on an individual basis but not collectively.

I did not want to make this contribution. I wanted to make a contribution that would unify the House. I wanted to say that we, as Irish politicians, are better at this and that the 2004 referendum was a blip, a once-off mistake that involved the playing of the race card and something that should not happen again. The Government has an opportunity now, if it changes its mind, to regularise the situation of Irish children and to ensure that their schoolmates are not looking around themselves at an empty chair in the classroom and wondering why this so-called republic is sending them to countries of which they have no knowledge. I urge all Members to back this Bill.

I acknowledge my colleagues in the Labour Party for bringing forward this Bill. We began dealing with the legislation relating to judicial appointments at 2 p.m. However, what the Labour Party is trying to achieve in the Bill before us is far more important.

I acknowledge those in the Visitors Gallery, who obviously believe in what is proposed in the Bill. We have been here many times, as Senator Ó Ríordáin and others stated, speaking about the issues relating to people who come to this country for refuge and a safe haven. In recent years, there have been incremental improvements in areas such as direct provision. I welcome the Minister of State, Deputy Stanton, who has personally overseen what I would describe as a transformation in this area, particularly in the context of direct provision. The vast majority of the recommendations of the McMahon report have been implemented. While we all have issues with elements of direct provision - there are aspects of the system that we absolutely do not like - it is only fair to acknowledge that a lot has happened to improve direct provision, particularly in terms of reducing the time people have to wait for decisions on their applications for permission to remain.

If the Government is opposing the Bill, it is obviously doing so for reasons that I suggest are not in any way disrespectful or that run counter to what people are trying to achieve here. There are probably legal reasons for this and I am sure the Minister of State will outline them in due course. I would much prefer the Government to work with the Bill but if the Minister of State commits to coming back to the House with other or alternative legislation in order to achieve what people are seeking to do, I would be happy.

As a country, Ireland has a far better record in this area than some of its European neighbours. In terms of children being facilitated and treated properly, this country is in a far better position and we can hold our heads high when compared with other countries. However, I accept that we have a long way to go. I also worry about the whole area of discretion. I welcome what happened in the case of those two children who happen to live in the constituencies of Ministers. I am sure that was not the reason for their difficulties being resolved and I am sure that the cases that were made were appropriate. However, I would like to see every child who is in that position, regardless of whether there is a campaign group to facilitate, support and advocate for him or her, to be able to benefit from the same discretion. Discretion is not a bad thing; it is a very powerful weapon. We have seen how discretion has been used in many appropriate cases by institutions such as An Garda Síochána over the years. I would not necessarily remove the word "discretion" because it can be used in an extremely positive way, as we have seen in the two cases to which I refer.

With regard to Senator Billy Lawless' work in America, I have been very involved in lobbying for the undocumented Irish in the same way that I have been very involved in lobbying for the undocumented in this country. I will not be accused of hypocrisy by anybody because my track record over the past eight years in this House speaks for itself. Senator Lawless has done phenomenal work. I remember being in Washington at the time of the Kennedy-McCain Bill. Unfortunately, that came apart at the 11th hour. Many subsequent attempts to deal with this matter have also come apart in the same way. I would like to think - I would be fairly confident in saying this - that the Irish Government and this State's record in dealing with the undocumented is far more impressive than that of the United States. We are miles ahead in terms of how we treat people when compared to how they are treated in the United States, and that is not just today but over a number of years. When people get their green cards in the US, the world is their oyster and they are treated phenomenally well. However, in comparison with the US, we have a good record in terms of dealing with the undocumented. There are many Irish people in the US who can thank Senator Lawless for the work he has done to assist them. It is wonderful that he is in the House because he brings an influence, a knowledge and an expertise that informs us for the better.

I do not know if we will be supporting the Bill. We will wait to hear what the Minister of State has to say.

Kick him under the table there, Martin.

However, all our goals are the same in this regard. Being in government is unfortunately not as easy as being in opposition. There may very well be reasons, technical, legal or other why it cannot happen. We all need to strive to achieve the same result.

I am happy to say Fianna Fáil is supporting this Bill on this Stage. My colleagues have made some excellent points. There is obviously a problem here. There are children living in this country who were born here and go to school here and who identify as Irish. Through no fault of their own, they have fallen through the cracks. It is not good for Senators to say we have a great track record in this country in regard to undocumented people compared with other countries because we do not. We have an abysmal record. Many people came here during the boom years in good faith. They got work permits and engaged in economic activity. They were very much needed, wanted and embraced. When the recession hit, they were no longer able to get work permits and they fell through the cracks but their lives went on. They met their partners, married, had children and now they face this uphill battle and threat of deportation. It is outrageous and a disgrace that people have to depend on having a Minister in their constituency or on their own skills as individuals to mount a campaign. Many people would not have the language skills or the confidence or the cute backstory necessary for a public campaign. It is very unfair that we allow a very small but significant cohort of people to live with this constant threat over their heads.

It is disgraceful if the Government opposes the Bill. Perhaps there are problems with the Bill but I would urge the Minister to work with the Labour Party, which brought it forward, and with other Senators. It is a very important topic. We should be working together to get a solution to this. As Senator Ó Riordáin pointed out, immigration has never been an issue for any mainstream political party. Therefore, it is incumbent on us to work together to reach a solution that will help a small number of families. It is important for them and the communities they live in. They are in schools, sports clubs and play very important roles. For our nation to develop and stand among our European colleagues, we should be able to say we are a welcoming country and we embrace people from other countries who are contributing economically, socially and culturally to this country and their communities. They see Ireland as their country.

We need to be making progress on several fronts. The asylum system is not fit for purpose to say the least. For people to stand up here and say we can hold our heads up high on direct provision-----

The Senator should speak through the Chair.

It is directed at me specifically.

While some aspects of the McMahon report have been implemented the meatier ones have not.

These are things that need to be considered. The length of time it takes for people to pass through the asylum system because of a lack of resources from the starting point has allowed children grow up and go to school, form friendships, learn our language and engage in sports clubs and different community activities. We need a radical overhaul of everything but this would be a welcome first step.

There may be issues that Fianna Fáil will want to tinker around with as the Bill progresses but we are very willing to work with the Government because the spirit of this Bill is very noble and we need to run with that. Let us all work together to let the people in the Visitor's Gallery, the people at home watching this and those who depend on us see something significant happen here tonight.

On a point of order, I would like to respond to the direct attack on me at the beginning of that speech.

I am afraid the Senator may not.

It was totally inappropriate.

Senator Conway should please resume his seat.

The Senator should go to England and America and inform herself.

The Senator should resume his seat. I call Senator Lawless.

The Senator should inform herself. She is a disgrace.

I welcome the migrant groups and thank them for all they do for immigrants in this country. As an Irish citizen and American citizen, I am very proud that this is one of the few countries in Europe that does not have an anti-immigrant party. Long may that last.

On 11 June 2004 the Irish people voted in favour of an amendment to our Constitution that in my view, both then and now, was a very unnecessary change. I greatly welcome Senator Bacik's Bill which does not seek to overturn the will of the Irish people but instead reflects a less onerous regime for those categories of minors born on the island of Ireland who no longer have an automatic entitlement to citizenship because of the legislation which followed the 2004 referendum. Section 15(c) of the Irish Nationality and Citizenship Act 1956, which was amended in 1986, long before the citizenship referendum, includes a criterion that must be met before the Minister can in his or her "absolute discretion" grant an application for citizenship, that a person applying for citizenship must be resident in Ireland for one year immediately before the date of the application. During the eight years "immediately preceding that period" the applicant must have accumulated a total residence period "amounting to four years". When combined with the requirement of residency one year before the application, that amounts to a five year residency requirement. If I understand Senator Bacik's Bill correctly her proposal is that the combined residency requirement be changed to three years-----

-----for minors born in Ireland and that minors born in Ireland, rather than the non-national parents of minors born in Ireland, could themselves independently apply for citizenship if they meet the criteria.

If I also understand the position correctly, this is not possible under the current legislation where only the non-national parent or guardian of the Irish born minor can apply. Perhaps Senator Bacik might elaborate on how this might work in practical terms. How would a minor born in Ireland who meets the amended criteria actually make this application? At no stage that I am aware of was the argument put to the people of Ireland in 2004 that this State wanted to deprive persons born on this island to non-EU national parents of an entitlement to be Irish and to be part of our State and nation. Yet that is precisely what the legislation which followed the 2004 amendment brought about. Even taking the arguments put forward at the time that the purpose of the referendum was to free up our maternity hospitals overblown with non-EU national parents looking to play the system or preventing them from obtaining automatic residency or citizenship entitlements, the practical effect of the referendum was to change neither of these concepts. No one was ever told that what the State really wanted to do was to reserve the absolute right to deport a nine year old who was born in Ireland to a Chinese mother to a country he had never set foot in. Thankfully, at least in this particular case, largely due to publicity, the Minister for Justice and Equality now appears to show clemency.

Like the Labour Party Senators who have proposed this Bill I would like Ireland to go further. The amendment we inserted in the Constitution in 2004 is worth reading into the Official Report. It provides that "[n]otwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law." Perhaps we do not even need another referendum to make Ireland a more compassionate country for the people born here. I will allow the legally trained Members of this House to comment but it seems to me that the effect of the law enacted after the referendum does not reflect where the people stand with respect to how they believe persons born in this State should be treated.

It would seem these laws can and should be changed. I firmly agree with the objective of the Bill to enable minors born in Ireland to apply for citizenship in their own right and equally to reduce the cumulative residency requirement they have to meet from five years to three years. It is a proportionate step in the right direction. I totally agree with Senator Humphreys. Advocates of the undocumented Irish in the United States are having a tough time as a result of the toxic attitude of the present Administration towards immigrants. At least the children born to undocumented Irish in the United States are automatically US citizens.

Surely we can do the same thing here. I hope the Bill and the recent high profile cases of Irish-born children facing deportation encourages the Government to revisit the laws that followed the 2004 referendum.

I welcome our visitors to the Public Gallery who are here to listen to the debate on the Bill. I commend and support those in the Labour Party group who proposed the Bill. Sinn Féin will support the passage of the Bill on Second Stage.

Like a number of previous speakers, we in Sinn Féin opposed the 2004 referendum. Over the past number of years, we have begun to see the toxic outworking, which many of us alerted the then Government to, and the very negative ramifications of the race to the bottom in 2004 which, as Senator Ó Ríordáin stated, resulted, tragically and shamefully, in the race card being put front and centre of political life in the State. It is not just a stain on the politics of the State but unfortunately for many people it is coming home to roost in the most negative way.

I am disappointed by the Government's stance if it is the case it will oppose the Bill. It is not normally the custom in the House to oppose legislation like this on Second Stage. Senator Conway alerted us to the potential for legal concerns around it although I am not sure how credible that is. Even if it is, we tend to work collaboratively and positively together to try to get legislation through.

At its heart this is about cherishing, protecting and defending children who are born here when their families come to live in Ireland. I do not want to attack Senator Conway but it is worth putting on the record that I fundamentally disagree with him on the Government's record on direct provision and support for vulnerable migrant families, and children in particular. The points have been made. There is no point in getting into a ding-dong around that. The Bill does not overturn the 2004 referendum although in many ways I wish it did because it was a stinking vote and is a blot on the Constitution and the political and social structure of the State. I am delighted that the vast number of us in the Chamber are alert to that and ready to stand up and argue against it even now.

I will briefly refer to the positives I see in the Bill. It is about protecting Irish children, that is children who are born of this nation. It utilises the language of the Good Friday Agreement which is always a positive thing. It is as succinct as it can be, which we do not always get when it comes to legislation in the House. It seeks to do exactly what it says on the tin.

While the Bill is succinct, the complexities of the citizenship issue are not so succinct. They are a live and intrusive problem in many instances in countless people's lives right across all of the Thirty-two Counties. I happen to be of the view that creating citizens is positive and progressive. The more we seek to grant citizenship and empower Irish citizens it will benefit us and stand us in good stead in the long run. These children who are born here are as Irish as us and we are as Irish as they are. We should enact ways that cherish them in a much more proactive and accessible way.

I have a number of questions on the outworking of the legislation in terms of its application and its reference to Good Friday Agreement language such as "the island of Ireland". I engage with many families, for example Lithuanian families in Dungannon who are perhaps working in food production, whose children attend the local Gaelscoil. They play for the local GAA club and identify as Irish, as they would. They want to avail of Irish citizenship in the same way as someone who comes to live in Galway, Cork or Dublin would.

It is the same in south Belfast where I had the privilege of visiting the Belfast Polish school, which is a Saturday school in the city, when I was Lord Mayor. I met with one child who was attending the local Gaelscoil. She was speaking Irish at the Gaelscoil, Polish at home with her mother, Russian at home with her father and English out on the street with the children she played with. In the midst of all that enriching diversity and the benefits the child will inevitably have, she identified as Irish and wanted to avail of Irish citizenship. Perhaps, in the spirit and the word and letter of the Good Friday Agreement, the benefits of the proposed legislation will apply right across the Thirty-two Counties.

I do not know how much time I have left but I will make my final point. We need to look at the broader issue of citizenship because we have instances in the North - I do not want to digress to much from discussing what the Bill seeks to do - where people who identify as Irish, and are Irish under the Good Friday Agreement, are being taken through the courts by the British Home Office for trying to assert their Irish citizenship in line with the Good Friday Agreement. When they apply to the British Home Office for residency visas for their partner or spouse from the US, they have to renounce British citizenship that they have never held. It is obviously in breach of the Good Friday Agreement and is being tested in the court at present. We need to be careful we do not treat people who were born here and have lived here for a long time differently from others or that we act as if there is some kind of second class or substandard form of citizenship. Perhaps it is a debate for another day. I welcome the Bill. I support what the Bill seeks to do. I am disappointed and I hope at this late stage the Government will consider changing its mind.

Senator Higgins has eight minutes.

Senator Black is first and I will take the next slot.

Will Senator Black take the full eight minutes?

Will there be a second round?

There is a second round.

I welcome the Minister of State to the Chamber. I am delighted to be able to speak strongly in favour of this important Bill. I commend Senator Bacik and the Labour Party Senators for their work on bringing it forward. I also welcome the guests in the Public Gallery who have worked very hard on the issue.

The Bill proposes a modest, humane, compassionate change and I urge my colleagues across the House to support it. It seeks to provide a pathway to regularise the position of the small number of undocumented children in Ireland who, despite having been born and raised here, are denied citizenship and risk deportation because of their status. It is not acceptable in a modern, democratic society as recent, high-profile cases have made absolutely clear.

Some speakers have already touched on the case, which was extensively discussed last month, in which the State sought to deport a nine year old boy from Wicklow to China despite the fact he was born and raised in Ireland and has spent his entire life here. He goes to school in St. Cronan’s in Bray and it was really heartening and inspiring to see his friends and classmates rallying behind him and opposing what was happening. Those kids could see a clear injustice. They understood how cruel and inhumane it would be to take this boy from his home, friends, school and life and send him to the other side of the world to a place he has never been.

It rightly shocked so many of us and it provided a big impetus for change. It highlighted a problem in our system and our job as legislators is to fix it. There is an extreme callousness and heartlessness in the policy as it currently stands and it is something people are realising as these cases continue to make headlines. After the situation in Bray became public, more than 50,000 people signed a petition calling for the deportation to be halted on humanitarian grounds. Those people recognise that Ireland is Eric’s home, that he belongs here, and that no one benefits from his deportation.

Just last week, a Behaviour & Attitudes poll showed that more than 70% of people believe that those born in Ireland should be entitled to citizenship. This figure is important as it demonstrates how people are viewing the human cost of our current policy and asking for change. This modest, sensible Bill is an important step in that direction. It deals with young people who have spent their entire lives in Ireland and who are as much a part of the rich fabric of this country as any of us.

In this spirit, I want to say a special word of thanks to the Migrant Rights Centre Ireland, MRCI, which has done Trojan work on this issue, especially through the Justice for the Undocumented campaign. In particular, I commend this young, paperless and powerful youth group, which comprises young undocumented people living here and campaigning for change. They are represented in the Public Gallery tonight. In my work as a Senator I have been privileged to meet them on several occasions and they are an incredible group - smart, funny, talented, dedicated and committed to changing their country for the better. Ireland is their home, they want to improve it and this country is so lucky to have them. They have spoken out bravely about the trauma of growing up undocumented in Ireland. It is heartbreaking to hear descriptions of the mental stress that comes from hiding irregular migration status from friends, family and public authorities and the stigma associated with it. No child should have to go through this. They talk about their aspirations to get on and achieve in life, but many avenues are needlessly and cruelly blocked off to them. One member of the group spoke about the feeling of knowing that, no matter how hard one works and how many points one gets in his or her leaving certificate, third level education is just not an option. They launched a powerful, inspiring short film last night, and I urge my colleagues to watch it and to hear in their words why the system as it stands is just not right.

We recoiled in horror when US President Donald Trump outlined plans to cancel the famous dreamers regularisation programme in the US, but no comparable system exists here. At the moment, the only legal process available to these children is to seek humanitarian leave to remain, but this is a deeply flawed system. There is no clear criteria or process involved and it is not fair on the people involved or on the Minister. As a member of the Joint Committee on Justice and Equality, I was recently asked to carry out a review of Ireland’s migration policies. One of the key recommendations to come out of that process was the need for a transparent, fair regularisation scheme that would allow undocumented people, both children and adults, to come forward and regularise their status. I acknowledge progress has been made on this recently, and I commend the Minister of State on his commitment to continue working on this, but I urge him to take heed of the research produced by MRCI and other organisations outlining how we can make these systems fairer and more humane. We have seen other EU states relying on clear criteria like numbers of years in school and proof of residency and that is something we should also examine. It puts the best interests of the child and young person first and rightly prioritises their education, overall development, well-being, and rights.

In 2016, the UN Committee on the Rights of the Child observed that our immigration system had failed to address the needs of undocumented children, in light of our obligations under the UN Convention on the Rights of the Child. In its review, it emphasised that: "all children are entitled to the full protection and implementation of their rights under the Convention", and that these rights must be "guaranteed for all children under the State party’s jurisdiction, regardless of their migration status or that of their parents". It went on to directly call for a legal framework with clear, accessible procedures to regularise the status of children and their families in irregular migration situations. Ireland needs to report on its compliance with the convention by 2020, and I would appreciate it if the Minister of State could give some indication on how the Government intends to respond to these concerns.

I would like to briefly mention the case of Nonso Muojeke in Tullamore, which also made headlines recently. It was a similar situation, in that his classmates rallied against a deportation order that was clearly unjust and I was glad that the case was resolved. However, while the same arguments made against the deportation in Bray last month applied, in that he had spent his childhood in Ireland and grown up there, the fact that he was brought to Ireland at 2 years of age means that he still will not qualify for citizenship based on his place of birth. That makes it clear that more needs to be done on this issue, and I urge the Government to follow up on this excellent Bill with concrete proposals that can help all undocumented children living in Ireland. It should not be up to young children and their school friends to plead for decency. The State has a legal and a moral obligation to ensure that clear pathways exist for these children, and that they can live happily and exercise their rights. I am so delighted to support this Bill as an important step in that direction. I thank the Senators who have tabled it and commend it to the House.

I had a guest at lunch today. She is the widow of a school friend of mine. She is English and she spoke about attending a citizenship ceremony when she achieved Irish citizenship. She spoke about it with tremendous passion and said it was one of the most moving days of her life. She was surrounded by people from Asia, Africa and Europe and this meant so much to her. It is in that human context that we have to view this important legislation.

In 2004, there was a mean-minded, despicable referendum, of which I, as an Irish citizen, am deeply ashamed. It was an appalling thing to do. Among the provisions in the referendum, it stated, "Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or is entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law." There are a couple of things we can say about this. First, the phrase, "unless provided for by law", is an open invitation to the Oireachtas to enact such legislation and that is what we are doing tonight.

Second, it is interesting that the phrase, "Notwithstanding any other provision of this Constitution", is intended to qualify Article 2 of the Constitution following the Good Friday Agreement, which states: "It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation." What does this mean? How can somebody be part of the Irish nation while, at the same time, be denied citizenship? It is a contradiction in terms and a complete nonsense. The fact is that this change in the law simply means that the Government and the Minister can deport children.

We hear the Government all the time saying that we must bear in mind the best interests of the child when bringing in legislation. How is it in the best interests of a child that it be deported to a country that it does not know? That is also a nonsense.

Section 3, which deals with humanitarian leave to remain, is not a solution to this. A child or the parents cannot operate this section. It is triggered exclusively at the whim of the Minister. It is clear that the current system has not been put in place to address the needs of undocumented children or their families. That is not the intention.

Reference was made to other countries and we were told that 23 or 24 of the EU27 have provisions for regularisation. In Luxembourg, there is a mechanism in law to regularise children and young people and their parents before they turn 21 if the child or young person has completed four years of compulsory schooling. In France, there are a number of regularisation mechanisms and provisions in law and policies that entitle children to regularise their status at 18 years of age based on private and family life. The criteria focus on the years of residency and schooling. There is a mechanism in law in Norway that regularises children on the basis of strong humanitarian grounds in practice and regularises undocumented children who have resided there for more than four and a half years and who have attended one year of school in Norway.

Even in the United Kingdom, there are provisions for regularising undocumented children. We have to face the human situation. Imagine the mental stress faced by undocumented children in this situation, children who have become aware of their parents' lack of legal status. This protection, which D.H. Lawrence called the overarching rainbow of the parents' love, is fractured by this.

I understand you are sharing time with Senator Nash. Is that correct?

I did not know that.

I will come in the next phase. That is fine.

I was not asked, so I would have made provision and speeded up. How long have I got?

I will come in on the next phase.

If you are sharing, you have to conclude in 30 seconds.

Have I two minutes and 30 seconds?

No, you have to conclude in 30 seconds.

I am looking for some injury time because there was an interruption. I am going to take it anyway, no matter what happens.

What is the Minister of State's response to the observations of the United Nations Committee on the Rights of the Child, which was strongly critical of this country? Reference has been made to the situation of Nonso Moujeke in Tullamore. This is an extraordinary thing. It showed the young people of Ireland, the children of Ireland, knew more than the Government of Ireland, because they roused themselves up and protested. The entire school of 600 or 700 young people stood up in defence of that young man who was not born in this country, and thank God they prevailed.

How does the Minister of State propose to address the issue of children and young people growing up undocumented in Ireland? Would he be open to more comprehensive legislation that introduces a permanent regularisation for all undocumented children and young people based on numbers of years at schooling in Ireland? In other European countries, as I have indicated, young people are regularised. Would the Minister of State consider a solution like this in Ireland? Could he outline a timeframe for dealing with this situation? How has he responded to the criticism from the United Nations committee?

This is an excellent Bill but it does not go far enough because it does not deal with the situation of people who are not born in this country, like Nonso Moujeke. This is something which we really need to deal with and the people of Ireland have already spoken with passion on this issue.

I support this Bill and it should be given a Second Reading. It is well-intentioned and addresses an aspect of our current law which needs to be addressed by the Oireachtas. I want to put a number of matters on the record. Firstly, in 2002, the Fianna Fáil-Progressive Democrats programme for Government stated that we would deal with the situation that then existed, that any person born on the island of Ireland, in no matter what circumstance and no matter where or whatever, became entitled to Irish citizenship. The programme for Government stated that it would be dealt with by whatever means, legislative or constitutional, as was required. It was clearly signalled in advance and a commitment to consult the Opposition parties was put into that programme. Let us remember that that is the origin of that referendum. At the time it was not accused of being mean-minded or based on lies or propaganda, but it was to bring Irish law into conformity with the laws of the rest of Europe on these matters.

France had a jus soli entitlement to citizenship but it operated in a very different way. French children could be deported and told they could come back when they were 18 years of age. Ireland, on the other hand, had a Constitution which provided that the family had rights separate from the individual. In Ireland, therefore, family rights combined with absolute citizenship based on jus soli effectively meant that - this was found by the courts - unless there were overwhelming reasons, no family who had a child born in Ireland could be deported in any circumstances. That was the law as it emerged.

It has been suggested on a number of occasions in this House that the referendum was mean-minded, but it was not. Some 80% of Irish people voted for it and if the matter was put back to them again, I dare say 80% of the people would vote to keep it as it is. The reason is that the issue is looked at when shorn of emotion. It is not sustainable in a Europe without borders to have a situation where one must admit people to live in one's territory on the basis of European law, but where one's state is the only member state of the European Union which cannot say a person's status there is unlawful and he or she must go, if in the interim, a child has been born. When I was Minister for Justice, Equality and Law Reform - the Minister of State, Deputy Stanton will know this - I left that Department in circumstances where it was anticipated that a new immigration and nationality Bill would be passed in which the entire process of considering applications to remain in this country, either on humanitarian grounds or on refugee-asylum-seeking grounds, would be accelerated and decided in rapid order by a new procedure. Unfortunately, that legislation never came to pass and the result is that we have had unconscionable delays in dealing with the situation of people seeking asylum in this country.

Perhaps the situation has improved, and I hope it has. We must recall that likewise, when I was Minister for Justice, Equality and Law Reform, the accumulated number of applications which were then not being addressed had reached such proportions that - perhaps people might think about this when they use the phrase mean-minded - I introduced, against considerable opposition, a scheme whereby those who were in the queue, so to speak, to seek asylum were given a way out of that queue and given a right to remain in Ireland because of the delays. Between 15,000 and 18,000 people availed of this path to citizenship at the time. I want to put on the record that that measure was humane and decent. Senator Ó Ríordáin can get emotional in this House, and I could turn on emotion just as fast as he can if I wanted to, but I know the situation described to the people was accurately described to them. I know that the masters of the maternity hospitals made representations to Government to say that the situation untenable, despite all the claims now that it did not happen. I also know, and this is important, that the Government at the time said to the people that in the inevitable result of case law in Ireland and in the European Union, with the Chen and other cases, would be that we would as a matter of European and Irish constitutional law combined, be in a position that we would not be able to deport any family who had a child in Ireland because they would have had European rights and Irish constitutional family rights. The combination of all these events was going to make Ireland's position unique in Europe as a place where we had no right to exclude people at our borders, and at the same time guaranteed jus soli to an extent that no other European state admits. I want to put all of that on the record.

When we come to Eric's case, it is a matter for ministerial discretion at the moment. I welcome what Senator Bacik has proposed, which is that there is a pathway for someone to move the Sword of Damocles, which is discretion, away from someone and to give some pathway to seeking permanence and some degree of predictability. No child should be in the position of Eric, no matter what has happened or what the cause of the delay is, where a child at that age is effectively threatened with deportation to a country he or she has never been in. I agree with Senator Conway in one respect. Discretion is not a bad thing in these matters.

One will come across situations where apparently identically cases are radically different. In the end, under our citizenship and nationality law, a Minister is given discretion. Senators may recall Olukunle, the student who I had to bring back from Nigeria to do his leaving certificate examinations. Most of these cases arise from a situation where a more or less mechanical process arrives at one decision and discretion has to be applied to reverse it. That should not be the case. As the Minister of State knows, every ministerial discretion is subject to judicial control. I believe Senator Bacik's Bill is timely and appropriate and there has to be a mechanism for children in these circumstances to enter into a process where discretion will be exercised rather than just sit in a limbo for years, wondering if a knock will ever come at the door. That is not appropriate and it is the situation that Senator Lawless is dealing with in America. It is unjust and inhuman and we have to provide for it.

The effect of that referendum was to vest in the Houses of the Oireachtas total responsibility for our citizenship laws to deal with it in any way it likes. That is not mean-minded but democratic.

I will move to the Bill shortly. I will address the 2004 referendum first since it has been discussed. This was the first campaign that I was involved in after my return from America, where I was a migrant for many years. In the US, many of my fellow migrants had formed relationships and had children, and some were working to regularise their status. Many migrants, whether documented, undocumented, legal, or illegal, including fellow Irish migrants, knew that their children would at least be guaranteed a basic level of security and entitled to citizenship in the country that they were born. Their child, born in America, would have the same rights, entitlement and chance of a life there and to contribute to that country as any other child born there. That was a very important principle. It was quite a shock when I came home to Ireland and saw that the State was moving away from that principle. It is very different from the tradition in the rest of Europe. Ireland won its status as a republic. It was a referendum that made us less of a republic because it took away from the simple principle of a republic which is different from the historical origins of many of our close colleagues who we work with in Europe in that we came to democracy as a republic with a basic principle of equality. It was not something that we grew towards but was part of the founding of our State in 1916 and, according to the programme for commemoration of the first Dáil for next year, the first duty of the State is to all children. That is what Ireland was as a republic and it was diminished by that referendum.

I disagree with my colleague that people did not talk about concerns of it being racist at the time.

They did, absolutely. I worked for an anti-racism project when I came back which produced educational materials that were meant to be used in a small context and we were overrun with requests for them. One of the documents we produced with the Comhlamh anti-racism project was called "Myths and Facts" and was about asylum seekers. We talk about showing emotion. This referendum was loaded with the emotion of fear. There was an intensive use of myth and significant fear was built up at the time.

I found an email that I sent in 2004. Some of the myths and misinformation related to concerns that the EU was requiring us to hold the referendum. The EU did not require that, much as it has no problem with our recommendations on the route to citizenship. There is a variety of routes to citizenship across Europe. We should be concerned to ensure a race to higher and better standards throughout Europe rather than a race to the bottom. That was not a concern at the time. The masters of the hospitals clarified this. I wrote that as for the supposed overrun in our health services, the masters of the maternity hospitals stated clearly that they did not ask for a referendum but for more resources and that the cause of the crisis in maternity hospitals was years of Government cutbacks and closures. I said that Ireland's health service was highly dependent on the immigrant health professionals whose children would be negatively impacted. That is what we wrote and it was known at the time. I was on the doors during the referendum. In that same email, I wrote that the tide was turning as people considered the implications but I did not know if there was time for the tide to turn enough. It did not turn enough but I think it has since. We know that surveys now show that 71% of people believe those who are born in Ireland should be able to grow up and live in Ireland. We have also seen the tide turn in other referenda which have taken place since then. I put it to the Minister of State that regardless of the referendum, which we cannot rerun-----

Why not, if the Senator believes in it? Why not rerun it?

I would be happy to rerun it but we do not need to wait for that.

Senator Higgins has the floor.

Another emotion which was used and activated during that referendum was hate. We saw an increase in hate crimes. An Amnesty International report at the time highlighted that African women were the largest target of hate crimes. We had numerous reports of attacks on pregnant African women in our country. That increased following the referendum and during it

That was the context. We move forward now. The tide has changed. The proposed legislation respects the 2004 referendum and its spirit. As everyone in the House has acknowledged, it includes the right to provide for a route to citizenship and that is still open to us. It also reflects some understanding of the children's rights referendum which we have had since then. The principle of the children's rights referendum was that each child has rights inherent in themselves. The debate on the 2004 referendum was focused on the immigration status of a parent. The children's rights referendum we had since shows that the people of Ireland believe children have inherent rights and should be able to access them. It would be compliant with the 2004 referendum and in the spirit of the children's rights referendum if the Minister of State were to accept this Bill. Others have spoken about a few key issues, including the 2015 UN recommendations on the rights of the child. I point to Ireland's conventions on statelessness. Ireland has signed up to a number of conventions on statelessness and we consistently put the children who are born here, who are Irish but not citizens, in danger of being children of no state.

It depends on the status of their parents and on whether their parents are undocumented. There is a concern. There has been an identified risk of statelessness which needs to be addressed and which this legislation would help. I agree with my colleague on one issue. Discretion is good; I do not have a problem with discretion. There is a role for it in humanitarian leave to remain. It is important that it be exercised but it is not adequate for these purposes and it places an unfair burden on the child. The Bill deals with children who are aged four or five. They will not be in a position to engage in campaigns and so on. I would like this to apply from birth but it is reasonable to apply from the age of three when children enter preschool or childcare facilities with other children. The campaigns have demonstrated that when children are insecure in their status in a school, it is bad for all the children in that school. An atmosphere of inequality is created and children respond on a core level to the inequality.

I ask the Senator to conclude. We are running out of time.

I have come to my final minute.

The Senator is well beyond her final minute. She is a minute over at the moment.

I will conclude. That inequality is damaging to children and it creates an insecure and unequal environment in school. Bearing in mind that decisions should be made within three years anyway, the Bill would allow that any child who is over three years of age and is starting to attend school could do so on an equal basis with other children. I urge the Minister to seek high standards. I ask him to reconsider and to support the Bill. Immigration does not cause xenophobia. A lack of constructive integration and inclusion mechanisms is what we need to address. I commend the Bill to the House and look forward to its return on Committee Stage.

We have new speakers offering and I remind Members that the Minister of State has to conclude after Senator Bacik. I have to be strict on time. Next is Senator Gavan.

I think it is only five minutes per speaker once the group leaders have spoken.

I will not need five minutes. I just want to say a few words on an important Bill. I congratulate my colleagues in the Labour Party for bringing it forward. I am genuinely surprised at the Minister of State. I have had dealings with him and found him to be an honourable man. I am surprised that he will not work with us on facilitating this Bill. Unfortunately, it is not the first time recently that we have seen Fine Gael isolated on a topic like this. It is significant that there is broad cross-party support and support among Independents for this issue. I am shocked.

According to the Migrant Rights Centre Ireland, MRCI, whose representatives I welcome to the Gallery, there are currently between 2,000 and 5,000 children with no status in this country. Where is the humanity in that? I remember the 2004 referendum. Senator Lawless spoke particularly well on the matter earlier; I was watching the debate from my office. It was basically a racist referendum. Let us call it for what it was. In fairness, it was a blip because this country has a good record. Thankfully we have not got extremist, far-right politics here at this time. Only last week, however, I saw Fine Gael's sister party in Hungary, Fidesz, practising far-right politics, locking up children in cages. It is in the same European parliamentary group as Fine Gael. It is absolutely shocking.

What signal does Ireland send in terms of decency and humanity if we turn our backs on these children? What is the danger? In the short time I have been a Member of this House, I have always found that the responses from the Department of Justice and Equality in particular to be so deeply conservative. They are so firmly on the side of not giving an inch, regardless of humanity. All of us know that the idea of leaving it to ministerial discretion is just not good enough. If we believe in being a proper republic of opportunity and equality, how can it be left to a Minister's discretion whether a child can remains in the country and has rights like the rest of his or her classmates? It is absolutely appalling. I ask the Minister of State to think again.

This is not the side of history he wants to be on. This is not the side of right. I had some sympathy for the Minister of State's party colleague, Senator Conway, when he was speaking earlier. I could see that his heart was not in it and that he could not understand why Fine Gael is not supporting the Bill. The message the Minister of State will send this evening if he continues to oppose it is that he and his Government are turning their backs on these children. I am shocked because that is not where politics should ever be at. It will be embarrassing for Ireland if we do not pursue this law. If it is not perfect, then it should be amended on Committee Stage. All of us across the Seanad apart from Fine Gael are asking the Government to work with this law to make a better republic and to assist these children, who are the real victims. This is completely unnecessary. There is no threat posed to the State by enacting this law. It is a really sad day. I mean it well when I say the Minister of State is better than this. I urge him to listen again and think again.

I am glad my colleague, Senator Conway, is back in the Chamber. I have great time and respect for him and have known him for a long time. It is not very often that I disagree with him fundamentally. Senator Conway said earlier that discretion is not a bad thing, but a system that is based entirely on discretion is a bad thing. That is the reality of the situation we have now. It makes for bad decisions, bad precedent and inconsistency.

Residency status in Ireland should not be determined by the parish pump. It should be determined by the Parliament. That is what we are trying to do this evening. If a neighbour on my street in Drogheda got into a situation like this and his or her child was to be deported, he or she would be bunched. He or she would be in a very difficult set of circumstances because there is no Fine Gael Minister in Louth. It is one of the few constituencies in the country where, under this new politics arrangement, no Minister exists. My neighbours would not be able to develop a campaign to appeal to a Minister.

I was looking earlier at the Democratic Programme, a foundational document published on the day of the first sitting of our national Parliament in 1919. We will celebrate that centenary in January. The document was written by the then leaders of the Labour Party. It states: "It shall be the first duty of the Government of the Republic to make provision for the physical, mental and spiritual well-being of the children, to secure that no child shall suffer hunger or cold from lack of food, clothing or shelter, but that all shall be provided within the means and facilities requisite for their proper education and training as Citizens of a Free [...] Ireland."

Our attitude to children falls short in many respects but I cannot find a greater example of falling short than this one. It is outrageous that we are in this position. Senator Bacik and my Labour Party colleagues propose a very considered and balanced solution to a key problem. If the Minister of State allows the Bill to progress to the next Stage, we will work with him and his colleagues to finesse it and address any technical issues. The problem, however, is that the issues the Minister of State or his officials may have are not just theoretical or technical but fundamental. It pains me to say that because I have always known the Minister of State to be a compassionate and humane public representative. I know many of his colleagues to be the same.

I have a very clear recollection of the 2004 constitutional amendment. I was speaking to my colleague, Senator Ó Ríordáin, about it earlier. That was my second local election. I won a seat from Drogheda corporation on Louth County Council in 1999 and defended it successfully in 2004. Much of that election debate and the canvassing campaign was about addressing invented issues. People felt they had free reign to debate issues in a dog-whistle way. They felt they had licence to do so because of the referendum.

I have listened very intently to Senator McDowell, the former Minister for Justice, Equality and Law Reform, who introduced that constitutional amendment. His contention is that the ambition of the referendum was to develop a framework whereby we could properly regulate citizenship, residency and so on. That is what this Bill is trying to achieve. Unfortunately, we had to wait 14 years to respond as a Legislature. That was an awful campaign. I remember people holding views that did not hold water at all, for instance that migrants were coming to this country because they were getting free cars or were getting their cars insured. Young women were said to be getting their hair braided for free. It was nonsense that did not stand up to the slightest scrutiny but people felt they had a licence to expound those kinds of views. They were views I had not heard before and that were stoked up because of the referendum, which appealed to the lowest base instincts of what I thought would be a minority of people.

We know, however, that the vast majority of people supported the referendum. If I had the opportunity, I would propose that the referendum result be overturned and the conversation changed. We have not yet had that opportunity but we may in the future. In the meantime, we should make the best use of the opportunities we have in Parliament to address some of the key problems we face as a society, namely, providing for citizenship and residency rights for children who were born in this country and who have nowhere else to call home. Their home is Ireland, which should remain to be the case, and their legal situation should be supported and protected by laws passed in Parliament, rather than being influenced by the parish pump.

I worked as a teacher in further education for 25 years. One of the most significant problems I saw was undocumented children who had achieved high results in the leaving certificate but who had to attend further education colleges because they could not afford to pay the non-national fee at university. When Senator Bacik asked if I would support the Bill, my first thought was that it would be like everything else she proposes in that it would have a human rights element, a fairness element and a justice element. It has all of those. I am proud to support the Bill. For the people in the Gallery, I hope we will pass it and I do not see any difficulty in getting it past Second Stage tonight. If the matter goes to a vote, I am sure we will win. The Minister of State would do himself proud were he to say that he will accept the Bill and will see us again on Committee Stage.

The Minister of State should go for it.

The Senator is putting it up to the Minister of State.

I received a tweet earlier in which I was informed that Senator Bacik is trying to overturn the decision of a constitutional referendum. Said tweet contains many other assertions I will not relate to the House because they are far from complimentary. One tiny part in the relevant amendment to the Constitution states "unless provided for by law". It is open to the Government, therefore, to change the law. No child has a choice where he or she is born, but every country has a responsibility to ensure those born within its boundaries are looked after and provided with health and education. It is in our Constitution that they must be provided with education. I can see no reason for anybody to oppose the Bill, particularly as it will put something right in the simplest possible way. I agree with Senator Nash that, if push comes to shove, we will have to revert to a referendum. Must we do so?

The tools to put an extreme injustice right are within the Government's armoury. I ask the Minister of State to consider that and to save the Government the embarrassment of rejecting the Bill. He should tell us he will see us again on Committee Stage, at which point we can sort out the technicalities and any problems that arise.

As Minister of State at the Department of Justice and Equality, I am pleased to be here on behalf of the Minister, Deputy Flanagan, who conveys his apologies. I acknowledge the work of the Labour Party in preparing this important Bill and, in particular, the work of Senators Bacik, Ó Ríordáin and Nash. This is an important issue and I commend them on raising it and giving us the opportunity to debate it.

The Government decided to oppose the Bill but I stress that this does not mean it is not open to a debate on the issues the Bill seeks to address. It is fair to state that the Bill would constitute a significant change of policy and would have far-reaching implications, some of which may be unforeseen, that need to be worked out before we decide to change the law. My Government colleagues and I would be happy, therefore, to engage in such discussions but, in view of the absence of any pre-legislative scrutiny of the proposals before the House, the Government feels it cannot support the Bill for a number of reasons. The Department received notice of the Bill last Wednesday only and, as a result, we have had only a week to examine it. Government Bills take much longer and the heads of the Bills must be sent to every Department for recommendations and observations. We must also submit Bills to the relevant committee for pre-legislative scrutiny. Private Members' Bills, on the other hand, do not have to go through that kind of scrutiny. Although we had less than a week to consider a Bill, we identified a number of issues which give cause for concern.

For context, Ireland has one of the least onerous paths to citizenship in the EU in terms of the qualifying period and the process of obtaining citizenship. A distinction must be made between residency rights and citizenship, but some Senators confused the two in their contributions. No EU member state grants automatic and unconditional citizenship to children born in its territories to foreign citizens. Ireland has fewer obstacles to naturalisation in the law for those potentially qualifying than most European countries, with straightforward residency requirements and the absence of formal language, civic knowledge and economic resource requirements. Ireland requires five years of residence in the country in the past nine years, including one continuous year prior to application. Other countries have significantly longer qualification periods.

The existing citizenship laws are based on lawful and reckonable residency of the parent or parents. Approximately 27,000 children were granted citizenship under these rules from 2010 to date, some 2,700 of whom were born to European Economic Area, EEA, nationals, while 24,000 were born to non-EEA nationals, which is a large number. The vast majority, therefore, were born to non-EEA nationals, which demonstrates in real terms the results of effective compliance with our present pathways to lawful citizenship. Furthermore, another 25,000 people were granted citizenship in Ireland since 2010. I acknowledge what Senator Norris said about citizenship ceremonies. I have attended a number of them and they are emotional and amazing. I recommend that Senators attend one of the ceremonies to see the changes that have been made in the methodology of granting citizenship.

The purpose of the Bill is to introduce new rules to provide for citizenship by naturalisation of any child born on the island of Ireland regardless of the status of the parents, their method of entry to the State or the length of time unlawfully present. It also removes the requirement for an Irish-born child to be granted permission to reside in the State for the proposed period prior to his or her application. The proposed amendment could have the effect of reintroducing a route for individuals who had a child born on the island of Ireland to secure immigration permission and subsequently citizenship, despite not having permission to be in the State when the child was born. This would put Ireland out of step with all other EU member states, a move which would require careful consideration before it could be contemplated. If a minor successfully applies for citizenship in his or her own right, attendant rights will apply to his or her parents and siblings, as will the status of leave to remain. As a result, there are other implications of which we must be aware beyond those of the child.

The twenty-seventh amendment to the Constitution was introduced in response to the scenario in which non-EEA nationals arrived in the State with the intention of giving birth to gain the benefit of Irish citizenship for their newborn child and derived rights of residency for family members as a result. The subsequent legislation addressed major difficulties that arose at that time and the Bill provides an incentive for those living in an irregular situation to continue to do so to accrue reckonable residency for the purposes of naturalisation of the child. I remind Senator Clifford-Lee that it was Fianna Fáil which brought that legislation in following the referendum. Let it be put on the record that we are dealing with Fianna Fáil legislation.

Senator Bacik referred to the Bill as dealing with a specific cohort of minors in the State but the Bill will not deal with minors in the State today only. It will also change the law for the future.

On the risk to women, prior to the passing of the 2004 citizenship referendum, as was mentioned the masters of the three maternity hospitals in Dublin outlined the difficulties they were having during this period, with increasing volumes of late-presenting mothers whom they had not seen in an antenatal capacity. The identification of this route to citizenship also risks opening up avenues for the further exploitation of women who are forced either to travel here in the late stages of pregnancy or to conceive as a route to guaranteeing citizenship and residency for a wider cohort of family members. This does not, therefore, concern only the child. Where parents and children are living in the shadows for a sustained period of time and are not known to the relevant State agencies, the potential for harm to the child in such a vulnerable situation is increased.

These serious matters need to be fully contemplated and I do not believe that any legislation should facilitate this risk. We need a long, deep debate on these matters. In reply to Senator Lawless, we are moving on the issue of the undocumented and have just announced a new scheme to regularise students who came here up to 2011. The scheme will also impact on any family member. It is open for application now and it is estimated that approximately 5,000 former students will qualify. We are making changes and we are not inflexible.

On the question of legal migration, Ireland provides for many non-EU and non-EEA citizens to migrate here and Ireland benefits greatly from this migration economically, socially and culturally. This morning, I attended an event on integration and inclusion with local authority members. The Minister for Justice and Equality has discretion to deal with each case before him on its merits and he frequently exercises it in favour of a child and his or her family where claims are made to stay in the country. On average, the Minister deals with two or three cases per week seeking permission to remain, which he assesses based on the facts presented. Many Deputies, and Senators on all sides of this House, make representations to the Minister to use his discretion and he examines the facts of every case carefully. There are statutory mechanisms in place to allow the parties in every case to make representations to the Minister in support of their claim and that of their children. Senator Bacik sees such discretion in negative terms.

However, the Government sees it as an important mechanism to allow bona fide special cases to be addressed.

On a point of order, I certainly do not see discretion in negative terms. Like many others, I have sought discretion but I want us to build a whole system.

In that case, I withdraw that remark. Citizenship laws in this State not only have an impact on this country but also impact our fellow member states, as any citizen of Ireland has the right to travel and work freely within the EU, along with attendant family residence rights. No other member state currently offers birthright citizenship on the terms proposed in the Bill.

On a point of order, those rights only attach to workers. There is free movement of workers but a child cannot be a worker so it does not impact on other European countries.

That is not a point of order.

The Bill, if enacted, would also change the rules significantly for Irish citizenship entitlement in Northern Ireland. Currently, one parent must be an Irish citizen or be entitled to claim the same for the child to qualify for Irish citizenship, or one parent must have been lawfully resident on the island of Ireland for three out of the previous four years. The Bill could be seen to encourage persons, whether legally or illegally resident in the UK, to travel to Northern Ireland to have a child and then remain there for three years to gain Irish citizenship for that child and, consequently, EU citizenship and its attendant rights without having entered the Republic of Ireland.

It is in the Good Friday Agreement.

This outcome could result in the UK introducing or considering the introduction of measures in response, which could have further east-west or North-South impacts. Any wider political ramifications for Ireland’s relationship with the UK, including on the operation of the common travel area and, potentially, with the EU on how Irish citizens born in Northern Ireland access benefits as EU citizens, the Good Friday Agreement, and the draft withdrawal agreement on the UK’s withdrawal from the EU, would need to be carefully considered.

That does not mention our rights.

The Minister, without interruption.

To be frank, I would be aghast at a proposal that we would amend our citizenship laws without any discussion or dialogue with authorities in Northern Ireland and Britain despite the clear impact north of the Border,-----

Who would the Minister discuss this with in Northern Ireland?

We do not have to be subservient. The Good Friday Agreement is clear.

-----in Ireland and on the broader UK jurisdiction. If the proposed amendment was permitted by the House, and had the direct consequence of attracting more people to the State to seek to achieve residency status through the birth of a child here, the consequential strain on State services, including existing immigration provision, housing, education, medical services and welfare, would need to be carefully assessed. There are many rights in the protection process for people who come here to look for asylum. This Bill primarily impacts on those here illegally, giving them superior rights within three years if they seek protection. It also gives rights to illegal UK immigrants in Northern Ireland who were never in this country. I wish to flag that it is not intended to bring forward a money message in this regard because of the costs that would accrue.

Our ability to offer solidarity, which is frequently urged on Government by Members from all sides of this House, to other member states in dealing with emergency humanitarian crises and to third countries hosting large refugee populations, could be reduced, if not severely curtailed, due to the unquantifiable increased demands on State services as a result of this Bill being brought into law. The refugee protection programme will welcome 4,000 people to Ireland, people who are fleeing conflict and a real and serious risk to their lives. Anyone qualifying for refugee status under that scheme will be eligible for citizenship in due course.

Our steps to regulate our immigration procedures during volatile times have served the country well. Our exercising of rights under our immigration processes has ensured that thousands of children have been granted citizenship and that will continue to be the case for all who respect the fair and accessible pathways provided by Government to enter and live in this State. The Minister exercises his discretion to protect not just the State but women, children and their families. This House should be proud that we continue to prioritise the direction of available resources towards vulnerable people in the greatest need as they flee conflict throughout the world.

In summary, the proposed Bill has profound implications in a wide number of areas, including Northern Ireland, the UK, the EU and national immigration laws and services. In effect, it breaks the bond that currently exists between the residency status of parents and the granting of citizenship to the child of non-Irish parents and changes that to a situation where the child is automatically granted citizenship after a stated period. This is without any reference to the immigration status or legal presence in the State of the parents. If the Bill is enacted, Ireland would be out of step with the entirety of the EU. This would create a major attraction for non-EEA nationals in other EU member states, particularly those there illegally or with non-reckonable residency, to come here to have their child. Such persons could, in turn, return to the original EU member state as soon as the child had been granted citizenship, and their parents a residency permission, thus circumventing the immigration laws of these EU member states.

That is not correct. There is free movement of workers, not children.

I am referring to people in the EU illegally. There are similar impacts on Northern Ireland and the common travel area, including North-South and east-west impacts, which would need to be carefully considered. Amending immigration law has wide-ranging implications and benefits from a detailed analysis of the implications, including broad consultation with all impacted parties and the NGO community. To consider such a fundamental change to our citizenship laws without engaging in such consultation is not an approach that this Government can accept. I reiterate that the Government is open to a considered discussion on the issues but cannot accept a Bill that has been drafted in the absence of such a discussion. We need to discuss this seriously but, in accordance with the reasons I have put forward, the Government cannot support this Bill. We are happy to discuss what we can do to assist people in the situations referred to earlier.

The Minister's discretion only comes into play when the individual has failed all independent vetting of their right to be here or have avoided compliance with the many legal pathways available to live and work here. Senator Clifford-Lee mentioned the McMahon report and 98% of its recommendations have been completed. We have all started on the recast directive, the conditions of which are liberal, and we are encouraging people in the asylum protection process to apply for work where they are eligible to do so. It is difficult to match the people who have a right to work with jobs but I am examining ways to do that because it will benefit people. We have been working hard to improve the accommodation people are offered. There has been increased demand in recent weeks for people looking for protection so we are trying to open other places. In response to Senator Dolan's point, all children from Poland, Lithuania and so on have full EU rights here.

This is a serious issue, which deserves serious consideration. We have only had the Bill for less than a week but, even in that time, we have highlighted matters of major concern, as I have outlined.

I am really interested in debating this further to see how we can explore these issues but unfortunately the Bill as presented is not amendable and is not workable in our view.

On a point of order, I want to put on the record-----

Yes. I want to put on the record that it is inappropriate that a money message would have been flagged at this point. It is, of course, at the discretion of the Ceann Comhairle-----

This is not a point of order.

It is because we were told-----

-----a money message is not relevant to this House and the intention was stated-----

I allowed the Senator a lot of latitude. She has gone a minute and a half over and we are up against time. I call on Senator Bacik to reply to the debate. She has five minutes.

I simply want it noted that it is at the discretion of the Ceann Comhairle as to whether a money message is even needed. It is a poor indication of bad process.

I would not bank on that.

I thank the many colleagues from across the House who spoke to express their strong support for this important Bill.

I include Senator Conway, who was quite supportive in his speech despite speaking for the Government party. However, I must express my serious disappointment in the Minister of State's speech, his opposition to the Bill, and the most inappropriate and indeed scare-mongering language in his speech, with which I take serious issue.

The speech is peppered with innuendo and imputations of bad faith, malice and of people coming to the State with the intention of abusing our system. That is the language that is used throughout the speech.

I am being suffocated with kindness and support.

They are using up your time as well.

I think the language here borders on the Trumpian. There have been references to the President of the US and his views on immigrants. I would be very concerned about this language. I do not see any welcome or compassion in the Minister of State's speech. I see a conspiracy theory underlying it, suggesting that any sort of concession to compassion in our immigration law would operate as a pull factor or attraction to the many people hovering at our borders. That is scary language and I take serious issue with it. I am really disappointed in the way the Minister of State's speech throws everything including the kitchen sink at this - Northern Ireland, the Good Friday Agreement, the EU, all our relations with everyone. I just cannot agree with what he said.

It is true that the Government had a week to read it but it is a very short Bill. It is a Private Members' Bill on which we are very happy to work with the Minister of State and the Department on amendments, including substantial amendments if necessary. In the view of the majority of the House, as I hope will be evidenced in the vote, the Bill deserves support because it seeks to address this specific situation for the small number of children whose position deserves to be regularised. We sought to draft a Bill that would be in keeping with existing immigration legislation. The three-year period is a sensible measure that mirrors the provision in section 6A of the consolidated immigration Acts.

I would love the Bill to go further. We thought it was a modest proposal and many have said as much. I would like to rerun the 2004 referendum and am very proud of the stance the Labour Party took in opposing it. In the immediate term, we need to address the situation of children born here who have been resident here throughout their lives and for at least three years. We need to regularise their position. Of course the Bill could go further. It could address the situation of those not born in Ireland. Others have referenced the case in Tullamore. The Bill represents a first step and sets out sensible and modest conditions that would really assist the small but significant number of families and children affected. I again express my gratitude to Senator Lawless for his support. As he said, we can work with the Government on making amendments to the Bill if necessary. Under Article 9.2 of the Constitution, we are explicitly empowered to provide by law for citizenship laws.

I also wish to respond to a couple of specific queries. In response to Senator Ó Donnghaile, yes, the island of Ireland is provided for throughout the immigration laws and our Bill is drafted in keeping with the legislation more generally. Senator Lawless asked about the child making an application. We are simply looking to amend section 15(3) so that the parent is not considered as the child. The parent might still of course make the application on behalf of the child. It is simply to decouple the legal status of applicant and child.

In response to Senator Black, like her, I want to acknowledge the brilliant launch of the short film last night by the youth project with the Migrant Rights Centre of Ireland. It is really showing the way forward for those young people. In response to Senator McDowell's speech, I am delighted that the architect of the 2004 referendum is supporting our Bill. That deserves some positive note from the Minister of State and the Government.

I disagreed fundamentally with the motivation behind holding the referendum and I disagree with Senator McDowell's description of the motivation, as I disagree with the Government's depiction of the background to the 2004 referendum. I still say it was a dog-whistle referendum - no doubt about that. It was opportunist. However, I am grateful to Senator McDowell for expressing his support. As he said, this is a sensible way to regularise the position. None of us is against the exercise of discretion. There is clearly a place for discretion. Like many colleagues, I have sought the exercise of discretion in respect of families and individuals. However, as Senator Nash said, a whole system cannot be built on discretion. We need a structure in place to deal with the small number of children who are affected and are currently facing such severe uncertainty.

To finish on a very personal note, I was a candidate in the European elections in 2004 and I remember very clearly the appalling rhetoric that was used against me personally, against many of us, and against anyone who did not have an Irish name. I am very proud of the fact that my grandfather came here in the 1940s-----

Hear, hear. Waterford Glass.

-----and made an enormous contribution to the State through refounding Waterford Glass and giving employment to many people in Waterford over many decades. Let us be positive about what migration has done.

It is a pity he shot the archduke first.

That was a previous relative and he did not shoot him. On a serious note, inward migration is greatly beneficial to this country and has been. Our emigrants have made massive contributions in the US, as Senator Lawless will tell us, in London and all across the world. We need to be positive and welcoming but I do not see any of that from the Government's side. I am very disappointed about its response but I hope we will have enough votes in the House to ensure the Bill passes Second Stage. I thank colleagues for their support.

Question put:
The Seanad divided: Tá, 23; Níl, 16.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Daly, Paul.
  • Davitt, Aidan.
  • Devine, Máire.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Lawless, Billy.
  • Mac Lochlainn, Pádraig.
  • McDowell, Michael.
  • Nash, Gerald.
  • Norris, David.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Donnghaile, Niall.
  • Ó Ríordáin, Aodhán.
  • Warfield, Fintan.
  • Wilson, Diarmuid.


  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coghlan, Paul.
  • Conway, Martin.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Lombard, Tim.
  • McFadden, Gabrielle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Ivana Bacik and Kevin Humphreys; Níl, Senators Gabrielle McFadden and John O'Mahony.
Question declared carried.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 27 November 2018.

When is it proposed to sit again?

Maidin amárach ar 10.30.

The Seanad adjourned at 8.15 p.m. until 10.30 a.m. on Thursday, 22 November 2018.