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

I warmly welcome the Minister. She is almost resident with us in the Seanad these days. I thank her for being here for Committee Stage of the Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018. We will now resume the debate.

SECTION 1
Question again proposed: “That section 1 stand part of the Bill.”
Question put and agreed to.

Amendment No. 1, in the names of Senators Bacik, Hoey, Moynihan, Sherlock and Wall, is deemed out of order as it is in conflict with the principles of the Bill as read a Second Time.

Amendment No. 1 not moved.
SECTION 2
Question proposed: “That section 2 stand part of the Bill.”

I welcome the Minister to the House. I welcome the opportunity to resume our Committee Stage debate on this important Bill. I wish colleagues well for Daffodil Day. I know we are all wearing the masks that the Irish Cancer Society has so kindly supplied. I thank the Minister for coming in to deal with the Bill and for her very constructive engagement with me. I have been glad to engage constructively with the Minister and her officials since the last occasion we were in this House. Since Section 2 is the substantive section within the Bill, I know colleagues will have quite a good deal to say on it. I know the Minister also wishes to speak, in particular, about section 2(1).

I thought it might be helpful if I brought colleagues up to date on what has been happening with this Bill and the context for it.

I acknowledge last night's "RTÉ Investigates" programme. Journalist Conor Ryan is to be commended for bringing forward the experience of whistleblower Shane Corr and speaking about the rights of children and their families, who were so affected by the sharing of confidential documents and reports. My colleague, Senator Sherlock, already linked that report with the topic of this Bill during the Order of Business.

This Bill deals with the rights of children in a different context, which is that of immigration and citizenship law. In this Labour Party Bill we are seeking to provide children who are born in Ireland to parents who are not themselves Irish citizens with an easier or more accessible route to citizenship through naturalisation. We come to this from the fundamental premise that two children born alongside each other in an Irish hospital, who attend school together, should not have a different legal status or entitlement to citizenship in Ireland by virtue of their parents' legal status. What we seek to do is in keeping with the provisions of Article 9.2.1°, which was inserted into the Constitution through the citizenship referendum on the twenty-seventh amendment in 2004, and which the Labour Party opposed at that time. That amendment states:

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 entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.

There has been a good deal of commentary about our Bill online. I stress that the text of Article 9.2.1° expressly provides the Oireachtas with power to provide for citizenship rights for children born in Ireland to non-national parents. It expressly gives the Oireachtas the exclusive power to legislate for citizenship entitlements for those children. That is what we are seeking to do in this Bill, particularly through section 2, on which we are focusing in today's debate.

The effect of the twenty-seventh amendment was to change what had previously been the case, in both the Constitution and under the Good Friday Agreement, that is, that it was the "... entitlement and birthright of every person born in the island of Ireland ... to be part of the Irish nation." The twenty-seventh amendment was implemented by subsequent legislation through the Irish Nationality and Citizenship Act 2004.

The principle of birthright citizenship is one which we in the Labour Party would like to see restored. We have made no secret of that. I commend our colleagues in Labour Youth and in particular our late colleague, Cormac Ó Braonáin, who very sadly died in 2019. He championed the "Born Here Belong Here" principle, which seeks to restore birthright citizenship to our law. What we are seeking with this Bill, which we brought forward in 2018, is not to overturn the referendum but to provide some incremental progressive change for children born in Ireland to non-national parents.

The Bill would make three changes to the naturalisation regime to make it easier for children born here to achieve citizenship. Section 2 is the crucial section for the changes we seek to make. At present, a child born in Ireland who is seeking citizenship through naturalisation must have five years' residence. We are seeking to change that requirement to three years and that is, in essence, what is provided for in section 2(1) of the Bill. The Minister has indicated that she will be making some commitment to change in this area. I welcome her commitment and constructive engagement with us on that matter.

The second change is again being made through section 2, in this case in subsection (2). It would decouple the minor's or child's entitlement to apply for naturalisation from that of the parent or guardian. The Minister may say something on that and has indicated that she will look to see if it is possible to make some change in that regard.

The third change our Bill seeks to make is through section 3, which refers to the period of residency that is to be counted prior to applying for citizenship.

We believe that the Bill would not only represent an incremental progressive change if it were to be implemented, but also a sensible and compassionate approach to regularising the position of Irish-born children who have spent years of their childhoods resident in this country but who currently face an uncertain future and, in some cases, the threat of deportation. The Bill has public support. A recent Behaviour & Attitudes poll showed that more than 70% of people believe that children born in Ireland should be entitled to citizenship. It was in this spirit that we introduced the Bill in 2018. We are also motivated by the case of Eric Xue. A young boy, he was born in Ireland, goes to school in Bray and he and his family live in Bray. Despite that, his family were threatened with deportation.

The Second Stage debate took place on 21 November 2018 and colleagues will recall that Fianna Fáil and the Green Party supported the Bill. It passed Second Stage despite the then Government's opposition. Committee Stage was debated during Labour's Private Members' time on 2 December 2020, but the debate adjourned on section 1 on the basis of the Minister's commitment, for which I thank her, that we would have some engagement in the interim to determine how we could make progress. To update colleagues, I have engaged with the Minister and her officials twice since then - we met on 16 December and 10 February - which culminated in some agreement on what could be done and how we could see movement, in particular on section 2(1). We welcome that. I thank the Minister for the statement she issued on 23 March referring to this Bill and our discussions and in which she stated that she would reduce the amount of time that children born in Ireland had to be resident in the State to become Irish citizens from five years to three years. Essentially, she will be inserting section 2(1) of this Bill into a Government Bill that is to be published later this year. However, I ask that she consider the Bill's other aspects. She has committed to exploring section 2(2) and whether, in light of particular difficulties, it would be possible for Tusla to apply for citizenship on behalf of older children. I appreciate that.

The Minister and other colleagues wish to contribute, so I will finish by saying that my party and I have been grateful for the support of many NGOs, including, among others, the Migrant Rights Centre, the Immigrant Council of Ireland, the Movement of Asylum Seekers in Ireland and the Children's Rights Alliance. The Migrant Rights Centre in particular has expressed disappointment that undocumented children will not benefit from the change the Minister has indicated she will make as a result of our discussions. The centre says that a child such as Eric Xue, prior to his family getting their status, would not benefit from this change. Thus, the centre is concerned that many children born in Ireland would still be left in a vulnerable position. It is seeking clarity on the Minister's statement about her proposed change only applying to the children of parents who were legally resident in the State. I echo the centre's calls.

I am disappointed that the amendment we proposed to section 2 has been ruled out of order, but Labour will continue campaigning on the born here, belong here principle. I look forward to further constructive engagement with the Minister on that matter. I know she wants to speak on the section.

Before I call Senator McDowell, does the Minister wish to respond now? I can then call Senator McDowell.

I would have no problem with that.

If that is okay, I will speak as quickly as I can.

I acknowledge the work done by Senator Bacik and her Labour Party colleagues and thank them for it. Since we last discussed this Bill, I have had a good engagement with the Senator on a number of citizenship issues. I thank her for that ongoing engagement. During our previous debate on Committee Stage in December, I committed to reviewing the Bill. Further to that, I brought a memo to the Government at a Cabinet meeting earlier this week setting forth plans to amend some parts of the Irish Nationality and Citizenship Act as part of the courts and civil law (miscellaneous provisions) Bill, which we hope to progress and implement later this year. The general scheme of that Bill will include a number of amendments relevant to citizenship and immigration matters, but before I speak to those and to section 2 of this Bill, I will update the Seanad on a key development in this area.

I understand that the Labour Party's intention in introducing this Bill was to provide a solution, as well as certainty and clarity, for undocumented children in the State. I am happy to inform the House that the programme for Government commitment to introduce a regularisation scheme of the long-term undocumented is well under way.

It has progressed since we last met in December. This scheme will be broad and I think it will be generous. It will provide a pathway to citizenship through legal reckonable residence for many adults and children in the State. It is still intended, as I set out, that this scheme will be introduced and launched in the third quarter of this year with a view to accepting applications before the end of the year in line with the commitment in the programme for Government that it will be done within the first 18 months. Thereby, it will provide us with regularisation and give permission to remain legally in Ireland to a significant number of individuals. Without fully knowing the number, it appears potentially more than 3,000 children will benefit from that and a significant number more of their parents and adults.

I wish to reiterate that Ireland is a diverse, open country and it welcomes many new citizens each year. Since 2010 just under 29,000 children, including 25,000 children of non-EU nationals, have become citizens in Ireland through naturalisation. This reflects existing citizenship requirements, which are very straightforward in comparison with other European jurisdictions and require no civic or financial requirements but legal reckonable residence in the State for five years in total. I outlined earlier in a Commencement matter how we have introduced a new system to deal with the fact we cannot have in-person citizenship ceremonies. We hope to address that and to reach in excess of 6,000 people between now and the end of June. That will deal with much of the backlog that currently exists.

One of the amendments I intend to introduce through Government legislation will reflect in part section 2(1) of the Private Member's Bill as discussed and as the Senator has outlined. This will reduce, from five to three, the number of years' residence required for children born in the State to become eligible for citizenship by naturalisation. This proposal will allow children who are currently on a pathway to citizenship to attain this status at an earlier stage. It offers greater security of status to a child who can acquire Irish, and thereby EU, citizenship more easily than is currently the case. With this proposed Government-led amendment, Ireland will be one of the most generous in the EU in terms of the years of residence required for foreign national children born here to gain citizenship by naturalisation. I look forward to further debate on this amendment as the Government Bill moves through the Houses in the Oireachtas.

I also understand that while giving effect in part to section 2(1) of the Private Member's Bill in a Government Bill, it is an important collaborative effort. As Minister for Justice, I understand that to reduce the number of persons who become undocumented in this State, improvements need to be made on a wider basis in the immigration process, in particular in the area of international protection. The recommendations of the Catherine Day report, which was published by our colleague, the Minister, Deputy O'Gorman, focuses in particular on progressing significant improvements in processing procedures and in timelines for decisions to ensure the system is adequately resourced and that backlogs are addressed. A White Paper setting out the proposed approach to transitioning from direct provision accommodation, for improved living arrangements and support for those who are in there or who would generally end up and that system was published on 26 of February. I look forward to further engagement with the Minister, Deputy O'Gorman, in particular, as well as other Ministers as we progress these matters. We have already received funding for 2021 to improve our investment in ICT to try and improve and speed up those systems.

I again give that commitment that I am progressing the proposed courts and civil law (miscellaneous) Bill which captures some of the aims of this Private Member's Bill, in particular section 2(1), in supporting children born in the State. Section 2(2) of the Private Member's Bill, removes requirement for an application to be made by a parent or guardian or a person who is in loco parentis to a child. I have agreed, working with Senator Bacik, to engage further with the Minister for Children, Equality, Disability, Integration and Youth, to whom I have spoken about this already, to explore providing Tusla with a legal power to apply for citizenship on behalf of a child in the State. There is still some further work that needs to be done before we can get that commitment, but a sense of belonging and identity is crucial for children, and it is my intention that all unnecessary barriers can be removed. This is potentially another barrier that we can remove.

It is also important to stress that in some cases the acquisition of Irish citizenship may not be in the interest of a child, particularly if there was a potential loss of certain rights or privileges of the child's country of origin. Naturally this is a complex space and that is why we want to take that little bit more time to engage further with Tusla and the Department of Children, Equality, Disability, Integration and Youth.

Again, I restate my gratitude to Senator Bacik to the Labour Party and recognise the contributions of the late Labour Youth chair, Cormac Ó Braonáin. His passion for public service is an example to all young people in Ireland and one we want to ensure we can fulfil so that we can live up to the huge commitment he made in his life. I acknowledge that and thank the Senator.

While it is not appropriate for the Chair to intervene, I want to identify with the remarks that have been made about Cormac Ó Braonáin. That is heartfelt, right across the House. His death was tragic. We all admired what he was doing and it is sad he left us so young.

Cormac Ó Braonáin was a relative of my wife and a fine young man. To this day, I feel broken-hearted for his parents and grandmother. His loss was immense not only to his family but also to all of those who knew and admired him. It is fantastic to have in our society young people who are committed to political activity. The activism of young people in politics arose earlier today on the Order of Business. It is hugely important. I sometimes think back to the War of Independence and the circumstances that gave rise to it. We are becoming a somewhat aged society in terms of political participation. This country was founded by people who were half the age of most politicians who are now serving the people as elected representatives.

I want to indicate that I supported Senator Bacik's Bill on Second Stage because I was very happy with the principle of the Houses of the Oireachtas availing of the amendment of the Constitution to recalibrate whenever they saw fit the circumstances in which somebody should become an Irish citizen. In that context, I have a few remarks to make of a more general kind. If Senator Bacik's amendment had been ruled in order, I would be standing here and speaking against it in the most resolute way, but since it is not in order, I do not have to do that.

I should explain a few things that need to be put on the record and that, sadly, have been ignored in this House in recent discourse on this general subject. I was Attorney General of Ireland in 2002 and became Minister for Justice in that year. In the early portion of 2002, it became apparent to the Irish State that a process was in being in England which later became known as the Chen case. The substance of it was that a well-to-do Chinese couple wanted to secure their long-term residence in the United Kingdom. They were legally advised that if they went to Northern Ireland and had the child they were expecting delivered in Belfast, that child would, by virtue of the Irish Constitution as it stood from the implementation of the Good Friday Agreement onwards, become an Irish citizen as of right and constitutional status. There was absolutely no doubt they were advised that by having a child born in Ireland, even though they resided in the United Kingdom and had no intention of residing in Ireland, they would create the circumstance as a matter of European law, because every Irish citizen was also an EU citizen, whereby their child would not be capable of being deported and they, as the parents of an EU citizen child, would accrue the right to live in the United Kingdom with their child. They had no connection whatsoever with Ireland. The law reports are clear on the fact the intention was to avail of the Good Friday Agreement in this particular way, with a view to attracting long-term residence in the United Kingdom.

That case was in progress and a reference to the European Court of Justice was taking place in the early part of 2002.

Any analysis of what EU citizenship entailed and what the European Court of Justice was likely to do at the time led those who studied the matter to the conclusion that it was highly probable that the European Court of Justice would eventually rule that a child who was an EU citizen was, naturally speaking, entitled to remain in the EU, and that if such a child were completely dependent on his or her parents, as the child in question was, the parents could remain with that child as of right.

It should be said that, at the time, Ireland was the only member state of the EU that had such an absolute entitlement. Even France, which had a jus soli right of citizenship, did not have an absolute entitlement of that kind. It may surprise some that in my younger days as a barrister, I represented on a pro bono basis a family — their case, the Fajujonu case, and the fact that I was involved have been reported — in respect of whose case the Supreme Court considered the status of non-national parents of an Irish-born child. The jurisprudence that effectively arose from the Fajujonu case was that the State could deport the parents of an Irish-born child who was an Irish citizen but that, in those circumstances, there would have to be very strong reasons for so doing. The combination of the likely outcome of the Chen case and the Supreme Court's jurisprudence in the Fajujonu case made it almost inevitable that Ireland would be the only member state of the EU with a constitutional rule that guaranteed that people in the position of the Chens would effectively be able to reside anywhere in the EU as long as their child was born anywhere on the island of Ireland, not even within the Twenty-six Counties.

The reason I mention all that is when the Progressive Democrats–Fianna Fáil Government was established in June 2002, one of the terms of its programme for Government was that this issue would be addressed, at either legislative level or constitutional level. It was made very clearly part of the programme for Government at the time. Therefore, anybody who says — I will come to this later, if I may — that there was at the back of this some kind of racist impetus to address the question of Irish citizenship for electoral advantage in the local and European elections of 2004 is wholly and completely wrong. That was never the case. Two years prior to those elections, the question of constitutional change and the issue of consulting all the parties in the Oireachtas on the subject were clearly flagged in the programme for Government. Some people, in a puerile way, chose to describe the exercise of rebalancing the Constitution in the way it was done in Article 9 as a racist referendum. It was no such thing. It is untrue. I will not use the L-word in talking about it. It is untrue and it was never intended to have the effect described. It was purely because, if one puts all the pieces that were beginning to emerge-----

On a point of order, I just want to make it clear that the sort of language Senator McDowell describes has not been used by any of us in this House, and certainly not by my party, in the context of this Bill or section 2.

It has never been used in the context of this Bill but it most certainly was used, twice. Senator Higgins and her colleagues-----

As a proud anti-racism campaigner, I------

I am just saying I was not talking about Senator Bacik. I was referring to-----

Or the Labour Party, or this Bill.

Or the Labour Party, or this Bill. I am putting it firmly on the record that the accusation is false. It is demonstrably false based on the record that existed. The then Government was dealing with an emerging and developing legal situation.

We are running out of time.

I ask Senator McDowell to report progress.

I will finish this sentence. The Government was dealing with an emerging situation. As it concluded, the matter had to be dealt with at a constitutional level and could not be dealt with at a statutory level. The issue was, when would a referendum be held and would it be a single issue-only referendum or would it be on an occasion when the people were going to the polls. The view at the time was that it would be most unfortunate to have this as a single issue-only referendum and that explains what happened in 2004.

I ask Senator McDowell to report progress.

I have more to say on the next occasion.

Progress reported; Committee to sit again.
Sitting suspended at 2.02 p.m. and resumed at 2.15 p.m.