It is proposed to adjourn this meeting at 6.30 p.m.
Irish Nationality and Citizenship Bill, 1999 [Seanad]: Committee Stage (Resumed).
Debate resumed on amendment No. 4:
In page 5, line 22, to delete subsection (1).
-(Mr. Howlin).
We had a long discussion on this which was broader than just focussing on my amendment, which deals with the triggering mechanism of a new process. In essence we have talked about sections 4 and 5 because they are interrelated. I am unsure I could say more unless the Minister has had time to reflect and wishes to change course. I have argued the case as best I can. Regarding the anecdotal evidence the Minister has brought to the committee to justify the thrust of the Bill, can he make that anecdotal evidence more concrete? The number of allegations of fraud, in the context of the overall numbers, struck me and Deputy Shatter as being minuscule - a fraction of 1% of the total applications would hardly justify a change in the law, particularly a draconian alteration to the law which would not only affect future potential citizens but existing citizens and the rights of their spouses.
At the last meeting Deputies Shatter and Howlin raised a number of issues in relation to the abuses which occur under the system of post-nuptial declarations of Irish citizenship under current citizenship law. It is proposed to replace that with this Bill and a form of truncated naturalisation. I spoke about the level and nature of abuses which gave rise to serious concerns that post-nuptial citizenship declarations when the marriage to the Irish citizen no longer existed or where that marriage was conducted solely for the purpose of getting a passport or where the character of the person gave serious cause for concern.
Because of the questions raised by Opposition spokespersons I have delved into this in some more detail and I will outline concerns raised by post-nuptial declarations, particularly when such declarations are made by a couple living abroad, which is the issue I dealt with the last day. I will also give examples of how these issues surface in cases which have come before my Department to help Deputies. Naturally I will not identify the individuals whose cases form this representative sample which demonstrates the nature of the concerns that arise in declarations of post-nuptial citizenship.
These are concrete examples: in the first, the non-national spouse had been deported from an EU member state almost five years prior to the post-nuptial citizenship declaration being made and was barred from re-entering that EU member state even on an Irish passport. This was on the basis that the declarant was regarded as an associate of known terrorists. Both spouses had also pleaded guilty to fraud charges in the non-national's home country. The declarant met the requirements of post-nuptial citizenship and received a certificate of Irish citizenship. This example highlights the serious shortcomings in the requirements for post-nuptial declarations, when a person engaged in activities grave enough to have them barred from re-entering an EU member state - for activities which could potentially undermine our democrat State - can readily declare citizenship of this State. This shows the glaring lack of effective criteria in these arrangements, particularly the requirement to be of good character, a condition built into the new naturalisation provisions for spouses set out in the Bill. I will not speculate as to whether this application would or would not have been successful under these provisions. However, Deputies will agree that the Minister should have available to him or her the option to refuse citizenship when there are grounds that the person concerned may have been involved in such grievous activities.
No such option exists in the case of declarations of post-nuptial citizenship, where the elementary requirements of a subsisting marriage and that the couple are living as husband and wife for three years at the time of the declaration are fulfilled. While an Irish person involved in terrorist activities is one matter, it is inappropriate that a provision in our laws effectively obliges us to grant citizenship to a non-national engaged in such activities simply because that person has been married to an Irish citizen for three years.
Another instance raises similar concerns to my first example. This case concerns a declaration of post-nuptial citizenship by a person who, according to information received by my Department, is wanted in two different countries to finish out prison sentences for serious criminal offences including rape, false imprisonment and robbery. In this case it appears the declaration of post-nuptial citizenship meets the requirement of the current citizenship laws and if this is so, the person will be an Irish citizen. My third example concerns a declarant living in the State in breach of the immigration laws for many years. Although permission to remain in the State was granted on the basis that he was studying, he was working full time without a permit in a relative's business. Suspicions that the marriage to an Irish spouse might have been contracted for citizenship purposes only and that the spouses might not be living together, the Garda were asked to make an unannounced call to the address given by the applicant. Neither the applicant nor the Irish spouse were at the address and those living there were unable to say where they were. A flimsy explanation for this situation was received subsequently which did not appear to hold water. My officials sought further documentary proof and evidence of a tenancy agreement for the address and more than two and a half years later nothing further has been heard from the applicant.
It is not unusual to find that those who have made declarations of post-nuptial citizenship have been living in the State in breach of the immigration rules, even though these rules are very favourable to spouses of Irish nationals. This case also highlights another issue - the fact that many applicants fail to respond when requested to provide further details pertinent to the declaration lodged. These cases, though inactive, remain on the books. They are not recorded as refusals or recognised declarations of citizenship. Other examples of issues that arise in problem cases include couples living outside the jurisdiction of the State; there can be major difficulties in establishing that they fulfil the requirements of the marriage as valid and subsisting with the couple living together. In most cases it is not possible to call on the authorities in those countries to carry out checks for this purpose. Where there are doubts about a declaration it is difficult to pursue matters effectively. Allegations of threats of violence against a spouse to compel him or her to give evidence of an application which may not be correct feature in some cases. In many cases the Irish spouse - usually a she in these cases - has made the required statutory declaration and then contacts my Department or the Department of Foreign Affairs asking us not to make the spouse an Irish citizen.
How many cases?
I do not have the numbers but can give examples of the cases in which this has occurred. Again, these are matters in which it is difficult to get evidence because the Irish spouse is unwilling to withdraw the statutory declaration. In certain cases the applicant seeks to hide the fact that he or she was already married to a person other than the Irish spouse, unbeknownst to the Irish spouse, at the time the declaration was lodged. Multiple marriages are recognised in some countries but are not recognised in Irish law and as such a bigamous ceremony would not be recognised for postnuptial citizenship.
The phenomenon of the serial spouse, where the same Irish spouse is named in consecutive post-nuptial citizenship declarations, is a rare occurrence but not so rare as to avoid coming to notice in a number of applications.
How many cases?
We are aware of one Irish person who has had four different spouses in the past 12 years——
Male or female?
——all of whom are now Irish citizens. That is a fairly sterling performance.
Surely there is no valid marriage after the first.
These cases are typical of what falls to be considered in declarations and illustrate the problems with the process. They show that persons about whom there may be reasonable concerns in terms of public policy or national security may obtain Irish citizenship as a matter of statute law once it can be shown that the requirements of section 8 of the 1956 Act, as amended by section 3 of the 1986 Act, are being met. These cases also show the considerable problem with determining whether the requirements are being met, particularly when the declaration is being lodged abroad.
As I said at our last meeting, the figures often conceal more than they reveal and cannot in themselves be taken as indicative of the scale of abuse involved, the nature of which is often impossible to prove or detect. This is particularly so when the application is lodged at an embassy or consular office outside the State. It is inherently more difficult to investigate alleged abuses in respect of applications which are lodged outside the State. Within the State many sources of information can be called upon - for example, the gardaí, the health boards and the social welfare agencies. Outside the State the corresponding resources may not be available. In a significant number of cases the declaration is lodged but never pursued by the applicant when he or she is asked for further details or to clarify a matter.
At the start of October 2000 the Department of Foreign Affairs had queries on 325 declarations on hand that ranged from documents to be completed to evidential proof of a couple living together as man and wife. In the five years from 1996, on average 3.5% of the declarations submitted to the Department of Foreign Affairs were refused or withdrawn. This indicates a significant number of cases where there is an issue with the case concerned. However, of the cases where abuse of the system is suspected only a small number are ever likely to be refused a declaration because of the difficulty with getting evidence of the abuse. It is likely that many improper declarations will never be detected. It is simply too easy to abuse the system, particularly when the couple is living abroad. I am concerned that the current arrangement is open to abuse and that the level of abuse is liable to be at a far higher level than the available data indicates.
I realise no system will be completely free from abuse - it is unrealistic to expect that - but we should be able to achieve a system which gives preferential treatment to spouses of Irish nationals when it comes to seeking naturalisation which protects the integrity of Irish citizenship and is also fair on the applicant. The provisions of section 5 achieve that balance by providing spouses with an opportunity to become citizens through a truncated form of naturalisation which establishes a link with the State through marriage and residence and provides for reasonable additional requirements in relation to good character, intention to reside in the State and swearing an oath of loyalty and fidelity to the State.
I regard these safeguards as essential to prevent the kinds of abuses that exist and to enable a genuine applicant to affirm his or her right to call themselves Irish. As a result we will be more, not less, in line with international practice in the matter.
That is an excellent reply. With the agreement of the committee Deputy McGennis will take the chair temporarily.
Deputy McGennis took the Chair.
Out of personal curiosity, the Minister mentioned a person unidentified as male or female who married four times in 12 years, conferring citizenship on four different people. I am curious as to how a spouse could do this, given that the Department would investigate the validity of any foreign divorces that might have been obtained. I find it difficult to see how someone would manage that performance within the timeframe the Minister mentioned.
There are some remarkable characters on the planet, which I discovered years ago. This particular man was married four different times and got divorced four different times.
Were the divorces recognised?
They would not have got it without that. It was ascertained that the divorces were legal. Maybe it was like Henry VIII.
Maybe he chopped off their heads. I do not want to prolong this debate as we are not going to change the Minister's attitude. There is flimsy anecdotal evidence and though one would say of the Minister's example that these cases should not happen, I am not convinced. The thrust of the Minister's argument is that it is difficult to carry out investigations of the validity of applications. How giving the Minister the power to deny applications strengthens his role of scrutiny is beyond me; he will not be in a stronger position to investigate unless he is inclined, from now on, to deny applications, unless there is a compelling case otherwise. That would be very worrying. Notwithstanding my strong opposition to the Minister's proposals, there is no merit in arguing further.
Amendment, by leave, withdrawn.
Question put: "That section 4 stand part of the Bill."
The Select Committee divided: Tá, 8; Níl, 2.
Tá
- Ahern, Michael,
- Cooper-Flynn, Beverly,
- McGennis, Marian,
- McGuinness, John,
- O’Donoghue, John,
- O’Flynn, Noel,
- Wade, Eddie,
- Wright, G. V
Níl
- Howlin, Brendan,
- Shatter, Alan.
Question declared carried.
SECTION 5.
Amendments Nos. 5, 15 and 19 are related and are to be taken together by agreement.
I move amendment No. 5:
In page 5, line 34, to delete "may, in his or her absolute discretion" and substitute "shall".
This amendment deals with the new section the Minister wants to include. I am concerned that this section gives the Minister what can be described as the powers of an ancient potentate. He is given complete and absolute discretion as to whether to grant citizenship to an applicant where an applicant seeks a certificate of naturalisation having married an Irish citizen.
Under this provision it seems that even if the Minister is satisfied with all the items listed from (a) to (i) in the list he can still say no. Though I disagree with the Minister about some of the criteria which must satisfy him, it seems that if he is satisfied regarding those criteria he should not have absolute discretion to determine whether to grant citizenship and he should be obliged to grant citizenship. If he is satisfied that someone is of full age, of good character, is married to a citizen for not less than three years, is in a subsisting and recognisable marriage, the parties live together, the other spouse has no difficulty with the application and the matters detailed from (f) to (i) are satisfactory, I fail to understand why the Minister has to retain discretion to decline to grant citizenship. Will he explain the reasons for this?
Amendment No. 5 proposes to delete from the new section the words "may, in his or her absolute discretion" and substitute the word "shall". Amendment No. 15 in my name proposes the insertion of a new subsection (3) in section 15A to read "Where the Minister refuses an application under subsection (1), the applicant shall be supplied with a statement detailing the reason or reasons why the application was refused." As things stand the Minister will have absolute discretion; he can refuse an application and is obliged to give no reason of any nature whatever. A person who suffers an injustice is not entitled to any explanation in terms of why he or she has been deprived of citizenship. Perhaps they will be deprived of citizenship on foot of malicious and untrue information given to the Department about them.
Perhaps at some stage in the future there might be a Minister for Justice, Equality and Law Reform who believes he should receive payment of a personal nature in a brown envelope when exercising discretion. It has emerged that in the past people in the service of the State received large sums of money in brown envelopes for unexplained reasons. A former Minister for Justice has acknowledged that he received a great deal of money in brown envelopes although he is not sure why it was given to him and, on occasion, he has difficulty recalling the amounts involved.
The type of discretion granted to the Minister is wrong. It will result in injustices being visited upon individuals and it will allow an unscrupulous person in ministerial office to try to benefit financially from making decisions of this nature. In addition, it deprives people of any means of discovering the reasons an applicant's request might be refused and includes no appeals mechanism. If a person is denied citizenship, he or she cannot appeal the decision.
Amendment No. 19 is designed to provide for an appeals mechanism and to address the type of situation where it takes a number of years for a person who applies for citizenship to obtain it. It is quite extraordinary that at present obtaining post-nuptial citizenship merely involves making a declaration. The Minister outlined some instances in which difficulties might arise. However, it seems that under the current and extraordinarily simple procedure, where the Minister does not have to engage in any of the considerations he now wishes to install in the process, the Department is institutionally incapable of processing these applications, under the Minister's guidance, within a reasonable period.
In reply to a parliamentary question on 5 October, the Minister confirmed that at that date 211 applications for post-nuptial citizenship had been pending for between six and 12 months, 73 had been pending for between 12 months and two years and 28 had been pending for in excess of two years. In reply to a parliamentary question tabled on 17 October, the Minister indicated that there are a total of 1,182 applications for citizenship pending. It is extraordinary to note that 377 of these date back to 1977, while over 400 date back to 1998. If, in the context of post-nuptial applications awaiting the discretion of the Minister, having been married to an Irish citizen for three years, a person applies for citizenship under the current speedy process they might, some six years after making the application, be granted citizenship.
In order to put some rules in place to ensure that people who properly apply for citizenship have their applications dealt with within a reasonable period, amendment No. 19 seeks to insert a new section into the Bill. This section would read:
(1) Where the Minister fails to determine an application for citizenship within 12 months of the aforesaid application being made, the applicant shall be entitled to apply to the High Court for an order requiring that a determination be made within a specified period save where the Minister satisfies the court that there are good and sufficient reasons specific to the particular application for the delay by the Minister in determining same.
(2) Where the Minister refuses an application for citizenship, he or she shall supply to the applicant a statement detailing the reason or reasons why the application was refused and the applicant shall within 2 calendar months of the reasons for the refusal being communicated to him or her be entitled to appeal to the High Court and the court shall in such appeal determine whether on the information available to the Minister, the reason or reasons given for the refusal are good and valid reasons to deny citizenship to the applicant.
(3) Where an application is made to the High Court under subsection (2) and where the court determines on the information available to the Minister there were not good and valid reasons for denying citizenship to the applicant, the court may either direct that citizenship be granted to the applicant concerned or in the alternative that the Minister reconsider the application for citizenship made by the applicant.
This is designed to create a structure where, first, if one satisfies the specific criteria laid down in terms of obtaining post-nuptial citizenship one should automatically obtain that citizenship; second, if one is refused citizenship they should be given reasons for that refusal; third, if those reasons are not valid and may be challenged, one may make application to the High Court which may either direct that citizenship be granted or that the Minister consider the application further; and, fourth, to ensure that people are not obliged, as they are at present, to wait in excess of three years for citizenship and that decisions must be made within a year unless there are good and valid reasons relating to the applicant as opposed to the inefficiency of the Department or the Minister's failure to run the Department properly.
What is proposed in the section has been described previously as using a sledgehammer to crack a nut. The Minister produced three or four examples of circumstances that have arisen which sound exceptional. One of those sets of circumstances sounds extraordinarily bizarre and I have doubts about the circumstances in which citizenship could have been extended to a person who married four times in ten years. The Minister has produced a sledgehammer to crack a nut but he will also create an administrative nightmare in terms of processing these applications. He will also put many people who married Irish citizens, who are living in this State and who want to obtain Irish citizenship into a position where their applications will languish for years without a decision being made. The amendments I have tabled are designed to address that problem to some degree.
I wish to address first principles in relation to this amendment and to the section in general. In that context I want to focus on the power of the Minister to act in his or her absolute discretion. Discretion is conferred on a Minister by means of a statute. No matter how broadly the discretion is phrased in the statute - under the terms of the section with which we are dealing the Minister appears to have absolute and open-ended discretion - it is clear that arbitrary powers cannot be given to a Minister. A Minister may exercise a discretionary power only within the boundary outlined in the Act itself.
As I see it, there are two consequences to this. First, there are clear areas that cannot be trampled upon by the Minister. For example, it goes without saying that a Minister cannot act in a way that would infringe on someone's constitutional rights. He cannot act in a way that would be objectively unreasonable or in a way that would be a mistaken understanding of the law. In addition, he cannot act in a way that would not be in accordance with basic fairness or procedures of natural justice. Those basic principles curtail the absolute discretion the Minister seeks to give himself in this section.
The principle goes a step further, however, because the power can only be exercised for the purposes of the statute that conferred it. Those purposes must be ascertainable from the tenor and language of the parent Act. In the Laurentiu case, for example, powers of delegation conferred on the Executive by the Constitution were seen by the courts as being unconstitutional because the principles which would govern the devolution of those powers could not be ascertained from the parent Act.
There is no power in Irish law that allows the Oireachtas to confer on the Minister the notion that is baldly stated in this proposal for him to act in his absolute discretion. The various delimits I have described are placed on all Ministers and are designed to ensure they protect citizens and to act in accordance with natural justice, the law and the Constitution. I contend that the absolute discretion to make a determination cannot be boldly inserted in the section unless the principles that would govern that discretion are clearly set out in the Bill.
The absolute discretion outlined in the section may be seen to be unconstitutional unless the Minister takes the time to set out in clear terms, in the tenor and language of the parent legislation, the nature of the decisions he wishes to take and the bases upon which he will act in this arbitrary or discretionary way. I would like the Minister to reply to that basic point before we proceed to deal further with the section.
Deputy Howlin will recognise that I must first reply to Deputy Shatter's points before dealing with his. I will, therefore, outline the situation in relation to these amendments which are opposed.
The principle of ministerial discretion in relation to matters concerning non-nationals has long been a feature of the exercise of executive functions by Government and is recognised by the courts in a chain of cases. The Executive exercises the powers to deal with non-nationals through the Minister for Justice, Equality and Law Reform. This discretion must be exercised in a fair and responsible manner consistent with the principles of natural justice: no Minister can act on a whim or in an unreasonable manner. The courts would not be slow to admonish such capricious action in any event.
The powers must be exercised within the framework of legislation that exists, in this case the Irish Nationality and Citizenship Acts. That legislation, very properly in my view, acknowledges the nature of the executive power being dealt with by providing that naturalisation decisions are in the absolute discretion of the Minister. The exercise of absolute discretion has always been a feature of citizenship law, as it relates to naturalisation, and this Bill proposes to apply that discretion to a matter which is also a proper subject for that discretion, namely, the new naturalisation provisions for spouses.
The grant of citizenship to a non-national cannot be a matter of right, whether that non-national is the spouse of a citizen or otherwise. It is a privilege that the State chooses to bestow on non-nationals. The exercise of that choice is an executive function. I see no reason that it should not be in the discretion of the Minister to grant an application for naturalisation provided the Minister, as he or she must do, exercises that power in a way consistent with the principles of natural justice.
The thrust of case law in this area is that a requirement to give reasons would be inconsistent with the nature of the discretion. I draw the attention of Deputies to the 1986 High Court case of Pok Sun Shun in which Mr. Justice Costello had to consider the exercise of this discretion in the context of naturalisation.
What was the name of the person involved?
Pok Sun Shun.
The case in question was discussed in the fourth edition of Shatter’s Family Law.
I am delighted to hear it. I am sure the discussion on it was useful.
A Deputy
It could have been used in Tony Cascarino's book.
I am the only one being educated here.
I am more inclined to publicise and lend weight to Mr. Shatter's book than to that written by Mr. Cascarino.
Mine has more merit.
Mr. Justice Costello concluded that the dictates of natural or constitutional justice did not, in general, require the Minister to give an applicant a hearing or inform him of the reasons for his decision. Mr. Justice Costello further pointed out that the Minister, having established that all the conditions set out in section 15 of the Act of 1956 have been satisfied, might still refuse a certificate of naturalisation on grounds of public policy which had nothing to do with the individual application.
The views of Mr. Justice Costello were referred to with approval in the later High Court judgment of Mr. Justice Kelly in the case of Mishra in 1996, also involving a naturalisation application. In that judgment Mr. Justice Kelly went on to say:
... it must be borne in mind that the award of a certificate of naturalisation is a privilege and not a right. The fact that an applicant may comply with all of the statutory provisions set out in section 15 of the Act does not mean that it automatically follows that he is entitled to citizenship. If such were the case, there would be no discretion at all vested in the Minister. She would become a mere cipher who when satisfied that the statutory requirements of section 15 were met would be obliged to grant citizenship.
I must remind Deputies that the Supreme Court, as recently as in the matter of the Article 26 reference of section 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999, has pronounced generally on matters concerning the exercise of powers in relation to non-nationals. Quoting extensively from the case law in this area, the court upheld the view that the exercise of such powers "reflects an inherent element of State sovereignty over national territory long recognised in both domestic and international law".
Amendments Nos. 5 and 15 seek to qualify the exercise of "absolute discretion" in section 15A. Just as it is right that the question granting naturalisation must be a matter of absolute discretion, decisions to waive certain of the conditions for naturalisation must also be matters of discretion. To have it otherwise would create an unworkable internal inconsistency in the new section 15A. It would also be inconsistent with its parallel provision in section 16 of the 1956 Act, which deals with waiver of the conditions for normal naturalisation.
It should be noted that the two systems of naturalisation exist side by side. A spouse who does not meet all the conditions for naturalisation under the new special scheme may, nonetheless, in his or her own right, meet the conditions for naturalisation provided under section 15 of the 1956 Act or may be a suitable candidate for waiver of some of those conditions under section 16 of that Act. A Minister considering an application for naturalisation in the future will have to consider it against the legislative framework of the totality of the naturalisation provisions, namely, the existing sections 15 and 16 and the new section 15A. If some matters are to be, as they properly are at present, matters of discretion and others matters of statutory right, it can lead to situations where no decision can sensibly be made because the conflict between the two is incapable of resolution.
The question of conferring citizenship on a non-national is ultimately a matter for the executive arm of Government. The Legislature can quite properly set out guidelines for the exercise of executive discretion. The democratic processes involved, the choosing of the members of the Executive and the answerability of the Government, both individually and collectively, to Parliament, are sufficient to ensure that discretion will be exercised in the interests of the common good. We must not proceed on the premise that Ministers, duly appointed by the President on the nomination of the Taoiseach and with the prior approval of Dáil Éireann, whatever party they may represent, have to be bound hand and foot in carrying out statutory functions on the basis that, otherwise, they could not be trusted to carry them out properly and fairly. I do not believe Deputies would suggest that the case be otherwise.
The same arguments hold in relation to amendment No. 19, which fundamentally undermines the exercise of ministerial discretion in this area. The proposal in the amendment would only serve to burden unnecessarily the High Court with matters which it has firmly said are matters for the Minister's absolute discretion. The question of naturalisation is one of privilege in the gift of the Executive, not a matter of right to be vindicated by the courts. While it is correct that the Legislature should set the parameters within which the Executive may exercise the privilege on behalf of the State, and while it is right that the Judiciary should be able to review the actions of the Executive, as it may any administrative function, to ensure that proper procedure has been observed, it is wholly inappropriate that the Legislature should seek to transfer this matter from the Executive to the Judiciary and make naturalisation questions, one of the most important sovereign acts of any State, a matter of entitlement rather than of privilege.
As regards subsection (1) of the proposed new section, I acknowledge that the average length of time taken to finalise an application for naturalisation is currently approximately two and a half years. The average length of time taken to finalise an application by way of post-nuptial declaration is approximately 13 months. I appreciate that these timescales are lengthy and I would prefer them to be far shorter. However, as I said in a recent reply to a parliamentary question tabled by Deputies Shatter and Dukes, they reflect the high volume of applications received, the various procedures involved and the pressure on resources in the immigration and citizenship of my Department. I also pointed out that the delay in some cases is due to the failure of the applicants themselves to reply to requests for further information from my Department.
As part of the recent package of measures announced by the Government in relation to increased resources for the immigration and asylum areas, significant additional staffing resources are being allocated to the immigration and citizenship division of my Department with a view to, inter alia, reducing the time involved in processing such applications and improving the service provided. These resources will impact considerably on the current delays. This is the proper approach to adopt rather than making it an issue for the courts. The proper solution for administrative bottlenecks of this nature is the application of administrative resources, not the radical change in the fundamental nature of naturalisation proposed by the Deputy, which would have the additional undesirable side effect of transferring the bottleneck from my Department to the courts and thus require additional judicial resources instead of more clerks.
In relation to subsections (2) and (3) of the proposed new section, I have already referred to the fact that the courts have held that, in exercising his or her absolute discretion, the Minister is not required to give reasons. However, it is of course the case that the Minister must act reasonably and in conformity with the principles of natural justice. That is the bottom line. Any applicant for naturalisation who believes the Minister has not so acted may seek judicial review of the decision concerned.
Deputy Howlin referred to the Laurentiu case, which related solely to the nature of a delegated power to make secondary legislation. It cannot be interpreted, in my opinion, so as to extend to the principle of legislative discretion in general. The Laurentiu case is one of the line of cases to which I referred in my opening remarks as judicially recognising the executive discretion inherent in all matters relating to non-nationals. The concept of discretion is nothing new and to the best of my knowledge the parties of both Opposition spokespersons were in office in 1956 and 1986 when the concept of discretion, where naturalisation was concerned, was enshrined in statutory form in Irish law. It is a concept with which I fully agree.
None of us should proceed on the basis that a Minister might abuse his or her position in granting naturalisation. That would be unthinkable. I am satisfied that natural justice must be observed and I am also satisfied that there is recourse to the courts, where someone's behaviour is improper, by way of judicial review.
Has the Department carried out an assessment to discover the number of applications which will have to be processed annually as a result of the new procedure under section 15A? How many additional personnel have been employed to date to deal with the existing backlog? Has a study been carried out to ascertain how long it will take to process each post-nuptial application, which will now become as complex as a normal application? Will it take two and a half years or even longer to process applications in light of the current backlog?
In the context of the Minister's response, I accept that the courts have taken the view that the State has discretion to determine whether to grant citizenship. That goes back to the old power of the sovereign; the way we deal with these matters is reminiscent of how they were dealt with when Ireland was under British rule. As the Republic enters a new millennium, we should occasionally show some initiative by bringing new philosophies to bear on these matters.
If the Minister's only concern in relation to post-nuptial applications is that paragraphs (a) to (i) be complied with, he has not explained why he needs additional discretion if a person succeeds in complying with them. Why is it not possible to use the word “shall”? Will the Minister explain the difference it would make to the section if the words “may, in his or her absolute discretion” were deleted and the word “shall” was included? Will he clarify what would be the impact of doing that?
The Minister was correct to state that in the context of the way matters are dealt with at present, people may not be given reasons for a refusal of citizenship. Where a person seeks citizenship, why should we not provide them with the reason for refusal? The fact that it was not done in the past is no excuse for not doing it in the future. It may, on occasion, be the case that the reason for the refusal is the result of a misunderstanding, a failure to seek information or a misinterpretation of such information by the person making the decision. How is someone to know that this is not the case? To date, a number of citizenship cases have gone to court as a result of technical objections about the manner in which applications were dealt with as opposed to there being a perceived need to deal with substantive problems that have arisen.
If, to take the Minister's approach, the decision-making process on citizenship applications will comply with a form of natural justice, will not be arbitrary and will ensure that the Minister must behave properly, in what way would the State be placed at risk or in what way would difficulties arise in respect of providing reasons? If he is not prepared to allow formal appeals to the High Court why is he not willing to put in place an appeals procedure similar to that available to asylum seekers? He could establish an administrative appeals procedure under which appeals can be made if initial applications for citizenship are refused. This would provide a fail-safe mechanism to ensure that where decisions are made to refuse to grant citizenship, injustices are not being done.
The Minister made the point that if there was a specific timescale within which decisions must be made, following which people would be allowed to make application to the High Court, the current bottleneck would be transferred to the courts and instead of employing more clerks we would be obliged to recruit further judges. If the Minister removes the bottleneck by employing the additional staff, it will not be necessary for the courts, other than the District Court, to deal with these matters. Will the Minister clarify how he envisages paragraph (i) will operate in terms of his exercising absolute discretion? Will there be one District Court sitting per year where people make declarations of fealty to the nation and loyalty to the State or will this be a daily occurrence in the District Court as the cases of individual applicants are dealt with? Will Judge Windle of the District Court be obliged to deal with cases of this sort while ruling on road traffic offences etc? Will these cases be dealt with in public or in private? If they are dealt with in open court, will everyone applying for citizenship, having made a declaration of loyalty, find themselves being interviewed individually by the media?
Does Deputy Howlin wish to comment at this stage?
I will wait to hear the Minister's reply.
It is not as if we are introducing a new concept. The question of discretion is contained, as already outlined, in the 1986 Act and it is also contained in the 1956 Act. As I recall, a Minister from Deputy Shatter's party proposed it on both occasions.
That was a long time ago.
For my part, I agree with the concept. With respect, Deputy Shatter is confusing the issue of what constitutes a sovereign power with that of sovereignty. There is no more sovereign act for a State to exercise than the conferring of the privilege of citizenship on a person who is a non-national. That goes to the very heart of the sovereignty of a nation. I do not believe there is anything else that goes as deeply to the heart of the sovereignty of a country.
The reality is that if I was to adopt the measures put forward by Deputy Shatter, I would be putting in place a different system of naturalisation in respect of spouses than that which applies in respect of other applications, for example, by way of Irish associations or otherwise. I do not believe this is desirable.
The Deputy inquired about what circumstances might arise where these various conditions might be fulfilled, where natural justice considerations might also be met and where the discretion could still be exercised against the individual. I accept that it would be rare for such circumstances to arise. While I cannot provide specifics regarding where they might arise, I can state as a general principle that the entire question of discretion lies at the heart of the 1986 and 1956 legislation. I do not want to see a different system of naturalisation put in place in this instance. I do not doubt that circumstances, unusual as they may be, will arise which will lead to a Minister actually exercising his or her absolute discretion against an applicant for some good and cogent reason.
With regard to the District Court and the need for people to swear fidelity and loyalty to the nation, such things happen in that court at present. There is provision, in respect of other naturalisations, whereby it is appropriate to individuals to make declarations of fidelity and loyalty to the nation before the court. The District Court rules obviously provide for how this is done. Such occurrences are not unusual. I do not believe it will cause any obstacle for an applicant to make such a declaration. These matters, as they are at present, will be dealt with in open court.
How stands the amendment?
The Minister has again stated that there are very rare circumstances in which he could envisage citizenship being denied if an applicant meets the criteria laid down. Therefore, the proposal outlined in the section hinges upon the advent of extraordinarily rare cases. I am not convinced that there is a need to go down this route which, as stated previously, will cause some anxiety for Irish citizens in relation to the rights of their prospective or current spouses. Following the death of an Irish citizen, would their non-national spouse be guaranteed the right to continue to reside in Ireland if citizenship had not been granted at the time of death? Would there be difficulties in relation to the movement of those individuals into and out of the State? All these matters are a cause of anxiety when there is a lack of clarity. The Minister was at great pains earlier in the debate to pinpoint the issue of clarity as being a fundamental principle of legislation of this sort.
I return to the basic purpose underlining the Minister's pursuit of this legislative measure. As we are aware, there are huge demands on the Department of Justice, Equality and Law Reform in terms of the amount of legislation with which it must deal. There are currently some dozens of Bills before the House and there are others at various stages of preparation or which have been promised. The Minister wants to push this Bill through in an expeditious manner but since the beginning of the debate he has failed to provide compelling reasons for so doing. He has also failed to indicate why the legislation has been prioritised in the way it has been.
I wish to return to my net point about the way the Minister will exercise arbitrary or discretionary powers. While he quoted from previous law cases where the discretionary powers were found to be constitutional, he did not deal with the point I made about the explicit statement of the conditions under which the discretionary or arbitrary powers would be exercised. The Minister's reply to Deputy Shatter's questions and the language of the Bill make the position no clearer vis-à-vis the nature of the exercise of the discretionary powers. In what circumstances are these powers, particularly the power to deny citizenship, to be exercised if the conditions set down are to be fulfilled?
It is my view that these powers should be set out in law. However, we should at least state them in the explanations so that there will be some guiding principles for the courts to allow them to understand the intentions of the Minister and the Oireachtas in this regard. Will the Minister deal with that net point?
As stated at the outset, the question of conferring of citizenship by the State goes to the heart of the sovereignty of the nation. The conferring of that privilege on an individual is an exercise and one could not go deeper than that to the heart of a country's sovereignty. It is a discretionary role for the simple reason that the courts have recognised that the discretion should exist. It is not a question of the courts saying that this is or is not constitutional, it is a question of the courts accepting, as a matter of principle, that the exercise of that sovereign discretion is inherent in the process. That is what the courts have accepted.
As the Minister knows, that is not the full story. The Minister does not have absolute discretion, he cannot put all the applications up on a wall and throw darts at them to decide which will be granted and which will be refused. The Minister must comply with the various conditions of constitutional law, fairness, natural justice etc. The notion of absolute discretion is not strictly the case. What we are trying to discover are the circumstances in which discretion of some sort may be exercised and for the Minister to spell out, preferably in statute but at least by way of explanation, the parameters within what that discretion could be exercised.
I do not agree with Deputy Howlin.
Is the Minister saying he could put them on the wall and throw darts at them?
As stated earlier, the Supreme Court, when considering the Illegal Immigrants (Trafficking) Bill, 1999, stated clearly that the exercise of such powers - that is the question of conferring of naturalisation - "reflects an inherent element of State sovereignty over national territory, long recognised in both domestic and national law". That is a direct quote from the findings of the Supreme Court——
Which takes nothing from what I just said.
——which clearly agrees with my view that this is an inherent element of State sovereignty. That is what I have been arguing from the outset. It is not my fault that this happens to be the case.
The Minister has missed the point entirely. I was talking about discretion.
Deputy Howlin should allow the Minister to reply.
No, it has nothing to do with that no more than it has anything to do, as Deputy Shatter attempted to suggest, with the existence of a personal sovereign. It has to do with the State as a sovereign people, which is an altogether different issue.
It is the royal blood of Cahirciveen.
No, it is not. This royal blood will not hold the office forever and some other royal blood will replace it.
The Minister's enthusiasm for his job is evident.
I am sure the person who replaces me will exercise the absolute discretion with the same level of fairness and natural justice I intend to use. I am quite satisfied on that point.
To return to Deputy Shatter's earlier question, which I failed to answer, about the additional staff who will be transferred to the citizenship area to deal with naturalisation applications, as of now it is proposed to appoint nine extra staff, which will bring the total staff complement to 20. The backlog will be cleared as soon as possible and progress will be kept under review with the intention that extra resources can be diverted to the citizenship area as priorities dictate.
I cannot go any further than that. I do not accept Deputy Howlin's argument that this will cause difficulties for spouses before they are granted naturalisation for the very reason that, as I outlined on another occasion, those spouses who have not obtained certificates of naturalisation will be entitled to free movement through and from the State. As I also outlined, they also have the right to work. We are not putting obstacles in the way of those spouses who are non-nationals, far from it. I am seeking to regularise Irish citizenship law to reflect current realities and to bring it into line, to a large extent, with our EU partners.
Question put and declared lost.
I move amendment No. 6:
In page 5, to delete line 38.
I have a series of amendments which relate to the different criteria the Minister is to apply. He should explain how he will establish whether an applicant is of good character.
This amendment proposes the deletion of the requirement that the applicant be of good character.
No. I am asking how the Minister proposes to apply this criterion.
That is not quite what the amendment proposes.
The amendment proposes to delete——
I do not understand how the Minister is to apply this in practice. In proposing to delete this I raise with the Minister the question of how he proposes to do so.
My understanding was that Deputy Shatter proposed this to take out the question of this being a requirement.
I want to be convinced by the Minister that he needs to have this in.
I could not figure that out. The way we would do this is that officials would make inquiries about the individual concerned. It might be necessary to make those inquiries of the police authorities in the locality in which the person lives. That is the way it has always operated.
My point is that this is an application to be made a citizen by a spouse. This inquiry is not currently made where a person applies to become a citizen. Is it?
Does the Minister want to clarify whether that is current practice?
It is.
Amendment, by leave, withdrawn.
I move amendment No. 7
In page 5, to delete lines 43 to 45 and substitute the following:
"(e) and that citizen lived together as husband and wife for 3 years after their marriage and the applicant submits to the Minister an affidavit in the prescribed form to that effect,”.
This amendment relates to subparagraph (e). According to the Act as present, the Minister must be satisfied that the citizen and spouse are living together as husband and wife and the citizen submits an affidavit to that effect to the Minister. I propose substituting: “and that citizen lived together as husband and wife for 3 years after their marriage and the applicant submits to the Minister an affidavit in the prescribed form to that effect”.
With the existing criteria that the couple live together for three years, let us take the example of a non-national living with an Irishman, a wife living with her husband for a number of years. It turns out that he is violent and the marriage breaks down. After the three years have elapsed the wife wants to apply for citizenship but they have separated and perhaps the violent husband is not supporting her. In order to get citizenship she may have to ask the husband to submit an affidavit to the Minister. The husband may say "No" and effectively block the wife from getting citizenship under this provision. I am sure the Minister will say he has discretion under subsection (2) not to have to apply this provision but it seems that where a couple are living together for three years in marriage, if the applicant swears the affidavit it should meet the Minister's criteria. It should not be necessary for the affidavit to be sworn by the citizen spouse.
In the context of these criteria, bearing in mind the existence of subsection (2), what is the position if a couple lives together for a year in a genuine marriage, with nobody trying to buy citizenship, but the non-citizen ends up separating from the citizen because the latter is abusive? What if the non-citizen is deserted by the spouse within the three year period? I raise these matters because I am concerned with how they are to be addressed. I presume the Minister may say that if these scenarios arise under subsection (2) or the provisions relating to naturalisation, other than post-nuptial naturalisation, he may be able to extend citizenship to individuals in certain circumstances. However, I return to the capacity of his Department to process these applications. When a spouse is in this position it may take many years to have a citizenship application processed.
I also use this opportunity to make a complaint. When a Deputy tries to find out what is happening with citizenship applications and writes to the Department it can take months to get a reply. If it takes a Deputy months to get a reply, those on the two and a half year waiting list have no idea when a decision will be made or where their applications stand.
The Minister should also clarify the position of the widow whose husband dies either before or after the three year period ends. I would have thought there could be some special provision for this and I raise the matter so that the Minister can provide it on Report Stage. There should be some special provision in the specific criteria dealing with widows and widowers. From what I can see there is a series of complex difficulties which may arise with family breakdown or the death of a spouse that will take people outside the criteria of section 15 A(1) and into section 15(2). There is no indication as to how the Minister or his successors will approach those applications.
This amendment is opposed. The purpose of section 5 is to insert a new section 15A providing for the naturalisation of spouses of Irish citizens. The Deputy's amendment proposes to change the existing provision of the Bill which requires that an applicant and citizen are living together as husband and wife at the time of the application and that the citizen spouse submits an affidavit to the Minister to that effect and to comply with the condition whereby they are required to have lived together as husband and wife for three years to where it is the applicant who must submit the affidavit.
That is a substantial change to this provision. Under this amendment it would clearly be possible for the parties to be no longer living together as husband and wife at the time of the application. There is a possible conflict with the provision of paragraph (d) of the new section 15A which requires that the applicant be in a marriage recognised under the law of the State as subsisting. The amendment unhinges the principle that naturalisation is on the basis of the link by marriage to the Irish citizen. The suggestion seems to be that once the applicant has been, as it were, with the Irish spouse for three years and not a moment longer, he or she gains the reward of Irish citizenship irrespective of whether the marriage continues in any real sense. By requiring the applicant to submit the affidavit, the person is absolved of any requirement to confirm the status of the marriage. In certain circumstances this could allow abuse by some applicants who otherwise could not meet this requirement. Nonetheless, Deputy Shatter has raised some interesting questions which deserve to be answered. We will now start seeing the benefits of having a naturalisation process which is based upon the sovereign Act by the State exercising its absolute discretion.
This legislation is not the only method whereby the spouse of an Irish citizen may be naturalised. There are other provisions whereby a person may be naturalised, regardless of whether that person is a spouse of an Irish citizen under the Irish Nationality and Citizenship Acts, 1956 to 1994. For example, in section 15, Part III, it is set out that the Minister may, in his absolute discretion, grant an application for naturalisation if the applicant is of full age, of good character, has a period of one year's continuous residence in the State immediately before the date of the application and during the eight years immediately preceding that period has had a total residence in the State amounting to four years, intends in good faith to continue to reside in the State after naturalisation, and has made, either before a justice of the District Court, in open court or in such manner as the Minister, for a special reason, allowed, a declaration in the described manner of fidelity to the nation and loyalty to the State.
In addition, the power is vested in the Minister of the day, again in his absolute discretion, to dispense with conditions of naturalisation in certain cases. There is no necessity for me to outline all those but it is important that some of the conditions which can be dispensed with would be mentioned. One of those, for example, would be where the individual is of Irish descent or association. Again, we see it where the applicant is married to a naturalised Irish citizen or where the applicant is married to a person who is an Irish citizen otherwise than by naturalisation. In those cases, the Minister may, in his absolute discretion, grant an application for a certificate of naturalisation although the conditions for naturalisation or any of them are not complied with.
We now see the whole concept of absolute discretion operating to the clear advantage of the applicant in the kinds of instances which have been outlined by Deputy Shatter and any of the situations mentioned by Deputy Shatter, where unhappy differences have arisen between spouses or where there is no longer a marriage because the Irish spouse has died, can be dealt with under the normal naturalisation provisions at section 15, which I have outlined. The discretion to waive some of the conditions - I should use "absolute" when I am describing discretion - is provided at the existing section 16. The kinds of situations which Deputy Shatter outlines are reasonable and fair and I believe they are covered.
Perhaps if we had dealt with this amendment before the previous one, we might have understood a little more.
Amendment, by leave, withdrawn.
Amendment No. 8 is in the name of Deputy Shatter. Amendment No. 9 is an alternative so we will discuss Nos. 8 and 9 together, by agreement.
I move amendment No. 8:
In page 6, to delete lines 1 and 2.
I am proposing in my amendment to delete the words "had at the time of the application a period of one year's continuous residence in the island of Ireland". I want to raise with the Minister the situation where someone has married an Irish citizen, has been happily married for a number of years and may be working abroad, for example, as a diplomat representing the State. In circumstances where all the other criteria are satisfied, and I am now taking into account the Minister's amendment, why should it be necessary that at the time of the application or immediately preceding the application the applicant should have been resident here for a continuous period of one year? There are people who are married to Irish citizens who, for very good reasons, may not be living here but who hope to come to live in Ireland in the future but for business reasons or reasons of representing the State abroad may not have lived here as a resident for many years.
Amendment No. 8 is opposed. Amendment No. 9 is a Government amendment for the purpose of ensuring consistency between the wording of the new and existing naturalisation schemes. In calculating the residence requirement for naturalisation under the new section 15A, the period of one year's residence provided for in paragraph (f) will run from the date immediately before the application for naturalisation is made, which is also the case for applications under section 15(c) of the Act of 1956, as amended by section 4 of the Act of 1986.
I am firmly of the view that the requirement to have a period of residence in the island of Ireland of one year immediately before the date of the application provides a proper residence basis for naturalisation applicants in these cases, particularly when linked with the more favourable residence requirements in paragraph (g). To remove the condition of paragraph (f) might provoke speculative claims by persons who may have resided in Ireland many years ago and who are applying for citizenship now but who have no intention of residing in Ireland after naturalisation as required by paragraph (h). It is not unreasonable to apply this condition, which is consistent with the conditions for naturalisation under the existing scheme.
To deal specifically with the kind of problems Deputy Shatter has outlined, I would refer him to section 16 of the 1956 Act, as substituted. The very case he raises is actually dealt with in that section. It states that the Minister may, in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation or any of them are not complied with. It then sets them out and one of those is where the applicant is or has been resident abroad in the public service. Those kinds of instances, therefore, are covered.
I do not have the Act in front of me. Does that also include people who are working, for example, on overseas aid with voluntary organisations? Is that explicit in the Act?
It is not explicit but I remind Deputy Howlin that there is an absolute discretion.
That is what makes me fearful. I do not understand the reason for the link with the territorial residence. One could be a loyal Irish citizen outside the island of Ireland. We have met very keen French people living in Ireland who are French to their essence, and there are good Irish citizens around the world - we all meet them whenever we travel. This fixation that residence on the island defines one is something that does not hold sway in citizenship law generally. Why does the Minister deem it necessary to be resident for the year prior to this particular application? If one is the spouse of a proud Irish citizen who happens to be working in America, why is that condition put in at all? Why should there be a period of residence of two out of the past four years, as the Minister is suggesting under paragraph (g)? I do not understand the notion that residing physically on the island of Ireland is somehow a qualification or a requirement of Irishness.
On the face of it, it must surely be the case that residence indicates or illustrates that an individual actually has an interest in becoming or wishes to become an Irish citizen.
I am sure the Minister is not saying that if one is not physically here, one is less Irish.
We had this argument before and it related to whether a person was an applicant for Irish citizenship or an Irish citizen from birth.
I remember that.
I will not go back over that argument this afternoon because we could be here all evening but——
Only for ten minutes.
——I am saying that it demonstrates the individual's interest in becoming an Irish citizen and, incidentally, is a feature of citizenship law in many other jurisdictions. I remind the committee that this section deals with the whole question of non-national Irish spouses. Non-national Irish spouses are not confined to making an application for naturalisation under this section. There are other circumstances, such as those outlined by Deputy Shatter, where some of the conditions might not be fulfilled. For example, in the case of a widow, the time period in which an application can be made may not have elapsed. Applications are not confined to this section.
I remain unconvinced. I have no difficulty in understanding something which would be an indicator of fealty or attachment to the country. However, the Minister is including a condition not an indicator. I do not believe we should include a defining condition, even for non-national spouses applying for naturalisation on foot of their marriage to an Irish citizen.
Is the Minister in a position to shed further light on this matter?
It appears that under sections 15 and 16 of the principal Act, as amended, substituted and inserted, it is possible for an individual to make an application.
Amendment put and declared lost.
I move amendment No. 9:
In page 6, line 1, to delete "at the time" and substitute "immediately before the date".
Amendment agreed to.
I move amendment No. 10:
In page 6, line 3, to delete "4" and substitute "6".
This amendment relates to the Minister's obsession with the territorial imperative and is designed to introduce and element of flexibility into the criteria he is setting down. Under section 5(1)(f) it is required that a person making an application for citizenship must have been resident in Ireland for at least one year immediately prior to making that application, while under section 5(1)(g) the person must, during the four years immediately preceding the application have a total residence in the island of Ireland amounting to two years. The amendment suggests that during the six years immediately preceding the period in question there should be a total residence amounting to two years.
I can envisage a situation where people who are not diplomats who, for business reasons, might not be in the State but would be able to comply with the provision in section 5(1)(g). I appreciate that the Minister will now proceed to inform me about his absolute discretion and his sovereign desires and commitments. Nevertheless, it might be a good idea that large numbers of applicants did not fall foul of subsection (2) or other parts of the legislation. I invite the Minister to extend the hand of friendship by accepting the amendment.
Droit de seigneur.
There is no difficulty with the friendship, the problem is with the amendment. In the existing provision in the Bill, the residence periods for naturalisation under section 15A are set at half of those for the corresponding provision for naturalisation under section 15 of the Act of 1956, as amended by section 4 of the Act of 1986.
So it is half of what you are having yourself.
The period of residence required for spouses is thus greatly reduced compared to the normal naturalisation requirements.
I am satisfied that the new section 15A offers a reasonable concessionary discount for spouses, at a total of three out of the preceding five years as against the requirement under the existing scheme of a total of five years out of the previous nine. The existing provision is a proper acknowledgement of the position of spouses. I do not see a need to stretch the four year period to six years.
Can the Minister not envisage a situation where a perfectly loyal Irish citizen who is working abroad on a long-term basis and gets married to a person in the country in which they are living ultimately returns to this country? What has this section to do with defining their Irishness or the right of their spouse to claim Irish citizenship?
We are allowing the person concerned to avail of the shorter period because he or she is the spouse of an Irish citizen.
The person may never have lived in Ireland.
I have already explained that this does not exclude the making of an application.
Which is reliant on the Minister's absolute discretion.
Yes, absolute discretion is called for under sections 15 and 16 of the Principal Act and under section 5 of the Bill.
In relation to this case, where would they apply? It is clear that they would not apply here. Is the Minister referring to subsection (2) under which he may waive this condition or is there another clause in either the 1956 or 1986 Act which would cater for people in this category.
I have been trying to state all along that it is not merely under this section that a person can make an application for naturalisation. There are special concessions included in this section to deal with spouses. Therefore, the residency requirement is shortened in the case of spouses as opposed to anyone else. However, this does not prevent any person making an application under section 15 or 16 of the 1956 Act, as amended, substituted or inserted, whether at home or abroad.
I do not have access to either of those Acts at present. Is it not more likely that an Irish citizen would marry a non-national living abroad than one living in the state? That seems to be common sense because one is surrounded by non-nationals when one is not in the nation. In that instance, is the category to which I refer specifically catered for? The section relates to the naturalisation of the spouses of Irish citizens. If an Irish citizen marries abroad, his or her spouse may never have set foot on the island of Ireland. However, the Irish person may be a perfectly loyal citizen so why are we stating that they are required to move here before the spouse can become naturalised?
The only reason they would arrive here in the first instance is to avail of the shorter period. Under section 16 of the Principal Act, in his or her absolute discretion, the Minister of the day can waive the condition.
Now we are down to waiving conditions as opposed to stating that people are entitled to apply for naturalisation.
That is correct. An application can be granted for a certificate of naturalisation, although the conditions for naturalisation may not have been complied with in the case, for example——
The net issue is that the section dealing with spouses includes this condition.
Under section 16 of the 1956 Act it is stated that "the Minister may, in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation are not complied with ... where the applicant is married to a person who is an Irish citizen".
Amendment put and declared lost.
I move amendment No. 11:
In page 6, to delete lines 6 and 7.
This amendment seeks to remove an extraordinary provision. Paragraph (h) provides that where someone is seeking post-nuptial citizenship he or she must indicate that he or she “intends in good faith to continue to reside in the island of Ireland after naturalisation”. What we are saying is that if a non-national wishes to become a naturalised citizen he or she must indicate his or her intention to reside here forever. In other words, they will be incarcerated on the island while every other Irish citizen who wants to retire to Florida, the Caribbean or the Isle of Man can do so with no difficulty. Non-nationals will be obliged, when filling out their forms, to inform officials of the Department of Justice, Equality and Law Reform——
To convince them.
——that they intend to remain here for the remainder of their lives. That is nonsense. Whatever about considering the territorial imperative in respect of the two preceding matters we discussed, this makes no sense. I am not aware that this is a criterion of naturalisation law in other jurisdictions in these types of cases. I urge the Minister to consider deleting this provision.
The Minister may make a final contribution before we conclude our deliberations.
I am sure this matter will be discussed at length. I wish to refer to the 1956 and 1986 Acts. Both measures were brought forward by Deputy Shatter's party.
Things move on.
The world has changed.
It has not changed a whole lot since 1986.
It may not have changed in Cahirciveen.
The Select Committee adjourned at 6.30 p.m.