Vol. 1 No. 10
We now commence consideration of Committee Stage of the Irish Nationality and Citizenship Bill, 1999, which was referred by the Dáil to the Select Committee. I welcome the Minister for Justice, Equality and Law Reform and his officials.
It is proposed to adjourn this meeting at 3.15 p.m. as another meeting will be taking place in this room.
I move amendment No. 1:
In page 3, paragraph (c), line 23, before“citizen” to insert “Irish”.
This is a technical amendment. The definition in the 1956 Act is of "naturalised citizen". The word "Irish" needs to be inserted. It is a tidying up operation to be of assistance to the Minister.
I move amendment No. 2:
In page 4, lines 7 to 16, to delete all words from and including "if" in line 7 down to and including "country" in line 16.
Section 3 is a fundamental one which prescribes circumstances in which people acquire citizenship by birth. Section 6(2)(a) states that “subject to subsections (4) and (5), a person born in the island of Ireland is an Irish citizen from birth”. It continues, “If he or she does, or if not of full age has done, on his or her behalf any act which only an Irish citizen is entitled to do”. I am not clear what act the Minister is proposing in this particular portion of the section. I am proposing that the words “If he or she does” down to “to do” be deleted. I am proposing that because, as I understand it, a person born at present in the island of Ireland is an Irish citizen. A person born in this State is currently an Irish citizen. Each of us sitting here, if we were born in this State, are Irish citizens by virtue of our birth, without having to do any other act, or without anyone doing any other act on our behalf. I want the Minister to clarify the reason for the qualification given.
We seem to be moving away from a position whereby birth in the State gives citizenship - subject to one or two exceptions such as the diplomatic one that we are retaining and that existed previously - to a position where no matter who is born in the State they must do some act or other, or some act or other has to be done on their behalf to acquire citizenship.
Vote Fianna Fáil.
Exactly.
That needs to be explained. In the context of the Minister explaining it, I wish to draw to his attention that in my view that particular subsection contravenes the new Article 2 in the Constitution, which has been one of the motivating factors in this legislation. Article 2 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. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.
It seems to me that the first sentence of that Article implies that every person born in the island of Ireland is entitled to be an Irish citizen, and is part of the Irish nation. Therefore, there is a constitutional difficulty with the section as drafted previously. I do not see fully the Minister's reasoning for the qualification. I propose that the words I have referred to should be deleted from the section.
The amendment is opposed. The Deputy's amendment is profoundly at variance with the spirit and letter of the British-Irish Agreement and of the changes to Articles 2 and 3 of the Constitution as they relate to citizenship. The new Article 2 of the Constitution 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. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.
The British-Irish Agreement, which itself forms part of the Good Friday Agreement, contains an important provision in relation to citizenship in paragraph 6 of Article 1 by which the Irish and British Governments recognise
the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.
In order to ensure that our citizenship law not only reflects the new constitutional position but also respects the right of those born in Northern Ireland to regard themselves as British or Irish, or both, as they so choose, it must be the case that Irish law should no longer make the overt declaration contained in the present section 6 of the 1956 Act, that every person born in Ireland is an Irish citizen from birth. Instead, the Bill starts out from the premise that every person born in the island of Ireland is entitled to be an Irish citizen. This entitlement, at the new section 6(1) of the 1956 Act in section 3 of the Bill, is a new concept in Irish citizenship law. This new concept is dictated by the new Article 2 of the Constitution and reflects the entitlement and birthright set out there for every person born in the island of Ireland to be part of the Irish nation. By taking this approach we ensure respect for the position of those born in this island who do not wish to exercise that entitlement. At the same time, those born on this island who do wish to assert their Irish citizenship are free to do so. The Bill also makes clear that the absence of such an assertion does not of itself give rise to the assumption that a person is not an Irish citizen or a citizen of another country.
By fixing everyone born on the island of Ireland with Irish citizenship, Deputy Shatter's amendment would take away the right to choose whether or not to exercise this entitlement and would, in effect, preserve the current position under our citizenship law. On that basis I ask Deputy Shatter to consider withdrawing his amendment.
In response I wish to ask some questions which relate to the position of persons living in the Republic of Ireland at present, in the context of children born to them. Under subsection (3), to which the Minister referred, a person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country. So, is the Minister saying that if a person is born in this State to married parents, both of whom are Irish citizens, that person is automatically an Irish citizen without having to do anything further? Is the Minister also saying that if a child is born to married persons in this State in circumstances where, for example, the mother is a British or American citizen and the father is an Irish citizen, the child is an Irish or British citizen? Which parent has to do what to assert that child's citizenship?
If a child is born in Ireland to a couple who are married in circumstances where neither of them is an Irish citizen, in what circumstance will that child become an Irish citizen? If, by virtue of its birth, the child is entitled to the citizenship of its parents, the position at the moment is that by being born in this State the child is automatically entitled to Irish citizenship.
In the context of asylum seekers, there has been a series of cases - my recollection is that at least one, if not more, has gone to the Supreme Court - where it has been held that a child born in this State to asylum seekers, because of the child's birth in this State, is an Irish citizen. Whether people are asylum seekers or workers from other states living in this State with the citizenship of the other state, what does the Minister envisage will have to be done to assert citizenship for the children of these people in the context of the child acquiring Irish citizenship? Will the Minister use the provisions of subsections (2) and (3) taken together to create a barrier to prevent Irish citizenship automatically being conferred on children born to asylum seekers? Is that thehidden agenda in this context?
The Minister should clarify all these questions. I have other questions I wish to raise in order to be complete.
All of the circumstances I have referred to so far are where children are born to married parents, neither of whom has, or one of whom has, Irish citizenship. What is the position where a child is born outside marriage where the mother is not a citizen of this State and the father is? What citizenship is the child entitled to? Who can elect for that in the context of these provisions?
I want to ask the Minister to detail for us the act he envisages being done to entitle somebody to Irish citizenship under the new section 6(2). I appreciate that in a Northern Ireland context the Minister may be leaving it open to somebody born in Northern Ireland to opt in or out of Irish citizenship. I understand that. The regulation may be no more than that one must sign a declaration or do some straightforward simple act to opt in or out of Irish citizenship, but in the context of the Republic of Ireland and children born here of non-nationals, what does the Minister envisage they must do? Would a simple declaration of citizenship suffice? In the context of asylum seekers, will there need to be decisions made first that they be granted asylum before children born to them in this country can acquire Irish citizenship? Is this a new barrier being created within our citizenship laws to make life even more difficult for asylum seekers and to create the possibility of excluding from the State non-nationals seeking asylum claiming to be refugees in circumstances where the children are born here but they are not nationals here? We now know there is a block on the Department of Justice, Equality and Law Reform from removing from the State people seeking asylum who have children born in Ireland because there is a Supreme Court decision stating that the children, as Irish citizens, are entitled to be brought up in the State. Is this a provision to get over that issue?
There is of course a great difference between matters which are evidential and matters which are factual. The position obviously is that if a person comes within subsection (2) or (3), then it must be clear that the law knows where it stands with that individual.
We all know that under the current citizenship laws there was a statutory right for every individual born here to claim that he or she was an Irish citizen. That is a matter of fact. That was a statutory entitlement. In fact, it was an imperative. That has been raised to the level of a constitutional imperative by the insertion of a new Article into the Constitution by the people of Ireland following their acceptance of the Good Friday Agreement and events which occurred thereafter. It is entirely disingenuous for anybody to suggest that the legislation is seeking to erect barriers to citizenship - far from it. If ever there were a legislative provision in the State dealing with citizenship which has the word "inclusive" marked all around it, then this must be it.
Obviously if a person is born in the North of Ireland and that person does not wish to be an Irish citizen, this legislation clearly gives that person that right. There are obvious reasons that this should be the case.
As regards acts which might be required as a matter of evidence to demonstrate the entitlement to Irish citizenship, there are a number of acts which could be taken as indicating the desire of a person born on the island of Ireland to exercise entitlement to Irish citizenship. Some examples of that would include, for example, if a person were to apply for an Irish passport, which obviously would need to result in the successful issue of a passport. That obviously would be an act which would clearly indicate one's wish to become an Irish citizen. If one applied to exercise one's voting rights, again that would clearly be taken to be such an act.
Before the Minister leaves a point, may I interrupt? The Minister is saying that the act of applying for a passport would qualify.
It could. What I am trying to point out here is that these are evidentialmatters——
But everybody who applies for a passport is, by definition, not an Irish citizen.
If one applies to have one's name added to a passport of the spouse or child of the holder, then obviously that would be an act which would indicate that one was exercising one's option to become an Irish citizen. In the same way if one applied to go on the voters' list in the State, that clearly would be what I may describe as an exercise of entitlement.
A six month old would not make that application.
That is true but it is possible that an adult could make an application for a passport on behalf of the child concerned. There are several acts which one could commit or have done on one's behalf which would indicate one's choice or one's exercise of what I would term as one's entitlement. I have stated a number of such acts but that is by no means an exhaustive list.
The bottom line remains that there is the constitutional entitlement which was a statutory entitlement. It does not matter in that respect whether the parents are of Irish extraction or were born abroad. That is not the issue.
I had not intended making a contribution at this stage but in the light of the Minister's reply to the points raised by Deputy Shatter, I feel further clarification is required. It seems to me that this is legislation which was introduced by the Government and passed by the Dáil on Second Stage on the basis of obligations under the Good Friday Agreement. It seems that the Minister has gone far beyond the content,letter and spirit of the Agreement.
If I interpreted Deputy Shatter properly, he was anxious to determine just how far these changes have gone in terms of the consequences for Irish citizenship. Already there have been four scenarios presented, none of which has been adequately clarified by the Minister. As far as citizenship by birth is concerned, what is the factual position or what changes does the Minister envisage by virtue of this legislation in situations as outlined, first, where a child is born to married parents both of whom are Irish, second, where a child is born to married parents one of whom is Irish, third, where a child is born to married parents neither of whom is an Irish citizen, and, fourth, where a child is born to parents who are unmarried and neither of whom is an Irish citizen? Deputy Shatter addressed a number of questions to the Minister and it was regrettable that in his reply the Minister neglected to address the four scenarios outlined.
We are, as I stated on Second Stage, dealing with fundamental changes to the citizenship laws and to the nationality laws far beyond anything agreed in or envisaged by the Good Friday Agreement. The Minister spoke about statements being disingenuous or otherwise, but there is an onus on the Minister to spell out clearly in no uncertain terms the consequences and ramifications of this legislation, if passed unamended, which far exceed our obligations or what we agreed under the Good Friday Agreement.
I wish to ask a question. If somebody from Abu Dhabi willingly attends the National Maternity Hospital because of the superior medical facilities available there and decides of have his child in Ireland for medical reasons and within one month returns to Abu Dhabi having had no desire to take up Irish citizenship, is it taken into account in the amendment?
I replied to the points raised by Deputy Flanagan when I responded to Deputy Shatter's contribution. If an Irish person is married to a non-national and has a child in the island of Ireland that child can exercise his or her right to be an Irish citizen. If both parents are non-nationals, the same position applies, whatever their marital status. All the positions put forward by Deputy Flanagan would be irrelevant in terms of deciding whether the person had an entitlement to Irish citizenship. The same applies to the Chairman's point.
I have stated from the outset there was a statutory imperative that a person born here was an Irish citizen under the 1956 Act. Following the Good Friday Agreement there was a constitutional entitlement as opposed to a constitutional or statutory imperative and I have explained how one could exercise the option which is available if one wishes to do so. I do not say——
Without proof?
These are evidential matters. The evidential matters I mentioned are not exhaustive. I only gave some examples. During Second Stage in the Seanad I illustrated how the entire scenario might work. For example, if I was born in Belfast I am entitled to be an Irish citizen and the new provision states so but it does not state definitively that I am. However, there is no doubt I could exercise that entitlement in accordance with the new constitutional provision.
If I obtain a United Kingdom passport, I am still entitled to be an Irish citizen and the provision is still silent as to whether I am an Irish citizen. It is my entitlement to perceive myself as British or Irish or both. I can still apply for an Irish passport and as soon as I do so the law will recognise that I am exercising my entitlement to be an Irish citizen. Furthermore, if I apply for an Irish passport, all I have to do is produce the birth certificate which states I was born in the island of Ireland.
The fact that the new provision is in general silent as to whether the entitlement to Irish citizenship is being exercised in the case of any person born in the island of Ireland could be seen as giving rise to uncertainty as to the citizenship status of any person. However, it is a feature of citizenship provisions in many countries that it is important to try to avoid a scenario where a person might be deemed to be stateless to deal with that concern and reduce the scope for potential uncertainty. There is some scope for uncertainty.
Section 6(3) provides that any person born in the island of Ireland who is not entitled to citizenship of another country is an Irish citizen from birth. That would differentiate, for example, a person born in County Kerry from one born in County Down to that extent. That does not mean a person born in the island of Ireland who had an entitlement to citizenship of another country is not entitled to Irish citizenship. This subsection takes the matter out of the realm of uncertainty for those who have no other entitlement. In other words, I am trying to reduce the scope for uncertainty but I accept there is such scope. However, under the legislation the exercise of the constitutional entitlement is easy.
There is a problem with this. I am concerned about the regulations the Minister or one of his successors may make in future. I return to the position of a child born to parents, where one is a non-national and the other is Irish or both parents are non-nationals. If a child is born in the Twenty-six County State, his or her birth certificate satisfactorily confirms that he or she is an Irish citizen if he or she is born in the State. No other elections must be undertaken. If one has a Greek father and an Irish mother and the father does not want the child to be an Irish citizen, the row is irrelevant. Birth in the State means the child is an Irish citizen.
I do not understand why in this legislation provision could not be made for the taking up of citizenship by persons in Northern Ireland who wish to hold Irish citizenship while ensuring that birth in the Twenty-six County State guarantees there is Irish citizenship. Will the Minister explain what happens if a child is born in this State to an Italian couple and the father wants the child to take up Italian citizenship and the mother wants the child to have Irish citizenship? Who will resolve that dispute? What mechanism is available? Will they rush to the courts? Will the courts decide which citizenship is in the interest of the welfare of the child or will the child be automatically entitled to Irish citizenship?
If the mother wishes to obtain a passport and the seeking of the passport in some way confirms the citizenship, which is an odd approach, what is the position of the father who obtains a court order preventing the issuing of the passport? We are moving away from a position where children born in the State, i.e., the Twenty-six Counties, whose citizenship could not be an issue of controversy as they are absolutely entitled to Irish citizenship to a position in which difficulties can arise where one or both parents are of a different nationality.
I raise this issue to confirm the context of doing something under section 6(2). Does the Minister agree there is a need to identify what people might do to acquire citizenship under this subsection and that there is a possibility the Department may issue regulations or set out particular provisions which determine what is done results in the confirmation of citizenship? I want an assurance from the Minister in the context of refugees seeking asylum who have children that a decision of the Minister's Department granting political asylum will not need to be taken so that those children can acquire Irish citizenship and that they will automatically be entitled to Irish citizenship.
When I first read the section I thought it sat well in the context of the Good Friday Agreement and our requirement under it. It was a good mechanism to ensure, similar to the territorial claim on Northern Ireland which has been removed from our Constitution, the claim of citizenship for the people of Northern Ireland would not be foisted on them but would be a right to be claimed by those who wished to seek it.
I wish to make two general points. There is some merit in the general line of Deputy Shatter's argument in regard to the trigger mechanism to apply for this right which is to undertake any act to which only an Irish citizen is entitled. The Minister has said by way of example that such an act would be an application for entry on the voting register or for a passport. While no person would have a difficulty with those being acts, is it possible for other acts to be defined as required by way of regulation? What is the extent of those acts?
I oppose a different mechanism for exercising the absolute right of citizenship between people born in Northern Ireland and those born in the Twenty-six Counties. It is important that we do not have a different triggering mechanism. In other words, a person born in Wexford should have to apply in the same way, that is, performing the required act, as someone born in counties Down or Antrim. The Minister has tried to ensure that principle is reflected in the legislation.
The net issue is the definition of the act which triggers the claim. If the Minister can focus on that, it might assuage my concerns having listened to the debate so far.
Let me make it very clear again. It does not matter if the people who arrive here are refugees, asylum seekers - in other words, their status has not been determined - illegal immigrants, Irish people, Irish people married to Americans, two Americans married to each other, two Greeks married to each other, or a Greek married to an Italian. Any child of any union irrespective of origin or marital status is entitled to become an Irish citizen.
If they are born here.
Yes. That is a constitutional entitlement, not an imperative, and any such child is entitled to exercise that right in accordance with the Constitution.
That said, if one of the parents makes an application to have an Irish passport issued to a child or the child added to the parent's passport, that would be an act which would signify that the child wishes to exercise his or her constitutional entitlement to be an Irish citizen.
Deputy Shatter referred to the possibility of there being a dispute between the parents of the child concerned as to whether the child should have the option exercised on his or her behalf. The fact still remains that the entitlement of the individual remains, that is, that he or she is entitled to exercise his or her right to citizenship. The question as to who will exercise the right on behalf of a child regarding the acquisition of a passport is not a matter for this legislation but one for guardianship law and for the courts to decide who would be responsible in that respect for the child's welfare.
It is not possible for me or for any other Minister to bring forward regulations setting out the acts which might be accepted as being of a sufficiently weighty nature to indicate that a person was exercising his or her constitutional entitlement to become an Irish citizen or if it was being exercised on his or her behalf. This legislation is not about erecting barriers in front of anyone. It is as inclusive as it is possible to be in citizenship law. That is the objective of the exercise because that was the spirit of the Belfast Agreement. If a person decides, for example, that he or she is going to exercise a simple declaration to obtain citizenship, that is a clear-cut manner in which one would exercise one's entitlement.
The Bill did not specifically set out to outline what acts might be a demonstration of the constitutional entitlement to be an Irish citizen. This is to allow a wide scope for the identification of such acts.
Who is to determine them?
Clearly, it would be the individual or the parents in the manner I have outlined by doing some act which would demonstrate evidentially that the person wished to exercise his or her constitutional entitlement or that this entitlement was being exercised on his or her behalf. Once born on the island, it is open to an individual to exercise at any time the entitlement to become an Irish citizen. Even if a person decides to make a declaration of alienage, it is possible, because he or she was born on the island of Ireland, to exercise the right.
That is fair and is as well as I can put it. I admit it is relatively complicated and that there may be some scope for uncertainty. However, I advance the point that it has been narrowed down as much as it could have been in the spirit of the Belfast Agreement. The fact that there is a certain amount of uncertainty, as opposed to a large amount, reflects that the Belfast Agreement is flexible because it relates to an entitlement to Irish citizenship which the Constitution mirrors. When one speaks of entitlement, there is bound to be a certain amount of uncertainty because, prior to this, we were talking about a statutory imposition of Irish citizenship which is a reasonably clear-cut matter, as Deputy Shatter outlined. The notion that there would be a difference in terms of entitlement if one were born in the North of Ireland as opposed to the South is not correct. The entitlement refers to all the island and the islands.
That has been reasonably well debated. How stands the amendment, Deputy Shatter?
May I seek clarification because I am slightly confused by the Minister's response? Under the new Article 2, the entitlement and birthright refer to the right to be part of the Irish nation. The right to citizenship is a constitutional right only where it is in accordance with law. Therefore, as I read it, the law can determine citizenship whereas there is an absolute entitlement to be part of the Irish nation. In terms of the law we are enacting and the hurdle we are putting in place of doing an act which only an Irish citizen is entitled to do, I want to be assured that will not be a barrier to exclude anyone born on the island of Ireland from exercising what I believe to be a fundamental right to be Irish citizen as opposed to being a member of the Irish nation.
The legal advice I have on the point raised by Deputy Howlin is that it is definitely not a barrier.
It is not a barrier?
No.
How stands amendment No. 2?
In the context of the Minister's explanation I will not press the amendment.
Amendments Nos. 3 and 16 are related and both may be discussed together by agreement.
I move amendment No. 3:
In page 5, before section 4, to insert the following new section:
"4.-A person is an Irish citizen if adopted outside the State, whether or not such adoption is recognised pursuant to the Adoption Act, 1991, where the adopter or one of the adopters is at the date of the adoption an Irish citizen and where the adoption was effected in accordance with the laws of the State concerned.".
This amendment is designed to deal with circumstances that arise where Irish couples, either before the Adoption Act, 1991, came into force or subsequent to it, properly completed, under the law of a foreign country, an adoption which is regarded as proper and valid within that foreign state but which is not recognised in this State. There are a number of couples in that position and this is designed to ensure that the children so adopted by them acquire Irish citizenship.
In the context of the Adoption Act, 1991, a child, to be an adoptable child, had to fall within the category of adoptable children. That is, to some degree, a mirror image of our own domestic law but there is some flexibility in that. The Adoption Act, 1991, a Private Members' Bill that I steered through the House, made provision for the recognition of foreign adoptions for the first time. There are, however, some people who fall outside its ambit. There are people who have properly adopted according to the law of foreign states whose adoptions are not recognised in this State and who have children who currently are not entitled to Irish passports.
This dilemma goes beyond simply that issue. It falls into another area that was highlighted in a rather unexpected way in recent days. There has been a lot of public controversy about the citizenship or not of a former member of the Republic of Ireland team, Mr. Tony Cascarino, who played for the Irish team for a number of years on the understanding that he was entitled to Irish citizenship in the context of his mother being an Irish citizen and that was everyone's understanding. As reported in the newspapers - I have had no direct contact with him - he was apparently told by his mother four years ago that she was not the natural born child of Mr. Cascarino's grandparents but had been adopted by them.
In so far as the story has emerged in the media - it is still not completely clear - it moved on to say that the adoption effected by the grandparents appears to have been effected in England at a time when the grandparents were resident in Ireland. If the adoption was effected in England by the grandparents, if it was properly effected under English adoption law and if the grandparents at the time were domiciled and resident in the Republic of Ireland under the Adoption Act, 1991, I think I would be right in saying, we would not recognise that adoption.
In the context of this issue, it may well be that Mr. Cascarino is an Irish citizen for other reasons of which he does not know. It may well be, for example, that no proper adoption was effected under English adoption law and that he may have been born for all any of us know to a mother whose own parents may have been Irish and whose citizenship may in that context have stretched through the family under old citizenship laws. None of us knows the actual position here.
I do not think, in the context of the 1940s and 1950s, that it would be a unique event for couples in Ireland who had difficulty having children going abroad, particularly to England, and effecting adoptions in England that we do not recognise in this State. The Cascarino case may have highlighted an issue which has not come to public notice before. The amendment I tabled will not only ensure that there were no doubts about Tony Cascarino's citizenship of this State but it would cover other people who might find themselves in the same predicament. It is in that context that I propose this amendment.
My amendment is related and an alternative way to address the same issue. I am minded that my comments follow those of the person who brought in the main legislative change in the area. I would be interested in the Minister's response as to the form of words most appropriate to address the issue but I am advised that the form of words I have proposed will achieve the objective of remedying, to some extent, what I believe to be unfair and discriminatory treatment adoptees have suffered in the past under Irish law.
It is astonishing that up to 1952 Ireland had no adoption laws at all. Despite the tens of thousands of people involved in informal adoption arrangements over the decade, they had no legal status and adoptions at that stage were left in limbo. When the Adoption Act, 1952, was brought in, it did not, astonishingly enough, regularise the issue of foreign adoptions and it was not until Deputy Shatter's Private Members' Bill in 1991 that the Oireachtas passed legislation setting out rules for the recognition of foreign adoptions. This measure, however, was not retrospective - the result being that pre-1991 foreign adoptions could only be recognised as valid as and from that year.
In the case Deputy Shatter has instanced, that is, that highlighted by Tony Cascarino, he could not claim citizenship by descent since his mother had been adopted by Irish citizens outside the State and there were no rules in force at that time for the recognition of that adoption. Since 1991 we have had those rules but they cannot, as I understand it, be retrospectively applied so as to entitle a claimant to citizenship dating from his or her birth. The citizenship arises only from 1991. I see no reason Tony Cascarino or others - there may well be many others - in a similar situation should suffer under our citizenship laws because of defects in the adoption laws which the Oireachtas was slow to remedy.
The effect of the amendment I have tabled would be to enable a person who cannot claim citizenship by descent, but only on the basis that a foreign adoption was not recognised - if that was the only defect in his claiming it by descent - to become a citizen by naturalisation. Once granted, that citizenship status would, in the normal way of birth citizenship, apply from birth. It should be the policy of our adoption laws to place adoptees in exactly the same situation as any other citizen in that once the recognition of their status as citizens is determined, it should apply from the time of their birth and not only from the time of the recognition of foreign adoptions in statue law here. The Minister is Minister for Equality and Law Reform as well as Justice and I hope he will accept the logic of the argument put forward by myself and the other case put forward by Deputy Shatter which is along similar lines.
The Tony Cascarino story is very interesting and I am not sure he would have needed these amendments to have qualified to play when he did. I am more interested in the effect of Deputy Shatter's amendment on a group, the parents of Paraguayan children, who contacted me many years ago. Their adoption is a different type of adoption as I recollect in that there is full adoption and a sort of partial adoption. Many of those parents would have had the type of adoptions not recognised by the State. I am not sure if the first amendment would improve the situation for those children. I understood adoption law needed to be changed.
In terms of Deputy Shatter's amendment, what would happen to adoptions we do not recognise and which have a different status? Going back to the point the Minister made about the last amendment, those children still have rights in their families of origin in Paraguay. Part of the problem was that they had rights and entitlements in relation to their birth parents. While Irish adopters wanted us to change the law, doing so cuts across the rights of those children. I may be confusing two issues. The Tony Cascarino case may grab the imagination, but it is not the only type of case. To make the blanket change to section 4 proposed in this amendment would completely confuse matters for those children.
With regard to the case Deputy McGennis raises, one anxiety of the parents was whether they should be able to get Irish passports for their children so that they could travel abroad. They were very anxious that their children should have Irish citizenship. It did not deprive the children from maintaining Paraguayan citizenship they would otherwise have had. This amendment is of assistance to people who effected foreign adoptions and who have children lawfully in their care in this State in circumstances in which the State does not recognise those adoptions.
The amendments are opposed. To the extent that Deputy Shatter's proposed amendment deals with the citizenship situation that arose from adoptions recognised under Irish law, the new section is superfluous because it states what the statute law already is. Adoptions undertaken abroad are recognised in Ireland pursuant to the provisions of the Adoption Act, 1991, as amended by the Adoption Act, 1998. It has been pointed out correctly that the effect of the 1991 Act is that a foreign adoption which meets the criteria set out in that Act is regarded under Irish law as if it were an adoption order made under the Adoption Acts. As far as the citizenship of a person adopted by an Irish citizen is concerned, section 11 of the Irish Nationality and Citizenship Act, 1956, provides that the adopted person is an Irish citizen from the date of the adoption.
To the extent that the Deputy's amendment relates to adoptions not recognised under Irish law, that is, adoptions which do not meet the criteria set out in the 1991 Act, as amended, the amendment is inappropriate and, to that extent, unacceptable. If an adoption does not come within those criteria it does not make good law to extend Irish citizenship to such a person. I appreciate there are circumstances where Irish parents have undergone an adoption process in the country of origin of the child, but that process has not resulted in an adoption which meets the criteria we have laid down in statute for recognition under Irish law. I understand this arises most frequently because adoption in the countries in question maintains links of guardianship andcertain residual rights of the natural parents.
Irish adoption law is predicated on their being a complete severing of the legal links between the child and the natural parents and the forging of new legal links of an equal nature between the child and its adopted parents. The 1991 legislation, as amended, takes that as the cornerstone of the recognition of foreign adoptions and in so doing broadens considerably on the rather restrictive view based, among other things, on the test of domicile taken by the courts up to that point.
I recognise the problems faced by the adoptive parents in these special circumstances and their concerns for the rights of their adopted children. However, I must be conscious of the fact that, in law, the natural parents of such children continue to have an entitlement to be heard and to have a say in the future of their children. The issue that needs to be addressed in relation to these children is not the piecemeal question of citizenship in isolation, but the whole package of rights and relationships which Irish law should or should not recognise as existing between such adopted children and their natural parents.
We must also consider the rights and relationships between the children and their adoptive parents and between the natural and adoptive parents. There is, therefore, a whole package of rights and relationships, none of which can be considered in isolation, because it would be wrong to do so. My colleague, the Minister for Health and Children, is undertaking a review of the law on the recognition of foreign adoptions with such considerations in mind. The review is in the context of the preparation of legislation necessary to ratify the Hague convention on inter-country adoption.
I strongly urge that this is the proper context in which to address the issue, not only of the citizenship of these children - one cannot take citizenship in isolation - but also of the other rights and relationships in question. It must be recalled that this Bill is dealing with citizenship. It is dealing to an extent with the implementation of the Good Friday Agreement and the consequences of the entitlement regarding citizenship now in the Constitution.
The citizenship legislation of certain countries abhors the notion of dual citizenship to the extent that the acquisition of citizenship of another country may act to deprive the person of his or her citizenship of origin. Deputy Shatter's amendment would mean our law imposing Irish citizenship on a child who, by virtue the nature of the adoption, maintains legal links with his or her natural parents and maintains citizenship of the country of origin. Such a law might conflict with the rights under the Constitution of the child and of its natural parents primarily, by changing the citizenship status of the child without reference to the natural parents' guardianship rights and possibly also, depending on the approach to dual citizenship in the country of origin, by depriving the child of its citizenship of origin without regard to the wishes of its natural parents.
From the side note to the proposed new section it appears that the intention of Deputy Howlin's amendment is to address the question of Irish citizenship by descent from a person adopted outside the State before 1991. My understanding of the effect of the Adoption Act, 1991, in tandem with the Irish Nationality and Citizenship Acts is that once the adoption comes within the criteria of the 1991 Act, as amended in 1998, and at least one of the adopters is himself or herself an Irish citizen, the adopted child becomes an Irish citizen. Citizenship by descent through an adoptive link operates in an analogous fashion to citizenship through a natural link. If a non-national child is adopted by an Irish adoptive parent, that child is an Irish citizen within the adoption and this applies whether the adoption is conducted under Irish law or is a foreign adoption which meets the criteria of the 1991 Adoption Act. If a person so adopted goes on to have a child of his or her own abroad that child is in turn an Irish citizen because the parent was an Irish citizen at the time of the child's birth.
I recognise that there is a class of persons whose Irish citizenship dates not from the date of the adoption but from the date of the commencement of the Adoption Act, 1991, on 30 May of that year. They are set out in sections 3, 4 and 5 of the legislation to which Deputy Shatter referred and which he introduced to the House. These are persons adopted by an Irish parent by means of a foreign adoption order before that date, with the exclusion of those cases where the Irish parent was domiciled in the jurisdiction where the adoption was made. For a person in that class who gave birth outside Ireland before that date, the child is not an Irish citizen and does not acquire it by reason of the parent's later acquisition of Irish citizenship. That is a reasonable and consistent way for the law to operate, though it is always open to a person born in these circumstances to apply for naturalisation. The Deputy's amendment envisages this possibility.
However, the thrust of the amendment as drafted is to give a certificate of naturalisation granted in those circumstances retrospective effect to the birth of the child. I will not be drawn into the storm in a teacup regarding Mr. Cascarino or the European Cup, but the thrust of the amendment is to give a certificate of naturalisation granted in those circumstances retrospective effect to the birth of the child. That would be unacceptable in principle. There is a difficulty with it in that it could have all sorts of subsequent ramifications and side effects which would almost definitely at least give rise to a major degree of uncertainty regarding our law. It is on that basis that I must oppose that amendment.
What are these ramifications and anomalies? Are they just awful?
No, not awful. If one were to list the kind of circumstances which might be envisaged, we would not have much difficulty because we would be able to say what they were. I can foresee situations developing where——
Will the Minister give an example?
I would prefer not to give an example but there are plenty of examples.
I am intrigued to discover what the Minister is thinking. Perhaps he would share the examples with us.
Are they so awful that he cannot tell us?
I am sure he would in other cases. He has already been pushed on that matter by Deputy Howlin.
I would like to hear them.
He cannot just say that the implications are awful but that he cannot tell the committee what they are.
Before we continue, Deputy Shatter, may I advise the committee and the Minister that there is an opportunity to continue until 4 p.m. instead of 3.15 p.m., but I am aware that the Minister and members of the committee have other commitments.
There is another meeting which cannot start without me because they are waiting for a quorum. I promised I would be there at 3.15 p.m.
I will deal with it the next day, Chairman. I have commitments also because I thought we were finishing at 2.45 p.m.
I will allow a final question.
I just want to hear examples of the awfulness the Minister envisages.
I will send them to the Deputy by post.
Chairman, perhaps we should adjourn with that appalling vista.
