Irish Nationality and Citizenship Bill 2004: Report Stage.

Wednesday, 24 November 2004

Dáil Eireann Debate
Vol. 593 No. 2

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An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Amendment No. 1 in the name of Deputy Ó Snodaigh is out of order. Amendment No. 2 is in the name of Deputy Jim O’Keeffe, and arises out of proceedings on Committee Stage. Amendments Nos. 3, 4, 5, 7, 9, 10 and 16 are related. Amendments Nos. 2 to 5, inclusive, and amendments Nos. 7, 9, 10 and 16 will be taken together.

Amendment No. 1 not moved.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I move amendment No. 2:

These are issues we discussed in some detail on Committee Stage. I, along with my colleagues, Deputy Costello in particular, felt we had made a compelling case for some amendments to the [455]Bill. We had hoped that the Minister for Justice, Equality and Law Reform, Deputy McDowell, might have given some consideration to those arguments in the meantime, and perhaps have been willing to reconsider the rather hardline approach he adopted on Committee Stage. He is not here today, but I hope he might have left a briefing instruction for the Minister of State, Deputy Fahey, which would enable him to at least give full consideration to some of these amendments.

  12 o’clock

Amendment No. 2 is a formal amendment. If amendments are passed that go somewhat beyond mere amendment of the 1956 Act obviously the long title should refer not only to the amendment of the 1956 Act but to the fact that this Bill will also provide for related matters. However, that is a technical formality.

Amendment No. 3 is a proposal that:

The problem is that in many issues arising by way of application to the Department of Justice, Equality and Law Reform people are applying in the dark. They are not sure what standards they are expected to meet and what guidelines there are, if any, by which their applications will be judged. During the earlier exchanges on the Bill, both on Second and Committee Stages, it emerged, somewhat unbelievably, by way of admission from the Minister that there are no guidelines. That is a most unsatisfactory state of affairs. If we are applying a system where basic rules of justice should apply, people should know the rules. That is the reason I am anxious that within a short time after the passing of this Bill the Minister should publish guidelines to be applied by the Department in determining whether to grant leave to remain to the non-national parents of an Irish born child. I would like to see such guidelines for all applications to the Department of Justice, Equality and Law Reform.

We have a whole system for non-nationals whether they are applying for a visa — a tourist or holiday visa — permission to visit their relatives, permission to stay a while, permission to play rugby during the winter season for a club, applications for work permits, temporary or permanent applications for naturalisation after a period, because of long residence or a blood connection with an existing Irish person. I see the whole system as being a total mess. There are 19 different Acts covering all that area and there are countless regulations. Apart from the structure being all over the place, there does not appear to be any clear guidelines for those who wish to apply under the system.

[456]This amendment is particularly focused on the position of non-national parents of an Irish born child. The Minister will be aware that prior to the Supreme Court decision early in 2003 there was an understanding that parents of an Irish born child had, virtually, an automatic right to stay here to mind their Irish child. The decision of the Supreme Court in the L and O case turned that on its head and, effectively, decided there was not such an automatic right. Those parents who were here before the Supreme Court decision are in one category. Those parents of Irish born children who have been here since the Supreme Court decision, up to the referendum on 11 June, are in another category and there are parents of Irish born children, where the child has been born since the referendum on 11 June. That third category includes such parents who have children born up to the date of the passing of this legislation. There are three separate categories and there is no clarity on their position. There should be clarity as those people are in limbo. The Minister, under some cross-examination, admitted on Committee Stage he does not even know how many people are involved. He referred to figures of 9,000, possibly ranging up to 16,000 if the more recent parents, as opposed to the parents affected by the L and O case, are taken into account. He referred also to problems that may arise if family-related applicants were given permission to stay. It is important, given that we have the opportunity to deal with this matter, that there is clarity for those people. It is not fair that some of those who have been here for years are left in limbo. The purpose of this amendment is to ask the Minister to agree to establish those guidelines immediately after the passing of this Act.

The other amendments with which I am directly involved under this grouping are Nos. 9 and 16. Amendment No. 9 proposes an amnesty for the non-national parents of Irish born children where such children were born before the Supreme Court decision of January 2003. A case can be made for rights of residence to be extended to any parent of an Irish citizen. That is a starting point. A particular case can be made for the parents of Irish children who were born before the Supreme Court decision in January 2003. The reason I suggest an amnesty should apply to such non-national parents is that they came here in the legitimate expectation that if their child was born here they would be entitled to remain in Ireland, which was the law of the land as it stood at that time. I will not go into the issue of whether that was right or wrong. That was the legal position as everybody understood it. The legitimate expectation at the time was that parents of Irish born children would be automatically allowed to stay in Ireland. I do not know the numbers involved but the Minister thinks the figure of 9,000 is a rough guesstimate, he does not know. I take it the ballpark figure is somewhere around that. We are not talking about an enormous number of people. In fact we are looking [457]for people to come into the country at this stage because of a shortage of labour.

We now have an attitude which is very different to that which obtained when the door was virtually closed on anybody coming into the country. Surely the new attitude should apply in particular to the non-national parents of Irish children, especially those who are in this country based on the legitimate expectation that they will be allowed to remain here. They have a very strong case.

I was greatly disappointed to learn from the Minister in earlier Dáil exchanges that he had already deported 37 non-nationals with Irish-born children. He did not explain why, which is another problem. Apart from the case I made regarding their having an Irish connection, there is a very strong humanitarian case for allowing them to remain in the country. Some of them have been here for three, four or five years and some have a number of Irish-born children. They are virtually part of the communities in which the reside in so far as they are allowed to be, given that they are still affected by the fact that they are only allowed limited residency rights and are not allowed to work. This problem needs to be and should be tackled immediately. The case for an amnesty is very strong, particularly for the non-national parents of Irish citizens born in Ireland before January 2003. Cases regarding children born subsequent to January 2003 must also be dealt with in a humanitarian way. The case of those who came here in the legitimate expectation that they would be entitled to stay here is particularly strong.

Amendment No. 16 provides for the establishment of an appeals committee. I worry about a system that is totally closed, has no guidelines pertaining thereto and in which applicants for asylum status are virtually on trial without knowing the rules or who is doing the trying. A book that made a strong impression on me when I read it was The Trial by Kafka. To a degree, the system operated by the Department of Justice, Equality and Law Reform in all these areas is Kafkaesque. There is no openness or transparency, which is wrong.

There is no provision for appeal in the system and therefore the third string to my present bow is the proposal that there should be an appeals committee whose function would be to hear appeals of non-national parents of Irish-born children against decisions of the Minister for Justice, Equality and Law Reform to refuse leave to remain in respect of one or both parents. The appeals system I propose would be reasonably, if not fully, independent but the Minister should have a representative of his Department on the committee. It should also comprise a retired member of the Judiciary and a member of the Human Rights Commission. The latter, or somebody nominated by him or her, would be the chairperson of the committee. Maurice Manning currently holds the position of president of the Human Rights Commission. The committee [458]would provide an independent appeals system to ensure the necessary transparency, openness and fairness in determinations regarding residency status. We should bear in mind that such determinations affect the lives of people who came to this country in the reasonable expectation that they could stay here. Some who are on the verge of being turfed out have been here for four or five years.

Amendment No. 16 also provides that in the determination of appeals, “the primary consideration of the Appeals Committee shall be towards humanitarian aspects of each person’s case.” I would not want an appeals committee to consider only the economic benefits of allowing non-nationals to reside and work in Ireland, bearing in mind that such benefits would exist if the applicants in question were allowed to work.

I have outlined the three legs of my approach under this group of amendments. I would like to hear other Members of the House speak on them and related amendments.

Mr. Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  The citizenship referendum has been passed. It is now clear that citizenship in this State is no longer based on birth. I disagree with this but accept the result. We must move on. As the previous speaker pointed out, thousands of people are living in limbo and do not know what their future holds. A measure of any nation’s degree of civilisation is the way in which it treats the less well-off and marginalised. Despatching these people to purgatory is not good enough for Ireland in the 21st century.

We need to treat the people in question with some humanity, compassion and coherence. I therefore suggest that we allow the parents and siblings of any child born in the State prior to 1 March 2003 to have the right to reside in the State. We had the Supreme Court judgment on 23 January 2003 and we continued to accept applications for several weeks thereafter. We need to have some clarity for those affected. If we used 1 March 2003 as the cut-off date, it would acknowledge the status of those concerned and clarify their future.

The worst thing in the world is to be stuck in a limbo without knowing what might happen to one. I find it absurd that there is some official in the Department busy every so often issuing passports to children who are about to be deported along with their parents in the dead of night. It is absurd that the State of which I am a citizen deals with the marginalised in such an appalling way. One small step in addressing this is to grant a right to remain in Ireland to the group of people in question and their immediate families. They require some recognition, acceptance and welcome.

I am not sure if the term “amnesty” is appropriate in this debate. Rather, “recognition” should be used. An amnesty in not needed because the people in question did nothing wrong. The only problem is that they were born in this country to parents who were not citizens of [459]Ireland. They themselves are citizens of Ireland. Original sin does not apply in this case and given that the children’s parents have done nothing wrong, they should have a right to remain in this State. It is absurd that the State should consign them to limbo for days, weeks, months or years.

Many people say to public representatives that they just want a decision on their cases and those of their children to clarify whether they have the right to remain in Ireland. Bruce Morrison stated quite eloquently that Irish immigration policy is a mess. Let us clear up the mess, introduce clarity and move on from our present position. I do not understand why the Minister for Justice, Equality and Law Reform, Deputy McDowell, seems to be set upon sitting on the fence forever. The purpose of the two amendments I have tabled is to ensure some clarity and closure for a group of vulnerable people who should have a right to remain on this island and grow up as Irish citizens enjoying the protection, support and recognition of the State.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  We all tabled similar amendments on Committee Stage, which have the same intent and thrust. While I welcome the Minister of State and compliment him on his appointment, it is the Minister for Justice, Equality and Law Reform who should be here because we are dealing with a fundamental issue such as the outcome of a referendum and the legislation that will put that on a statutory basis.

The issue with which we are dealing concerns thousands of people born here. We are saying on this side of the House that it is time for the Minister for Justice, Equality and Law Reform and the Government to make a decision in regard to these children and their parents who are in no man’s land. Deputy Cuffe said that Bruce Morrison stated Irish immigration policy is a mess but, even closer to home, Deputy O’Donnell described it as a shambles, which is another apt description of Government immigration policy.

This is something we can deal with and on which we can make a decision. It has been around since the L and O decision in January 2003. Virtually every case covered by the Supreme Court decision is still in the pipeline two years later. The Minister issued 37 deportation orders but how many people did he allow to have residency status here? These are the deportation decisions but what about the other cases, of which I understand there were very few? The Minister of State might provide these statistics. It appears the Minister put everything on hold until after the referendum and the enactment of the Irish Nationality and Citizenship Bill. He then tells us to leave it with him, he is a decent, generous and practical man and he will make the correct decision. So far he has shown no indication of doing anything of that nature.

It would be appropriate to make a decision at this time. We are moving into a new dispensation following the referendum and it is time to tidy up all the outstanding loose ends since we are deal[460]ing with parents, children and families. A clear-cut decision arises out of the referendum which is now being translated into legislation. It is important to take people out of their misery. They have been living in limbo for too long. They do not know whether they will be allowed to remain in Ireland permanently or whether they will be taken into custody and deported. A number of people are allowed to remain in custody awaiting deportation for a considerable period, particularly in Clover Hill jail. These people have not committed a crime. They have not been convicted of an offence, nevertheless, this is the detention place for many people awaiting deportation. The Minister of State might address this issue.

There are sufficient grounds for regularising the situation and giving the equivalent of an amnesty to all those waiting in the pipeline. As Deputy Cuffe said, they have not committed a crime, therefore, we should not even think in terms of giving an amnesty. What we need is regularisation of their situation in terms of their entitlement to reside here and eventually become Irish citizens if they so wish. Prior to the L and O decision, a scheme was in place, recognised by the Department of Justice, Equality and Law Reform. Messages were communicated to non-national parents of Irish citizens that they embark on a particular procedure rather than going through the asylum process. They moved into a different channel to have their cases processed. That ended a few weeks after the L and O decision and people had to revert to the asylum process. It may not have been statutorily recognised but that scheme was a formal recognised mechanism. There were reasonable expectations that anyone with an Irish born child would be entitled to residency here, which is what had happened prior to the L and O case. There is every reason to accept that argument, continue with the principle enshrined in the mechanism, and to provide people with the necessary status that would have been given if the L and O case had not been dealt with.

I do not understand why we cannot examine this matter in a rational manner and deal with it on a collective basis. If we deal with the issue on a non-collective basis, as the Minister is currently doing, I cannot see how progress will be made. It will mean thousands of people in the pipeline awaiting a decision on their entitlement to reside here. Most people to whom we refer have been here for several years. There are very few people who have not been three to four years awaiting a decision. The old adage that justice delayed is justice denied applies. We have all dealt with people who have been here for an inordinate length of time. As I said on Committee Stage, I am dealing with a parent of a nine year old Irish born child who has no indication when his case will be dealt with. It is impossible to get information from the Department of Justice, Equality and Law Reform, other than one or two line [461]responses that the case is in the pipeline, which is not acceptable.

It is not acceptable that the Department operates in that fashion on our behalf. We must remember that the Department of Justice, Equality and Law Reform is an arm of the Government, and it is taxpayers’ money which pays for the good civil servants, some of whom are with us here today. However, the Department has an air of secrecy and there is lack of accountability. There is an in-house mechanism for dealing with applications. This includes the applications commissioner, the appeals tribunal and there is no independent mechanism to verify what is going on. There must be some quirk in a system that results in people being more successful following an appeal than they were in the first instance. Anyone in his right mind would think that if one makes an application for something, the likelihood is the application will get a fair hearing in the first instance and be refused or accepted, but when it goes to an appeal, a much smaller number of cases will be upheld subsequently. However, the reverse is true when it comes to dealing with refugee applications. This is a question the Department of Justice, Equality and Law Reform has not answered.

It is time there was an independent monitoring mechanism along the lines suggested by Deputy O’Keeffe in regard to Irish born children. This is necessary across the board so that we can see what is going on in terms of an external body. There have already been problems regarding the internal Garda complaints mechanism. The Minister is about to address those by appointing an ombudsman because accountability and transparency are so important. When thousands of people do not know what is happening regarding their cases, it is all the more important to have an independent external body to oversee matters.

The lack of statistics has bedevilled this debate from the beginning. This morning the Minister of State at the Department to the Taoiseach, Deputy Tom Kitt, answered questions on behalf of the Taoiseach on the number of tourists coming here. I have not seen the questions that were asked, but there was a fair degree of clarity regarding why people come here as tourists, how long they spend here and the purpose of their visit. However, when we asked the Minister for Justice, Equality and Law Reform to give figures relating to the number of citizenship tourists, which he proclaimed loudly and often in the run-up to the referendum, he was unable to give any. He stated that it would be very difficult to obtain such figures.

The first question is whether he has tried to get those figures. He has given guesstimates, but he spoke mainly about the difficulty of getting figures, even though he was so certain prior to the referendum that he had figures that showed clearly that citizenship tourism was overwhelming this nation. Now he cannot give any figures. Apparently he has not checked the CSO figures on tourism.

[462]It should be possible to examine the figures on a computer database and relate the number of people who come here to the numbers who go to the maternity hospitals and from there go to register their children and obtain birth certificates and passports and then leave the country. Surely there is a tracking mechanism the Minister can follow to obtain figures when we are talking of something as fundamental as changing our Constitution for the reasons given by the Minister.

Even at this late stage, I would have expected the Minister to come up with some figures. He has not. His failure to do so puts in question the bona fides of the arguments presented by the Government side in the run-up to the local and European elections to get out the vote in a manner that will certainly not improve race relations on this island.

I spoke earlier about the reasonable expectation that people have, which is enshrined in law. In addition to that, there is a constitutional entitlement to family life. That is given a very strong position in Irish society. Irish born children of immigrants would be entitled to all of that, to the benefits of having their families around them, living in Ireland in the society into which they were born, with Irish citizenship as their birthright. Now it has been decided that these families can be removed from the country. They could leave their Irish citizen children behind. However, if they did that it would disrupt family life. Under this legislation all the Irish born children who are citizens will effectively be deported; if their parents are deported they, being babies, will also be deported.

The Minister will say he is not statutorily deporting any child. However, what he is doing is effective deportation. Furthermore, the country to which these children have been deported may very well be a Third World country where the level of education, social and health services may be such that their development is severely stunted. When they reach the age of 18, they can come to this country as Irish citizens claiming their birthright, which is not just the right to live here but the right to everything else that goes with that. These include rights relating to their development, education, health services, their future careers, all of which will have been stunted, possibly forever, because of a decision to deport their parents. They, as children in arms, have no say in the matter. They cannot make a decision to stay here, and there is no context for them to stay here without their parents.

These are problems that may arise in the future. It is another reason for coming to grips with the problem now rather than leaving it for another generation to deal with, a running sore in the body politic. Let us make a firm decision to deal with it once and for all. We are making a fresh beginning regarding how we treat children born here since the referendum and this new legislation. We can and should grasp the nettle and deal with this issue now, and we should deal with it generously.

[463]Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The whole procedure regarding the legislation and the amendments before us is back to front. We should first have comprehensive immigration legislation and then address this issue if required. Since I was elected, I and others have asked the Minister to produce such legislation. On each occasion we have been told it is in preparation and would be brought forward at some stage. We still have no indication when it will appear. It is, therefore, difficult for me to deal with the legislation before us in any way other than to ask that it be withdrawn.

I have tried to table amendments to regularise some aspects of immigration that are being discussed inside and outside this House. This legislation is premature. We should not deal with it at this stage. We should deal with the other issues in comprehensive immigration legislation covering all aspects of immigration. If we had such legislation we might not need the legislation we are debating today. The Minister bandied figures about and indulged in scaremongering in the run-up to the referendum. He said in his Second Stage speech that our asylum system is used by people who do not have a genuine need for protection under the Geneva Convention, as a vehicle to gain entry to the State in circumvention of normal immigration controls. He did not produce figures to support that. It was a wild assertion to create a scare within the State. It was a repetition of his approach to the referendum. From my party’s point of view, we lost the referendum and we must deal with the consequences.

However, if the Minister had concentrated on providing the figures to the House and being reasonable rather than making pronouncements and soundbites to the media, we might have been able to deal with specifics, which we have not been able to do. That said, if people are abusing our immigration laws, the abusers should be dealt with, not those who have complied fully with the laws, the legislation as it pertains and the international conventions. Instead of targeting the abusers the Minster is introducing a blanket approach which is not the proper way to deal with legislation.

Given that the Minister is a Minister for inequality who proclaimed that he believes in inequality, what else can we expect of him? I hope the Minister of State, Deputy Fahey, will change that attitude and will become a Minister for equality. If he and the Government believe in equality, their only option is to withdraw the Bill. It has been found to be contrary to the best interests of the child, a matter on which a detailed note or observation was drawn up by the Human Rights Commission. I will return to this issue because it is related to the amendments before us.

While we are discussing Deputy O’Keeffe’s amendment concerning the sub-title, my amendment seeks to amend the Title which explains that the Bill intends to deprive people of equal rights to citizenship. My amendment No. 10, is slightly different from the amendments of other Members in that, as I argued on Committee [464]Stage, it seeks that the removal of citizenship from children born in this country would be effected after the Bill has been enacted rather than on the date on which the court decided or the date of the passing of the referendum. The logical date is the date the Bill comes into effect. If we accept that date, we would regularise the situation of the parents of Irish citizens born before or after the L and O case but prior to the enactment of this legislation.

Acting Chairman (Dr. Cowley): Information on Jerry Cowley  Zoom on Jerry Cowley  We are dealing with amendment No. 2, not Second Stage of the Bill. The amendments deal with the right to remain of parents and siblings of Irish born children.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I am speaking on amendment No. 10 which calls for the regularisation of Irish citizen children born before and after the L and O case, before the referendum and prior to the enactment of this legislation. I seek to ensure that these child citizens’ equal rights to the care and company of their parents and to remain in the country of their birth is secured, whatever about the rights of children born after the Bill is enacted. The Bill recognises that all those born before should retain citizenship rights. I ask for nothing less than that the Minister should give citizenship and entitlements — other Members called it an amnesty — up to the date of the enactment of the Bill.

The legislation cannot be retrospective and cannot deny people their citizenship before it is enacted, which is what the Minister stated as his intention when he refused to contemplate any formula in regard to the child citizens born here of non-national parents. Since the referendum, the Minister has accelerated the deportation of parents of Irish children, which means he is not even complying with his own legislation and is trying to ensure that perhaps 20,000 people cannot enjoy their rights as parents of Irish citizens.

The Human Rights Commission made a submission which questioned certain aspects of the duties of the State to protect against all forms of discrimination. If we pass the Bill, we will discriminate against children who should be Irish citizens prior to the enactment of this law. The State has ratified the UN Covenant on Civil and Political Rights which means the Government has undertaken an obligation to ensure and to demonstrate that any legislative initiative does not impact in a discriminatory fashion on any group in society. This group, namely, Irish children of non-national parents, would be discriminated against in this way.

Article 2.1 of the Covenant on Civil and Political Rights sets forth the general obligation of the state parties to guarantee protection of rights at the national level and also outlines the concept of unlawful discrimination in the enjoyment of human rights. Article 2.1 states:

[465]

It is set out in black and white for the Minister that there should be no discrimination on the basis of birth, which would happen if the Minister is not willing to accede to my amendment. Article 26 of the covenant states:

Birth is again referred to in this instance.

Article 2.1 of the UN Convention on the Rights of the Child is not dissimilar to that which I have already quoted and prohibits discrimination of any kind against any child in the state parties’ jurisdiction, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, etc. The Bill, if introduced in this format without the recognition of the status of Irish children to the care of their parents on this island, would be discriminatory and in breach of the Convention on the Rights of the Child. Article 22 of this convention supplements the principle of non-discrimination by requiring states to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status of his or her parents, legal guardians or family members.

The Human Rights Commission’s document refers to Article 8.1 of European Convention on Human Rights which guarantees the right to respect for family and private life. Article 8.2 of that convention states:

The Government should not counter, clash with or breach that Article in accepting this legislation without amendment. The State has obligations to respect family life under Article 8, to extend positive obligations to protect, as well as negative obligations not to interfere arbitrarily in family life.

Certain figures were bandied about by the Minister. In a submission by the Irish Council for Civil Liberties, Ms Aisling Reidy noted that if one [466]accepted what the Minister alleged, that women were presenting late in pregnancy to hospitals in Dublin and were thus in his eyes abusing our system and laws, the figure of 116 late pregnancy non-national presentations to the Coombe Women’s Hospital represents only 6.7% of births to all non-national women in that hospital. There are approximately 1.8 million people born outside Ireland who would be entitled to Irish citizenship. If one were to take it that 6.7% of those citizens would apply for Irish passports for reasons of convenience, that would come to more than 120,000 people, a far greater number than those who were allegedly taking advantage of this country by giving birth in hospitals in this State.

As Deputy Costello said, the entire debate is being made very difficult because the Minister has not proven the case. He has not given us the facts and figures. He has not shown that he has even done his homework. When one does not do one’s school homework, one cannot proceed. We should not be proceeding in this matter because we are moving into a blind alley as we do not know the effects of this legislation. We do not even know if it is required. Any cursory look at the wild figures thrown around shows that they do not stand up to scrutiny.

What we have needed throughout this debate is facts and figures. It is very easy to extrapolate how many people will be affected by this legislation by looking at the birth rate in our hospitals, by making a phone call to check the figures in our registry office in Lombard Street East. All the relevant offices are computerised so that only the press of a button is required. It might take a week or two for all the figures to be tabulated but the Minister began demanding last March that we deal with this issue urgently. More than seven months later we are still awaiting facts and figures from the Minister.

It is disgraceful that once again the Minister has not bothered to be present when a major aspect of his legislative programme is being discussed. He is demanding that this matter be rushed through the House and he has put pressure on us. This is not the first but the fourth or fifth time since I have been elected that the Minister has told us that we must rush forward certain legislation, his own little hobby horses, yet he has not bothered to turn up in this House to listen to and partake in the debate. It is no slight on the Minister of State present today, but this matter is the Minister’s baby and he should be here to listen to and answer the points made by Deputies.

Mr. P. Breen: Information on Pat Breen  Zoom on Pat Breen  There are many foreign nationals in my county, some of them seeking asylum and citizenship. Currently we have a doctor practising in this country for the past nine years, and living with his wife and family. Six months ago he applied for citizenship. I was lucky enough to make contact today with the Department of Justice, Equality and Law Reform but I ask those on the other side of the House how I might contact the Department when I am in my office in [467]Ennis and want to make an inquiry about citizenship for one of my constituents. For the past two and a half years I have only been able to get in touch with an answering machine. If I am attending the Dáil I may be lucky enough to be put through but I cannot make contact when in my constituency office.

A young lady has been attending Coláiste Mhuire in Ennis for two years. With the support of her teachers she wishes to stay in this country until she can sit her Leaving Certificate exam. Last week she was served with a deportation order. She merely wants to sit her Leaving Certificate exam and then return to where she came from.

This Bill wishes to ensure that immigration policies include provision for permanent residency status and the conferring of citizenship on residents in order that immigrants may freely enjoy the same security rights and entitlements as Irish and EU citizens living in Ireland. The Bill appears to be more liberal than similar Bills in other EU jurisdictions. However, it highlights the fact that in respect of entitlement to Irish citizenship of children born in Ireland to non-national parents, at least one parent must be living in this country for three years. That does not take into account the length of time a person may have been seeking asylum, which it should do. Asylum seekers’ applications must be made but that does not interfere with or exclude a child’s right to citizenship.

  1 o’clock

Women come to my office who have two children and are expecting a third. They have been in this country for five or six years and now they are being served with deportation orders even though they already have two children born in the State. Before they are served with deportation orders those people should have the right to make reasonable representations to the Department of Justice, Equality and Law Reform regarding citizenship in this country. That is not happening. If we grant the right to citizenship to these parents and their children born in Ireland, that may encourage them to contribute more to our democratic society and promote an effective integration, harmony and mutual respect. We have highly qualified people who want to contribute to the coffers of the State and are not allowed do so.

Can the Minister of State tell me, in the name of God, when or how I can get through from my office in Ennis to the Department of Justice, Equality and Law Reform? It is impossible to do so and equally impossible to do so from my office in this House. Perhaps some of the officials present might be able to advise me.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  The Deputy might try pigeon post.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey): Information on Frank Fahey  Zoom on Frank Fahey  The amendments are opposed. I have been preparing for today’s debate over the past few days, having [468]newly come to this legislation. The Minister cannot be here today because he is involved in important business in London with the Taoiseach. We wish the Minister and the Taoiseach well in those discussions. It is not possible for the Minister to be here and I am sure everybody appreciates that.

In taking a dispassionate look at this legislation, I reject the partisan approach taken by the Opposition, particularly the view that the Minister is lacking in humanity in respect of this Bill. It is important to have reasonable debate but some of the contributions today have not been reasonable. It is also important when discussing this Bill that we stick to the subject at hand. We are not talking about immigration policy today but about citizenship. Many of the issues raised, in particular by Deputies Cuffe and Ó Snodaigh, were the same as those put forward by them and others in the referendum. The referendum is over.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  They are still relevant.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  All Deputies accept the result of the referendum but many of the issues raised today in regard to the figures, inequality and so on were promulgated by those opposite during the referendum.

Mr. Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  There is nothing wrong with that.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  It would be worth Deputy Ó
Snodaigh’s while remembering that his case was rejected by 80% of the electorate.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The arguments are still valid.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  We must get on with implementing the result of the referendum. That is what is at issue today. As members of two parties which have made great play of Dáil reform, Deputies Cuffe and Ó Snodaigh should abandon their time-wasting exercise and deal with the issues.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Is the Minister of State saying debate is time-wasting?

Mr. Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  We want decisions for people whose cases are in limbo.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  The Deputy got his decision in the referendum. It is time-wasting to come into the House with the same arguments that were rejected by 80% of the people.

Mr. Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  They are different arguments.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  They are not different arguments; they are specific.

I will address the amendments starting with amendment No. 7 in Deputy Costello’s name which seeks to address the immigration status of certain non-nationals who are the parents of Irish children and who have, in the past, sought to assert a right to stay in Ireland based on that fact.

[469]The decision of the Supreme Court in the case of L and O in January 2003 made it clear that non-nationals have no entitlement, as such, to remain in the State on that basis. However, Deputy O’Keeffe’s amendment No. 9 seeks, in a blanket way, uncritically, to reverse the effect of the L and O case for both of those families and for others whose presence in the State has been, and continues to be, unlawful. Deputy Cuffe’s amendments Nos. 4 and 5 and Deputy Ó
Snodaigh’s amendment No. 10 would go further and include all the siblings of the Irish child whether they have ever been in the State.

Some of the parents of those children have a lawful basis for remaining in the State. I have in mind, for instance, a person who sought entry to the State on the basis of an employment permit, was granted permission to be in the State on that basis and continues to have both employment permit and permission to remain renewed on a regular basis. Any parents who have this, or a similar basis, for being in the State may continue to remain in the State for as long as that basis applies.

Other parents have no lawful basis for their presence in the State. Notwithstanding that they are unlawfully in the State, the law does not empower the Minister to remove them forthwith. The Immigration Act 1999, which has been pilloried by certain commentators as a draconian measure, protects the presence, although unlawful, of such persons in the State until the carefully devised processes in that Act have been exhausted. The Minister for Justice, Equality and Law Reform cannot order their removal. He must observe due process by giving such people notice of the fact that deportation is being considered, setting out what their choices are and giving them the opportunity to make representations to him, if they wish, as to why they should not be removed.

Each case must be examined by reference to all the factors set out in section 3(6) of the 1999 Act, that is, the guidelines Deputy O’Keeffe wants published in his amendment No. 3. If after that examination, the Minister decides — he makes all these decisions having first considered the thorough, preparatory work done by his officials — that the person should be removed, he may make a deportation order. If he decides not to make a deportation order, he gives the person permission to remain in the State. I see no profit whatsoever, except an additional delaying tactic for those who refuse to obey a lawfully and carefully arrived at deportation decision, in applying another layer of appeal, as Deputy O’Keeffe’s amendment No. 16 would have us do, on top of the two-stage independent asylum process, which many of these parents enter but withdraw from and are now re-entering as a last resort. There must be closure.

The process of deciding these cases is not routine. The Minister must not only observe the processes set out in the statute but must also bear in mind the strictures of Mr. Justice Hardiman in [470]the L and O case in these Irish child cases. He made it clear that any case of potential deportation of the parent of an Irish child “requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation”.

It is clear there is a structured way, ordained by statute, to deal carefully with each case on an individual basis. This is not the mass deportation process spoken of by some seasoned political commentators who should know better than to frighten the people whose interests they claim to represent with cheap and utterly misleading headline catching phrases. It is a managed immigration process which is dealt with under the correct legislation for this type of matter. The issue of immigration has no place in this Bill which is concerned exclusively with determining, in accordance with law, the future acquisition of Irish nationality and citizenship as identified in Article 9.2 of the Constitution.

There are no proposals to legislate for the blanket granting of permission in the way Deputies propose in their amendments. The Minister made that crystal clear in his contributions on Committee Stage. The Minister will keep an eye on matters to see how they develop in the wake of the implementation of this legislation and will take a sensible view on what might be done once that is in place. However, I disabuse Deputies now of the notion that there will be uncritical and indiscriminate regularisation of the irregular. People have railed against the spectre of mass deportation decisions in circumstances where there can be none and have clamoured for individual consideration of each case as if it was not already happening, as required by law. The Minister is being asked to move away from individual consideration of each case and to make a mass decision that everyone can stay irrespective of the rights or wrongs of particular cases, but that will not happen.

As he stated on Committee Stage, the Minister will look at the entire situation in a decent, sensible and pragmatic way once this legislation is enacted. Deputies observed in committee that, in saying so, the Minister was asking them to take him on trust. That is exactly what they will have to do because they need not expect from me or from the Minister any further statement that might be misread either by those who might take false hope from such a statement or those who would seek to gain some angle of advantage out if it. That will not happen.

I turn now to some technical aspects of the amendments tabled which display a somewhat naive view of the phenomenon and its effects. One effect of Deputy O’Keeffe’s proposal in amendment No. 9 to make everyone lawful would be if, for example, the non-national father of an Irish born child, such child being born prior to January 2003, were to leave the family and move to another country, that person would, nonetheless, be deemed by operation of the law as proposed in the Deputy’s amendment to be lawfully [471]present in the State even though he was patently not in the State. I doubt if this was the intention of the Deputy in framing the amendment but that is what its effect would be. The non-national father would in effect not be subject to immigration control at all. For example, if this father were to stay away for 20 years, he would still be entitled to return and live here whether or not the mother and child were residing here. This would apply even where, for instance, the non-national in question had been involved in the most serious criminal activity. I cannot accept the amendment.

Deputy Cuffe’s and Deputy Ó Snodaigh’s amendments would extend a right to reside to siblings of an Irish-born child. This is based on a serious error of judgment. Consider the case of a Canadian academic who comes to Ireland on a one-year research project, taking a sabbatical from her university duties and leaving her husband and three children at home so as not to interrupt their schooling. Before she leaves, she discovers she is pregnant and duly has the child in Holles Street Hospital in February of her year here. By the logic of the Deputies’ amendments, the fortuitous fact of that birth in Ireland is to give mother, father and the three Canadian children, who have never been here, the right for ever more to reside in Ireland. There is no moral case that can be made for such a situation.

Moreover, there is no moral case to be made for parents or siblings in any other circumstances to be given by statute an entitlement to come to Ireland for as long as they please, simply and solely based on the chance factor of having a child, brother or sister born in Ireland. The Deputies may use high-flown talk about family reunification but the sensible form of family reunification in the Canadian case that I posit is for mother and child to go back to Canada where the rest of the family is settled. Why should it be any different if the child has a parent and three siblings living in Bucharest or Abuja?

I conclude by restating the position that the Minister for Justice, Equality and Law Reform, Deputy McDowell, made clear on Committee Stage. He undertakes to deal decently, sensibly and pragmatically with the situation once this legislation is up and running. The Minister is committed to dealing with the cases that are pending in a most humane way. Deputy Jim O’Keeffe has made the case for such an approach succinctly today. There is no issue regarding figures or anything else. Some 10,584 non-national parents of Irish-born children were granted residency in the State on the basis of their children’s Irish birth between 1996 and the date of the Supreme Court decision on the L and O case. We abolished the separate procedures for the
acceptance of Irish-born child applications on
19 February 2003, on which date we stopped accepting new applications. At that time, there were 11,943 applications from non-national [472]parents on hand. There is no lack of transparency or puzzle as to the number of people involved.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The Minister for Justice, Equality and Law Reform could not produce those figures.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  This legislation is an attempt to regularise the situation. It is an attempt by the Minister to act in a humane way. He will make decisions on outstanding cases in a pragmatic, decent and sensible manner when the Bill is passed.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I accept that the Minister for Justice, Equality and Law Reform cannot be here today because he is in London. However, this Bill should have been taken yesterday. It was not taken because the Minister, like an over-grown schoolboy, gathered the resources of the State, including cars and helicopters, in the Phoenix Park so he could play the role of one who is doing something. The purpose of this excursion was to announce his plans to establish a traffic corps notwithstanding that he has no extra men or equipment to assign to such a service, nor will have for some 18 months. This was the urgent reason he was unable to take the Bill yesterday.

There are a number of issues to consider. The Minister wants us to take a leap in the dark and rely on his humanity, decency, sensibility and pragmatism. We are asked to place total trust in a Minister who has done nothing to warrant that trust. Prior to the L and O case, 37 people had already been deported. No grounds were given for these deportations. We cannot put our trust in a Minister who will not supply such information. Likewise, we are asked to set aside the concept of an independent appeals process. Under the system, people are informed by the Minister that they are to be deported. They can then make representations about which the same Minister makes a decision. There is nothing accountable or transparent in such a system.

My colleague, Deputy Pat Breen, observed that not alone is there a totally opaque system but nobody can even discover what is happening with regard to any applications. Members of the House cannot find out such information. Deputy Pat Breen cannot even get a response to his inquiries on behalf of constituents. Six months ago, I proposed to this common-sense Minister that he establish an Oireachtas helpline. I made the same proposal to his colleague, the Tánaiste, Deputy Harney, who dealt with work permits in her then capacity as Minister for Enterprise, Trade and Employment. This would have represented a simple, straightforward step to alleviate the problems with the system by providing a point of contact for inquiries regarding applications. This suggestion has been ignored.

That is one example of incompetence. Another relates to the position of a person who applies for naturalisation and must wait two years for the application even to be considered. What type of [473]hopeless, helpless incompetence is that for the Minister to display to the House and then to ask us to accept that he will look after all these problems with common sense, decency and pragmatism? He must earn his credit by at least showing some element of competence in doing his job before we could accept that. We have had nothing but total incompetence from the Minister.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  This Bill is the Minister for Justice, Equality and Law Reform’s baby in more ways that one. As Deputy Jim O’Keeffe said, we cannot take what the Minister says to us now on trust when we have received so much misinformation and when it is impossible to get any direct information in reply to queries. It is almost impossible to make contact with the Department on such matters. The Department is only available for certain hours of the day and one spends hours on the phone attempting to get through.

The Minister of State, Deputy Fahey, referred to the amendments of my colleagues and ruled them out one by one. Perhaps he is indicating that he will accept my amendment. In many ways, this amendment is the most acceptable in terms of what the Minister, Deputy McDowell, has been saying. I make no reference to siblings, citizenship or any prior legal status. All the Minister has to do with regard to my amendment is to grant a right of residency. After that, people can apply for citizenship, deal with siblings and so on. Such a change would recognise the family unit and ensure there would be no effective deportation of Irish-born children who are citizens.

I am delighted to hear that the Minister has given us numbers which we did not have before. If I correctly understood the Minister of State, he said that 10,584 non-national parents of Irish born children were granted residency between 1996 and 2003 following the L and O case. Since that time a further 11,943 applications are outstanding. Is the Minister of State telling us that no applications have been processed in the period between February 2003 and now? Is there another group of non-national parents whom the Minister has not mentioned — in other words, those whose applications have been processed in the past year and ten months? Has the Department of Justice, Equality and Law Reform not done anything since the L and O case other than deport 37 parents of Irish citizens? Will the Minister of State clarify those figures?

We have exact figures for the first time on the number of successful applications by the parents of Irish born children. We have also got a second figure which, from what the Minister of State said, appears to be the rest of the applications outstanding since early 2003. That figure is 11,943. The Minister said he had a figure of 11,000 plus 5,000, 6,000 or 7,000. Has that figure gone out the door, so to speak? Can he clarify the number of applicants who have been successful, the number of applications still outstanding [474]and if any person has had his or her case processed successfully since the L and O case?

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  The Minister of State asked us to take the Minister, Deputy McDowell, on trust. As others have said, he has not done anything to earn our trust on this issue. When it was first broached in terms of a referendum, he made a promise to us, and the four Members in the Chamber were present at that time, that if the referendum was passed, he would deal with what he acknowledged was the outstanding issue of Irish citizens born to non-national parents at that stage.

The Minister of State has quoted figures. We are dealing with Report Stage of the legislation, which will have a major impact on many of our citizens and it is ridiculous that we are only getting these figures now. When we dealt with this issue on Committee Stage last week, the Minister could not tell us any of these figures and now the figures are being bandied about. That shows this debate is ridiculous. There has been a lack of time allocated for the debate. The Minister said that some of the amendments were naive in their effect. One of the reasons they might show some degree of naivety is that we are in a rush to try to deal with this issue. We have not had the time to properly deal with it. If we had, we would take full cognisance of the effects of our amendments.

The Minister has not taken cognisance of the full effect of this legislation. If passed, this legislation will have to be amended at a later date to take account of the Chen judgment. The Minister did not mention it. It is as if that judgment had not been given, whereas in the run up to the referendum the Minister quoted it at every opportunity. It is disgraceful that the Minister is not present to deal with this issue. If he is in London, that is fine, but this debate should have been deferred to another day to ensure that the Minister responsible for rushing through this legislation would be here to directly address these issues.

The Minister of State mentioned the situation concerning a Canadian student who, I believe, has a moral case. Prior to this legislation being enacted, a child born here is an Irish citizen. Based on the Chen case, such a child is entitled to the care of his or her parents in this State. Following that judgment and in recognition of one’s entitlement to family life, that Canadian student’s siblings or partner should be entitled to join her, if she so wishes. As a student she might wish to return to Canada to enjoy Canadian life rather than live here, but it would be a choice for her and her family. At a later date, her child who is an Irish citizen could return to Ireland to enjoy citizenship at any stage or the family could move here.

The Minister of State mentioned that Deputy McDowell, would deal sensitively, humanely, pragmatically and decently with the outstanding cases. At the rate he is going, it will be 20, 30 or 40 years before he addresses the 11,000 outstand[475]ing cases never mind the subsequent applications made on the basis of children born here since the L and O case. In these amendments we ask that the outstanding cases be dealt with once and for all as quickly as possible to ensure that the logjam in the system is moved.

Mr. Cuffe: Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  The Minister reiterates that the people have spoken and that the constitutional amendment has been passed. Most people who voted in favour of the citizenship referendum on 11 June believed the constitutional amendment applied looking forward and that the cases prior to that date would be dealt with in a compassionate and humane way. That is what the Minister of State said and what the people of Ireland thought, yet those people are still living in limbo.

I do not feel proud to be Irish but ashamed when I see Irish citizens being deported in the dead of night. I feel ashamed to be Irish when I see young children and babies being put on a plane with their parents and those citizens being removed from this country. That is why I want to see an element or an ounce of compassion from the Minister. This is not about opening the gates; it is about listening carefully and compassionately to a small cohort of people who should be released from the uncertain future they face. I agree that the people have spoken as regards future cases, but I refer to a group of people who were in Ireland along with their families before the end of March last year. Those cases should be heard and considered compassionately and those people should be allowed to remain here.

Mr. Fahey: Information on Frank Fahey  Zoom on Frank Fahey  I have nothing further to add to what I said except to clarify the position for Deputy Costello. The Deputies will note that the figures I mentioned have a common denominator, apart from the immediately apparent fact of the parents having an Irish born child, namely, they had all made an application to the Minister for Justice, Equality and Law Reform for residence in this State on the basis of the birth of that child. There were cases where no such application was made. These were cases where the parents arranged birth in the island of Ireland to secure Irish citizenship for the child. These parents may have been resident in their country of origin or perhaps in another EU member state, whether legally or illegally. If a parent’s tenure in that EU member state ceases, it would be open to such parents to travel to this jurisdiction to seek residency on the basis of the Irish born citizen child. This could arise in a case where the child was born here five years ago but the parents never made any application for residency on their own behalf because they were living in another country. The child would of course have Irish citizenship.

Take, for example, the child born to Mrs. Chen, who was the subject of the Chen case. Mrs. Chen never sought residency in this State prior to February 2003 even though her child was born in [476]September 2000. This was because she was living and wished to continue to reside in the United Kingdom. However, who is to say she will never seek residency here in respect of her child, who was born two and a half years before the L and O judgment?

Let us take the example of a person employed here on foot of a work permit who has his or her family here. Approximately 850 of the 11,493 applicants fell into this category.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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