Deputy Woods was in possession.
Irish Nationality and Citizenship Bill, 1985: Committee Stage (Resumed).
Question again proposed: "That section 2 stand part of the Bill."
Section 2 proposes the insertion of the proviso: "Provided that the citizenship of a person who is registered under section 27 shall commence only as on and from the date of such registration."
On the last occasion the Minister had available very little information on this matter but subsequently, through consultation with her officials, she was able to provide some information. This section will not take long, but I should like to hear from the Minister now the reasons for it.
Silence, please.
This looks like a fairly routine technical section but, as a result of questions, it has been discovered that its purpose is apparently to put a stopping point on qualifying descendants of people who are living abroad. The Minister mentioned that the section has particular significance now, as the numbers applying for citizenship have increased from approximately 500 applications up to 1975 to approximately 1,600 in 1985. I trust the Minister has the actual figures. This has been more or less a threefold increase. She mentioned that these cases arose in particular in countries like South Africa and other countries where there were disturbances of one kind or other. There seemed to be a suggestion that some of the people involved were using Irish citizenship as a second option.
I asked the Minister if this legislation was as a result of any pressure from the British Government, the EC or any other source and the Minister said it was not, that it is what she wants to do. On the face of it, it does not look like a major step but, on looking into it a little further, there is something more to it. Perhaps at this stage the Minister can give us a clear statement on the intention of section 2, the reasons for it and its likely effects.
I shall be reiterating what I said on the last occasion, but I have here a general statement on the points raised by the Deputy. The general position is that people born in Ireland are automatically Irish citizens. Anybody born outside Ireland who had a parent who was born in Ireland is also an Irish citizen automatically. Persons born outside Ireland who have one grandparent who was born in Ireland are entitled to Irish citizenship if they register. The citizenship of persons who register entitles their children to register in turn. Thus the entitlement continues so long as each generation registers.
The new provision in the Bill has to do only with the time at which that entitlement commences and specifically whether it operates from the date of registration or retrospectively to the date of birth of the person registered. The original intention, as I mentioned on the last day of the debate, of the 1956 Act was that the citizenship of people registering would apply only as from the date of registration. The effect would be that if the qualifying parent is interested enough to register a child on birth or at any time before he or she has children, that child can in turn pass on qualification when a child is born to him or her.
On the other hand, if the parent does not act until, say, the child is grown up and has a child of his or her own, then the latter child cannot acquire qualification. However, in the mid-sixties it was decided that the wording of the Act did not support that interpretation and, accordingly, it has been accepted since that, once a person registers, his or her Irish citizenship is back-dated to the date of birth or the date of the passing of the Act, whichever is the later. The effect of that interpretation is that persons of Irish descent can pass on the qualification retrospectively.
The purpose of the amendment now before the House is to restore the position to what was intended when the 1956 Act was being drafted, that is, that citizenship of persons registering would date from the date of registration. The proposed amendment refers only to people born outside Ireland and, indeed, will affect only people who are at least three generations removed from Ireland. It does not affect persons in Northern Ireland in any way, or the children of persons serving abroad in the public service. The amendment will not affect people born outside Ireland who had a parent born in Ireland. Neither will it affect grandchildren of people born in Ireland. The first generation affected will be the great-grandchildren of Irish-born citizens. They will not be entitled to register unless the parent from whom they derive the right to Irish citizenship has registered prior to their birth.
I should emphasise that this enables people who have any real interest in their Irish ancestry to keep the qualification alive as long as they wish, but not to restore it if it has been abandoned, as it were, by their qualified parent. Of course naturalisation, which is a totally separate thing, would still be available to such people. We are only talking in this instance about full citizenship as a right. The reason for the change is that what is now being proposed is what was intended in 1956. It is considered that there is an abuse by some people of the original intention of the provision. This latter category are people who, it is felt, have no real sense of identity with Ireland but for purposes of convenience decide to establish Irish citizenship in case they would need a second citizenship at some future date.
No detailed statistics are available in relation to people abusing the opportunity at present available under the Act but, as I said on the last occasion, the number of people registering has increased very significantly in recent years. I mentioned specifically the position of South Africans. Normally statistics are not kept which show the breakdown as between the nationalities of people registering but such a breakdown was kept for a one year period, from May 1984 to May 1985. These figures show that of a total registration of 1,300 approximately, 368 were from South Africa. Other figures were as follows: the United States, 299; New Zealand, 166; Zimbabwe, 132; England, 213. These are all people registering.
Given the overall population of South Africa it would be accepted generally that the number for that country is unusually large having regard to the figures for the other countries. Countries generally are zealous in guarding their citizenship. We, too, should put a high price on our citizenship. Our present laws are very liberal in regard to citizenship by descent. This approach is influenced by our history. Vast emigration led to large numbers of people settling in other countries but wishing to maintain their links with Ireland. This is why we have provided for children of Irish born citizens to be entitled automatically to Irish citizenship and for their grandchildren to be entitled, on registration, to the same facility and so on, providing the link is maintained by way of registration from generation to generation. As I have indicated, the amendment proposed will not necessarily break the chain but people will have to register before they have children if they wish their children in turn to be able to register.
Deputy Woods inquired as to where the call for the amendment came from. I assure him that it did not come from any source outside Ireland. This part of the legislation is administered by the Department of Foreign Affairs and from their observations of applications for registration it is their view that an abuse in relation to the provision for registration has manifested itself in recent years. Accordingly, the call for the amendment arises from our own observations of how the provisions of the Act work. There has not been pressure from any other source.
Deputy Woods inquired also as to the position under the Extradition Act. The specific type of case he referred to was that of a person in America whom it is desired to have extradited. I have made some inquiries in relation to that point. While it is difficult to comment on what was a hypothetical case, the general view is that the position of such a person would not be affected by the proposed amendment. His position would depend on American rather than on Irish law. Perhaps I should point out again that the amendment will affect only great grandchildren of Irish born citizens and that even in their case the chain will be broken only where the parents of Irish descent fail to register before the birth of the children.
The purpose of the Bill is not to bring about a comprehensive updating of the 1956 Act. I said on Second Stage that the main purpose of this Bill is to provide for the elimination of the present differentiation between men and women in the condition to be satisfied in respect of naturalisation by the alien spouse of an Irish citizen or by the granting of post-nuptial citizenship. As a Bill was being introduced it was considered that the opportunity should be availed of to bring in a number of other comparatively minor amendments.
Deputy Woods brought to notice also some further aspects of the existing law which could, without doing violence to the limited nature of this measure, merit attention. We shall be coming to those points later.
To sum up, the purpose of section 2 is to resore the position to what was considered to be the provision enacted in 1956 and to prevent the continued abuse of the original intention of that section by some people who are obtaining citizenship as a right but who are considered not to have any real sense of identity with Ireland. The amendment in the future could prevent some people of Irish descent from obtaining Irish citizenship whereas in present circumstances they can do so. However, it is not envisaged that cases will arise where people with real Irish links will be affected by the change. In any case, I would remind Deputy Woods that section 16 (a) of the 1956 Act will permit people of Irish descent or association to be naturalised. Any deserving case could be dealt with under that provision.
I thank the Minister for her fairly clear statement of the position. As she said, we had teased out a fair deal of all this on the last occasion. The Minister tells us now that the reason for the Bill rests principally with the Department of Foreign Affairs, that they are suggesting the amendment. It is clear now that what the Minister plans to do is to provide a stopping point. As she has said, we should put a high price on citizenship by descent. We have always put a high value on this in the past. We have always regarded citizenship by descent as important to this country and particularly for those reasons I mentioned on the last occasion when I referred to those great numbers of Irish people who went abroad and who, down through the years, had to make their way in countries throughout the world. There is a very genuine feeling of a link with all those people who went abroad to serve as citizens of the wider world, particularly following times such as the Famine years and also some periods of Coalition Government, for instance, around 1955 and now again.
I am not particularly happy with what the Minister has said because I cannot see specific serious reasons for cutting off these people in their claims for citizenship by descent. As we have heard, in one year—from May 1984 to May 1985—the number involved in this respect totalled 1,300. The number has increased. We are talking of the number registering in total. They were not merely people registering citizenship by descent.
They were.
But registering under the different categories and including, presumably, under section 27, people from Northern Ireland.
People born in Northern Ireland do not have to register.
But they must declare.
Yes, after the second generation.
Therefore we are clear that Northern Ireland is not included in these figures and that the number registering has increased from fewer than 900 in 1975 and in previous years to 1,300 in the period mentioned by the Minister. I thought the Minister mentioned on the last occasion that the number has increased to 1,600.
I must emphasise that it is the scale of the increase and the trend we are aware of. That is the reason it was decided that this amendment should be introduced.
One must wonder whether there is anything particularly bad about the situation. If grandparents decided earlier, or even in the present circumstances, to register children to provide for the possibility of their wishing to come to Ireland at some future date, presumably such cases will be covered. It seems that the children are to be punished by reason of their parents or grandparents neglecting to fill in an appropriate form whereas they would, by way of association, have an opportunity to come in by way of a request for naturalisation.
I note that at 368 South Africa represents the biggest group involved. Has the Minister any idea as to what kind of people these might be or what kind of abuse is involved? Are we talking of business people coming here who have experience of business abroad or whose parents had experience in business but went abroad? Are we talking of such people wishing to set up business here or about people who are fleeing from situations that are not very healthy for them at this stage or about people who form part of normal comings and goings? Movement to and fro has increased but when one considers that the number we are talking of in respect of England is 213 while for South Africa it is 368, I presume it is the South African situation that has set the whole trend in motion. Surely, at this stage we are trying to encourage relations with the United States of America and we are trying to encourage the Irish who are there and have Irish associations in the United States to think well of our people going out there at this stage. At present, we have a massive outflow to the United States where we are looking for the opportunity to establish more of our citizens where there are opportunities for them. How does the United States feel about us taking this kind of action in relation to our citizens who have entered that country and whose children or grandchildren might be looking for Irish citizenship? The figures for England at 213, New Zealand at 166 and the United States at 299 probably seem small enough. The figure for South Africa at 368 seems to have triggered the Department of Foreign Affairs into suggesting this action and the Government into taking the action. Is this part of the Government's policy in closing the door on people who went out to South Africa? More than 25 per cent of the 1,300 applications are from South Africa. It looks as if this has come about from the Department of Foreign Affairs suggesting that they do not particularly like the trend in relation to South Africa. Are these people coloured, white or both?
We do not have a breakdown of the applications as to what age, how many children, and to what purpose. I can assure the Deputy that this is necessarily based on the trend. I am glad the Deputy sees the point that the proportion from South Africa is very high. The issue would not be one of race, it would be a question of Irish by descent. I cannot give the Deputy details of the racial breakdown in terms of colour but I would emphasise again that we are not introducing a stopping point. The option is there for each generation to register and to enable all succeeding generations and to enable the children of the registering parents to become entitled as a right to Irish citizenship. Even in the event of there being no registration by parents at any point, that does not necessarily close the door. As I mentioned, under section 16 (a) of the 1956 Act sympathetic consideration would be given to persons of Irish descent or association for naturalisation. Therefore, it is not a cut off as the Deputy seems to imply.
The Minister of State described fairly well for us the way that it does cut off. I think it is quite clearly a cut-off point and this is the intention of the amendment. If someone does not take an action, then the stop is built in at that stage. I take it, therefore, that the reason for this section is that the Government are alarmed at the increase in registrations and applications under this heading and particularly alarmed at the increase in recent years from South Africa, and feel they have to put this adjustment into the Act to prevent the numbers from escalating. I have to accept what the Government say in this respect as they have the information, some of which we have been given. Presumably, there is more available to the Government and if I was more skilful in eliciting information from the Minister of State we would probably have much more information.
I was particularly concerned at the way in which—it may be that the Minister of State did not think about it at the time —the Minister of State did not make any statement about this section and subsequently made only partial statements. I am concerned that there may be somebody trying to highlight rather than conceal. It is preferable and necessary that people be told exactly why these minor changes are taking place and what their impact could be in future. It is fair enough that the Government are alarmed and concerned about this as they have to manage the situation from day to day. Perhaps, there is a problem which requires this kind of measure but I cannot help feeling that in some respects it is a retrograde step as far as our emigrants are concerned.
It is going to affect emigrants in the future who have gone to places like England and the United States of America. It is going to affect their position under this Act as it has been up to the time this amendment is approved and this Bill becomes an Act. It is going to adversely affect their position and I would hope that it is not an over-reaction on the part of the Government to the rise in the figures from South Africa of those people who want to come back to Ireland or to use Irish citizenship as a means of getting back into the EC. Does the Minister of State have any idea as to how many of these 1,300 people have come to live in Ireland as distinct from coming to live in Britain or in the EC generally?
I would like to say that it is not a case of the Government being alarmed. It is a question of the necessity which has been shown to get back to the original intent of the 1956 Act and to stick by the provisions in that Act. On the Deputy's second question, there are no residential qualifications. Many of these applicants might never come to Ireland.
They just use it as an option.
It is probably very prudent that each generation would be aware and register to enable their children, if they wanted to have the option, to become Irish citizens. There are no residential qualifications and there is no way one could have statistics to that degree. I would finally say I am quite sure that Deputy Woods is well aware that Ireland has, if not the most liberal, one of the most liberal approaches to extending citizenship of any country in the world.
I am very glad to hear the Minister of State say that we are liberal in some respects. I think we are liberal in quite a number of respects. Perhaps, in this case we have been fairly liberal especially with our emigrants who have gone abroad in the past. It is only right that we should be liberal in our approach to them. We have much more important things to do than trying to seek out these people and cut them off. It would be far better if we were to prommote relations with people who have gone abroad and encourage them to come and bring back their expertise and resources which they have developed and to put them into this country. We should encourage people in this country to relate to them wherever they may be.
I had not intended to spend so long on the section. The Minister did not make a statement initially. I was somewhat suspicious as it seemed like a fairly simple formality. It has been fairly well elaborated on and we are now fully aware of what is involved. I accept the Minister's concern, if not alarm, about this. It looks as if somebody, if not in the Cabinet at least in the Department of Foreign Affairs, was alarmed at the rate of increase in these applications from South Africa in particular. We have figures which show that the applications from South Africa were at least 70 per cent more than those from England. The figures for South Africa are 368; the United States, 299 and England, 213. The Government are concerned with the figures from South Africa and the future dangers which might result. I am not entirely convinced that somebody, whether in Britain or in the EC generally, has not been influencing the Department of Foreign Affairs. The Minister said that those figures came principally from the Department of Foreign Affairs.
Question put and agreed to.
SECTION 3.
I move amendment No. 1:
In page 2 to delete lines 19 to 27 and substitute the following:
"8.—(1) A person who is an alien at the date of that person's marriage to a person who is an Irish citizen (otherwise than by naturalisation) shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, at any time after the marriage accepting Irish citizenship as post-nuptial citizenship.".
One of the principal changes in the Bill is in section 3 which provides:
The following section is hereby substituted for section 8 of the Act of 1956:
"8.—(1) A person who is an alien at the date of that person's marriage to a person who is an Irish citizen (otherwise than by naturalisation) shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging, not earlier than three years from the date of the marriage, a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, accepting Irish citizenship as post-nuptial citizenship: provided that the marriage is subsisting at the date of lodgment of the declaration.
At present if an Irishman marries an American woman she automatically gets citizenship on application. This section deals with inequality of women in this area. The Government want to bring in equal treatment for men and women in this respect and we support them in this. It would seem that the simple way to do this would be to give the woman who marries an American man the same right of automatic citizenship on application. Why not bring in equal treatment and give the Irish woman the same rights as are enjoyed by an Irish man? The Minister's proposal is to give equal treatment but to introduce a three year waiting period for both men and women. The simple approach would seem to be that, if an Irishman marries an American or a South African girl, she can become an Irish citizen automatically on a post-nuptial basis. That is the position at the moment. The Minister wishes to give the same rights to woman who marries a man from any of these areas.
In this amendment I am suggesting that both the man and woman should be given the same rights of automatic post-nuptial citizenship and at the same time the Minister should have power to deal with exceptional cases such as marriages of convenience. That is why I have proposed the amendment to section 4 to give the Minister power in certain cases to revoke such a citizenship if there is an abuse of the law. This would ensure that exceptional cases only would be dealt with. What the Minister is doing here is punishing everybody by making them wait for three years. What I have proposed in this amendment is that a person who is an alien at the date of that person's marriage to a person who is an Irish citizen, otherwise than by naturalisation, shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office. This does not refer only to a man but to either a man or a woman.
In extending this facility to women the Minister is introducing a three year delay which makes one wonder does she not trust women. The Government are discriminating against women in a subtle way in this Bill. They tell them they will get equality while, at the same time, devaluing that equality. I know the Minister did not set out to do that but when we look at the proposal it is hard to see it otherwise. The alternative would be to give straightforward equal treatment and to make separate provision for marriages of convenience, be they men or women who are involved in those marriages. I am not arguing with the Minister but trying to improve the position by giving the Minister power to revoke such a citizenship and making it an offence to abuse the marriage for citizenship purposes. That is the basic intent of our approach here, to give full and equal treatment to men and women and give the Minister the power of revoking in the case of marriages of convenience. I shall deal with that aspect when we come to section 4. Amendment No. 2 in my name deals with the matter of penalty.
The Deputy referred inaccurately to declarations in applications. Perhaps it would be useful to consider the present situation. For the foreign spouses of Irish citizens, citizenship is extended to them by declaration. This is a right. However, the alien husband of an Irish woman has to make an application which is termed discretionary. It is then citizenship by naturalisation and does not fulfil the same citizenship rights as a wife would get by declaration. I think perhaps the Deputy may have mixed up those two cases.
Amendments Nos. 1, 2 and 3 in the Deputy's name show an integrated approach. I was involved considerably with the structuring and formulation of this legislation. The objective is to give equal treatment of post-nuptial citizenship to men and women. This could be done in a number of ways. The question arose whether it might be done by way of residence qualification, by an application that would be discretionary for both spouses, or by declaration as of right by both spouses. After much consideration and analysis the decision made has struck a good balance.
We accept that the acquisition of citizenship should not be made easy and that there should be equal treatment as between men and women. Marriage in itself should not be accepted as a sufficient criterion. There should be some evidence that the marriage was not only "real" but was stable and subsisting. In this Bill we are providing for citizenship as of right without any residential requirement. Under existing law this is a requirement for the foreign man who marries an Irish citizen.
We decided on the criterion of three years of a subsisting marriage. Given that the criteria are different for foreign husbands as compared with foreign wives under the 1956 Act, a balance should be struck as between improving the conditions for some foreign spouses and disimproving them for others. Under the new section 8, foreign husbands are to be given full citizenship as a right and this is a considerable concession to them and to their Irish wives. It is reasonable to insist on a waiting period before that right is exercised.
If there were no waiting period there would be a greater danger of marriages of convenience for the sake of acquiring citizenship. This is not just a theoretical point. The phenomenon of such marriages is well known as a practical problem in all countries. Following recent changes in some EC countries the general picture across the Community is that there is a waiting period before foreign spouses can obtain citizenship. A waiting period of three years is considered reasonable. At present a waiting period does not apply to a foreign wife but a foreign husband has to have two years' residence which can impose a certain hardship on couples living abroad. It seems reasonable that the concession of the right in the case of the man should be accompanied by a longer period. It can be argued that the introduction of a waiting period of three years can be justified on the basis that differentiation will now be eliminated. The introduction of a waiting period for foreign wives and the possible longer period for foreign husbands is a matter of gains on the swings and losses on the roundabout.
It should be borne in mind in the case of foreign husbands that the requirement regarding three years' marriage will be easier to satisfy in many cases than two years' residence. After the passing of this Bill it will afford Irish citizenship as of right to a number of foreign husbands abroad who are married to Irish citizens. All the EC countries, with the exception of Portugal, have waiting periods. They vary from six months marriage in France and six months residence in Italy to ten years in Belgium where no concession is given to a foreign man or woman. In between these two extremes there is a wide variety of waiting periods. One year's residence is required in Spain. In Luxembourg there is a proposal that a foreign spouse be able to acquire citizenship within three years of marriage to a national. Three years' residence is required in the United Kingdom and in the Netherlands.
In Germany the requirement is five years' residence or three years' residence after marriage. In Denmark it is four years' residence, including three years' marriage. Greece allows no concession whatever to a foreign spouse and, in common with other applicants, a foreign spouse would have to wait from three to eight years. The law in a number of these countries has recently been reviewed. Previously, as in our case, the position had been that a foreign wife could obtain citizenship by declaration on marriage to a national. This was the position in Italy, the United Kingdom, the Netherlands, Greece and Belgium. Prior to 1984 there was no waiting period for either foreign spouse in France. However, from that date a six months waiting period applies.
It will be clear from the foregoing that there has been a movement not only to eliminate differentiation in the conditions of acquisition of citizenship as between foreign husbands and foreign wives but that, in quite a number of cases, the changes have resulted in the introduction of a waiting period for foreign wives where none existed previously. No doubt amendments Nos. 2 and 3 are being proposed as a counter-balance to the removal of the three year subsisting marriage requirement. I suggest it is an integrated approach.
The Minister has raised a number of important points. We have been given some more reasons for the Government's decision. From the point of view of an ordinary citizen, I am looking at the situation as it applies in Ireland. We know that when a man marries a woman from America, Tanzania or elsewhere that woman can automatically become an Irish citizen. On the previous occasion I asked if there were many problems in this area but the Minister then did not seem to think there were. However, now she is suggesting there are more problems with regard to marriages of convenience in Ireland. Foreign women have had the right to citizenship on marriage to an Irish national. This does not apply in the case of a marriage of a foreign man to an Irish woman. Why not just treat the two equally and make arrangements for the exceptional cases which may arise?
The Minister says she is not looking simply at the extent of problems here but is considering the problems in other countries and the developments taking place there. She pointed out that many people regard marriage of itself as not enough. Our Constitution regards marriage as of supreme importance and a major influence in relation to one's position as a citizen. There are imprescriptible and inalienable rights which are superior to all positive law. If we allow people to marry in the first instance, then under the Constitution they have all these rights. It seems inconsistent that in giving equal treatment to women who marry foreign men we are changing the existing position in relation to Irish men who marry foreign wives.
The Constitution tells us what marriage is. The two parties in Government are campaigning actively to change that position, yet in their proposed changes they would still retain in the Constitution strong protection and recognition of marriage, even though side by side they will have a divorce procedure which will give the power to take away those rights and give them to a second, third, fourth or any other marriage. Certainly that will have some effect on these rights, but even in the way the Government are approaching this matter they are still recognising the importance of marriage constitutionally. We are talking about whether Irish women married to foreign men should have the right which applies automatically to men under the existing law. If we are giving equal treatment, should women not have that right automatically?
It is not good enough to make these changes just to keep in line with any of the other countries mentioned by the Minister such as Denmark, Germany or England. We have our own Constitution and from it we should derive our own principles and purpose. I am not convinced by the Minister's argument that there should be a three-year waiting period. The Minister also made a point about extending the period for husbands, in other words, having two different periods. I did not fully appreciate what the Minister was saying when she talked about two years' residence.
For a man.
For naturalisation?
Yes.
At present an Irish man confers citizenship on his wife automatically. I do not see why the Minister should not agree to give women exactly the same treatment. When we are about to give equal treatment to women in this respect, why decide that this is the time to consider all these other factors and the trends in other countries? Why do we have to consider these matters now? It will devalue the equal treatment which the women are to get and introduce a waiting period of three years. I suppose the only real reason would be experience of marriages of convenience. The Minister says there is a greater danger of such marriages but I would ask whether that is the case. When we discussed this Bill previously the Minister did not seem to be aware of these dangers or to recognise that there could be a problem in this respect, but today she is talking about the greater danger of marriages of convenience. This presumably means that the Minister has some hard information on this question, as distinct from looking at experience in Europe and seeing what everybody else is doing. When we are giving equal treatment to women, why give it on the less advantageous terms which apply in Europe and introduce a three-year waiting period?
The Deputy suggested that these proposals would devalue the equal treatment being given to women. One could equally say they will upgrade the conditions of the foreign man who prior to this had to fulfil the requirement of two years' residence in this country before making an application for citizenship. The granting of citizenship was discretionary and could be refused. We are now extending citizenship as a right to the foreign husbands of Irish women, without those husbands having to come and live in this country. If a couple have been married five or six years and living abroad they will be entitled to claim Irish citizenship on behalf of the foreign spouse.
There is little hard evidence about the risks of marriages of convenience but it is well known that this does not necessarily apply only to men attempting to get citizenship by marrying women of a particular state. After the Vietnam war and further back there undoubtedly were marriages of convenience between women who wanted to escape from that country and US citizens, the women thereby acquiring US citizenship. We are looking at this question in a totally different time. In 1956 there was not the same degree of international travel and women did not have the same mobility in regard to work. There was not the same incentive for people in some other countries to seek citizenship of a member state of the European Community. All these factors must be considered and one factor is not stronger than an other. We have to legislate in the light of this situation.
I presume that is what the Minister meant when she referred to the greater danger of marriages of convenience. The Minister meant that we are living in different times. I thought there was something more specific than that in the Minister's statement. The Minister also says that there is no hard evidence of marriages of convenience. That ties in with the way we have approached this proposal. Our amendment proposes that equal treatment be given to women. If a woman takes a husband from abroad he should automatically get citizenship and if a man takes a wife she gets automatic citizenship. The Minister is not prepared to do this. The Act says:
A woman who is an alien at the date of her marriage to a person who is an Irish citizen (otherwise than by naturalisation) shall not become an Irish citizen merely by virtue of her marriage, but may do so by lodging a declaration in the prescribed manner with the Minister.
We just want to remove the discrimination against women by substituting the word "person" for the word "woman". By doing this men and women would have the same rights. But the Minister is not prepared to do this. What we are saying is that the Minister should do this but put in a separate clause giving the Minister the power to revoke the citizenship of a post-nuptial citizen if it is found later that the marriage was not a bona fide one. Our amendment No. 3, to cover that, is as follows:
(7) The Minister may revoke the citizenship of a post-nuptial citizen if he has reasonable grounds for deciding and does so decide that—
(a) the marriage pursuant to which the citizenship was acquired as not a bona fide marriage and was entered into solely or primarily for the purpose of acquiring post-nuptial citizenship or,
(b) the post-nuptial citizenship was procured by fraud or fraudulent misrepresentation.
The rest of the amendment is consequential to that.
What we are proposing is a simple logical approach. We want to extend the right that men have to women and give the women an equal, not a devalued, right. Having done that, we would then put in a support clause which gives the Minister the power to revoke a citizenship in the very few cases where this might be necessary. The Minister has not brought any case to our attention where this is the case. We recognise that some cases will arise. But presumably these were arising when men had the right so they will probably arise on an equal basis when women have a similar right. But if they are only going to arise on an equal basis why should we be concerned? I am slightly suspicious that somebody does not trust women and the Minister has confirmed this by saying there is a greater danger of marriages of convenience. Possibly because both can do it there will be twice the danger there was when men alone could do it. But it appears that somebody thinks that women will allow themselves to be abused in this respect more than men and I do not think we should approach our legislation in this way. We should give the straightforward equal treatment to men and women that exists for men at the moment and not a devalued equal treatment.
In addition, we are talking about marriage as defined in the Constitution. It makes one wonder whether the Minister could, in view of the Constitutional protection that is given to a marriage once it is contracted, send a spouse away. That is a separate matter but it is relevant. If we place marriage so high and recognise the family as having such a fundamental role in our community surely we should recognise an application for citizenship at the time of marriage in the way we have suggested here. Surely that is the positive thing to do. The negative cover can be given then by giving the Minister power to revoke any citizenship of a post-nuptial citizen if he has reasonable grounds for deciding that the marriage was not a bona fide one and was entered into primarily for the purpose of acquiring citizenship or through fraud or misrepresentation.
This is the logical way to approach the situation. The Minister does not seem to see it that way and she has not given us any hard evidence or reasons other than saying that she would like to see some equality across Europe. Yet, from the various arrangements that are made in Europe it seems quite obvious that the different countries are doing different things anyway. There may not be many of them doing just what we are doing but they are doing different things and having different periods and different mechanisms. This obviously has not been discussed or debated at that level and there is no directive and no agreement to equalise treatment in this respect throughout these countries. Therefore why should we not stick to our own procedure and make our arrangements by giving women full equal treatment with men?
In relation to marriage of convenience, the Minister says there are not many of these. Does the Minister have any evidence of such marriages at present in relation to men or women?
The simple answer is that we do not have any evidence of marriages of convenience that could be identified in the past. I would prefer not to deal with the Deputy's other amendments dealing with penalties and revocation at this time. The Deputy's amendment proposes that we extend post-nuptial citizenship by declaration to spouses. If citizenship by post-nuptial declaration became subject to revocation — which is suggested in a later amendment — then the status of those citizens would be lower because at present citizenship as of right is not subject to revocation but citizenship by naturalisation is.
I can give a number of cases from the law reports which deal with husbands who have been refused entry. In the case of Abdul Kefti versus the Minister for Justice, 1983-84, the husband was refused entry to the State; in the case of Pok Sun Shum versus Ireland, 1085: the husband lived in Ireland, was married to an Irish citizen and was ordered to be deported; in the case of Ahmed Bouzagou versus the station sergeant in Fitzgibbon Street Garda Station, High Court, No. 261, 26 July 1985, he was refused leave to stay in this State because he did not hold an Irish visa. He was married to an Irish citizen and had two children but there was evidence of domestic problems during his previous residence with the family in the State and his wife had a barring order. He had been abroad for two years but was refused leave to land here, not being a citizen of the State as specified in the Sixth Schedule — he was not a holder of a valid Irish visa and was not in a position to support himself. It is strange that in all these cases the State and the Minister for Justice moved and refused husbands entry to the State. I do not know what the wife does in those circumstances, although it is clear from one case that she did not want him back. Situations like this could arise even after three years and the Minister will have to deal with such situations. The Minister suggests that by allowing the Minister to revoke post-nuptial citizenship, if there are grounds showing that the position was abused——
There is no precedent for that. It is not possible at the moment to revoke citizenship as of right.
I appreciate that but at present the wife of a non-national is not entitled to have her husband living in Ireland. We are proposing that this right be extended to men and women.
The Minister is asking if revocation should be introduced at all, but the point I am making is that marriage is very important and should take precedence. The Minister does not seem to have been able to find any examples of marriages of convenience, so presumably if there are such cases they are the exceptions. To deal with these exceptions we could couch the revocation in more restrictive terms.
The amendment seems to deal with whether there should be a waiting period in certain circumstances.
Yes, but the Minister suggested that the two amendments are connected. We are recognising that a problem could arise in the future although such a problem does not appear to have arisen to date. At present Irish men have the right to bring their wives into this country as citizens and we are proposing to extend that right to Irish women. The Minister says we should introduce a three year waiting period for men and women, but our amendment suggests that we give the women straightforward equality with men. If the Minister is concerned about the possibility of marriages of convenience, we could give the Minister the right to revoke citizenship if there is clear evidence of fraudulent misrepresentation.
These amendments are interconnected in that we propose giving the Minister an additional power to grant this right to a person rather than to a woman. The Minister claims there is no precedent for this kind of revocation and I gave three examples from recent law reports — and my research facilities are very limited. Why not have a clear-cut arrangement to deal with these cases? I agree that marriages of convenience may take place, but unfortunately there have not been many cases to date. The Minister seems to think there is a greater danger of marriages of convenience taking place under the proposed changes. While I agree there could be some danger of this happening, why not provide a power to revoke in special circumstances?
If the Minister is not happy with the wording of our amendment, she is free to adapt it so that it will cover any circumstances which could be envisaged at this stage. We have no objection to that. The Minister has all the expertise at her disposal. I think she wants to get all Stages at the conclusion of this debate. That is a bad precedent and I do not think she should be doing it. It is very bad practice in the House. The Minister is here presumably listening to the debate and considering the matters that arise in it and even considering things that will come to her own mind in the course of the debate. We have a separate Report Stage, even though a very quick one, to allow the Minister to consider these matters between Committee and Report Stages. The Minister may at that stage decide that she wants to come back with an amendment to cover any situation which might arise on Committee Stage.
I would not be honest if I did not say here that as a public representative and as a parliamentarian I regard it as bad practice. It is an unwise practice to say the least. I appreciate that the Government are anxious to get certain legislation through and the Whips will argue about wanting all Stages and if not getting that not giving something else. This is just an example of how bad it is. No matter how much we debate this or how much the Minister may think about it — and I presume she is thinking very honestly and sincerely about it — she does not have the opportunity to introduce an amendment on Report Stage because Report Stage will be taken just like that at the conclusion of this Committee Stage. The Minister will have an opportunity when the Bill goes to the Seanad to think again about it, but it is one of the limitations under which this debate takes place now. Obviously the Minister is thinking because she is coming out with different suggestions and ideas in relation to what precedent there is for one thing or another and in relation to the incidence of these problems.
It is interesting that the three cases which I have mentioned here recently all concern the husband. Presumably we do not hear about cases where there might be a problem about the wife because she has automatic citizenship and we must put up with those problems thereafter and no action can be taken in the present circumstances. I am sure that the Minister's advisers in the Department are aware of these cases. I find it hard to see how they were not aware of cases in the High Court, in which the Minister for Justice was directly involved. In that event I would have thought that the Minister's advisers would have been alerting the Minister to the kinds of cases which occur. That is the kind of thing we in the House want to hear about because it is very relevant to the sort of legislation which one would agree to.
These generally are the points I want to make about the amendment. I will not have much to say about amendment No. 3 to section 4. We could have asked the Chair earlier that they be discussed together and then vote on them separately.
The Minister has not given me any real reason for not extending equality in this regard to women. That will devalue the position of women. Regarding the case of Mohammed Ali Somjee and Margaret Somjee in the High Court, the Minister said that the Pakistani gentleman who was looking for citizenship as a right because he had married an Irish citizen, had to wait two years. The Minister was prepared to give him citizenship after a two-year residential period and, as we know, that was not very helpful to him in representing Ireland in international squash. He could not represent Ireland because he was not an Irish citizen and it would take him two years to obtain Irish citizenship. Now the Minister, in a way is overcoming that problem in providing legislation which deals with it, is introducing a three-year waiting period. I cannot see him or his wife Margaret being particularly happy with what the Minister is doing in that respect.
From any of the cases we have it would seem that the logical thing to do would be to have a straightforward change in the Act as we have suggested in our amendment No. 1 here, to substitute "a person" for "a woman" and leave it at that as far as citizenship is concerned, to give a straight equal right to the woman. The Minister might feel that there is a need then to provide separately in relation to marriages of convenience under a separate section on the lines of what we have proposed here in our third amendment which gives the Minister power to revoke those post-nuptial citizenships where there might be fraud, misrepresentation or whatever. That seems a logical approach. I do not think the Minister has really said anything that makes it necessary to introduce the three-year waiting period. From our experience here I do not see how that becomes necessary.
Let me bring to the Minister's attention the primary which we give to marriage and the respect and authority given to marriage in our Constitution. Here the Minister is not showing that respect for marriage which it deserves and which the Constitution lays down is due to it. I do not know if the Minister can tell us anything more about it at this stage.
Are you pressing the amendment?
Yes.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 69; Níl, 60.
Tá
- Barnes, Monica.
- Barrett, Seán.
- Barry, Myra.
- Barry, Peter.
- Begley, Michael.
- Bell, Michael.
- Bermingham, Joe.
- Birmingham, George Martin.
- Boland, John.
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Collins, Edward.
- Conlon, John F.
- Connaughton, Paul.
- Coogan, Fintan.
- Cooney, Patrick Mark.
- Cosgrave, Liam T.
- Cosgrave, Michael Joe.
- Coveney, Hugh.
- Creed, Donal.
- Crotty, Kieran.
- D'Arcy, Michael.
- Manning, Maurice.
- Mitchell, Jim.
- Molony, David.
- Moynihan, Michael.
- Naughten, Liam.
- Nealon, Ted.
- O'Brien, Fergus.
- O'Brien, Willie.
- O'Keeffe, Jim.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Deasy, Martin Austin.
- Desmond, Barry.
- Donnellan, John.
- Dowling, Dick.
- Doyle, Avril.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard J.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- FitzGerald, Garret.
- Flaherty, Mary.
- Griffin, Brendan.
- Harte, Patrick D.
- Hegarty, Paddy.
- Hussey, Gemma.
- Kavanagh, Liam.
- Kelly, John.
- Kenny, Enda.
- L'Estrange, Gerry.
- McGahon, Brendan.
- McGinley, Dinny.
- McLoughlin, Frank.
- Prendergast, Frank.
- Quinn, Ruairí.
- Ryan, John.
- Shatter, Alan.
- Sheehan, Patrick Joseph.
- Skelly, Liam.
- Spring, Dick.
- Taylor, Mervyn.
- Taylor-Quinn, Madeline.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Paudge.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Burke, Raphael P.
- Byrne, Seán.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Cathal Seán.
- Cowen, Brian.
- Daly, Brendan.
- Doherty, Seán.
- Fahey, Francis.
- Fahey, Jackie.
- Faulkner, Pádraig.
- Fitzgerald, Liam Joseph.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm.
- Hyland, Liam.
- Kirk, Séamus.
- Kitt, Michael.
- Lenihan, Brian.
- Leonard, Tom.
- Leyden, Terry.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- McEllistrim, Tom.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West)
- O'Connell, John.
- O'Dea, William.
- O'Hanlon, Rory.
- O'Keeffe, Edmond.
- O'Kennedy, Michael.
- O'Leary, John.
- Ormonde, Donal.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Treacy, Noel.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
Tellers: Tá, Deputies Taylor and F. O'Brien; Níl, Deputies V. Brady and Barrett(Dublin North-West).
Question declared carried.
Amendment declared lost.
I move amendment No. 2:
In page 2, after line 35, to insert the following:
"(4) (a) Any person who enters into a contract of marriage solely or primarily for the purpose of enabling one of the parties to the marriage to acquire post-nupital citizenship pursuant to this Act, or who knowingly gives or makes any false or misleading statement or information for the purpose of enabling such citizenship to be acquired shall be guilty of an offence.
(b) Any person convicted of an offence referred to in this section shall be liable on summary conviction to a fine not exceeding £5,000, or, at the discretion of the court, to imprisonment for any term not exceeding 12 months, or to both such fine and imprisonment.".
I mentioned this matter in connection with my earlier amendment, that a woman should be given equal treatment with men and that certain safeguards should be built into the legislation. The Government have insisted on a three year waiting period. In my amendment I am proposing that we introduce a penalty in relation to persons entering into a contract purely to get post-nuptial citizenship. The Minister has tabled an amendment in relation to penalties. That amendment states:
4a. In page 4, before section 6, to insert the following new section:
6.—Section 17 of the Act of 1956 is hereby amended by the substitution of the following subsection for subsection (2):
(2) If any person, for the purposes of or in relation to an application for a certificate of naturalisation, gives or makes to the Minister any statement or information which is to his knowledge false or misleading in any material respect, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or both such fine and imprisonment.'.".
It seems to me that there is a need to provide a penalty for giving false or misleading statements or information to enable citizenship to be acquired. The second portion of my amendment states:
(b) Any person convicted of an offence referred to in this section shall be liable on summary conviction to a fine not exceeding £5,000, or, at the discretion of the court, to imprisonment for any term not exceeding 12 months, or to both such fine and imprisonment.".
My suggestion seems to deal with the Minister's fears in relation to abuses in this area as expressed when we were discussing my first amendment.
The amendment proposes to add on new subsections to section 8 as substituted by section 3. Apart from the view that the three years' subsisting marriage requirement is the best way to protect our citizenship, the amendment is open to the following objections: (1) the test of whether the marriage was "solely or primarily" for the purpose mentioned is far too uncertain for a criminal offence. The spouses might allege other purposes which the prosecution would have difficulty in disputing. One of the spouses may be marrying in order to become a citizen and the other for a different reason. If the latter knows the former's reasons he or she will be guilty under the amendment, as an accessory unless the amendment is further amended. This opens up the provision to more uncertainties as to the citizen spouse's motives.
As the amendment stands, it is doubtful whether it would apply to a marriage abroad because the general rule is that the criminal law applies to things done in this State only. A special provision could be included to cover marriages abroad but it would be a drastic and perhaps objectionable measure to penalise things done by aliens abroad. Anyhow a provision would be necessary as to where in the State proceedings could be instituted in the case of a marriage abroad. Therefore we oppose the amendment.
I am not pressing this amendment because it is related particularly to the circumstances in which the first amendment applied; it is consequential on the first amendment being passed. In any event, there is built in now a three year waiting period as a result of the decision taken here this morning. Consequently I do not intend to press the amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."
I have a difficulty with this section. It is very important in this area that the law is clear, that people are aware of what are their rights and that the application of the provisions of the section is not left open to the vagaries of departmental interpretations which could change as time wears on.
I do not have difficulties with the three year period to which Deputy Woods referred. But within the context of the section, it has to be established not merely that a marriage has run for three years but it must also be established and here I quote that:
...the marriage is subsisting at the date of lodgment of the declaration.
I am not sure I know what that phrase means. I am wondering does anybody else know. In ordinary legal parlance the idea of marriage subsisting would simply mean that the couple are still legally married to each other. They could be living apart. They might have separated two days after the marriage took place and they might have been living apart for two years, 11 months and 28 days after the marriage. But legally, formally speaking, the marriage would still be subsisting, it would be an existing marriage. I assume that the departmental intention is to establish not merely that three years earlier a couple went through the formal marital ceremony but that the marriage is still operating in some way. I cannot work out the phraseology of what should be used here; I have not applied my mind to working out the phrase.
I presume that what is being talked about is a marriage that is a continuing relationship with the couple still residing together. I presume that is what the Department are talking about. If they are simply talking about a marriage subsisting three years later, if the couple are still lawfully married to each other whether or not they are living together, it is a valid marriage, it is a subsisting marriage and will come within the context of the provisions of this section. If the Department are talking about the couple still having a viable relationship then I have another concern about this section. Within the context of the Bill and the amendments being proposed I understand the Minister will have discretion — where there is a belief that someone might have married for the purpose of gaining Irish citizenship — to refuse Irish citizenship.
Let us paint two possible scenarios: first, that an Irish woman marries an alien. I always think this is an unfortunate phrase and conjures up things that one sees in the movies when one starts talking about aliens to describe human beings. I always have difficulties with that phrase. However, let us presume that an Irishwoman marries an alien man. Presumably that is someone to be found on earth and not someone landing here from outer space. The concept of an alien man conjures up images that do not necessarily coincide with the idea of something with two arms, two legs and a head that looks like the rest of us in this House. We are stuck with this phraseology of "alien". It has been used in legislation for many years.
Let us say an Irishwoman marries an alien man. They marry each other and the man comes to Ireland. They have been living together for about two years when the woman makes off and establishes a liaison with a third party with whom she then permanently resides. Let us assume that the man has come to Ireland in good faith, has made his home in Ireland and possibly has children he may be taking care of. If that man, having been here for three years, goes seeking Irish citizenship what will be his position? If it is to be the first interpretation, simply that he is lawfully married to his wife, he is entitled to citizenship. But, if it is to be the second interpretation, that his marriage must be viable and through no fault of his it may have ceased to be viable, is he to be deprived of citizenship and possibly placed at risk of being put out of this country? His rights to reside in Ireland may become or be dependent on his having citizenship, which is another problem.
Let us take the reverse scenario, of the Irishman who marries an alien woman who comes to live in Ireland and, after two years of residing together, the man makes off and enters into a liaison with someone else with whom he permanently resides. The woman who may not necessarily have custody of young children then goes to the Department of Justice officials saying: "I want Irish citizenship". Do they say: "You are still validly married; therefore you are entitled to it"? Or do they say: "Because your husband has left you your marriage is no longer subsisting; we are not going to grant you citizenship"? Is she then penalised and put in a position in which her rights to remain in this country are undermined through no fault of hers, having made a commitment to a marriage and to reside in Ireland?
I have great difficulties with that phrase. Whereas I know it is well intended, I am not sure that its consequences have been fully worked out. The differing types of interpretations that could derive from this phrase result in too broad a discretion being placed on departmental officials who are not subject to any checks either by the courts or the Oireachtas in dealing with this issue. I regard it as a totally unsatisfactory phrase which will leave men's and women's rights to Irish citizenship extremely uncertain and subject — and I do not mean this disrespectfully — to the arbitrary whim of the interpretation applied to the section by the individual officials who are asked to administer it. That is thoroughly unsatisfactory. It does not give rise to good law, to common sense and certainly would not give rise to clarity in the context of citizenship rights or laws.
We then have another problem. Let us assume that we are talking about a couple having to establish a viable marriage relationship. One no longer goes to the Department, displaying one's marriage certificate, providing proof that one has resided in Ireland for three years. Does one have to disclose personal matters relating to one's personal marriage relationship with one's spouse so that a departmental official can pronounce on the viability of one's marriage? I know what is intended, the intention is laudable but it would seem to me that we could get rid of this concept altogether, that we should talk about someone applying for citizenship three years after a marriage ceremony has taken place with the Minister or the Department having this residual power to recall citizenship at a later stage if it can be fully established that it has resulted from someone marrying for convenience to come to Ireland.
I am concerned about that concept as well because, where a marriage does break down, where it breaks down through no fault of the alien partner to it, how will the Department make that type of determination? I know we deal with this in a later section but the two are inter-linked. Who will pronounce on what were the motives of someone when coming to this country to marry? I have grave doubts about the workability of the phraseology of the section in this context. Rather than clarifying our citizenship laws, I believe it will throw them into a degree of confusion and uncertainty, leaving people exposed, in a sense, to arbitrary decisions taken within a Department in secret, decisions in respect of which there are no proper or formal grounds of appeal.
Something else needs to be clarified in the overall context of this section. There have been many cases in the courts in recent years in which Irishwomen married alien men — someone should have thought of another word, such as non-national instead of talking about aliens as if they had descended on us from outer space — who have come to Ireland either for travel purposes or for some other reason and, for reasons that may have been valid, the Department refused to allow the spouses of Irish citizens to remain in Ireland beyond the holiday stay periods. The officials in the aliens' section of the Department have wide discretionary powers under our Aliens Act to make decisions in these matters. We should have a formal appeals system so that people would not be forced to resort to the High Court to have decisions of this nature reviewed.
A person who marries an Irishman or woman, effectively in the ordinary course of things will have to be married for three years before acquiring Irish citizenship, and the Minister has wide discretionary powers in this matter. We need to clarify the right of the alien spouse to come to Ireland to reside with the Irish citizen to whom that person is married and the right of the alien to come to Ireland for certain holiday periods. Such people should be treated in the same way as other aliens who are not married to Irish citizens.
When this section comes to be put into operation it will give rise to enormous difficulties, so we need a great deal of clarification of how the Department and the Minister envisage it being operated. We need to flesh out what is meant by "marriages subsisting at the date of lodgment of the declaration". We need to decide whether the thought behind decisions coincides with the language in the Bill. Otherwise we will create considerable confusion in regard to citizenship rights, and that will affect, particularly, couples who in good faith enter into marriage and who in their early years of marriage find they are tragically parties to marriages that in a brief period have collapsed irretrievably.
Though the Bill is an effort to resolve such problems, and to put men and women in positions of equality, it creates other problems and ambiguities and could be the catalyst to an increasing number of court cases which would not have been necessary and could be avoided if the legislation were clear and if the discretionary element could be made clearer.
There are appeals systems in other jurisdictions. Perhaps it is not being done here because the officials who administer the system exercise powers which they do not always want to be reviewed. In the way of the world, no doubt they mean well and they exercise their powers with the best intentions but they do not like the idea of an independent tribunal to review cases. This is symptomatic of administrative decisions that have far-reaching effects on the lives of many people.
I made this point on Second Stage: once you accept the three year waiting period you bring in a whole set of new problems. I said on Second Stage that the Minister has included a new clause which provides that the entitlement to automatic citizenship to be enjoyed by a spouse shall not take effect earlier than three years after the date of the marriage, provided the marriage is still subsisting at the time of the declaration. This safeguard, presumably, is being included to provide against marriages of convenience. The three year waiting period is a new provision. It did not apply before women were given the same rights as men. This waiting period could create further difficulties and anomalies.
On Second Stage I explained that we would need to get into the ramifications of family law and the kind of situations that could develop. Deputy Shatter referred to some of them and I am sure that on further consideration one could find other instances. I said on that occasion that if an Irishman marries an Italian women in Italy and if they resided in Ireland, after two and a half years, with two children, if he dies she would not have a right to citizenship by the marriage. If the husband deserted her and got a divorce in Italy she would still not have the right to citizenship by the marriage. If they had lived abroad and he died she would not have a right to Irish citizenship.
I suggested then that the Minister would have to include on Committee Stage a provision to entitle the woman in such cases to lodge a declaration notwithstanding the death of the spouse, provided the Minister would be satisfied that there was a bona fide case. The Minister has not come forward with any amendment along these lines. Has the Minister considered this matter and what view has she taken? Though not a specialist in this area, it became obvious to me that once you introduce the three year waiting period there will be potential complications.
Deputy Shatter spends much time professionally working in this area and he can see that this can be a real problem. Provision should have been made to cover a variety of circumstances that will arise in regard to the three year waiting period, and I should like to hear the Minister explaining these matters.
Deputy Shatter referred to the right of admission to the State. That is dealt with in the 1935 Aliens Act. In regard to the requirements for a declaration, subsection (2) provides that citizenship will date from the day of lodgment of the declaration. The earliest date on which a declaration can be lodged is three years from the date of marriage, as provided for in subsection (1). Under the existing section 8, a foreign wife can lodge a declaration either before or after the marriage. Lodgment of the declaration will not be allowed earlier than the third anniversary of the marriage under the new section 8 because the marriage must be a subsisting one of three years' duration for a foreign spouse to acquire citizenship.
It is envisaged that by way of administrative requirement, to enable the provision to be implemented, when making the declaration a foreign spouse would have to provide the following proofs of three years' subsistence of marriage to an Irish citizen, otherwise than by naturalisation: one, a birth certificate of the Irish spouse; two, a marriage certificate to the Irish spouse; and three, adequate evidence from the Irish spouse to the effect that the marriage is subsisting. The decision will be made by the Department of Justice. Deputy Woods referred to a point he had made on Second Stage with regard to the death of one spouse before the end of the three year period. There would be provision for the citizenship to be extended to him or her under section 16 of the 1956 Act, by Irish association.
With all due respect to the Minister — and I do not mean this in a destructive way — I find her response totally unenlightening. A formal response of that nature to the points raised does not exactly shed too much light on the intentions of the Department. Minimum requirements would include the production of a birth certificate from the Irish spouse but it would not take too much imagination to reach that conclusion. With regard to the marriage certificate, presumably if someone is alleging to be married some official might recognise the need to look at a marriage certificate. The third requirement is that ample evidence be given that the marriage is presently subsisting. I do not know what that means, any more than what the phrase "that the marriage is subsisting at the date of lodgement of the declaration" means. Presumably the marriage must be subsisting for the three years. Is that not what the section intends? I want to know what is meant by that phrase. I do not want to waste the time of this House and regret that today we shall be dealing with two Bills dealing with issues of some importance in the area of social reform and social legislation, issues that I have sought to have dealt with for many years, both outside and inside this House. Having a curtailed debate which renders it impossible to tease out the implications of the legislation is not satisfactory. I find the Minister's response on this issue particularly unenlightening and unhelpful.
I agree with the points raised by Deputy Woods regarding a husband or wife who drops dead after two or two and a half years. Section 16 of the Act is being amended in this Bill. The Minister has a residual discretion under that section to extend citizenship in certain circumstances. That is a grace and favour exercise, not an entitlement to citizenship as of right. To take Deputy Woods' example, if I were an Italian man who came to Ireland, set up home here, married an Irish woman, we had children, my wife tragically died two and a half years after marriage and I wished to stay in Ireland, why should I not be entitled, as of right, to Irish citizenship? Why should this be a grace and favour exercise left totally to the discretion of the officials within the Department of Justice, with no regulations set down guiding them as to how those decisions are to be made? The legal theory is that these decisions are made by the Minister, but the reality is that no Minister will move in these areas unless he or she is trying to prime the parish pump without the advice of the departmental officials expressing a view in favour of something.
In my constituency I have had experience of a young person of 24 years of age, a medical student, both of whose parents have Irish naturalisation, one of these going back to the sixties. Having this person naturalised is apparently an issue of gigantic difficulty for departmental officials to come to terms with, although he has lived in Ireland since the age of five years, has been totally educated in Irish schools and is currently attending an Irish university. I have seen the way in which the system operates and it operates most inefficiently and most foolishly. It is the classical example of Parkinson's Law in operation.
Why put a couple through this grace and favour procedure, or a spouse where a marriage has broken down or the partner has died? The Minister's reply, rather than satisfying me that this is an issue which is being fully thought out and will be dealt with in a satisfactory way by the Department officials concerned in making it clear to people what their rights are, confirms to me that the matter will be left finally as a totally discretionary exercise. Within the Department, as time goes on, different officials dealing with the matter may introduce different rules as to what is regarded as "ample evidence that a marriage is presently subsisting". The marriage certificate establishes that a person is married. Does the phrase concerning ample evidence of the marriage being presently subsisting, refer to the viability of the marriage? If a couple are living apart, what would be the right of the alien spouse to acquire Irish citizenship? Is that person debarred from Irish citizenship under section 3 of this Bill — or what will be the new section 8 of the 1956 Act? Is it envisaged under those circumstances in the administrative structure that citizenship will never be given to a spouse in circumstances where the couple have separated within the three year period? That is not an unreasonable question. Will a departmental official adjudicate on marital breakdown by trying to score points and work out which spouse is responsible for the marriage breakdown? If the official forms the view that the Irish citizen is primarily the guilty party, will he award citizenship as a prize to the alien spouse; or if he forms the view that the alien spouse is primarily the person at fault, will he withold the prize of citizenship for bad marital behaviour? These issues have not been teased out and if we as a Parliament do not do so they will be the subject of litigation which should not be necessary in an area as basic as this.
The Minister is right in saying that the admission of aliens to the State is governed by the Aliens Act of 1935. That does not answer my second question, which is, what rights are envisaged for an alien spouse within the administrative structure that equally operates in the Department of Justice in relation to the Aliens Act? That alien spouse will not have descended from Mars; he might descend from England and if he or she descends from an EC country he or she should be protected under European Community legislation to some degree. If he or she descends, not from outer space but from the United States, Sweden, Finland or Canada, what rights would that person who cannot apply for citizenship for a three year period, have to live in Ireland? That is not an unreasonable question. That spouse could be a man or woman in the way this Act is envisaged.
Up to now if the alien spouse were a woman she would have automatically acquired Irish citizenship upon marriage and her right to reside in this country would be uncontroverted. We are now reversing the position. Even then no woman would acquire automatic citizenship on marriage but for the exceptional provision arrangement made within this legislation. In equalising the position of men and women, which in itself is desirable, we are taking away a right which wives currently have. We are telling the alien wife that because she does not automatically have Irish citizenship upon marriage, the right to stay in this country, particularly if she comes from outside the EC, may be a grace and favour exercise operated by the aliens section of the Department of Justice administering the Aliens Act of 1935, applying their discretionary interdepartmental approach to dealing with that issue? They are issues on which this House is entitled to seek clarification. The formal reply given by the Minister has not shed too much light on them.
First, I should like to tell Deputy Shatter that what I said was "adequate" and not "ample" evidence. He misheard me. Adequate evidence is the third requirement that the marriage is subsisting. The overall need is to ensure that the marriage is viable. The fundamental objective of this legislation is citizenship rights based on marriage. I am pleased that the Deputy has come into the House because I realise that he has vast experience in this area. He has brought up quite an important item concerning the requirement of adequate evidence of the Irish spouse to the effect that the marriage is subsisting. I am prepared to look at that requirement to see if we can improve on it and prevent the difficulties that the Deputy has suggested.
With regard to an alien spouse coming into the country, he or she would be treated in the same way as any alien who would not have Irish citizenship. This position is no different from the position of someone in similar circumstances in another country.
This discussion tends only to highlight the problems raised by providing for a three year waiting period. To a large extent we have had that discussion earlier but the various problems that could arise are now highlighted. There is the question of a couple separating during that period or of what would happen in the event of a divorce, assuming that we had divorce legislation. There would be the problem then of whether the Irish citizen was the defaulting partner or whether the person from outside was responsible for the marriage not subsisting. Therefore, we are left with two problems: the question of determining whether the marriage is subsisting and the question of what happens if the marriage is not subsisting, whether by way of death, separation or because of other definite reasons.
The section seems to indicate that the parties will depend on the grace and favour of the Minister and of the Department. This raises the question of what exactly is the position during the three years up to the time that a declaration can be made. What would be the position of the non-Irish person during that time? Could he or she be sent from the country very easily? We have had the case of Ahmad Bouzagou v. the station sergeant at Fitzgibbon Street Garda station. In that case a barring order was applied to Bouzagou who was married to an Irish citizen. There were two children of the marriage. The wife obtained a barring order and the man was deported. He was refused leave to land here again. Therefore, it is not as if we were talking about totally theoretical situations. In dealing with legislation we try to think theoretically of what kind of circumstances might arise but these kinds of cases do occur. Presumably the Minister will have to make provision in a whole series of ways for such cases. I shall not repeat what I said at the outset regarding my belief that it would be better to provide for straight, equal treatment and to provide the revocation for the exceptional circumstances which might arise under this legislation and to leave it to the Minister to specify the provisions as much as possible. That would be covered by my amendment but it would be covered even more so in the next amendment.
All these problems will have to be met. There is the danger that in taking the kind of action we are taking in this section we are opening the door to a substantial amount of litigation in relation to these questions. We must ask what we are letting ourselves in for in relation to the three-year period in circumstances in which a marriage is deemed not to be subsisting at the end of that time and where there are children involved.
Another problem that could arise in this area occurred to me as the Minister was speaking. She expanded on what she said originally and said that the departmental view was that we were talking about a viable marriage. I shall not go back over old ground but presumably the view of the Department would be that if there is not a viable marriage there is not a good case for granting citizenship to the alien spouse. I have explained already the problems that could give rise to, particularly if the alien spouse was not the person responsible for the marriage breaking down. However, let us take a different perspective and presume there is an Irish citizen whose marriage to a foreigner breaks down and that there are young children of the marriage. Let us presume that the foreign spouse is the man and that he is operating a business in Ireland. The woman may have no independent support of her own and be depending on the husband for support. The courts may have made maintenance and other support orders requiring the man to maintain the wife and children and extending to the children the right of access to their father though the wife might have custody of them. There might be extreme cases such as the one Deputy Woods referred to where a husband was very violent and was barred from the home. In such circumstances it might be convenient for everyone, and no one more so than the wife, to have him removed from the country but in the majority of instances that is not the case.
In most cases when a marriage breaks down one of the anxieties of the wife is that the husband, if he is the principal wage earner, will not flee the jurisdiction but will remain in Ireland either in employment or continuing to operate his business so that she can be assured of receiving income supports. If a marriage is not viable it can be as much in the interest of everyone concerned that the possibility of citizenship be extended to the foreign national as is the case when the marriage is viable. On the assumption that the Department would deal with people in a civilised way under the aliens legislation and would not exclude the foreign husband or wife from the country, when the marriage is not viable it might be in the interest of everyone concerned that the possibility of citizenship be entended to the non-national. This would be particularly so in the case of a husband who was the principal wage earner in the family and who had made a commitment to staying here. The aliens' department suggestion that such a person should be sent from the country could result in the future maintenance and security of the wife and children being placed in jeopardy. I am sorry if I misquoted the Minister when I referred to ample evidence that the marriage was subsisting. She says she referred to adequate evidence and I accept that. My problem is not whether the evidence is ample or adequate. It is what everyone means by the reference to a marriage subsisting. The very valid problem in this area is being highlighed by both Deputy Woods and myself. It is a problem that we must deal with.
The Bill we are dealing with this morning and also the one we shall be dealing with tomorrow have in-built reforms for which I was campaigning long before I came into this House. I was campaigning then as a member of different voluntary bodies and organisations. Both Bills deal with the equality of women but in providing for equality we must ensure that while solving one problem we do not create others or simply replace one problem with others thereby making the legal position of people whose problems we are seeking to resolve more precarious than it was in the first instance. Regardless of what kind of legislation we are dealing with it is never helpful to have both Committee and Report Stages compacted into the one day.
I welcome the fact that the Minister of State said that she will have another look at this. I would seriously urge the Minister of State when we do come back on Report Stage to have a series of specific amendments tabled by this side of the House to flesh out the problems created by the new section 8 which we are going to insert into the Act and to deal specifically with the rights each spouse would have to citizenship. We need to have a definition section which would state explicitly what is meant by a subsisting marriage after the three year period.
The difficulty with Report Stage debates is that each side has only one bite to deal with the problem. This is an issue that I do not see as a matter of great party political contention. I do not think the blood pressure of any particular political party in this House is going to rise greatly on this Bill and it is the sort of matter we should be able to deal with in a constructive, legislative fashion. It would be an opportunity for some Members of this House who have an interest in this area to have a look at what amendments the Government might table prior to us moving formally into Report Stage. I would urge the Minister of State to give a specific commitment that she will introduce on Report Stage specific amendments to deal with the problems which have been highlighted and which are very real ones.
I notice Deputy Woods has not expressed a view on this issue but he may have done so on another occasion. I would be interested to hear whether the Minister of State will be willing to consider the establishment of an administrative appeals body to deal with appeals by people who are seeking citizenship and who have had their original applications turned down. This exists in many other countries in Europe and there is no reason why we do not have it here. My colleague, Deputy Kelly, often says that in the context of some legislation introduced in this House we too frequently slavishly follow what happens in the UK. In the context of legislation which confers large discretionary powers on departmental officials the one area where we do not slavishly follow what they do in the UK is that we provide independent appeal mechanisms whereby people can appeal against decisions made at an official level within Government Departments which are theoretically made in the name of the Minister but which, as we all know, are made on the advice of the Minister's officials.
I hope the Minister of State will see the debate we have had on this issue as a constructive one. I would certainly hope that when we come back on Report Stage we will have fully fleshed out what is meant by this phrase. My view on this would be that if the departmental administrative approach is to require adequate evidence that a marriage is presently subsisting and if we cannot lay down the specifics in this legislation of what is meant by that type of evidence, there should be a statutory instrument or regulation which extrapolates on the meaning of that phrase so that the discretion is not so broad as to be indefinable so as to render it impossible for people to know exactly what their rights are.
I raised the question of an appeals system on Second Stage. It is something which we can return to on Report Stage when the Minister of State may have something further to say. The points in relation to this section have been well highlighted. There is one other aspect which I would ask the Minister of State to clarify and that is that once this Act comes into being there would be a change in relation to the application. The Minister of State mentioned on Second Stage that she would give a six month notice period. Will that be advertised?
It is in the Bill.
Will that be advertised publicly to let people know what the situation is? Some of the main considerations have been highlighted in relation to the section. I still remain of the view that it would have been preferable to go the other way about it but now that the House has decided to go along this line there will be a need on Report Stage for further elaboration and elucidation of the areas which have been mentioned. I would like to see from the Minister of State amendments which would cover the points which have been raised in so far as this can be done. This may be difficult for the Minister of State because once one introduces a three year waiting period one automatically gets a number of these events occurring within the three year period. I appreciate that it is difficult to make provision for all of them. Perhaps, the Minister of State can, in so far as is possible, make provision to deal with that period.
I would like to thank both Deputies for their contributions and say with regard to the proposals made by Deputy Shatter that they will be given consideration before Report Stage. I would remind Deputy Woods that the transition provision which he referred to is in section 6.
Is it intended to advertise that fact?
That will be a feature of the Bill and one which we think is desirable.
Question put and agreed to.
NEW SECTION.
I move amendment No. 3:
In page 3, before section 4, to insert the following new section:
"4.—Section 19 of the Act of 1956, is hereby amended by the insertion after subsection (6) of the following subsections:
"(7) The Minister may revoke the citizenship of a post-nuptial citizen if he has reasonable grounds for deciding and does so decide that—
(a) the marriage pursuant to which the citizenship was acquired was not a bona fide marriage and was entered into solely or primarily for the purpose of acquiring post-nuptial citizenship, or
(b) the post-nuptial citizenship was procured by fraud or fraudulent misrepresentation.
(8) Before revocation of a post-nuptial citizenship the Minister shall give such notice as may be prescribed to the person whose citizenship is in question, of his intention to revoke such citizenship, stating the grounds therefor and the right of that person to apply to the Minister for an inquiry as to the reasons for the revocation.
(9) Subsection (3) of this section shall apply to an application in the prescribed manner for an inquiry under subsection (8).
(10) Notice of the revocation of a person's post-nuptial citizenship shall be published in Iris Oifigiúil.'.”.
The purpose of this amendment is that in the event of there being no three year waiting period the Minister would have power to revoke and that the individual would have power to appeal against such a revocation and have a right to have the grounds stated and put clearly to him or to her for such a proposal to revoke citizenship which was obtained allegedly on a fraudulent basis. We are trying to make the system as fair as possible for the person whose citizenship might possibly be remoked. Exceptional cases might come forward where it was necessary to take such action and this amendment provides a clear means by which the person could be informed of the intention to revoke such citizenship and puts an obligation on the Minister and his Department to state the grounds for such an intention. It is a mirror image of the points raised by Deputy Shatter in relation to the other aspects. In the circumstances which now apply there is need for a clearer definition of the processes by which decisions would be made.
On a point of order, are we on amendment No. 3?
We are on section 4, amendment No. 3.
We are attempting to give clarity, statement of grounds, and definition to this and to make sure that the person would be given that kind of information. This is very relevant. If we take the other route which the Minister is taking in having a three year waiting period, similarly it is necessary to have clear statements and clear grounds given to people for decisions which are made in relation to them, for example, in relation to a non-subsisting marriage. The same spirit is included in this amendment as that referred to by Deputy Shatter. I support the approach of clarifying and making certain the methods and the measures which are involved in determining whether or not a marriage is subsisting, or in determining the position of people whose marriages have not reached the three year qualifying period.
I do not propose to press this amendment because it was related to the first one. On that basis I will withdraw it on the grounds that the House has now voted in favour of the three year waiting period.
Amendment, by leave, withdrawn.
NEW SECTION.
I move amendment No. 4:
In page 3, before section 4, to insert the following new section:
"4.—Section 21 of the Act of 1965 is hereby amended by the substitution of the following subsection for subsection (1):
`21.—(1) If an Irish citizen, who is either of full age or a married person under that age, is or is about to become a citizen of another country and for that reason desires to renounce citizenship, he or she may do so, if ordinarily resident outside the State, by lodging with the Minister a declaration of alienage in the prescribed manner, and, upon lodgment of the declaration or, if not then a citizen of that country, upon becoming such, shall cease to be an Irish citizen.'."
The purpose here is to tidy up the existing Act. When we are talking about powers which are given to renounce citizenship, why should it be only a married woman under that age instead of a married person? This Amendment deals with renunciation of citizenship. It is a new section which would amend section 21 of the Act of 1956. It is consequential on the other change which was made in the first part. I put the amendment down to deal with that because I feel the Minister should make that change.
I will comment on that before I move amendment No. 4a.
We must deal first with section 4, amendment No. 4.
My advice is that it is not entirely necessary given that under the Age of Majority Act, 1985, reference to full age in legislation means either a person of 18 years, or a man or woman under that age who is or who has been married, However, I will consider that further.
In view of the fact that the Minister is taking this into account I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
We welcome section 5. It deals with the case where the applicant is a person who is a refugee within the meaning of the United Nations convention relating to the status of refugees of 28 July 1951 and the protocol relating to the status of refugees of 31 January 1967 or is a stateless person. It brings this category into the power to dispense with conditions of naturalisation in certain cases. We welcome that step.
Question put and agreed to.
NEW SECTION.
Amendment No. 5 is an alternative amendment. If amendment No. 4a is agreed, amendment No. 5 cannot be moved.
I move amendment No. 4a:
In page 4, before section 6, to insert the following new section:
"6.—Section 17 of the Act of 1956 is hereby amended by the substitution of the following subsection for subsection (2):
(2) If any person, for the purposes of or in relation to an application for a certificate of naturalisation, gives or makes to the Minister any statement or information which is to his knowledge false or misleading in any material respect, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment.'."
I put down my amendment to this section to bring to the Minister's attention the fact that the penalties here were still of the order of £50. The figure is completely out of date and it should be more substantial. I suggest that wealthy people and Rajahs who come from abroad should have to pay more. That is why I suggested a figure not exceeding £5,000, knowing that in particular cases the courts would apply the appropriate figure. I am quite happy to accept the Minister's proposal of a maximum of £500. It is a small enough figure these days but I accept it.
Amendment agreed to.
Amendment No. 5 not moved.
Section 6, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Tuesday, 6 May 1986.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.