I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials.
Irish Nationality and Citizenship Bill 2004: Committee Stage.
Section 1 agreed to.
SECTION 2.
I am informed that amendment No. 1 in the name of Deputy Jim O'Keeffe is out of order in that it refers to deportation which is covered by the Immigration Act 1999. This Bill is concerned exclusively with determining, in accordance with law, the future acquisition of Irish nationality and citizenship as defined in Article 9.2 of the Constitution.
Amendment No. 1 not moved.
As amendments Nos. 19, 24, 25 and 28 are related to amendment Nos. 2, they will all be discussed together. Is that agreed? Agreed.
I move amendment No. 2:
In page 3, paragraph (a), between lines 16 and 17, to insert the following:
"‘Act of 1996' means the Refugee Act 1996;
‘Act of 2003' means the Immigration Act 2003;
‘Act of 2004' means the Immigration Act 2004;".
This is essentially a tidying up exercise to ensure the terms in the Irish Nationality and Citizenship Act 1956, when amended by this Bill, are defined in a uniform way. Amendment No. 2 inserts additional definitions in section 2 of the Bill for inclusion in section 2 of the 1956 Act. Amendments Nos. 19 and 28 have the effect of removing the definition of British citizen from the proposed section 6B of the 1956 Act to the proposed section 6A which is where the phrase actually appears. Amendments Nos. 24 and 25 are consequent on amendments resulting from amendment No. 2.
Have amendments Nos. 19 and 28 a similar effect?
Amendments Nos. 19 and 28 have the effect of moving the definition of British citizen from the proposed section 6B to section 6A which is where the phrase actually appears. It is included in the wrong section.
As the amendments are technical and intended to tidy up the process, I am prepared to agree to them
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
I tried to raise an issue by way of amendment which I will now raise in the context of the section, namely, the need for transparency in every action in regard to nationality, citizenship and immigration generally.
The Bill deals with nationality and citizenship only.
The same issue arises in regard to nationality and citizenship. As of now the system is an utter bureaucratic mesh with no transparency. Yesterday I saw a letter about a person who has been seeking citizenship since 1996, having spent all his school and college years in this country. He has been living here for the past ten years. His application which he renewed in recent months had been put on ice. In recent days he received a reply giving him his file number and stating the Department would be in contact with him in two years time. It appears that if we are to have a proper system of nationality and citizenship which fits into the concept of an integrated immigration policy — a broader issue — it is absolutely essential that it functions. Telling somebody who has renewed an earlier application for naturalisation and has been living in the country for the past 12 years that it will be dealt with in two years time is similar to telling him it will not be dealt with.
There is a need for a proper structure for dealing with nationality and citizenship law. There is also a need for clarity and transparency in the system. What we have is an opaque black hole into which people lodge applications for naturalisation and so on. We have no idea as to the standards with which he or she must comply, the guidelines or factors that will be taken into account or as to when the application will be dealt with. That is the reverse of a system based on natural justice.
Arising from this, I tabled an amendment that the Minister should publish the guidelines applied by the Department in determining whether to deport the non-national parents of an Irish born child. A book which had a major influence on me in my younger days was The Trial by Kafka which highlighted the case of a person facing trial before a court on charges of which he was unaware and before judges whom he did not know. The issues that arise from the Bill are utterly Kafkaesque. I wish to lay down a marker that there is a need for complete openness, transparency and accountability with proper standards and guidelines in an independent system of appeal in order that a file will not be passed from one desk to another in the Department. I am not criticising the staff in the Department. While it is a matter for the Minister to run his Department properly, let me put it bluntly: this is no way to run a Department.
What I am saying applies to many sections but I am saying it now because I tabled what I thought was a reasonable amendment to section 2 to ensure that within three months of the passing of the Bill there would be an obligation on the Minister to publish the guidelines applied by the Department in determining whether to deport the non-national parents of an Irish born child. In essence, I want to see guidelines on all aspects of naturalisation and citizenship which are operated in an open and transparent fashion.
I have a few brief points to make on the overall theme articulated by Deputy O'Keeffe. There must be something very wrong with a system under which more people succeed on appeal than on initial application. Will the Minister provide the figures? He alluded to the problem during his Second Stage contribution in which he said he would set himself the task of producing an immigration and residency Bill and that we were embarking on that debate. Let me refer him to a statement published in 2001 by his predecessor, Deputy O'Donoghue, who stated the intention was to provide a framework for ensuring asylum, immigration and citizenship policies responded to the needs of immigrants, asylum seekers and society and were in line with best international practice and standards. There was, therefore, in 2001 a specific objective to develop an immigration policy and bring forward comprehensive immigration legislation within a structured framework. We still have no such framework, legislation or policy.
Deputy O'Keeffe is right to create an opportunity to look at what we are doing in a broader context. Overall immigration and residency policy is in a sad state. We still refer back to the Aliens Act 1935. Anything we have done in recent years has been to deal with the perceived pressure of immigration and the increasing entry and exit of non-nationals but that is not a substitute for a policy. It is unfortunate that, having changed the Constitution, we are introducing nationality and citizenship legislation without having a policy framework or legislation in place governing immigration and residency. The Minister stated on Second Stage that he would redress this. His predecessor said he would do so three to four years ago but there has been no development since. This needs to be looked at. I hope the Minister will honour his commitments.
Section 2 is the definitions section. I am being invited, subject to the direction of the Chair, to be disorderly by discussing immigration and deportation policy.
As the matter must be discussed at some point, I thought it would be better to get it out of the way. I know it it is very important.
While I do not wish to be sucked into a discussion very far wide of the mark, I will make some general points.
Deputy O'Keeffe started off with the proposition that it was wrong that somebody had been told that his naturalisation application would not be dealt with until two years time. There are more than 600 public servants involved in my Department in the area of citizenship, naturalisation, immigration and asylum-seeking. The great majority, I am sorry to say, spend the greater part of their time dealing with the asylum-seeking issue. As a result of the legislative measures I have taken, there is a window of opportunity to redeploy resources within my Department in order that staff can concentrate on issues such as naturalisation, citizenship and issuing visas and get away from the significant workload of dealing with asylum applications.
When this Bill is enacted into law, the level of asylum-seeking will decline rapidly, even from the low level it has reached. It should be remembered that there were more than 12,000 applications for asylum at the height of the asylum-seeking wave. This has been reduced to between 3,000 and 4,000 applications annually. There is no doubt a significant proportion of asylum applications at the time were driven by a combination of factors: first, our citizenship and nationality laws; second, the simple difficulty the Department had in the early years of putting together systems and personnel to deal with the issue; third, the system in the Department at that point was very soft and open to manipulation. There was no curtailment of the number of applicants seeking judicial review. The combination of all these factors brought about a wave of asylum seeking in Ireland which was the second highest per capita in the European Union, this in a country which did not have a sophisticated or well developed immigration, naturalisation or control system.
We are now in a much better position. The number of asylum applications is now much lower and likely to decline much more rapidly in the near future due to a number of circumstances: first, we now have a system of prioritised treatment of asylum-seeking from countries of origin where there is reason to believe there is a high volume of unsubstantiated asylum applications; second, the draw of Irish citizenship by birth is now receding, and, third, the level of resources has turned the situation around in order that asylum seekers can expect to receive decisions both at first instance and on appeal in a matter of weeks. The State is not as vulnerable as it was to the abuse of asylum-seeking.
In response to the points raised by Deputy O'Keeffe, I am changing the system by reference to a number of things happening in my Department. I hope to bring forward interesting proposals in the near future about the organisation of the naturalisation and immigration service. Also in 2005 I will be introducing the general immigration and residence Bill. All of this will happen on my watch and the measures should be in place by the end of 2005.
I have tackled each and every issue by the appropriate response. While I am not referring to members of this committee, I have done so against considerable opposition and political obstruction to get a fair solution for the people. I am not diffident about saying every obstacle has been placed in my path and that people have done their level best to confuse asylum-seeking with immigration issues. They have done their level best to make it difficult to bring sanity to our nationality and citizenship law in the case of children born in Ireland. I want to bring our law into a workable form. I am confident that by the end of 2005 a different picture will emerge. The wave of asylum-seeking will have dramatically reduced. The numbers of staff dealing with it will be redeployed and a different administrative approach will be adopted to naturalisation and immigration issues. All of this will happen in the near future.
On the provisions of the Bill, Deputy O'Keeffe said, as a general principle, he wanted transparency. We have a simple law on who can and who cannot apply for Irish citizenship. While there is no great mystery about the matter, I will outline section 15 for the committee:
Upon receipt of an application for a certificate of naturalisation, the Minister may, [the following phrase is of crucial importance and it is not one from which I intend to budge] in his absolute discretion, grant the application, if satisfied that the applicant——
(a) (i) is of full age, or
(ii) is a minor born in the State;
(b) is of good character;
(c) has had 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;
(d) intends in good faith to continue to reside in the State after naturalisation; and
(e) has made, either before a Justice of the District Court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.
These are the grounds on which an application can be made. However, what is vested in me is absolute discretion. It is part of our constitutional arrangements that the Executive is the appropriate body, not the Legislature or the courts. This is the classical position in all modern democracies in determining entitlement to nationality. In the last analysis discretion is vested in the politically accountable members of the Executive for the decisions they make.
I reject Deputy O'Keeffe's disallowed amendment suggesting that my discretion should be reduced to a series of rules. Discretion must continue to be given. I must be in a position to distinguish between someone I suspect is a sympathiser with extremism and somebody who is not without having the matter decided by judges. I also need to be in a position in exercising discretion to make judgments on the true motivation of someone in seeking Irish citizenship. I need to determine whether it is to escape justice elsewhere or do something harmful to the interests of Ireland. These are matters the Minister must take into account.
I am making the point for Deputies that if the State vests in the Minister for Justice, Equality and Law Reform absolute discretion to be exercised on behalf of the Executive, it is because this is a usual provision internationally, not a freakish Irish approach to the issue. I reiterate that we have one of the most generous dispensations in respect of citizenship and naturalisation of any country in the western world. The constant chorus to the opposite effect that we are somehow mean, unyielding, negative and ungenerous in our approach is false. Members should go to France, Germany, Switzerland or Scandinavia and ask whether their systems of naturalisation are more liberal, either in theory or practice, than ours. The answer will be the same; ours is a generous system.
Given that people must effectively have five years residence in the State, it is astonishing that so many look to have this provision waived after two years. Some write in to state they used to live in Ireland and now live in England but want to become Irish citizens. Others write in to state that while they do not intend to continue to reside in the State, they might do so if given a job opportunity. Even though the criteria, as set out in section 15, are simple, people constantly seek to circumvent them in search for Irish citizenship.
In his disallowed amendment the Deputy asked me to surrender to a group of people a right of appeal against my decision.
I would prefer if we did not discuss the amendment.
The Minister is making a Second Stage speech.
I am not in the business of giving up the Government's sovereign right to decide who can come into the State to a group of people, effectively in the judicial domain, who are unaccountable and unelected. I will not go down that road.
The Minister is referring to the Human Rights Commission.
We should proceed with other amendments relevant to the Bill.
Among the Minister's friends in government, including previous holders of the office he now holds, I have seen the exercise of absolute discretion giving rise to the gravest suspicions as to its basis for which there has been no accountability. The Minister will understand my concern on the need for a better system. I have listened to his suggestion about guidelines. I am not tied to any particular system. I am merely saying we have had problems with the current system in the exercise of absolute discretion in very suspicious circumstances by the Minister's predecessors among his friends in government. I am talking about previous Fianna Fáil Ministers for Justice, Equality and Law Reform.
My amendment which was ruled out of order was related to the fact that people did not know the detail of the requirements. Without impinging on the discretion of the Minister, we should have a better system in order that people would know what was expected of them when making an application to the Department of Justice, Equality and Law Reform.
The Minister said procedures, mechanisms and systems were in place. However, there is no independent procedure. It all comes within——
We are talking about citizenship. It is not in order to talk about immigration.
Will the Minister consider——
While the Deputy may say what he wishes, I will not ask the Minister to come in again. If he wishes, he can answer on Report Stage.
Will the Minister not consider initiating an independent review of existing decision-making mechanisms for applications and appeals?
I will return with some interesting proposals that will be the subject of intense scrutiny by this committee.
I am sure they will enjoy its full support.
Subject to the Minister bearing in mind the absolute unfairness of a person being told he or she has to wait two years before a renewed application can be dealt with, I will not delay the committee further. I will return to this issue.
Question put and agreed to.
NEW SECTIONS.
As amendment No. 5 is related to amendment No. 3, they will be discussed together.
Mr. Murphy took the Chair.
I move amendment No. 3:
In page 4, before section 3, to insert the following new section:
3.—The Minister shall make provision for the giving of permission for the non-national parents of Irish born children to remain in the State where such children were born in or prior to February 2003.
This is an opportunity for the Minster to demonstrate statesmanship, generosity, practicality and all the other virtues we associate with him. On Second Stage all Opposition parties made a plea that the position of non-national parents of Irish born children prior to the decision of the Supreme Court be regularised. Deputy O'Keeffe has mentioned a case that has not been resolved after seven years while I am dealing with the case of a person who will have been an asylum seeker for nine years in January. He is the parent of an Irish born child and still does not know when there will be a decision on his case. Surely natural justice demands that people not be kept in limbo for so long. Any effective and meaningful system would have addressed this by now. I will give the Minister the details of the case later if he wants them.
All of the people in the pre-February 2003 category will soon have been waiting for at least two years. Cases are going through at a snail's pace and there is a backlog to before 2000. It is a cornerstone of the Minister's profession that justice delayed is justice denied. There is no justice in the processing of the cases. There should be a mechanism to fast-track all of these cases, even on the grounds the Minister has been operating since 2003.
Prior to February 2003 people were advised in both formal and informal fashion to move away from the asylum process and make an application on the basis of having an Irish born child. A specific scheme was established in the Department of Justice, Equality and Law Reform to deal with the non-national parents of Irish born children. That scheme continued until March 2003 when letters were sent out advising people to revert to the asylum process. In law, there is a principle of reasonable expectation. There cannot be an overnight, unilateral move from a structured scheme to a totally different scenario. We cannot allow a situation where every parent of an Irish born child had a reasonable expectation they would, under the perceived constitutional arrangements, be allowed residency in Ireland, with refugee status for the parents and citizenship for the Irish born child.
This issue has implications for the future. Children have put down roots in Ireland and are going to school. Some of their parents are working, learning the language or studying. There are, however, broad implications in terms of what it means to deport an Irish child. In the strict letter of the law, that is not what is happening, the parents are being deported and the children must go with them. When the children leave with the parents, they are returning to a country from which the parents sought escape from poverty and persecution.
There is a question mark over the rights of the child that will be denied once the parents are deported that is not addressed in the Supreme Court decision — the rights of the child to full parentage, proper education, resources, nourishment and health. These have major implications that are not dealt with by the Supreme Court decision and there are concomitant factors. When the child reaches 18 years, he or she will be entitled to come back to Ireland and take the State to task before the courts for the denial of his or her birthright. That is what the State is doing when we deport the parents and the children must go with them to a country in an abysmal state.
Citizenship will continue to be bestowed by birthright until we pass the Bill. In cases previous to February 2003 there was a reasonable expectation and children in this category were not deported. The system changed after 2003 when the Supreme Court clarified a particular area of deportation law and the integrity of the asylum process but it has not clarified the integrity of the rights of the children in question which remain to be clarified. If included in the Bill, the provision in my amendment, on which Deputy Jim O'Keeffe will follow up in a moment, would alleviate a great deal of suffering, release many from a stressful existence, get rid of the growing backlog and deal with the difficulties which may be encountered down the road in practical terms. The opportunity exists now. We have held the referendum and will enact legislation and have a new dispensation in the context of citizenship. Whatever our disagreements on the referendum and its basis, we should be able to acknowledge that the circumstances which developed prior to February 2003 should be regularised and addressed collectively.
If a non-national parent has committed a crime while in the State, it is another matter. In the normal run of things where there is verification of the bona fides of a parent, the situation of a non-national parent of an Irish child should be regularised given that everything will change when the legislation before us is enacted. It is time to deal with the matter once and for all by creating an amnesty for the category of parent in question.
The State faces a serious test. Sometimes, I hear people quote the 1916 Proclamation and talk about cherishing equally all the children of the nation. We face the test of whether we are prepared to cherish Irish children equally. The minimum one can do for an Irish child is to refrain from throwing him or her out of the country. While the Minister will respond to say he cannot and will not make an order to deport an Irish child, which is correct on the face of it, an 18-month old child is not capable of staying in the country on its own. If a child's parents are deported, the child must leave with them or be separated from them and left here with someone else. The effect of deporting a child's parents will in many instances be the deportation of the child.
Something tells me that this is terribly wrong. It does not matter whether one classifies oneself as a liberal, conservative or, in the modern approach a neo-conservative.
Or a socialist.
Indeed, my thanks to Deputy Costello. The issue is not where one stands ideologically. We are talking about a finite number of Irish children including babies and infants. I am still not clear as to the exact number as there is more than one category. The main categories are those children born in Ireland before the referendum on 11 June 2004 and, very importantly, those who were born in Ireland prior to the Supreme Court decision in the L and O case in January 2003. The families of those children are largely in a form of limbo. Most are here though some have left voluntarily in accordance with the free choice available to any family. I do not have any issue with that as people should be free to leave if they want.
I understand from a recent reply to a parliamentary question that there have been 37 deportations. Clearly, there is no amnesty in operation. While the number is finite, I have been quoted a figure of 9,000 and 16,000 was mentioned during the referendum. I would like to know exactly what we are talking about. The Minister may not be aware of the exact figure as siblings may also need to be taken into account. There may be two or three children in a family. It would be helpful in debating this matter if we were provided with the best estimate the Minister can provide. I accept that the figure may have to represent a guesstimate. I have tabled parliamentary questions to ascertain the figure purely to get a grip on this issue.
Whatever about retaining a right of control on immigration and sovereignty and absolute discretion on citizenship, we are talking about Irish children. While we have changed the law, we have not changed their Irishness. They were Irish when they were born and they will be Irish until they die. On that basis we must formulate a resolution on this issue. The resolution I have proposed is an amnesty for non-national parents of Irish-born children. In my amendment No. 5, I will move that the parents of children born in Ireland before 24 January 2003 shall be deemed to be at all times lawfully present in the State. The proposal represents one vehicle for dealing with the issue, but I am open to other suggestions.
Committee Stage is about being prepared to discuss the issues to determine a solution. It is not a question of winning on a particular point, it is a question of what is the right and proper solution for a reasonably prosperous State which had a particular system of law in operation until recently. We must find a solution, especially for the people who came here in the legitimate expectation that the law was as everybody thought it to be prior to January 2003. We should delay no longer in confronting the issue. It would be altogether wrong to leave the Irish citizens and their parents in limbo any longer. Committee Stage of the Irish Nationality and Citizenship Bill is the forum for debating the matter.
I propose an amnesty for the non-national parents of Irish children. To provide an amnesty would open no flood gates but would deal with an issue which faces us. The numbers are finite and are not enormous. The people in question are in the country and we should regularise their position to end circumstances in which people are here in limbo with no opportunity to work. Most of these people would prefer to be properly resident and to work like anyone else. That is my proposal.
I agree with the thrust of the two amendments. I go further to suggest that at the very least we should provide permission to remain to non-national parents of Irish-born children where such children were born prior to the enactment of this Bill when effect will be given to the constitutional change.
All the courts did in the L and O case was make a ruling and pass it at referendum but the Bill has not been enacted. The cut-off date of February 2003 is not the correct one, nor 24 January 2003 as the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív has said. We need to go beyond that and recognise that the anomaly will continue and that the proper cut-off date is the date of enactment of the Bill. It gives recognition to the status of these parents and the need for Ireland to comply with the Chen judgment. Irish citizens are entitled to the care and support of their parents in Ireland if they so wish. Obviously many of these children are not of an age where they tell us whether they so wish. When considering this issue of the cut-off date and whether it involves 9, 10, 15, 30, 40,000 people or more it is natural justice to consider, as I have suggested, the later date rather than an earlier date. One way or the other the legislation should give recognition to those parents of children who comply with the citizenship regulations or legislation as it currently pertains rather than as the Minister would like it to pertain. Until the legislation is enacted those parents of Irish citizens should be entitled to remain in Ireland and their position should be regularised as quickly as possible.
A proper system to deal with applications for naturalisation should be put in place rather than the present system which involves a three year delay. That is scandalous not only for the families being considered but for those who are trying to gain Irish citizenship or avail of the naturalisation process. I am dealing with the case of a mother who has been is in Ireland for 40 years. Last year she applied for naturalisation. After 40 years and having reared all her children in Ireland, she is trying to gain Irish citizenship and has to wait three years.
While I agree with the thrust of the amendments in the names of Deputies Costello and O'Keeffe the date of coming into effect should be changed. All those who are parents of children born in Ireland before the enactment of this Bill shall be deemed at all times to be lawfully present in the State. That is the effect of the amendment.
The issues the Deputies have raised are complex and will be addressed but not on the basis of simplistic approaches. Dare I say, this is an easy one on which to take the moral high ground and to ignore some realities. If a family of two people and four children come to Ireland and the wife is pregnant and has a child in Ireland, and they have no right to be here other than the happenstance of the birth of their child, there is no moral case at all if they have travelled, say, from the United Kingdom to avail of our law as to why they should be dealt with in a dramatically different way from a similar family who has no child born in Ireland. There is no moral case whatsoever. Two parents who have three children may be residing in the United Kingdom as temporary visitors and the mother comes to Ireland where she has her last child. To say that family suddenly gets a moral right, to use Deputy O'Keeffe's phrase, to come and live in Ireland in its entirety is rubbish, with the greatest of respect. It is not a reasonable basis on which to deal with that situation.
I come across cases every day in the discharge of my functions as Minister for Justice, Equality and Law Reform where people who do not have an Irish born child have a far more reasonable moral entitlement to remain in Ireland given their family, domestic or health circumstances than the family I have just imagined, which could have come from Britain solely for the purpose of availing of Irish citizenship in respect of one of three or four children. I cannot do this on a simple blanket basis and it would make a nonsense of our law to do it that way. I am making that point clear. Will Deputies tell me hand on heart that family should be allowed move to Ireland and reside here because, having resided three years in Manchester, the mother came to Belfast or Dublin, had a baby and went back and lived with her family? That is not common sense and it shows how artificial putting down a rule on all of this can be. I am not saying it is not the case because it is obviously the case, that the longer a functional family is in Ireland with the children going to school, the children have known no society other than in Ireland, that there is not a huge accumulation of merit for the proposition that family should be allowed remain in Ireland. However, between those two examples, there is a huge variety of situations and, with respect to Deputy O'Keeffe, it is not good enough to posture on the moral issue, saying that there is something in principle immoral in saying to that family in Manchester that just because it had a child in Belfast does not mean the family can live in Ireland, even though it was not entitled to remain in the European Union. I will not go down that road of providing a blanket licence to come and live in Ireland. If I create those circumstances, does it mean the husband must of right come from wherever he is in the world and reside with that child in Ireland and bring the siblings of that child to Ireland, from wherever they live in the world? We have to get a grip on ourselves on this issue. It is not susceptible of a simple formulation in a statute of this kind.
It is easy for me to take refuge in one example just as it is easy for the Deputies opposite to take refuge in other examples. What we must have is a common sense law that will distinguish on the merits, up to a point, between people's entitlements, based on the time they have been here, their circumstances, their characters and a whole series of other issues as to whether the State will allow them to stay here in view of past circumstances and whether the State will disallow them, whatever the technicalities, indicating that they have no merits, and may not come to establish a family in Ireland. Those are two opposite poles of a spectrum of very real family circumstances that could exist.
I am not conjuring up imagined cases. It is undoubtedly the case that people residing in the United Kingdom have come to Ireland to give one of a number of children Irish citizenship and, as a consequence, EU citizenship. It does not follow for one minute, either morally or in common sense, that I should say the whole family can come to Ireland without having any connection to the country. Deputies O'Keeffe, Ó Snodaigh and Costello have outlined a different set of circumstances under which families have, de facto, lived in Ireland such that they are now part of the community. Their status will be addressed. There is a variety of circumstances. A simple formulation of the kind offered by either Deputy is not up to the task.
I am not evading my responsibilities. Deputy Costello has stated this legislation presents me with an opportunity to be statesmanlike. Regardless of whether it is statesmanlike to address this issue, common sense ordains that Ireland must face up to it and make common-sense decisions. Such decisions will bear the mark of common sense and not be based on artificial and wholly arbitrary rules that would confer on people from all corners of the world the right to come to the European Union and found families in Ireland based on the fact that one of their children would be born in Ireland. This applies as much to a family from Nigeria, the mother of which gives birth to three children in Ireland, as to a visiting American professor lecturing in UCD whose wife has one child in Ireland while resident here and who has four or five teenage children at home in America. The latter family has no right to say it is moving from Cleveland to Dublin because its child was born in Ireland and that it has a right to do so under law. We will not allow for this, regardless of whether the child was born before the date of the Supreme Court decision.
We will have to approach the problem in a different way. I will approach it in a reasonable and common-sense way. It will not be based on arbitrary rules that would create chaos and fail to distinguish between wholly different circumstances. My priority is to pass this legislation. As soon as that is done, I will turn my attention to arriving at a pragmatic, decent, common-sense solution to the issues raised by the Deputies. I will not hint at its elements, except to say I know for a fact that if I were to give effect to my solution on a blanket basis, one way or the other, I would create chaos and totally artificial outcomes that would be in nobody's interests. We would all be asking why we ever did so and saying it was a foolish mistake.
If the wife of an individual of very bad character residing somewhere else in the world — it does not matter where — has that individual's child in Ireland, I will not say the whole family can move to Ireland. Such a proposition would not make sense or have any moral force behind it. However, I recognise the obvious moral force behind addressing in a decent, pragmatic and common-sense way the circumstances of a family with Irish born children no longer engaged in the asylum process given that that family is still living in the country and the children are going to school here. I intend to adopt this approach. I will not articulate the elements of the package I intend to introduce other than to say I will bring it forward when I have a clear understanding that, as and from the passage of this Bill, children born in Ireland whose parents have no connection with the country do not have an automatic entitlement to Irish citizenship.
Deputy Ó Snodaigh put his finger on the point I am making. He questioned why the date on which the L and O decision was handed down was so sacrosanct. It could easily be the case that since 2003 two children have been born to a family which had no other children and who are both Irish citizens. Compare this with my example of a woman with a family of three to seven children who gives birth to only one child in Ireland to obtain Irish citizenship. To say the L and O decision marks the cut-off date and that those living in the country prior to that date have merits while those who entered after it do not is very dubious.
I have sympathy for the views that lie behind the amendments because they suggest to me we must collectively face up in a decent, common-sense and pragmatic way to this set of problems. I have sympathy for the spirit in which they are offered. Whatever I do must have a common-sense quality to it. It will not be arbitrary. I make no apology for the fact that my first priority is to make it very clear that, irrespective of the 2003 cut-off date mentioned by Deputy Ó Snodaigh, the date this Bill passes into law will be the cut-off date because thereafter there will be no argument about Irish citizenship in respect of those who have no significant connection with Ireland. Having raised the issue, I ask Deputies to allow this legislation to pass into law on the firm understanding that I will approach the issue on the basis of pragmatism, decency and common sense.
As Deputies know, any woman living in the United Kingdom can come to Ireland in the last days of her pregnancy and have her child here and thus obtain citizenship. Anybody who has three or four children living in the United Kingdom, France, Germany or elsewhere can do so. The probability of this happening in respect of other countries is a matter of conjecture but I have no doubt that if I made an announcement today to satisfy Deputies regarding a person born either before this Bill is passed or before another specified date, I would produce results that would be very difficult to defend.
Even if the 2003 cut-off date mentioned were the cut-off date, cases would arise in which people would have an entitlement under the amendment that would be far less meritorious than others in which there would be no such entitlement. The cases that would arise would be such that it would be very difficult for me to go before the people on a common-sense basis and say it was fair one person could remain in Ireland while another family must go; that one person residing in Ireland would be allowed to bring all her family into the country while another must leave the State.
All I can say to the Deputies opposite is that I am not unaware of the need for us to address this issue collectively. The one absolute precondition for doing so is that I am not confronted with people saying here is yet another Irish citizen who was born in November or December 2004 and how can I possibly say "No" to that family? There must be certainty at some stage. Our duty as legislators is to enact the legislation and examine in a common-sense and pragmatic way the situation of those in society who are entitled to a bit of decency in how they are dealt with.
I have listened to the Minister but we need to explore the issue further. It would be premature to accept that the Minister will deal with the matter in a pragmatic, decent and common-sense way. The people to whom we are referring have been in limbo since the L and O case almost two years ago. The figure quoted was 37 deportations of non-national parents of Irish children. If we are talking about figures which are in the thousands, effectively there is little or no deportation of this category of people. Even though the Minister says the floodgates might open if he gives a collective response on the matter, nevertheless, as the situation remains at present, nothing is happening and there is just a backlog.
Following the L and O case in 2003, the reason for the cut-off point is to avoid opening up a vast vista. As Deputy Ó Snodaigh said, there is a strong argument to be made that prior to the passage of this Bill, we would have dealt with citizenship on the basis of birthright. This is how it will be until the legislation is passed. As the Minister said, following the L and O case, it became more clear-cut that the integrity of the asylum process should be addressed. Up to that point, a scheme was in place whereby everyone was directed to apply for citizenship by virtue of being a parent of an Irish-born child. Once the application was made, people obtained residency rights which allowed them to remain in the country unless there were legitimate reasons for not allowing this to happen. Whether the Minister likes it or not, he must acknowledge that a system was in operation — we can argue how structured and formal it was — whereby non-national parents were channelled into a scheme which allowed them to change their applications, and instead of becoming asylum applicants, they became parents of Irish-born children or Irish citizens. This gives an indication of what was happening from that point. What has happened subsequently can be discussed, which might require another amendment. The earlier point needs to be addressed in a pragmatic and common-sense fashion without opening the floodgates.
On the issue of floodgates, one of the problems which has bedevilled the debate up to now is the absence of realistic numbers. We have not been given specific numbers on anything. We do not know the number of people who presented at maternity hospitals and then obtained passports for their children — the passport tourism to which the Minister referred. We do not know the number of pre-L and O cases. What are the numbers in this category? If we know the numbers, we can talk about the matter in a realistic fashion. We are not aware of the numbers who may have travelled from Britain, returned there and who might subsequently seek to avail of the pre-2003 conditions. These people may have gone to Europe. We are members of the European Union, which opens up ease of residence in this country. We are not aware of how many people were processed through the system since the L and O case or how many people have been dealt with. What is obvious is that there is a backlog. We cannot agree to the Minister's suggestion to leave matters with him when the legislation is passed because he will deal with the issue in a pragmatic, common-sense and decent fashion. We must face up to the issue. It is almost two years since the L and O case and nothing has happened.
The premise of the Minister's argument is flawed. Page two of the explanatory memorandum refers to a load of retrospective rubbish, where the Irish and British Governments put together the following statement:
In April 2004, the two Governments issued a joint interpretative declaration which stated [this is the statement issued prior to the referendum] that it was not their intention in making the [British-Irish] Agreement that it should impose on either Government any obligation to confer nationality or citizenship on persons born in any part of the island of Ireland whose parents do not have a sufficient connection with the island of Ireland.
This was the specific intention of the two Governments. It certainly was the intention of our Government because in a series of letters between the then leader of the Labour Party, Deputy Quinn, and the Taoiseach, Deputy Bertie Ahern, that was specifically stated by the present Taoiseach.
Deputy Ardagh took the Chair.
It was an obligation under international law.
No. In the debate on the referendum, I put on record the text of the letters. It had nothing to do with an obligation under international law. The Taoiseach said categorically that whatever the implications of giving citizenship by birthright in the context of the Good Friday Agreement, the Agreement was worth it and we were going into it with our eyes open. The Minister and his cohorts in Government, including the Taoiseach, sat down with the British Government and tried to re-interpret what was agreed. This was to try to justify the referendum retrospectively because they did not intend, arising out of the Good Friday Agreement, that people would have rights of citizenship by birth. We are adjusting the situation to what was intended all along. There is a series of communication between the then leader of the Labour Party, who pointed out the difference between the northern situation and the Irish situation, and the Taoiseach of the day, who, to a considerable extent, contributed to the Good Friday negotiations. He put on record his interpretation that the Good Friday Agreement would mean citizenship by birthright throughout the island.
That is the context in which these issues have taken place. In 1998, when the constitutional amendment was introduced, the law of the land under the 1956 Citizenship Act became the constitutional prerogative. It was not in the Constitution prior to that. We strengthened the situation. Now we are changing it again.
We are in danger of rehashing the whole referendum. The people have voted. I am trying to implement their decision. Having the argument that was lost a few months ago does not advance matters.
Perhaps the Deputy would conclude. I know this has been well aired. I am sorry I was unable to be here. However, having spent 50 minutes on this amendment, I would appreciate it if we could come to finality on it.
My remarks were an attempt to show that everything we have been discussing has a wider context and that the Government is now denying this wider context. The Minister says it would be far less meritorious to give citizenship to some of these parents than it would be to give it to others who have a much better case. That may be the case. People try from different standpoints. The issue here is that there is a particular group of people who can be easily identified. The Minister says it is not easy to do it. However, if the Minister wishes to carry his argument he must quote specific figures. He must give us the statistics he has not yet supplied. What are the pre-2003 figures? What are the figures for the period since the L and O case in 2003? What are the implications for this country of the approach being suggested?
We cannot leave cases hanging indefinitely until the Minister comes up with a scheme. There has been adequate opportunity after two years to come up with a regulation process or some way of fast-tracking cases. The Minister is again putting it on the long finger. He is asking us to leave it with him, not to push him on it and he will, in his own good time, produce a solution. That will not necessarily happen, and the Minister will not be here for ever. We would like him to take some action on this.
The Minister is asking us to take a leap in the dark and rely on him. He has a new mantra. It is that he will be pragmatic, that he will be full of common sense, and that he will be decent. I do not deny that some of those elements are sometimes present in the Minister. He is pragmatic — he went into government with Fianna Fáil, which is as pragmatic as he could get. Sometimes he exhibits common sense, although I doubt his common sense at times when I see him trying to defend untenable positions. There is a decent streak in the Minister. Why would there not be, given that he came from the Fine Gael stable? I accept those elements are there. The Minister wants us to rely on that mix, that cocktail, to find a solution to the problem, but he will not give us a hint regarding the elements of it. The Minister is asking us to put an awful lot of faith in him as an individual.
I do not deny the complexity of the problem. There are three levels to the problem. The first is the pre-L and O families who came here with a legitimate expectation of what the law was at the time. The second element consists of those who came between the Supreme Court decision in January 2003 and 11 June. They are a different category, but they are still families seeking Irish citizenship. The third category, the least meritorious in terms of legitimate expectation, are the families of babies born since 11 June last.
I accept there are different layers of expectation and different layers of moral entitlement. I do not underestimate the complexity of the matter. I put forward the proposal, with Deputy Costello, that we should have an amnesty for the non-national parents of Irish citizens. That is the very least we could do. What numbers are we talking about? I got no response to that question on Second Stage. The Minister has given us no details today. I tabled four questions to the Taoiseach today and four questions to the Minister, and I hope, as a parliamentary representative and Fine Gael spokesperson on Justice, those questions will be fully replied to and that after today I will have the figures. The Minister could give us the numbers today if he has them.
How could I have them?
The Minister could have reasonable estimates. I will not hold him to account if the figures are not totally accurate, but there should be reasonable estimates available.
There are, pre-2003, approximately 11,000 cases of which the State is aware where children born to non-nationals in Ireland became Irish citizens. We have no idea——
How many babies?
It is 11,000 parents. I am not in a position to say how many of the families are single-parent families and how many are two-parent families. Neither can I say how many disappeared from the State clutching their passports. I could not possibly hazard a guess as to how many people were born in Belfast or in Northern Ireland during that period. I have no idea of the number of internal migrants or non-EEA nationals within the United Kingdom. I can give no figures.
If the Deputy wants ballpark figures, we are talking about, at a maximum, 11,000 parents pre the L and O case and, in the interval — this is very sketchy — 5,000 or 6,000 people. At the maximum we are talking about approximately 16,000 or 17,000 parents with one or more children. We could be talking now about a cohort of people, to use that phrase more accurately than it was used a moment ago, comprising approximately 25,000 people. That should be borne in mind by the people who bleated on and on during the referendum campaign that I was exaggerating a phenomenon in which only a handful of cases arose every month. My best estimate is that approximately 25,000 will be affected in one way or another by whatever I do.
I emphasise that regarding those 25,000 there is the issue of how many have siblings abroad. It could be a huge number. I have no idea whether a woman who came to Ireland from, say, Bucharest or Abuja has quite an elaborate family in Romania or Nigeria, respectively, a spouse and three or four other children who, if I gave her the right to reside in Ireland or Irish citizenship, would be entitled to join her here in Ireland. The figure of 25,000 could rise to 35,000. That could be an overestimation; I have no idea. The Deputy put down questions and they will be answered this afternoon. I have given him ballpark figures and he can challenge them if he likes. I cannot stand over them mathematically, but they are not wildly improbable.
At least we are now getting to the root of the problem and getting some idea of the extent of the situation. It is helpful that we should be at that point even if the Minister is unable to supply exact figures. I understand why he cannot supply such figures because it is possible that some people have left without any record of their departure. I expected the information to be more accurate but, for the first time since this debate began, we have the Minister's "guesstimates" and that is helpful.
I am not here to bleat about this issue. I am doing my job as an Opposition spokesman in trying to find the best solution to a problem that exists. We must find a solution to the situation of this cohort of Irish children. The Minister, however, is talking about the parents of these children, whether there are one or two parents. He is also raising what constitutes an extra dimension, the idea of family reconciliation, which is an aspect of immigration philosophy in general. There may be large families of siblings in other parts of the world. Our debate would have been more rational and reasonable if we had access to all the facts available. We could then have formulated some proposals to deal with the situation.
Is Deputy O'Keeffe suggesting that he would not have been able to work out the figures I have given, based on what he has read in the newspapers in the past few months?
Since I first entered Parliament, I have operated on the expectation that facts will be put before the House by the Minister of the day. I then proceed to check those facts as best I can. We cannot operate on the basis of speculation in the newspapers.
At least we now have the Minister's "guesstimates" and we can proceed from there. However, the Minister steadfastly refuses to give any indication, apart from broad concepts of pragmatism, decency and common sense, of how he will deal with the problem. He went so far as to say that he will not give the least hint of the elements of his approach. Surely the Minister understands the legitimate frustration of Opposition Members, all of whom try to produce constructive answers to problems. This has always been my approach even if it has required knocking the Minister down a peg or two. I am not interested in making politics out of this issue. I would like to be involved in finding a solution.
I appreciate that and acknowledge that Deputy O'Keeffe does not consider the issue in a party political way. He has already contended that my previous membership of Fine Gael accounts for my decency and that my pragmatism is indicated by my association with Fianna Fáil.
That is overstating fact. I understand the Chairman's frustration in wishing to move on with the committee's business. This issue will not be resolved here but I am not entirely happy that we should have to take a leap in the dark in giving the Minister full arbitrary or other discretion in this issue.
I disagree with Deputy O'Keeffe that there are three different layers. Until this legislation is enacted, there is a single layer. Before then, there would be a good legal case in arguing that a person had been discriminated against on the basis of the dates suggested by the other Deputies or by the cut-off date of a referendum. There is a finite number involved and we could have done better than ball-park figures. If birth certificates and hospital statistics both here and in the Six Counties had been examined, more accurate figures could have been calculated.
I remind the Minister of what he said when we first met him on the issue of the referendum. He stated that if he managed to get the referendum passed, he would look more favourably on the situation of non-national parents of Irish citizens. However, we are now being asked to wait another while and there is still no deadline in this regard.
Protracted discussion extends this delay.
That is my prerogative. We still do not know how the Minister will deal more favourably with the people in question. We are not arguing that an acceptance of this amendment should mean that other well-deserving cases are excluded. It is not an either-or situation. This is a specific, complex issue which must be addressed. There is a legitimate cut-off date and it should be dealt with in this legislation. The issue will then be over and done with. This is not a simplistic approach. A simplistic approach would involve ignoring the issue for another while, kicking it to touch, or continuing to deal with it at the current rate. If we are talking about some 11,000 parents, we still could be dealing with their outstanding cases and the issue of these citizen children for a number of years to come. An amendment allows us to finalise the issue and to move on with speeding up the process of naturalisation, changing our immigration laws and tackling those other issues on which the Minister has promised legislation.
We must deal with this issue in the manner in which I have suggested but we must also bear in mind that Irish people have availed of this type of citizenship legislation in other countries and used it to their benefit. There must be clarity on the issue. I understand the Minister' point that some people might take disadvantage if he were to make an announcement regarding a specific number. I do not believe he is going to open the floodgates in the coming weeks, however. I acknowledge that the Minister wants to deal with this as a matter of urgency but I would have preferred if more time had been allowed. If this is not possible and if we get through Committee Stage, the Minister will put pressure on the Whips to deal with the legislation on Report Stage. We are talking about a matter of weeks. There is a finite number of cases and an amendment should be accepted whereby the non-national parents of children born before the enactment of this legislation shall be deemed to be, at all times, lawfully present in the State.
Before the Minister makes his concluding remarks, Deputy Costello wishes to make a brief final contribution.
I am somewhat alarmed that the Minister has been able to give us only vague "guesstimates". There are no concrete figures given with regard to the situation either before or after 2003. The Minister might clarify whether his Department has attempted to secure the figures from each of the maternity services, whether it has checked birth certificates and passports, and whether the information compiled for those people who have submitted asylum application included enquiries as to the existence of other family members in their home countries.
A similar exercise could be undertaken for Northern Ireland. It appears no exercise has been undertaken. Since the work has not been done to date, my concern is that the Minister does not have and will not have figures in the foreseeable future. As Deputy O'Keeffe said, we are taking a leap into the dark by expecting the Minister to act. How is he to act, according to his own argument, unless he has the information? He is telling us he will not act in a peremptory fashion because he does not have it. He says he will reflect on the matter and come up with a common-sense conclusion. However, he does not appear to have any information on which to act. At least, he is not prepared to disclose any to the committee.
We are talking about Irish citizens who must be granted the rights of citizenship. The Minister must consider the possible pitfalls. Nevertheless, we are dealing with Irish citizens and their entitlements.
I cannot produce figures of the kind being sought by the Deputies. I could send the 600 civil servants who are dealing with the naturalisation processes to go through the records line by line and look for every name which does not look typically Irish and then ask them to scratch their heads and decide whether these circumstances apply to each of those names. For example, should the family of a nurse from the Philippines who comes to Ireland and has a child here be allowed to come to Ireland from the Philippines? I have cited the example of an American woman who has come to Ireland with her husband. Am I to look at such a person, wonder why she had a child here and what it all adds up to? I cannot do this. There is no force on earth which could give accurate figures in respect of such cases. I do not know whether a Belgian, French, Canadian or Australian woman who gives birth in an Irish hospital has the notion of citizenship or of applying to remain in Ireland remotely in her mind. I cannot know if she is still in Ireland. She might have gone away.
On that basis, how can we have any idea of anything?
Whatever common-sense solution is found will have to be based on people asking to avail of that solution, not on me ordaining, by some decree, that the solution applies to a list of people. I could not in those circumstances know who they are.
In the case of a single mother in Ireland, how do I know who the father of the child is, be he in Ireland or somewhere else? All sorts of questions must be asked in relation to this. This cannot be solved by a group of public servants dropping everything else and working out what the position is. In many cases they have no idea who the fathers of children born in Ireland are.
Question put: "That the new section be there inserted."
The Committee divided: Tá, 5; Níl, 7.
Tá
- Costello, Joe.
- McGrath, Finian.
- Moynihan-Cronin, Breeda.
- Murphy, Gerard.
- O’Keeffe, Jim.
Níl
- Ardagh, Sean.
- Hoctor, Máire.
- McDowell, Michael.
- O’Connor, Charlie.
- O’Donovan, Denis.
- Ó Fearghaíl, Seán.
- Power, Peter.
Question declared lost.
I move amendment No. 4:
In page 4, before section 3, to insert the following new section:
3.—The Minister shall make regulations for the application to non-marital partners (as defined by such regulations) with such modifications as are in the opinion of the Minister appropriate of such provisions of nationality and citizenship law as relate to spouses.".
There is no reference to partners in the legislation — there does not seem to be in most legislation — but there are references to spouses. With the new emphasis on partners — even the Taoiseach is getting in on the act — whether they be long-term or life-long partners of whatever sexual orientation, there is a new recognition that their status should be recognised and given some legal standing. That is why I am asking the Minister to take cognisance of this and draw up regulations accordingly governing application to non-marital partners.
Unlike the usual quality of Labour Party amendments, this one is dubious from a drafting viewpoint in terms of the latitude it proposes to give to the Minister. It would actually give the Minister the right to define what is meant by it and then to define how it would take effect.
The Minister's powers would be limited.
Flattered though I am that the Labour Party would place so much trust in me on this issue, were I tendering the amendment, the Attorney General would be the first to say there was something wrong. If I were to table a Government amendment in the same terms, I would be roundly and properly criticised for attempting to arrogate to myself a wide and undefined power to decide the rules for applying the provisions of the 1956 Act to non-marital partners. I do not think the Deputy would want me to do this. If there was an issue as to whether non-marital partners should be dealt with on the same basis as married persons under citizenship law — I can see that in some contexts there is such an issue — we would need to put a lot more thought into any approach we were going to adopt to deal with it.
If I were to apply post-nuptial citizenship to persons who are not married, there would have to be some triggering event or ceremony, such as the validation of a civil partnership. Leaving aside the question of same-sex unions for the moment, if "partners" were defined as constituting the persons in a heterosexual relationship, am I to be given some discretion to say that partners who have been co-habiting for two years are to be given the same rights as a married couple to post-nuptial citizenship? In most cases, heterosexual couples have made the choice not to marry. Are they to be accorded the same rights as partners who have chosen to marry, especially in a context where our current law gives married couples rights to post-nuptial citizenship? Members may dismiss this as fanciful but they should see some of the applications I receive. I do not like to talk about individual cases but there are people who meet somebody on holiday and ask for that person to be allowed come to Ireland as their spouse.
Love is blind.
The extraordinary cases are those of love without any sight at all. I have been asked to grant citizenship for people's pen-friends. People who have never laid eyes on the object of their affections have sometimes written to me to request visas and citizenship for that person. We should not make light of people's preoccupation and fancies but what people sometimes ask of me on that front is verging on the bizarre. I am talking here of people who are seeking entry for another person into the State on the basis of friendship or partnership.
If the law nationally and internationally develops to the point where civil partnerships based on formalised dependence are recognised, I have no doubt that visa entitlements will have to be amended, and perhaps some aspect of citizenship, to reflect that reality. It does not follow, however, that I can accept at this time an amendment of the type suggested by Deputy Costello, which is a licence to do anything I like in this area. The issue now coming into focus is whether we should recognise civil partnerships that are not marital. There is much thinking to be done on this subject. The Archbishop of Dublin asked today whether there has to be a sexual sub-strata to such relationships at all? Can two people who are good friends confer on each other civil partnership rights with regard to their home, for example, or next-of-kin and pension rights? The courts are considering some of these issues and I do not wish to express views about them.
That would be dangerous.
I have never crossed that line. There is no doubt that these are issues of profound moment. Marriage is a rule-of-thumb exercise. We do not ask people in their 60s if they have any prospect of having children. We do not ask people who get married if they are doing so purely for love. People get married and that is it, we do not generally look behind the certificate at all. For the purpose of immigration law, however, we do occasionally look behind what are called "marriages of convenience" to ascertain whether such a marriage is genuine or an attempt to circumvent immigration law. Ireland is not unique in this, it happens internationally.
I remind Deputies that I have granted residence rights in the past to persons on the basis of same-sex unions. I should say "relationships" rather than "unions" because no same-sex unions of a legal kind are currently recognised. I am not taking refuge in pleading points or drafting points. I am saying that if Irish society proposes to confer certain privileges on certain relationships among unmarried people, we must carefully think through our approach on a case-by-case basis. Most gay people to whom I have spoken about civil partnerships or the recognition of same-sex unions have not wanted such unions to be equated with marriage. They do not want to be in a situation where the constitutional provisions such as the stipulation that couples must live apart for four years before divorcing apply. They do not want necessarily to create the same obligation with regard to a home that they might share at some stage during their relationship. For example, if the Family Home Protection Act 1976 were to apply to the home shared by two gay partners by virtue of their co-habitation, there would be certain implications. If they shared a house having signed some type of civil partnership agreement, the question would arise as to whether they were entitled to contract out of that protection. Spouses are not allowed to do so, except in limited circumstances.
There are many profound questions to be considered and I am grateful to Deputy Costello for raising the issue in general terms. However, it is clear that I cannot accept the amendment in these circumstances. It would give me a licence to make up the law in a totally subjective way. The irony is that a few moments hence, I was being criticised for saying "trust me". This amendment represents a charter proclaiming that I am trusted and can do whatever I like in this area. I accept the spirit of the amendment in the sense that if we go down the road of recognising non-marital unions or partnerships, there will undoubtedly be an immigration and citizenship dimension to it. It is not something we can formulate on the back of a beer mat here this afternoon. It is an issue that must be considered carefully.
Marriage is an internationally recognised institution. Whatever about changes in attitudes, at least it is possible to say under the law of nearly every state with which we have dealings that a couple is or is not married. It is virtually impossible in nearly every state in the world to say whether a same-sex relationship has any formal recognition. Some provinces in Canada and some states in the United States have attempted to give such recognition but it is virtually impossible to say that two gay partners presenting before the Department of Justice, Equality and Law Reform have any status for their relationship other than ongoing affection. It is difficult to build a law around the proposition that people who are very friendly with each other and have had a sexual aspect to their relationship over a period of time should or should not be treated radically different from two people who are just very good friends and have known each other all their lives but have no sexual relationship. These are issues with which we will have to grapple but my view and that of the Taoiseach is that we will have to face up to removing unfairness which arises from failure to recognise de facto relationships of dependence and mutual commitment. In this context, we need to think this through carefully because when people are trying to get into Ireland on a number of grounds and we have an orderly law of immigration, if we were simply to say that where there was a sexual aspect to a relationship that allows people to have a radically different result in terms of their application for citizenship, immigration or residence, we would be on very thin ice.
This discussion has been interesting. It is useful Deputy Costello tabled this amendment because it gives us the opportunity to discuss this matter. The issue of non-marital partners is one that is becoming more relevant to our society. The main issue that arises is the tendency of heterosexual couples to live together without formal marriage arrangements which sometimes develop into the forming of families. These issues have been commonplace in other western European countries and other countries generally and we must now confront them.
I recall attending a family law conference in Denmark shortly after I was elected, which is a long time ago, and the issue for them at that stage was what happened after the break-up of such a union, in particular, where there are children. That is an issue that must be examined. There is the issue of arrangements between people of the same sex. The Chairman will be glad to know that issue was examined by the Fine Gael Party last year and a document on civil partnerships is available as a template from which people can start to deal with this issue. The matter raised by Deputy Costello is a further extension of that, namely, applications for nationality and citizenship for non-marital partners.
Perhaps we are only at the beginning of the debate on all these issues. For once I agree with the Minister that it would not be appropriate to give him total discretion to deal with all these issues as he considers appropriate but Deputy Costello has done us a service by raising the issues because they will be part of an ongoing debate. There are no simple solutions but these issues must be tackled, possibly in the context of a consultation paper from the Government in the near future followed by concrete decisions.
The amendment does not give the Minister absolute licence in this regardeven though I included the word "opinion". Members will notice that the last line refers to such provisions of nationality and citizenship law as relate to spouses. The Minister is being given clear guidelines that what is proposed would be in the context of what is already bestowed on spouses and that he would take into consideration partnerships of some standing and weight, whether same-sex, lifelong or stable partnerships or partnerships where, as in an increasing number of cases, there are dependants. I do not know what the Central Statistics Office figures are on that but it is an indication that the structure of families has changed dramatically in recent years and that partnership is becoming part of the norm in families whereas marriage was the norm previously. The definition of "family", therefore, is changing dramatically in terms of the everyday reality.
I wanted to raise this issue because it is one that faces us in many other areas of society in terms of social welfare, taxation and the civil right of marriage, which was a major issue in the American presidential election. It is also a question in the context of entitlement to citizenship and whether that entitlement could be equivalent to a post-nuptial type entitlement of a spouse. Nuptial relationships increasingly end in divorce. Divorce is now law here and a couple can divorce at an early stage in their marriage. That is something that also needs to be examined.
Section 10 contains the definition of "Irish associations", which refer to certain relations and affinity. Affinity is merely defined in terms of relationship by marriage. I would have thought that definition could be broadened rather than simply referring to a marriage relationship. I am sure the Minister has considerable discretion in that regard, but one way of looking at it would be to see if we could broaden it to create some formal structure as to what defines affinity. We could determine whether that term, which is narrowly defined in terms of a blood or marital relationship, could be expanded to include the right to citizenship through naturalisation. I do not intend to give the Minister a licence to open up the categories of citizenship. I did not expect him to do that in a wilful way or on a whim. The purpose of the amendment was to find out if we could explore a situation that will arise frequently in future.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 4, before section 3, to insert the following new section:
3.—The non-national parents of children born in Ireland before 24 January 2003 shall be deemed to be, at all times, lawfully in the State.".
Amendment put and declared lost.
SECTION 3.
I move amendment No. 6:
In page 4, paragraph (b), line 29, after “age” to insert “or capacity”.
The amendment relates to the fact that every person born on the island of Ireland is entitled to be an Irish citizen. Paragraph (a)(i), as inserted by this section, states “if ... he or she does any act that only an Irish citizen is entitled to do,” and paragraph (a)(ii), as inserted by the same section, states “if he or she is not of full age ...”. I suggest the words “or capacity” should be inserted at that point. Paragraph (ii) would then continue “... any act is done on his or her behalf that only an Irish citizen is entitled to do”. That would be to apply for a passport or regularisation or citizenship through naturalisation. I do not understand why we should limit the conditions to somebody who is a minor. It may be that a person may have to act on behalf of another person who might be a slow learner or who may have a mental condition which means the person does not have the full capacity to carry out the act. We are discussing the Disability Bill at present.
Many citizens fall into that category. While being of full age, they may have a mental or physical disability which would make it difficult for them to carry out this act themselves. I suggest the Minister accept the amendment.
I am sympathetic to it. I will either submit an amendment of my own on Report Stage or accept the Deputy's amendment if he resubmits it. I need time to consider the term "capacity" in this context and whether it needs to be defined. The Deputy is right — this provision would improve the Bill. I will do one or the other. I will either accept the Deputy's amendment or table another to arrive at the same point.
There is physical and mental incapacity. I presume the Deputy is principally talking about mental incapacity.
Physical incapacity would be unusual.
I want to check that I am not making a mistake. If I am satisfied the Deputy's amendment is the right one, I will accept a similar amendment on Report Stage. Otherwise, I will table an amendment of my own to arrive at the same result.
Amendment, by leave, withdrawn.
Amendments Nos. 7, 8 and 18 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 7:
In page 4, lines 33 to 40, to delete paragraph (d).
I thank the Minister for accepting the substance of the previous amendment.
Paragraph (d) places a bar on children of foreign diplomats obtaining citizenship. This seems to be unnecessary. I do not understand the logic of the Minister’s argument that the child of a diplomat who is born in this country should be excluded from citizenship. It would be more generous to open citizenship to such children. I suggest the paragraph be deleted.
The effect of the Deputy's amendment, taken in conjunction with the deletion of section 6(4) of the 1956 Act, would be to confer citizenship automatically on all children born on the island of Ireland to foreign diplomats. This would be contrary to accepted international custom and practice.
The position of persons with diplomatic immunity is that they hold unique positions in the receiving state. They are entitled to privileges not available to the general population of citizens and non-citizens. For example, they hold tax free status, have immunity from being brought before a court to give evidence and other privileges which protect the proper functioning of an embassy. Their purpose in the receiving state is to represent the interests of their own state, including their own nationals.
There are recognised limitations in international law to the granting of citizenship of the receiving state to the children of diplomats. International instruments such as the 1930 Hague Convention and the protocols to the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations provide that the children of diplomats do not have an automatic right to acquire the nationality of the receiving state if born there. This international position has been reflected in Irish citizenship law since, at least, 1935. Section 2(7) of the Irish Nationality and Citizenship Act 1935 excluded from Irish citizenship the children born in the State to foreign diplomats. In the 1956 Act the original section 6(5) provided for a similar exclusion.
That was the position until 2001 when changes were made to citizenship law arising from the new Articles 2 and 3 of the Constitution. However, the wording of the new Article 2 was such that an exclusion could not as a matter of constitutional law continue in the Irish context. Therefore, the 2001 Act put in place a special procedure whereby the children of diplomats could, if they wished, exercise their entitlements to be Irish citizens by means of a declaration. There was not a mandatory imposition of citizenship. Citizenship was a person's birthright and, therefore, optional in the circumstances.
With the change made by the most recent amendment in June last we are able to revert, to a large extent, to the former position. Section 3 of the Bill is designed to bring about this change. However, we are not able to fully revert to the pre-2001 position as the Bill must also take account of the British-Irish Agreement which guarantees to the people of Northern Ireland an entitlement to be Irish citizens. The people of Northern Ireland are defined as all those born in Northern Ireland and having at the time of their birth at least one parent who is either British or Irish or is entitled to reside without condition as to length of time.
As drafted, the Bill excludes from Irish citizenship a person born in Northern Ireland to a diplomat parent who is a British citizen or a person entitled to reside in Northern Ireland without condition as to time. Therefore, in order to have strict reciprocity and equality between British and Irish citizenship the Government amendments have been tabled to amend the law. I cannot accept the Deputy's amendment and recommend the two amendments in my name. They are necessary to deal with the possibility of a British citizen who is a diplomat having a child in Ireland. Such a child should be entitled to be an Irish citizen on the same basis as the child of a British citizen who is not a diplomat.
I agree with the Minister's amendments.
Does the three year rule apply to children of diplomats born in Ireland or are they also excluded from that provision?
They are excluded.
In normal circumstances a diplomat and his or her family have certain privileges in the country in which they are resident. In this case they have less of an entitlement than a non-national who has refugee status.
That is right.
Is that fair?
That is conventional international practice.
If, for instance, a person ceases to be a diplomat and remains in the country in another capacity, will he or she automatically qualify under the three year rule?
If such a person remained for the requisite period after ceasing to be a diplomat, he or she would be entitled to apply for citizenship and his or her child would be entitled to a form of citizenship by dependency.
Would the child not benefit from the three years the parents spent in the country as diplomats?
No.
That seems discriminatory. On the other hand, we give rights of residency to non-national spouses of Irish diplomats abroad. They will be regarded as having lived on Irish soil.
There is not a conflict between the two concepts. If the general international practice is to do what we are doing by this legislation, it follows that we must make special arrangement for the children of Irish diplomats born abroad. The foreign spouses of Irish diplomats and the children of those spouses must also be looked after. It is not contradictory. It is wholly consistent.
It is not logical.
If a British citizen travels from London and gives birth in Dublin or Belfast, the child is entitled to Irish citizenship. Is this not contrary to EU rules in giving preferential treatment to such a person?
One of the areas of law not comprehended by the EU treaties is the right of member states to confer or withhold citizenship. EU citizenship is derived from one's status as the national of a member state. The European Union cannot criticise a member state for deciding how it grants citizenship.
We have a mini-Schengen agreement with the United Kingdom. We have achieved a degree of integration which in some respects the Benelux countries have but which most countries do not. We accord to each other's citizens the right to vote in parliamentary elections, to reside without limitation of stay in both states and to travel without a passport or other identity papers.
Not with Ryanair.
Yesterday I was asked by Aer Arann staff to produce my photo ID to get on an aeroplane to Cork.
Did the Minister feel insulted that they did not recognise him?
He will soon need a visa at the rate at which he is carrying on.
Will Deputy Costello withdraw the amendment?
I will not withdraw it because I think it is still valid.
Amendment put and declared lost.
I move amendment No. 8:
In page 4, paragraph (d), lines 37 and 38, to delete all words from and including “birth” in line 37 down to and including “and” in line 38 and substitute the following:
"birth—
(i) an Irish citizen or entitled to be an Irish citizen,
(ii) a British citizen,
(iii) a person entitled to reside in the State without any restriction on his or her period of residence (including in accordance with a permission granted under section 4 of the Act of 2004), or
(iv) a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,
and".
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Amendment No. 9 is out of order.
Amendment No. 9 not moved.
I move amendment No. 10:
In page 4, line 46, to delete "person's birth" and substitute "date of the application".
On Second Stage I raised the issue of the substance of the referendum amendment which states a person born on the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person's birth, been resident on the island of Ireland for a period of not less than three years, or a period the aggregate of which is not less than three years.
The section states a person must be resident for three years in total preceding the birth. That is a little one-sided and unfair in the sense that it does not take into consideration a period of time a person will be resident here after the birth. Instead of stating "four years immediately preceding the person's birth", it would be fairer to insert the words "four years immediately preceding the date of the application". As long as one has the equivalent of three years' residency under one's belt as a person born to non-national parents, that should be sufficient.
On Second Stage I cited the example of the number coming to this country on contract, for example, Filipino nurses. They might be pregnant when they come here but under no circumstances would such children be entitled to Irish citizenship by virtue of the person concerned staying here for three or four years. Other children might be born after somebody has spent three years here working, in whatever capacity, as a guest of the nation, and would automatically be entitled to apply under the three year rule. Therefore, the child of one family might be denied citizenship while the child of another would be granted citizenship.
I do not see the principled argument for not allowing the post-natal period as well as the pre-birth period. I do not see where the abuse could take place but in many cases there will be an abuse if the legislation is left as it is.
The amendment would involve a substantial departure from what the people were told the Government had in mind at the time of the referendum. In its own way, it would produce anomalies. If somebody came to Ireland pregnant, in the circumstances the Deputy mentioned, and remained here for three years, how would that be different in moral and common-sense terms from somebody — say, a Filipino nurse — who had a child in Manila and flew here two days later? What is important about the fact that the child is born in Ireland?
They are here by virtue of the fact that we invited them with a permit.
Yes.
They are not here as asylum seekers.
No but I am making a different point. If the Deputy says somebody could fly in and have a child here — somebody lawfully here as a tourist or worker — and that if they remained here, they could count the time after the child's birth, he would be producing arbitrary distinctions between a child born immediately before the parents arrived and one born the day after they arrived. Common sense dictates that such circumstances do not actually confer the right of citizenship any more than a real, substantive connection with Ireland. The mere fact that one is born in the Rotunda rather than in an equivalent institution in Manila does not mean that three years from now one will have a greater or lesser connection with Ireland.
The other point to bear in mind is that in the last analysis all of these cases — people making their homes and bringing up their families in Ireland — will be addressed under the five year rule. After five years a couple or single parent resident in Ireland and who has a child here will become entitled to apply to become an Irish citizen.
Is it five or seven years?
Five. If they become Irish citizens, they will be automatically entitled to apply for citizenship for their children resident with them in Ireland. What we are talking about is a group of people who will be resident here for three years but will not be here permanently or for five years. It does not make much sense to move the goalposts in a way the people were told they would not be moved at the time of the referendum. They had a clear expectation of what they were talking about — that one would have to have spent three of the preceding four years in Ireland. The Deputy is now proposing that one should not have to fulfil this requirement and that as long as one spends time afterwards in Ireland, that should suffice.
In his absolute discretion the Minister can grant an application for a certificate of naturalisation, even though the five year rule has not been complied with. One such case is where the applicant is a naturalised Irish citizen acting on behalf of a minor child of the applicant. Once one is a naturalised Irish citizen, the Minister can and normally does allow a person to apply to have his or her minor children granted citizenship also. To revert to the hypothetical case of a Filipino nurse who gave birth shortly after her arrival in Ireland, after five years she will be able to apply to become an Irish citizen if she is intent on making her home in Ireland and living here permanently. Her child will normally be entitled to be considered for citizenship under section 16(1)(c). This happens regularly.
One can easily look at differences in treatment. Take the case of a Filipino nurse who comes here with her husband and two children. If she has a child six months after her arrival, that child will not automatically qualify for Irish citizenship. Neither do the two she has brought with her.
However, if she waits another three years and has a second child, this child will have Irish citizenship because the woman will have qualified for citizenship by that time.
She would already have one child born in Ireland.
The Deputy can point to the oddity that the two children born in the Philippines have no chance of obtaining Irish citizenship based on birth. The only child entitled to citizenship based on birth is the one born after the mother resided in Ireland for three years. However, if the family want to live in Ireland, the woman and her husband can apply for Irish citizenship after five years. The two children born in the Philippines and the one born shortly after the family arrived in Ireland will be on the same legal footing as the child entitled to citizenship under the terms of this Act. One could argue the toss, but there is no real distinction between a child born in Manila a week before the mother leaves the Philippines and a child born in Holles Street a week after she arrives in Ireland. The two older siblings who were born in Manila are in the same position as that child once they come to Ireland. However, if the family intends to remain permanently in Ireland and become an Irish family, all the children will be looked after. The mother can apply for citizenship for the two born in the Philippines and the one born shortly after arriving in Ireland. She can apply for them to be dealt with on the same basis as the child born in Ireland after three years.
The Minister is wrong. The principle of this section is that three years' residency entitles one to Irish citizenship from birth. This principle is based on a real connection with the country, which is what the Minister is trying to establish. Why does it matter whether the three years are accumulated prior to after the birth of the child? The three years after the birth possibly constitute a greater connection with the country than the three years prior. The Minister's argument is arbitrary. He is not allowing for an accumulation of three years prior to or after the birth, or even two years prior and one year after. It amounts to the same quantity of residency and establishes the connection which is the underlying principle of the Bill.
Why not allow the child she had a year previously in the Philippines come in on that basis also? That child will be brought into Ireland, and raised and educated as a Filipino citizen.
The Minister may add to my amendment. However, I will keep it simple and straightforward.
A family making a real commitment to Ireland will, after five years, be entitled to apply for Irish citizenship. As naturalised citizens, they will be able to apply to have their children naturalised also, whether they were born in the Philippines, Manchester, Bahrain, or wherever. The entire family will be consolidated as Irish citizens by virtue of the parents having a five year commitment to the country. Citizenship based on birth by operation of law must apply from the moment of birth. A month after a child is born, we must be able to say whether it is entitled to become an Irish citizen in the fullness of time. We need this certainty. The alternative would create a circumstance whereby parents could have a child in Ireland and be resident on the island of Ireland, possibly north of the Border, for five years. They could then say they were in an anomalous position and their child should be considered an Irish citizen from the date of birth. That is not right.
There are families of Nigerian and Romanian asylum seekers with one child who is an Irish citizen and two children of other nationality. Anomalies exist between their children, but these are cured when the parents become naturalised. Their children are dealt with as children of Irish citizens. The process is not perfect, but we told the public we would do what I proposed. The Deputy is suggesting something different, but I prefer to keep faith with what I proposed. Citizenship, as a matter of legal entitlement, will operate from birth for children whose parents have a substantial connection in Ireland, namely three out of four years residence prior to the child's birth in this country.
We have argued the point, but the Minister is still wrong.
Amendment put and declared lost.
I move amendment No. 11:
In page 4, line 47, after "been" to insert "ordinarily".
This is a slight amendment to section 4. It would be useful to add the word "ordinarily" because a person could be absent from the country for short periods of time, such as holidays or visits home to see elderly parents. These periods should not be subtracted from the three years requirement. The term "ordinarily resident" would allow for a little extra flexibility, and would be valuable to the legislation.
I did not intervene in the last discussion because I believe the date of birth should be the relevant date. However, there is a case for consideration regarding this amendment. It depends on the interpretation of the words "been resident". One interpretation is that the person must be resident for every hour of every day of every year during the relevant period. They might lose out because of temporary departures for holidays or other reasons. Somebody may be relying on the specific minimum three year period and may not be able to aggregate the time. The Bill might be improved by the word "ordinarily".
The distinction is between ordinary and actual residence. The Bill, as currently drafted, requires a person to be actually resident in Ireland for three out of the four years preceding the birth of the child. This means trips abroad are counted in and there is a full year flexibility. If one considers the four years prior to a person's presence in the State, if that person has been resident in the State for three quarters of that time, he or she is entitled to citizenship. However, one could go down the road of ordinary residence, which is used for matters such as voting registers. For example, Deputy Costello is ordinarily resident, for the purposes of the Electoral Acts, at his home address in central Dublin.
Save for taxation purposes.
Perhaps the Deputy lives in the Cayman Islands for that purpose. One can be ordinarily resident in a place while absent from it. My ordinary residence is in Ranelagh, Dublin. However, if I was travelling the world for 18 months, throughout that period Ranelagh would be my ordinary residence despite the fact that I was globetrotting and living in hotels. One has only one ordinary residence and the word "ordinary" in this case means where one ordinarily resides.
There could be complexities in this regard. With regard to the position of students at election times, they can be ordinarily resident in two places, for example, in Dublin and their home constituency.
They might be in college in Galway.
It is better to have actual residence. To allow for a period of three quarters of the previous four years allows people to travel, for example, to funerals or on holidays or other visits. The connection with Ireland will be in the context of three quarters residence during the previous four years.
I accept the Minister's argument and withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 12, 13 and 16 are cognate. Is it agreed to discuss them together? Agreed.
I move amendment No. 12:
In page 5, line 25, to delete "them" and substitute "whom".
Amendment agreed to.
I move amendment No. 13:
In page 6, line 2, to delete "them" and substitute "whom".
Amendment agreed to.
Amendments Nos. 14, 15 and 17 are cognate and the three may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 14:
In page 6, line 13, after "residence" to insert the following:
"(including in accordance with a permission granted under section 4 of the Act of 2004)".
As currently drafted, the proposed section 6A(2)(d) of the Irish Nationality and Citizenship Act 1956 exempts from the residence requirement at section 6A parents “at least one of whom was at the time of the person’s birth a person entitled to reside in the State without any restriction on his or her period of residence”. The phrase “entitled to reside” could be interpreted as not including persons who have been granted permission to remain in the State at ministerial discretion under section 4 of the Immigration Act 2004 as against, for example, refugees whose recognised status gives them a clear entitlement to be in the State without time restriction. The purpose of these amendments is to clarify that such persons are also excluded from the residence requirements at section 6A and that children born to such persons will have an entitlement to Irish citizenship from birth.
This measure is not exhaustive as it contains the word "including". An example may illustrate the point. If I give someone express permission to reside in the State without limitation, he or she is guaranteed that this is an entitlement to reside without any restriction on the period of his or her residence. The amendment aims to aid people.
Amendment agreed to.
I move amendment No. 15:
In page 6, line 24, after "residence" to insert the following:
"(including in accordance with a permission granted under section 4 of the Act of 2004)".
Amendment agreed to.
I move amendment No. 16:
In page 6, line 28, to delete "them" and substitute "whom".
Amendment agreed to.
I move amendment No. 17:
In page 6, line 32, after "residence" to insert the following:
"(including in accordance with a permission granted under section 4 of the Act of 2004)".
Amendment agreed to.
I move amendment No. 18:
In page 6, lines 36 to 38, to delete all words from and including "birth" in line 36 down to and including "and" in line 38 and substitute the following:
"birth—
(I) an Irish citizen or entitled to be an Irish citizen,
(II) a British citizen,
(III) a person entitled to reside in the State without any restriction on his or her period of residence
(including in accordance with a permission granted under section 4 of the Act of 2004), or
(IV) a person entitled to reside in Northern Ireland without any restriction on his or her period of residence,
and".
Amendment agreed to.
I move amendment No. 19:
In page 6, between lines 41 and 42, to insert the following:
"(3) In this section ‘British citizen' means a citizen of the United Kingdom of Great Britain and Northern Ireland.".
Amendment agreed to.
Amendments Nos. 20 to 22, inclusive, 27, 35, 36, 38 and 40 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 20:
In page 7, line 17, to delete "statutory declaration" and substitute the following: "declaration in such manner as may be prescribed".
The purpose of these amendments is to standardise the approach to declarations in the 1956 Act by having the form of all such declarations prescribed by regulations. The 1956 Act already contains provisions relating to declarations where the form of declaration is to be prescribed by regulation. These are at section 6(4), although this Bill, at section 17 and at section 21 will repeal that provision.
Under the new provisions of the 1956 Act being made in this Bill, the question of declarations will now arise also in a number of different contexts. The first of these is at the new section 6B(2) which enables a parent who is a national of a member state of the EU, the European Economic Area or a Swiss national to make a declaration as to the period of residence in Ireland. The purpose of the amendments is, rather than having a statutory declaration, to allow declarations in such manner as may be prescribed.
It is also prudent to introduce a new general offence into the 1956 Act, which I do by way of amendment No. 40. It provides that, in future, it will be an offence where a person knowingly or recklessly makes a false or misleading declaration or statement for the purposes of any application under the Act. The amendment creates a summary offence punishable on conviction by a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, and an indictable offence punishable on conviction by a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both. The levels of penalties are based on those prescribed by the Immigration Act 2003.
I consider that this new provision will constitute a suitably serious deterrent to those who may seek to abuse our citizenship laws in the future. As a consequence of that, amendment No. 35 will repeal the only offence provision at present in the 1956 Act, at section 17(2).
In the main, I am happy with the technical amendments. However, the Minister should consider an issue of concern. I have come across several contrary cases in regard to declarations on citizenship. I am thinking in particular of the situation of post-nuptial application for citizenship in that it appears that the Irish citizen partner has to be alive at the time of the application. This would be in the context of a genuine marriage between an Irish citizen and a non-national followed by an application for post-nuptial citizenship by the non-Irish partner.
The Minister may recollect a case in which the marriage was genuine but had broken down at the time of the application, and there were three or four children. The Irish husband died in horrific circumstances in west Cork some six months ago. The non-national partner was then precluded from applying for citizenship because the husband was dead despite the non-national partner being married for many years and having a family. Will the Minister consider the entitlements of such non-nationals to citizenship, in particular following the death of a spouse who is an Irish citizen? The existing position is that the marriage must be subsisting, which can give rise to unfairness in some situations. While I do not expect an immediate answer on this, the Minister might consider it in the context of any new regulation on declarations.
I agree that we should ensure declarations are made properly and fairly and that one would not want people knowingly and recklessly making false declarations. However, in the context of other criminal offences, providing for a fine of €50,000 and-or imprisonment for five years is heavy-handed. I have in mind the type of penalty that might be handed down for serious criminal offences. I am not in any way encouraging false declarations, but this does not appear to me to be the category of offence that merits a five-year prison sentence.
If there was no five-year penalty, it would not be an arrestable offence. One of the consequences of not being arrestable is that a person could not even be questioned about the declaration he or she produced in a Garda station. He or she could just refer the Garda to a solicitor and decline to get involved. If it is purely a summary offence, there is no power of arrest and detention for questioning under statute. We want to have an effective law. We do not want a law where somebody can just tell a black lie in order to get citizenship and have the Government, through its public servants and the Garda, getting at the truth without being able to confront the person with the facts as regards the offence committed. If the Deputy wants to know why the five-year period was selected, it is to make the offence an arrestable one so that someone is capable of being questioned and to produce an effective deterrent in demonstrating to him or her that is not possible to "brass-neck" out of such a situation and ignore the establishment.
Deputy Costello has indicated he wishes to say something.
I will just deal with the point Deputy Jim O'Keeffe made about somebody who has died. We are conscious that under the current provisions, where somebody dies, this can affect entitlement to citizenship. Therefore, in section 16, in our new definition of "Irish associations", which is restrictive, we are inserting the following:
For the purposes of this section, a person is of Irish associations if—
(a) he or she is related by blood, affinity or adoption to a person who is an Irish citizen or is entitled to be an Irish citizen, or
(b) he or she was related by blood, affinity or adoption to a person who is deceased and who, at the time of his or her death, was an Irish citizen or entitled to be an Irish citizen.
Is affinity marriage and is the Minister quite clear on that? I believe there is an injustice which must be dealt with. However, that wording does not appear to me to solve the problem.
I am told that affinity includes marriage. It is not just a matter of consanguinity, it is affinity.
I fail to understand why the Minister should change what looked to be a perfectly good requirement. A statutory declaration is a solemn, sworn declaration, whereas one that is made "in such manner as may be prescribed" would appear to be of lesser consequence. Then there is the need to impose this enormous penalty. If we were to leave it as it was, the declaration would be made on the length of residence in terms of citizenship. Is it not more desirable to have that statutory declaration there in the first place and to forget about the penalty?
The reason is that a statutory declaration has a fairly clear meaning. A statutory declaration must be made before a person of a certain category, under Irish law, and I did not want to stand in the way of somebody who found themselves in a country, in Northern Ireland, Britain or wherever, where he or she did not have that category of person available to him or her to whom he or she could make the declaration. It is being done in ease of the declarant and to make it simple for me to take a declaration in circumstances where the formalities might not correspond exactly to a statutory declaration under Irish law. The intention is that they be equally solemn and formal. It is not just a matter of writing something on the back of a cigarette box or whatever.
Amendment agreed to.
I move amendment No. 21:
In page 7, line 42, to delete "statutory declaration" and substitute the following:
"declaration in such manner as may be prescribed".
Amendment agreed to.
I move amendment No. 22:
In page 8, line 15, to delete "statutory declaration" and substitute the following:
"declaration in such manner as may be prescribed".
Amendment agreed to.
Progress reported; Committee to sit again.
The select committee adjourned at 6.05 p.m. until 9.30 a.m. on Wednesday, 17 November 2004.