SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS díospóireacht -
Wednesday, 8 Nov 2000

Vol. 1 No. 11

Irish Nationality and Citizenship Bill, 1999 [Seanad]: Committee Stage (Resumed).

NEW SECTION.

Debate resumed on amendment No. 3:

In page 5, before section 4, to insert the following new section:

"4.-A person is an Irish citizen if adopted outside the State, whether or not such adoption is recognised pursuant to the Adoption Act, 1991, where the adopter or one of the adopters is at the date of the adoption an Irish citizen and where the adoption was effected in accordance with the laws of the State concerned.".

-(Mr. Shatter).

Mr. Shatter: The Minister was about to explain the appalling consequences of implementing this requirement. Perhaps he will give an example of this.

Minister for Justice, Equality and Law Reform (Mr. O’Donoghue)

It is interesting that when Deputy Shatter introduced his Adoption Act he did not include the issue of retrospection, for which he must have had a good reason. In the circumstances, I could say to the Deputy that he is posing a rhetorical question. However, I will not do so.

If, for example, one is a citizen of a particular state and the holder in that country of public office, perhaps one of the grounds of eligibility - this would apply to a member of the judiciary or a member of the national parliament - and one of the grounding principles or preconditions for holding such office is that one must be a citizen of the country concerned. That is perfectly reasonable.

Let us say that such a person also seeks and obtains Irish citizenship by naturalisation. Under Deputy Howlin's amendment that citizenship would apply retrospectively from birth. That, in turn, casts a retrospective doubt on the individual's eligibility for public office in the state aforementioned. That, in turn, would lead to the question of whether decisions made by that individual, for example if the person were a judge, were legal.

There is little doubt but that there are very sound reasons for not encouraging retrospection in the legislation. It is significant that Deputy Shatter, in his legislation dealing with adoption, did not provide for retrospection deliberately. I believe if he felt there were good reasons for doing so he would have done so. While it may sound amusing such a situation could arise. As I have explained, I cannot have the kind of uncertainty it would undoubtedly encourage if I were to accept the amendment. I hope that deals with the matter. Deputy Shatter can tell us why he did not make his legislation retrospective.

Mr. Shatter

In the context of amendmentNo. 3 - I am sure Deputy Howlin will speak to his own amendment - the effect would be that if someone adopted a child today outside this jurisdiction in circumstances where the adoption was not recognised but where it was properly effected according to the law of the foreign country and the adopters were Irish citizens, the argument the Minister made would not apply. There is no reason Irish citizenship should not automatically extend to children who are adopted outside the State by Irish citizens in circumstances where the local law has been complied with properly. I do not see that as a major problem and I do not understand why the Minister does so. I presume we are to take it from what the Minister said that he is opposed to the amendment.

Mr. Howlin

The Chair will recall that, on the last occasion, the Minister opposed these two amendments because of the appalling vista they would open. We waited for the disclosure of this appalling vista and, even with the benefit of some time to reflect upon it, the example given by the Minister would cause some amusement.

Does the Minister accept that a person who claims citizenship by descent is deemed to be a citizen from birth? Why would the position the Minister described not apply to that individual just as it would to a person who is naturalised and adopted? Why should someone, because of a defect in our adoption law, suffer this disability uniquely?

Mr. O’Donoghue

Deputy Shatter did not refer to Deputy Howlin's amendment, which is proper, but he studiously avoided telling us why he did not provide for retrospection in his adoption Bill. That is a matter for him. I would have thought that if people are asked to jump hurdles they would be prepared to do so. That being said, Deputy Shatter's amendment refers to adoption law and properly belongs there. It does not belong in citizenship law.

Deputy Howlin asked a very interesting question regarding a person who is Irish by descent. There is no question of deeming a person who is Irish by descent to be an Irish citizen. The facts are that, ipso facto, the individual is an Irish citizen. The issue does not arise. That is my stall which I have laid out fairly and squarely.

Mr. Howlin

It is a rickety stall.

Mr. O’Donoghue

It is a very good stall based on firm foundations of certainty in the law.

Mr. Howlin

The Minister's position is untenable. He is saying that a person who applies, at any stage in his or her life, for citizenship by descent, who decides perhaps after being a judge or a member of a foreign parliament that he wants to invoke his right to be an Irish citizen because his grandmother or grandfather was an Irish citizen, is not putting anything at risk by having citizenship granted to him it being understood that he was always an Irish citizen from birth. The analogous position I put to the Minister is for a person who cannot claim citizenship by descent only because a foreign adoption was not recognised under current law in this State to become a citizen by naturalisation and for that to apply retrospectively from the time of birth. If it is good for one case it is good for all.

As regards the peculiar circumstances put forward by the Minister as to why it should not be retrospective, I do not see why it would be such a disadvantage to someone who is the position covered under my amendment rather than someone who is a naturalised Irish citizen by descent or an Irish citizen by descent on application. I do not see why the two positions should not be regularised in the same way.

Mr. O’Donoghue

There is disagreement on this. One does not apply for Irish citizenship by descent. One is either an Irish citizen on the basis of descent from birth or one is not. There is no question of there being an application at any point. If a person under Irish citizenship law——

Mr. Howlin

The Minister knows that is not true.

Mr. O’Donoghue

It is true.

Mr. Howlin

I have dealt with cases like that myself.

Chairman

The Minister without interruption.

Mr. O’Donoghue

One does not apply for Irish citizenship by descent. The law operates by declaring that the child of an Irish citizen born abroad is an Irish citizen either from birth, that is in the case of the first born - the first generation, that is the law - or through registration on a foreign births register for subsequent generations. The point is there is no application for Irish citizenship by descent. I have made it very clear that one does not apply for Irish citizenship by descent.

Mr. Flanagan

I am not sure if the Minister is clear on the matter. My understanding of what he has said regarding Irish citizenship from birth was the way it operated under the 1956 Act. It is not true to say that the first born generation is an Irish citizen from birth.

Mr. O’Donoghue

It is.

Mr. Flanagan

Not under this legislation. The Bill is silent on that person's allegiance. It gives a person freedom to make a choice. That comes back to Deputy Howlin's point. It is not as of right.

Mr. O’Donoghue

The new section 7 states that a person is an Irish citizen from birth if at the time of his or her birth either parent was an Irish citizen, or if alive, would have been an Irish citizen. That is fairly plain. One does not apply, therefore, for citizenship by descent.

Mr. Howlin

That is not my point.

Mr. O’Donoghue

Every time I try to explain the matter, Deputy Howlin or someone else seems to interfere. The law operates by declaring that a child of an Irish citizen born abroad is an Irish citizen, either from birth in the case of the first generation or from registration in the foreign births register for later generations. It is not an application, it is a simple registration. I have to take the view, therefore, that the argument being made is incorrect for the simple reason that it is not in accordance with the law, as it stands. With all due respect to Mr. Cascarino, there are plenty of other people available in the PR world and elsewhere who could advertise and help him with the sale of his book, without us trying to assist him also.

Chairman

Point taken.

Mr. Shatter

I specifically made the point the last day that while the amendment tabled by me might be of some benefit to Mr. Cascarino, it has far broader elements. I want to take up directly the point made by the Minister. Let us assume that an Irish couple, while living abroad, have a child. As the Minister correctly said, that child, although not living in Ireland and who may never do so, can be automatically registered as an Irish citizen because his or her parents are Irish citizens. Let us take the contrasting position. Let us assume that a married couple who have lived all their lives in the State, both of whom are Irish citizens, because they cannot have a child of their own, adopt outside the State and in so doing properly follow the law of the foreign state, but for whatever reason fail to follow the procedures in the State, for example, for a pre-adoption suitability test, or the laws of the foreign state are such that the adoption is not recognised here, although, according to the foreign state concerned, the child has been properly adopted. Is it not completely illogical that that child does not automatically acquire Irish citizenship from his or her adoptive parents in circumstances where he or she will continue to live in the State until he or she attains adulthood, unlike the child born to Irish citizens who will never set foot in the State?

Mr. O’Donoghue

As I explained the last day, in the context of what the Deputy outlined in relation to children who are adopted, the issue of citizenship cannot be addressed in isolation. One also has to consider the rights of the natural parents; the relationships between the natural and adoptive parents, and the rights and relationships between the adopted child and the natural and adoptive parents. A whole series of rights and relationships have to be considered in the context of the adopted child and they cannot be considered in isolation. That is the reason my colleague, the Minister for Health and Children, Deputy Martin, is undertaking a review of the law on the recognition of foreign adoptions with such considerations in mind. That is as it should be. It would not be desirable for me to seek to bring forward in this legislation major provisions dealing with issues of adoption when all I am dealing with is nationality and citizenship.

Chairman

That being the case, would it be possible for the Minister for Health and Children to provide in his Bill for the extension of citizenship to the person about whom Deputy Shatter is talking?

Mr. O’Donoghue

Definitely. I understand from my colleague that this is a matter to which he is giving consideration. In so doing he will also have to give consideration to all the complex rights and relationships I have outlined.

Mr. Howlin

On amendment No. 16, I do not know how many naturalised Irish citizens there are who, because of a defect in our adoption law, were prevented from claiming citizenship by descent, but without overcomplicating adoption issues citizenship should apply retrospectively from birth. That is the net issue. I do not understand the reason the Minister will not accept the amendment. He advanced the rather convoluted argument that it might invalidate some judicial statement by an individual who might have been a member of the Judiciary in a foreign state before he took it upon himself to apply for Irish citizenship. It is an improbable set of circumstances and, in my judgment, a bad reason for not allowing individuals in the category I have described claim citizenship from birth in the same way as those who apply for citizenship by descent. I have dealt with cases in which individuals wished to vindicate their Irish citizenship, by virtue of having an Irish grandparent by the presentation of documentation to have a passport issued through the Passport Office. If that is not an application, I do not know what it is. The Minister described it as registration. In reality, it is an application for a fact to be recognised. If this applies to those categories of Irish citizen, I do not see why it should not apply to the category who regard their adoptive parents as their parents in the normal sense and wish to acquire their citizenship under the same circumstances in terms of the same value and duration as those who claim Irish citizenship by descent.

Mr. O’Donoghue

The Deputy correctly described the act of registering as a situation where an individual is seeking to have a fact recognised. It is not an application. The difference between this and a situation where a person is applying for a change of status must be very clear. There is a major difference between the recognition of a fact——

Mr. Howlin

The person concerned could be a citizen of another state.

Mr. O’Donoghue

No, this is an application for a change of status. There is a big difference between an application for a change of status and registration to have a fact recognised. That must be abundantly clear. I do not accept that the Deputy has advanced any good reason as to why I should bring uncertainty, as I undoubtedly would, into Irish law arising out of his amendment. I have advanced arguments as to why I should not do so. He has not, in truth, advanced any counter argument which has convinced me to go even half way up the road towards his position. It is incorrect to state that not doing what he proposes illustrates a defect in Irish law. We are talking about a different matter altogether, a design feature of Irish law. In short, if I was to advance in the manner proposed by the Deputy, I am firmly of the view that I would bring unnecessary uncertainty into Irish citizenship law, that it would be undesirable and that, in the final analysis, it would not be something which would receive any kind of a broad welcome.

Mr. Howlin

There is no point in labouring the issue beyond saying, not only to the Minister for Justice but to the Minister for Equality and Law Reform, that if he creates a different category because of somebody's adoptive status, he is doing a disservice to people who adopt children and those who are adopted. Having that dichotomy between the two categories of citizenship is a bad day's work. If that is not a sufficient argument to accept the amendment, I cannot convince the Minister any further.

Mr. O’Donoghue

I entirely reject what is a political statement by Deputy Howlin. I have set out the position clearly and fairly and I have set out the reason I cannot proceed in the manner which he has suggested. It has nothing to do with issues of equality or justice; it has to do with the whole question of Irish nationality and citizenship law being certain both in its written form and its effect. I repeat that other matters relating to adoption are matters for adoption law because of the fact that they involve a whole series of relationships, rights and inter-relationships, which are sometimes even interdependent, which are not considered when one is dealing with citizenship law in isolation.

Amendment: Put and declared lost.

Mr. Howlin

I move amendment No. 4:

In page 5, line 22, to delete subsection (1).

This amendment deletes subsection (1) of section 4 which seeks to repeal section 8 of the Act of 1956. It is a little convoluted since section 8 of the 1956 Act, inserted by section 3 of the Act of 1986, deals with acquisition of citizenship on marriage. Sections 4 and 5 are core parts of the Bill, with which I have the most fundamental difficulties, namely, the rights of Irish citizens and spouses of Irish citizens will be seriously impacted upon if the Minister has his way. In subsection (1) of section 4 the Minister is repealing the acquisition of citizenship on marriage. In subsection (2) of section 4 he puts in transitional arrangements and in section 5 he sets out the new regime that is to be followed for naturalisation of spouses of Irish citizens. They are all part of a package and I want to deal with them on that basis.

The first battle I want to fight is to resist the deletion of the existing arrangements set out in section 8 of the 1956 Act. It will be a bad day's work if the Minister achieves what he sets out to achieve. On reading them I found the arguments he made in the other House most unconvincing. The Minister wants to do all this because of what he perceives as abuse. In the other House he said that there is no question that there has been abuse of this provision whereby a person who has been married for three years can be automatically entitled to citizenship of this State. He went on to say that he cannot allow this kind of flagrant abuse to continue under any circumstances. I want the Minister to set out, with whatever clarity he can, the evidence he has for the abuses he maintains exist - he nodded when I reminded him of his comments in the other House - including the number of cases, etc. Let us see the evidence of this flagrant abuse that he wants to deal with here.

The Minister described the granting of citizenship as a privilege. It is a great privilege to be a citizen of Ireland but it is also a right vested in current law with anybody who marries an Irish citizen, continues that marriage for three years and makes application thereafter. He is determined to fundamentally alter that right. That will impact not only on the rights of non-nationals who marry Irish citizens but on the rights of citizens of Ireland who have an entitlement to certainty, which the Minister was so anxious to maintain when we discussed the previous amendment, in relation to the status of their spouses.

I can give various examples. If an Irish citizen married a non-national and that non-national was refused Irish citizenship if a new regime was put in place, and if there were no children of that union, what is the status of that spouse should the Irish citizen spouse die? Will they lose the right to residence in this country, having no issue to link Irish citizenship to themselves? What would be the status of the same individuals, even if their spouse was living, in relation to travelling to and from this State? Would they have to explain themselves every time they pass through an Irish or an EU border?

It is fundamentally wrong to put this burden on Irish citizens, that they would be unclear of the future, status and security of their own spouses under this legislation. When we deal with section 5 we see that it is at the absolute discretion of the Minister, not only this Minister but his successors, unless one of them has the good wit to repeal this section, to determine the status. Some of them could be permanently in limbo. That is wholly unacceptable. When I read the arguments put forward in favour of this measure in the other House, all 30 pages of them, they seemed wholly unconvincing.

Before we move into the detail of it, I want the Minister to convincingly put forward the evidence for his often made assertion that this measure is required to deal with flagrant abuse. I want to know the numbers and see the cases so that we do not legislate in this serious matter on the basis of supposition or innuendo but rather on the basis of fact.

Mr. Shatter

I, too, am deeply unhappy about this proposal. Deputy Howlin is right. In reality we should be taking sections 4 and 5 together, as well as the amendments relating to them, because there is an interaction between them. I have tried to address the problem the Minister will create by proposing substantial amendments to section 5.

In the context of section 4, currently it is the right of an Irish citizen who marries a non-citizen to confer, by marriage, citizenship on their spouse. That is a right this Bill proposes to do away with but the Minister is using a sledgehammer to crack a nut in the sense that there have been one or two instances highlighted in the media of possible abuses of our citizenship laws by individuals who entered into bogus marriages to grant Irish citizenship to their spouses. I want the Minister to detail the number of such cases of which he is aware. To my knowledge, we are talking about no more than four or five such cases over a period of decades.

I utterly doubt the capacity of the Department of Justice, Equality and Law Reform to cope with the new procedures being put in place. The procedures will require the Minister to make a discretionary decision in respect of every non-national who marries an Irish citizen before that non-national can obtain Irish citizenship. How many applications for citizenship or naturalisation are currently awaiting a decision in his Department? How many have been awaiting decision in excess of a year and how many have been awaiting decision in excess of two years? From a recent exchange I had with the Minister during Question Time, I recall that he made a confession to the House. He acknowledged there were a substantial number of people, numbering in the thousands, awaiting decisions on citizenship and that the waiting times were completely unacceptable. He effectively acknowledged that during his three and a half years in office he failed to address this issue properly to ensure that proper procedures were put in place and he said he was about to do something about that. If this legislation is passed, he will add to the numbers of people who will have to go through a procedural process, which to date his Department has been incapable of dealing with efficiently and effectively. Rather than waiting three years to get Irish citizenship, it may be that a spouse who applies after three years may find that he or she has to wait a further three years before acquiring it. I am not convinced there is a need to change the existing law in this area. The proposals the Minister has brought forward will add another lawyer of bureaucracy and delay. Evidence in the context of the processing of either asylum applications or citizenship applications to date indicates that the Department is not equipped to deal with the additional burden that will result from this legislation. I see no reason for it to be introduced at this time unless the Minister can detail a substantial number of examples of cases involving individuals where his Department has established the current law has been abused.

Mr. Flanagan

While I do not want to repeat what my colleagues said, I wish to be associated with their comments. As I said on the last occasion, we are a long way from the Good Friday Agreement. I would go so far as to accuse the Minister of sharp practice in the manner in which these rather profound changes have been brought about. In the Minister's Second Stage Speech in the Dáil, he spoke at great length about the Belfast Agreement, and we all share his view. I welcome the Bill in that regard, but the Minister has gone much further. He said that as well as complying with the terms of the Belfast Agreement, he is taking the opportunity to tighten existing regulations. This is some tightening. This represents a major change in the manner in which the post-nuptial citizenship regulation arrangement has been operated for a number of years.

I asked the Minister on Second Stage about the level of consultation and I ask him again about the level of consultation in which he engaged with our emigrant communities on this issue. He is changing the regulations in a fundamental way. Rigorous residential criteria are being introduced and this will have profound consequences for many of our highly skilled emigrants who, having worked for many years in Australia and EU countries, are returning to work here. Many of them married abroad and I hazard that most of them married non-nationals. Where do they stand under this legislation? Has the Minister consulted the Tánaiste who spoke again this week about the need to attract non-national workers into our workforce. She criticised her Department in a rather bizarre manner earlier this week, as though she was in some way detached.

Mr. Howlin

Semi-detached, at any rate.

Mr. Flanagan

This point is very much related to the Bill. Has the Minister for Justice, Equality and Law Reform consulted the Tánaiste on this impediment that is being introduced? This impediment to the attractiveness of our State as a place to live will interfere substantially with quality of life issues. To what extent has he discussed this matter with the Tánaiste? Has he addressed the matter with the Industrial Development Authority, a body that spends considerably and with great success in the United States promoting Ireland as a place in which to live and work? How does this Bill stand with the IDA? Has it been consulted by the Department? Since the State was founded millions of Irish people have worked in the US, Canada, etc. Unless the Minister can provide evidence of widespread sham marriages conducted throughout the country that have given rise to his tightening of the regulations, I must agree with what my colleagues said about these sections. The only such operation of which I am aware was one in Mullingar. I am sure the Minister will fill us in on that.

The absolute discretion the Minister will have under section 5 seems to have no regard for natural justice. An appeals procedure is not provided, nor is there a mechanism for the Minister to give any form of explanation, good, bad or indifferent. The Minister will have a type of royal prerogative on these matters.

Chairman

Are we on section 5?

Mr. Flanagan

We are living in a Republic.

Chairman

Does that mean the Deputy can jump sections of the Bill?

Mr. Flanagan

The Minister will be exercising a royal prerogative in his absolute discretion.

Mr. O’Donoghue

Royalty is not in my blood. Amendment No. 4 in the names of Deputies Howlin and O'Sullivan is opposed. It seeks to remove the substance of section 4. Subsection (1) repeals section 8 of the Irish Nationality and Citizenship Act, 1956, inserted by section 3 of the 1986 Act, which provides for declarations of citizenship by non-national spouses of Irish citizens, that is, post-nuptial citizenship.

In subsection (2) provision is made for a transitional period of three years for those who married Irish citizens before the commencement of this section but for whom the three year minimum period of marriage before which a declaration cannot be made had not yet expired. The post-nuptial citizenship provisions are being replaced by a new scheme of naturalisation for spouses of Irish citizens provided for in section 5 of the Bill.

At present, under section 8 of the 1956 Act, the non-national spouse of an Irish citizen, other than a naturalised Irish citizen, may make a declaration accepting Irish citizenship as post-nuptial citizenship after three years from the date of marriage or, where later, from the date on which his or her spouse became an Irish citizen. There are conditions to be met of course. The marriage must be subsisting at the day of lodgement of the declaration and the couple must be living together as husband and wife. The Irish spouse must provide an affidavit to that effect at the time the declaration is lodged.

This provision, inserted in the 1956 Act by the amending Act of 1986, replaced the original provision under which only the wife of an Irish citizen could make such a declaration if she became a citizen from the day of her marriage. The declaration is an acceptance of Irish citizenship. Unlike the provisions relating to naturalisation, there is no requirement of residence, good character or a declaration of fidelity and loyalty to the State. Subject to the person satisfying the necessary conditions, he or she becomes a citizen from the lodgement of his or her declaration. A declaration may be lodged directly to the Minister or with any Irish diplomatic mission or consular office.

It has been the experience of both my Department and the Department of Foreign Affairs that a variety of fraudulent schemes have been organised to exploit loopholes in this provision with the intention of securing an Irish passport. These abusive practices are of serious concern. An Irish passport is a most valuable possession and gives open access to the territory of the European Union and its employment markets. The fact that declarations can be made by spouses who have never set foot in Ireland and who may never do so makes the process of validating such declarations in the Department of Justice, Equality and Law Reform or in the Department of Foreign Affairs extremely difficult.

Most people will agree that this is not a satisfactory basis for the acquisition of Irish citizenship, particularly when these abuses are taking place. It is informative to look at the practices of our European neighbours in this area. Many European countries have a requirement of residence for a minimum period as an absolute precondition to naturalisation, regardless of whether the applicant for naturalisation is married to a national of the country. They also apply other conditions such as good character, intention to remain in the state and language competence. Greece, Denmark, Estonia and Canada have an absolute residence requirement.

Some countries have such absolute requirements but with a shorter minimum residence period for spouses of nationals and for other applicants for naturalisation. Examples are France, Germany and the UK. Similar arrangements apply in the United States. A small number of European states - Austria, Belgium and Italy - permit the naturalisation of a spouse after a certain period of marriage without regard to residence in the state in question but reduce the married period required if the spouse is resident in the state.

In short, Ireland is one of very few Council of Europe states, with Turkey, Cyprus and Portugal, where the only consideration for acquisition by a spouse of citizenship is marriage for a greater or lesser period. The termination of the scheme of post-nuptial citizenship means, effectively, that non-national spouses of Irish citizens habitually resident outside the island of Ireland will, after the transitional three year period provided in subsection (2), no longer be in a position to obtain citizenship based on their marriage alone.

However, the new section 15(a) in the 1956 Act, which is being inserted by section 5 of this Bill which provides for a special scheme for the naturalisation of spouses of Irish nationals, contains at subsection (2) a provision whereby the Minister may waive certain of the conditions for naturalisation of spouses. This is not a type of royal prerogative. The conditions which can be waived include the residence requirements in the island of Ireland at subsection (1)(f) and (g) where the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.

I consider sections 4 and 5 together to be a reasonable and well balanced approach which takes account of the position in the European Union and other states. The balance achieved is between the desirability of having a means for non-national spouses to become Irish citizens on the one hand and the protection of the interests of Irish society by reducing the scope for abuses of our citizenship on the other. The conditions attaching to this special scheme of naturalisation are not in any sense unreasonable and would be regarded in many states as basic requirements for granting citizenship, something we value greatly and would not wish to see bestowed lightly and dishonoured by abuse.

We can discuss these matters in more detail when we reach section 5. However, I wish to make one thing clear. The termination of the post-nuptial citizenship scheme will not adversely affect the situation of non-national spouses in terms, for example, of their joining their Irish spouses in this State. There are well established immigration procedures which secure the admission of non-national spouses of Irish nationals. It is not, incidentally, a requirement that a non-national spouse must obtain citizenship before joining the Irish spouse here. The present——

Mr. Howlin

If one were a Somali citizen with a Somali passport, there would be some difficulty, or at least disruption, coming through our ports.

Mr. O’Donoghue

It is not a requirement that a non-national spouse must obtain citizenship before joining her or his Irish spouse here. The present immigration arrangements recognise the special position of non-national spouses of Irish citizens. Such spouses, regardless of their nationality, are not required to hold work permits, for example, before entering the employment market. There are no immigration limitations operating to inhibit non-national spouses seeking to come to the State.

Mr. Flanagan

On their own?

Mr. O’Donoghue

Yes. In the immigration and residence Bill which is being drafted in the Department at present to replace the entirely outdated and inadvisedly named Aliens Act and its associated orders with a modern and sensible code of immigration law, the immigration status of non-national spouses of Irish citizens will be reaffirmed.

I have been asked whether I have evidence of abuse of the system for applications for citizenship by way of post-nuptial declarations. There is no question that I am aware of a number of instances where I have refused to recognise post-nuptial declarations of citizenship in cases where, despite the statutory declarations to the effect that the spouses were living together, they patently were not. It is difficult to state the precise level of abuse.

Mr. Howlin

Is it flagrant or wholesale?

Mr. O’Donoghue

It is difficult to assess that. However, I am assured by the Department of Foreign Affairs and by officials who have been working for a long period in the citizenship division of my Department that this practice has been ongoing for a considerable period, that there has been abuse and that it is necessary to close the loophole.

The detection of these offences is extremely difficult. It is difficult to assess the precise number but I am aware that declarations have been refused in recent years by my Department because it was clear that the parties were not living together. Declarations have been refused in the same way by the Department of Foreign Affairs. I accept that the numbers refused by each Department are relatively low but the low number of refusals does not reflect the scale of the problem. This is the view of people experienced in the area in the Department of Foreign Affairs and the Department of Justice, Equality and Law Reform.

It must be acknowledged that it can be extremely difficult to gather evidence in this area because it involves people who are, for the most part, living outside the State. Deputy Howlin said that Irish citizenship is not only an entitlement but a right. I am sure the Deputy agrees it is a right in certain circumstances, but not in all circumstances. It is the case, unfortunately, that a non-national person who marries an Irish national and makes a declaration may not necessarily continue to live with the spouse. It may be a marriage of convenience. This is a reality.

The difficulty at present is that such a person can make a declaration. The fact that a person has been married for three years, subject to the fulfilment of the other conditions, means that the person becomes an Irish citizen. This is despite the fact that the marriage is not subsisting because it is a sham. The spouse is living elsewhere and they got married only because he or she could obtain Irish citizenship.

There are no simple solutions to this problem, but it must be clear that such a situation cannot continue. Therefore, it behoved me to bring forward legislation which seeks to close off what I regard as a serious loophole. Deputies Howlin, Shatter and Flanagan all stated their view that, in doing so, I am, to a greater or lesser degree, being unnecessarily restrictive. I do not agree with that view. My point is that the spouse in question should have a period of residence in this State.

I also made it clear that I am not in any way interfering with the rights of a spouse who does not have the residency period to live or work here. I am not in any way seeking to target them. All I am seeking to do is to target the undoubted abuse which is taking place with regard to citizenship of Ireland at present. Sham marriages are undoubtedly taking place and while it is never easy to close loopholes, I believe I have struck in justice the best balance possible. I cannot put it any further. The situation demands action and I have not gone beyond the bounds required by the situation. I ask Members to accept that I have been as reasonable as possible.

Chairman

That is well clarified. Is the amendment being withdrawn or does Deputy Howlin which to speak again on it?

Mr. Howlin

I am sure the Chairman is highly impartial in these matters. I hope we can deal with this phase of the Bill in a forensic manner and I wish to ask a number of questions. How many cases has the Minister's Department refused because of a suspicion that bogus marriages were involved in the past three years?

Mr. O’Donoghue

The number is low because this offence is extremely difficult to detect. The experience of officials in the Department of Justice, Equality and Law Reform——

Mr. Howlin

It is a simple question.

Mr. O’Donoghue

——and the Department of Foreign Affairs is that there are a considerable number. However, the number of declarations refused was low. In 1997, the number was seven. In 1998, one was refused and in 1999 the figure was nil. The figures in respect of the Department of Foreign Affairs were three in 1997, four in 1998, four in 1999 and four to date in 2000. The fact that the numbers are low does not reflect the gravity of the situation as reported to me by my officials and by officials in the Department of Foreign Affairs.

Mr. Howlin

I am at a loss to understand this. If the Minister has evidence of a bogus application, I presume this application is not allowed. He implied that the low figures he quoted were not the full extent of the abuse he described and which he is attempting to stop. The corollary of this is that his Department or the Department of Foreign Affairs are issuing citizenship to people whose applications they believe to be bogus.

Mr. O’Donoghue

No, that is not correct.

Mr. Howlin

It is one or the other.

Mr. O’Donoghue

No, that is not correct. One can have suspicions, but the difficulty is that one must be able to establish that the individual in question is not complying with the law and the declaration is false or bogus. This is extremely difficult to do. I or the Department of Foreign Affairs do not have detectives running around after people to see if they are living together. I hope that day will never arrive. It is a very difficult area but there is more than anecdotal evidence to suggest, for example, that people who are Irish citizens living abroad and who are addicted to hard drugs marry people on payment of a given fee. This is happening. These are the reports coming to me.

Mr. Shatter

Will the Minister indicate for the years 1997, 1998, 1999 and so far in 2000 how many applications have been made by non-nationals who are married to nationals which have resulted in citizenship being extended to them? How many declarations have been made?

Mr. O’Donoghue

The number of declarations accepted in 1997 by my Department was 260. The Department of Foreign Affairs accepted 724. In 1998, my Department accepted 282 while the Department of Foreign Affairs accepted 840. In 1999, my Department accepted 309 while the Department of Foreign Affairs accepted 708. To date in 2000, my Department has accepted 123 while the Department of Foreign Affairs has accepted 613.

Mr. Howlin

If 123 applications were granted by the Department of Justice, Equality and Law Reform this year, how many were refused?

Mr. O’Donoghue

None.

Mr. Howlin

I do not have a calculator to hand to work out the exact percentage, but it is extremely low. On the basis of the facts or prima facie evidence presented, it is not a huge abuse. The solution proposed by the Minister is to fundamentally alter the rights of Irish citizens and their spouses. The rights of any unmarried Irish citizen will be diminished because if he or she marries a non-EEA national, his or her rights will be fundamentally changed. As the Minister said in relation to an earlier amendment, significant uncertainty in relation to the rights of a spouse would be introduced for the first time.

Nobody on this side will argue against seeking to close off abuses. If there are abuses, they must be addressed. However, it is a general principle of law, in seeking to close abuses of the tiny magnitude illustrated by the figures dragged reluctantly from the Minister, that the rights of every citizen are not fundamentally altered. This is the normal practice of law. I am deeply concerned because the Minister used language about flagrant abuses. He knows anecdotally about all types of abuses but he does not have a shred of evidence to present to us other than the fact he was told by someone. He says he does not have detectives, yet he has intuitive knowledge. I do not know if he knows these things by virtue of the Holy Spirit or the de Valera concept of looking into his heart. One cannot know unless one has empirical data. If there are no detectives and the facts are presented to us, we must accept them.

This is an insignificant abuse. There have not been any cases so far this year and there were none last year in the Department. There were eight cases in total in the past two years out of 1,300 applications abroad. Is the Minister acting on his own instinct in these matters rather than on any prima facie evidence he can present to the committee on this fundamental matter of citizens’ rights?

Mr. Shatter

It is important to put this matter in context. The Minister's proposal and the consequences of its implementation are extraordinary compared to the figures. I calculated the figures the Minister gave us - I am sure he or his officials will correct me - and in 1997, 1998, 1999 and this year to date 3,850 non-nationals married Irish citizens and made a declaration which resulted in citizenship. That is a simple and straightforward procedure which does not require the Minister's involvement in the decision-making process. The moment the declarations are completed, provided the declarations are in order, citizenship is granted or they can claim citizenship.

In the same three and two thirds year period the Minister told us that 23 applications were made which the Department declined to accept. Can the Minister give us the reason in each of the 23 cases? It is even more interesting because ten of the 23 occurred in 1997 and none occurred this year. Is this no longer a problem because there were bogus applications as a consequence of the Department of Foreign Affairs and our ambassadors overseas in the Department of Justice, Equality and Law Reform declining the declarations? It was a minor problem and it is not a problem this year because the figure in the Department of Justice, Equality and Law Reform is zero, while the figure for the Department of Foreign Affairs is four.

The Minister said that if someone marries an Irish citizen there is not any difficulty in them working or residing here. If someone marries an Irish citizen and that is the case, why does it matter whether we do or do not extend Irish citizenship to them? Can the Minister explain what function he will perform by telling someone they cannot have Irish citizenship? If all the rights the Minister alleges exist continue to pertain, why does it matter?

The cost of the Minister's proposal seems extraordinary. Instead of having a simple declaratory procedure which allows the Minister in the context of the figures he has given us to decline to accept declarations in a small number of cases, approximately 1% or less, as Deputy Howlin said——

Mr. Howlin

A quarter of 1%.

Mr. Shatter

——without an elaborate procedure being put in place, the Minister seems to regard it as bureaucratically desirable and cost effective that the 3,850 people who have been granted citizenship since 1997 in these circumstances should have to go through elaborate applications and decision-making procedures in which all types of things are pursued, followed up and investigated.

I started off today by saying the Minister was applying a sledgehammer to crack a nut technique in this context. I want the Minister to give further thought to this issue. I understand his Department may have had concerns in 1997 that ten declarations should not be accepted. It seems the scale of this problem has been turned into an urban myth. There is nothing to back up the need to put in place an elaborate, bureaucratic and costly procedure which will deprive Irish citizens of a right they currently have to extend citizenship to their spouses upon marriage.

I have an inside track on these matters through my legal practice which deals with family law and family problems. I have acted over the years in many matrimonial cases in which nullity decrees have been sought because marriages have been of short duration. I am only aware of one judgment being delivered by our courts in the past 30 years relating to a nullity case where there was an allegation of a sham marriage or a marriage of convenience to extend a passport to someone. As a lawyer who has dealt with family problems for 25 years, I have not been consulted by an individual who sought to extricate themselves from a marriage on the basis that they entered into it to extend citizenship to someone who was a non-citizen. Other lawyers in the legal practice of which I am a partner have not been consulted over the same 25 year period about such a problem.

The scale of this problem is an urban myth. The Minister is producing a sledgehammer to crack a nut. There is no justification for putting in place new procedures or for repealing section 8 of the Act. Section 8 of the Act needs to be amended for other reasons which I will discuss when we deal with section 5 of this Bill. It creates other problems which are not being addressed and will be copperfastened as difficulties by the Minister's amendment. It does not deal, for example, with the problem of someone who is a widow after the Irish citizen they marry tragically dies within one of two years of marriage. Under existing arrangements the widow is left in difficulty. The Minister and his predecessors could in certain circumstances exercise a discretion in that context.

The Minister's concern about this matter is extraordinary. He has not been able to explain what consequences have arisen to the detriment of this State as a consequence of the current law or what detrimental consequences, for example, have arisen as a consequence of the 23 people whose declarations have been refused. I would like the Minister to outline the way the State or any individual in the State has been badly affected or suffered ill consequences.

The Minister's concern about curtailing the rights of Irish nationals to extend their citizenship to their spouses is laughable, particularly when it comes from a member of the Fianna Fáil Party. That party sold passports and did not give a damn whether someone was resident in the State. The Minister represents a party whose former leader is before a tribunal and who we now know received money for passports.

Chairman

I ask the Deputy to speak to the Bill.

Mr. Shatter

Passports were handed over in the Shelbourne Hotel probably over a free dinner which was paid for by the people who got the passports.

Chairman

That is out of order.

Mr. Shatter

It is not out of order.

Chairman

We are discussing amendmentNo. 4.

Mr. Shatter

We are talking about the ill consequences that might result from people acquiring passports and Irish citizenship through marriage. We now know it is not much of a problem. In the context of the 23 people whose declarations were refused, approximately 11 passports - Deputies Howlin and Flanagan will correct me if I am wrong, although I may upset the Minister - were handed out to the Masri family in return for investing in a dog food company. I would have thought that created far greater consequences for this State and its international reputation than a difficulty of any nature that has arisen in the context of the elaborate amendments the Minister now wants to make to our Irish nationality and citizenship laws in sections 4 and 5.

Mr. O’Donoghue

To deal with the latter point first, I abolished the whole system of investment based naturalisation, which Deputy Shatter referred to as "passports for sale". That scheme commenced in 1989 and was also operated by the rainbow coalition. I would not be so presumptuous as to state to this committee that there was anything untoward in granting applications of this nature by the rainbow Government. However, I strongly advise Deputy Shatter to be more temperate in his language and far less generous with his accusations. I also strongly urge him to deal with the legislation before the committee.

Having said that, which I hope will be seriously taken on board, I will now address the issues raised by Deputies Shatter, Howlin and Flanagan. I am not seeking to interfere with the rights of Irish nationals in this legislation in any way.

Mr. Howlin

Of course the Minister is.

Mr. O’Donoghue

I am not.

Chairman

The Minister, without interruption.

Mr. O’Donoghue

I am stating categorically that I have been informed by officials in my Department, on the basis of the very best advice available to them, that Irish citizenship law is currently being abused abroad, that sham marriages have taken place for the purposes of obtaining Irish citizenship and that this issue must be addressed.

Deputy Shatter asked what could possibly be achieved by denying citizenship to such people. There are citizenship laws in place in this State and other democracies for very good reasons. Citizenship confers entitlements on people. It is not some sort of a funny business, it is a very serious issue. Citizenship of a country is also, if one has any patriotic notions, an honour. It should not be allowed to be flagrantly abused.

I am putting forward legislation which recognises the seriousness of being an Irish citizen and why and when an individual is entitled to be an Irish citizen in circumstances of marriage. I am saying categorically that where people are involved in sham marriages, and I am satisfied that is the position, I have a duty, as Minister for Justice, Equality and Law Reform, irrespective of the reverence or irreverence with which Deputies may regard our citizenship laws, to close off those loopholes, which is what I am seeking to do.

It has been postulated this afternoon, purely for reasons of political opportunism, that it is the position that there are hardly any restrictions at present in relation to the spouse of an Irish national obtaining Irish citizenship. That is patently untrue. It is already the law in this country that an individual must be married to an Irish citizen for a period of three years or more to obtain citizenship.

Will Deputy Howlin outline to me the position regarding the widow of an Irish citizen who dies within three years of the marriage? Her position is precisely the same as the position I am putting forward now regarding the requirement for residency. That seems to have been overlooked, particularly by Deputy Howlin.

Deputy Shatter said that the problem of which I have been advised is an urban myth. It is not an urban myth - it is a foreign reality and the truth. If the Deputy wants to dig his head in the sand and pretend——

(Interruptions)

Mr. O’Donoghue

——the problem does not exist, then that is clearly a matter for him and nobody else.

Chairman

The Minister, without interruption.

Mr. O’Donoghue

If the Deputy is not aware of the circumstances under which this is occurring, after I have explained them in great detail, there is very little I can do to inform him further. I accept the word of very informed officials in my Department on this matter. I am totally satisfied their information is correct. I am also satisfied it is my bounden duty to act. I have done so in as balanced and fair a way as I possibly could. I could not have done more to be reasonable and balanced, and I do not think the public would have expected me to do less.

Chairman

We are finishing at 5 p.m.

Mr. Flanagan

The figures the Minister gave us make his case very threadbare. He is going to extraordinary lengths to deal with a problem, the extent of which the committee has yet to hear. From where are these rings of marriage brokers and facilitators operating? What countries are we talking about? Where are these people about whom the Minister speaks so eloquently?

Chairman

As we are finishing at 5 p.m., does Deputy Howlin wish to ask a brief question?

Mr. Howlin

I do not have a brief question.

Chairman

If anybody else has a question, the Minister can reply to those and we can then return to Deputy Howlin the next day.

Mr. Howlin

I would like to make a proposition. The Minister has made no case at all for the evidence he has, other than to say he has been told this. That is a contemptuous way to deal with the committee. The committee should have that evidence. I propose we adjourn sine die the committee consideration of this Bill and that the officials in the Department of Justice, Equality and Law Reform and the Department of Foreign Affairs, referred to by the Minister, be asked to give evidence to the committee in relation to the extent of the bogus applications the Minister is relying upon to justify this issue. If the Minister is concerned about officials, I would be happy to take that evidence in private session.

Chairman

Evidence can only be taken before Committee Stage commences.

Mr. Howlin

We can adjourn consideration of a Committee Stage at any time.

Chairman

Not under standing orders.

Mr. O’Donoghue

I assure Members the officials will not say anything different from what I am saying. Deputy Howlin seems to be operating on the principle of "see no evil, hear no evil". However, to jog his memory——

Mr. Flanagan

The Minister sees shadows everywhere.

Mr. O’Donoghue

The last man to say that to me was Deputy Rabbitte. Deputies will recall the situation that arose in the Irish Embassy in 1987, involving——

(Interruptions.)

Mr. O’Donoghue

He was proven to be totally incorrect.

Chairman

Please allow the Minister to continue as we will adjourn when he finishes.

Mr. O’Donoghue

Deputies will recall the situation that arose in the Irish Embassy in 1987, involving the issue of Irish passports based on bogus marriages. The individual concerned was convicted of fraud and given a custodial sentence. I am certainly not saying any embassy official is involved in any of these cases. However, I am saying that such cases are still arising and the truth is that, like it or not, the extent of the fraud will never be fully known.

The Select Committee adjourned sine die at5 p.m.