Seanad Éireann - Volume 113 - 24 June, 1986

Death of Deputy. - Irish Nationality and Citizenship Bill, 1985: Second Stage.

Question proposed: “That the Bill be now read a Second Time.”

Minister of State at the Department of Justice (Mrs. Fennell): The main purpose of this Bill is to remove the differentiation that exists at present in the conditions to be satisfied by men and women for the obtaining of Irish citizenship by the foreign spouses of Irish citizens. It is important that this should be done for the sake of alien spouses of Irish citizens who wish to obtain Irish citizenship. The Bill is important also in that it is another step in the elimination from our laws of unequal treatment based on sex. I am glad therefore to have the opportunity of recommending the Bill to the House.

As I have said already, the main purpose of the Bill is to eliminate the unequal treatment obtaining as between foreign [1305] husbands and foreign wives of Irish citizens who wish to obtain Irish citizenship. There are other, less important, changes included in the Bill and I will deal with those later.

I would like first to explain the current position as regards foreign spouses of Irish citizens obtaining Irish citizenship. The relevant piece of legislation is the Irish Nationality and Citizenship Act, 1956. The Act provides that the foreign wife of an Irish citizen may obtain Irish citizenship by making a post-nuptial declaration to the effect that she is accepting Irish citizenship as her post-nuptial citizenship. The foreign wife has an absolute right to obtain Irish citizenship in these circumstances. There is no condition to be fulfilled as regards residence, character or anything else, other than that she is the wife of an Irish citizen.

The position as regards the foreign husbands of Irish women who wish to obtain Irish citizenship is different. In their case the foreign man has no absolute right to Irish citizenship. For him the obtaining of citizenship is through the process of naturalisation. To qualify for citizenship under the naturalisation process certain conditions must be fulfilled. In the case of the foreign husband of an Irish woman these include two years residence in the State, being of good character and an intention to reside in the State after naturalisation.

The provisions of the 1956 Act were drafted in the fifties and it is probably fair to assume that they were drafted having regard to the social mores of the time. In providing for the foreign wife of an Irish national being able to get Irish citizenship as of right, our legislators were probably acting on the assumption that in marriages of mixed nationalities the wife was more likely to move to her husband's country than the husband move to her country. In fact the nationality and citizenship laws of many countries drafted 30 or so years ago contain similar provisions to ours in that they provide for automatic citizenship for a foreign wife but a foreign husband may only get citizenship through naturalisation after [1306] having fulfilled conditions such as residence. In recent years many of the E.C. countries have reviewed their legislation in this area and, generally, they have eliminated this type of differentiation as between foreign husbands and foreign wives.

This type of differentiation was also considered by the Council of Europe and in 1977 the Council recommended to Governments of member states:

(1) To move towards eliminating distinctions in the conditions under which nationality may be acquired by the foreign husbands of their nationals as compared to the foreign wives;

(2) To proceed, from now on, to the arrangements necessary at the internal level to accord to the foreign husbands of their nationals for the acquisition of nationality, a treatment as close as possible to that granted to the foreign wives of their nationals;

(3) Not to require for the acquisition of their nationality by the foreign spouse of a national more than five years residence in their territory including not more than three years of residence after the marriage;

(4) To provide, in any event, that foreign spouses of their nationals may acquire their nationality on more favourable conditions than those generally required of other aliens.

When the Government decided that the differentiation contained in the 1956 Act should be eliminated there were a number of ways in which the law could have been changed. One option would be to give citizenship automatically to all foreign spouses of Irish nationals without reference to any conditions whatsoever. Another would have been to require that all such foreign spouses would have to be resident in the State for a number of years, say one, two, three or four. This latter arrangement would have involved naturalisation and, accordingly, would not have given a right to citizenship. The option which the Government have selected is to give a right to citizenship to [1307] foreign spouses of Irish nationals provided that the marriage to the Irish citizen is of at least three years duration, that it is subsisting and that the couple are living together as husband and wife at the time the foreign spouse takes Irish nationality by lodging a declaration.

As I have said, the method decided on by the Government gives a right of nationality to foreign spouses of Irish nationals. It is important to realise also that it does not necessarily involve residence in Ireland. In many cases the three years marriage requirement will be satisfied by couples being married and living outside Ireland. In my experience the inability of a foreign husband of an Irish woman to get Irish citizenship unless he was resident in the State has proved to be a major difficulty with families of mixed nationality in the past. The couple could not live in Ireland because the husband could not get a job here because he had not got citizenship, and he could not get citizenship because he was not resident here. In many of these cases the couples had been married for many years. In such cases in the future the foreign spouse will be able to get Irish citizenship without having resided in the State and this should facilitate greatly families who wish to return to Ireland.

There are some statistics which I think may be of interest to the House in the context of this Bill. In 1985, 513 women acquired Irish citizenship by post-nuptial declaration. The number of foreign husbands of Irish women who obtained Irish citizenship by naturalisation in the same year was 81. I cannot, of course, forecast what the annual figures will be when the Bill becomes law. It may be, however, that there will be an increase, at least initially, in the number of husbands of Irish women who take Irish citizenship as they will no longer have to be resident in the State to qualify for citizenship.

Before I move away from this section of the Bill there is one other matter that I should like to refer to. In December last Ireland acceded to the UN Convention on the Elimination of All Forms of Discrimination against Women. One of [1308] the reservations entered by Ireland when acceding to the Convention is as follows:

Pending the proposed amendment to the law relating to citizenship, which is at an advanced stage, Ireland reserves the right to retain the provisions in its existing law concerning the acquisition of citizenship on marriage.

That reservation was framed in the manner I have just read because of the intention to introduce the Bill we are now considering, which would change the present law which makes a distinction between men and women as regards acquisition of citizenship by foreign spouses. When this Bill becomes law, that reservation can be deleted.

The provision in the Bill relating to the elimination of distinction between men and women in the acquisition of citizenship is, of course, the most important provision in the Bill. There are, however, as I have said already, a number of other proposals in the Bill which amend the 1956 Act and I propose to deal fairly quickly with them now.

Section 2 of the Bill proposes to amend section 7 (2) of the 1956 Act. Section 7 (2) provides for descendants of Irish persons obtaining Irish citizenships by registration. The effect of registration is that the person is regarded as having Irish citizenship from birth. The change proposed is that in future the Irish citizenship will apply only from the date of registration. This was the intention of the 1956 Act when it was being drafted in the mid-1950's. However, it was decided some years ago that the wording of the section did not support the view that citizenship dated only from the date of registration and, accordingly, such registration has been regarded as conferring citizenship back to the date of birth or the date of passing of the 1956 Act, whichever is the latter.

The decision to amend section 7 (2) of the 1956 Act was taken due to the fact that there is a belief that a number of people are obtaining citizenship under this section for reasons other than any affinity with Ireland. It was felt that these people were taking Irish citizenship as [1309] a safeguard that should they, or their children, ever need a second citizenship in the future, then they would have Irish citizenship. Given that the acceptance of citizenship presupposes fidelity to the State it was felt that the loophole in the 1956 Act through which people of only remote connection with Ireland could obtain citizenship should be plugged.

The position in relation to South Africans is of particular concern in this regard. Normally, statistics are not kept on a nationality basis of persons taking Irish citizenship by registration. Figures were kept for a 12 month period in 1984-85, however. These figures show that of the total 1,300 approximately, registering, 368 were from South Africa. Some other figures were as follows:

United States

299

New Zealand

166

Zimbabwe

132

England

213

The position after this Bill is passed is that people will continue to be able to obtain citizenship where a parent or a grandparent has been born in Ireland or, indeed, at later generations provided the immediately proceeding generation has registered as an Irish citizen prior to the birth of the person now seeking citizenship through registration.

Section 15 of the 1956 Act is also being amended. The only change proposed compared with the existing section is that the requirement of one year's advance notice of intention to apply for naturalisation is being omitted from the new section. It was found that this provision did not serve any practical purpose and, indeed, could serve as an unnecessary delaying factor in some individual cases.

A new section 16 is also being provided for in the Bill. There is an important new provision in the proposed section 16 in that it gives the Minister power to waive the normal conditions for citizenship in the case of refugees and stateless persons. The intention would be to apply a three year residence qualification to persons in this category instead of the five years residence requirement that applies to applicants for naturalisation generally.

[1310] The proposed arrangement in relation to refugees is in accordance with the 1951 Geneva Convention relating to the Status of Refugees. Article 34 of the Convention reads as follows:

The contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.

I should mention that it is also proposed to reduce the fees for naturalisation, by statutory instrument, in the case of refugees and stateless persons.

During the consideration of this Bill in Dáil Éireann a number of changes were made. Some of these changes are incorporated in sections 2 and 3 of the Bill with which I have already dealt. Two other changes, however, relate to sections 17 and 21 of the 1956 Act. Following consideration of points made during the debate in Dáil Éireann it was decided to amend section 17 of the 1956 Act by increasing the fine of £50 provided for in that section to one of £500. As regards section 21, it was decided to take out the phrase “a married woman under that age” as the reference to a woman seemed out of place in legislation which had been amended so as to eliminate differentiation based on sex from it. I should add, perhaps, that the elimination of that phrase does not make any difference to the meaning of section 21 as the reference to age in that section had been overtaken by the Age of Majority Act, 1985.

This Bill will benefit only a fairly limited number of people. However, I see it as being important not only for them but also as one further instance of the removal from our legislation of differentiation based on sex. It gives me great pleasure to recommend the Bill to the House.

Mr. E. Ryan: I am glad to welcome this Bill which, in principle and in the general terms is very acceptable. The main purpose of the Bill is, of course, to give equal rights to men and women. I [1311] am impressed by the fact that in aspiring to this objective, the women who have spoken on the Bill and the Minister who has introduced it, are quite willing to accept a situation which is less advantageous to them under the present Bill than under the previous situation merely to ensure that there is equality between the two sexes. This is an indication of their dedication to this objective. Of course, it is a very realistic way to approach it.

The Bill is, in many ways, an improvement on the 1956 Act. It has been brought up to date in a number of ways, apart from the question of the equality of men and women. In particular, I should like to welcome the amendments which have been made to section 16 which ensures that it will be possible to deal with refugees and stateless people in a more realistic and quicker way and also a way which will be of less cost to them.

This is very important in the present state of the world where we have so many refugees and so many people who have no state and who are vitally in need of somewhere to settle down. It is very necessary and very desirable that we should have legislation which will enable us to deal with that situation and I welcome the amendments that have been made in that respect. I hope that it will not be merely something that is on the Statute Book. I hope that it will be implemented in the future and that the Department of Justice will view any applications for citizenship in a generous way and in a way which is necessary to deal with this very serious problem which we have at present.

As the Minister said, this is not something that is going to affect many people. It only affects a few hundred people every year. Nevertheless, that does not make it any less important. There is an important principle involved in the Bill. The changes being made are important ones and even if the numbers are not large it deals with a very vital part of our law, that is, in regard to citizenship. It is right and proper that we should give this very serious consideration and that we should [1312] have an Act which will deal with it in a proper way.

There are just a few small points I want to ask about. The word “association” is used on a number of occasions. For instance, it is used in section 5 of the Bill. The Minister may in his absolute discretion grant an application for the certificate of naturalisation in the following cases, although the conditions for naturalisation in any of them are not complied with (a) “where the applicant is of Irish descent or Irish associations” I do not think the word “association” is defined either in this Bill or in the previous Act and, perhaps, the Minister would be good enough to say exactly what it means when replying.

There is the other point which I am not quite clear about. Section 3 deals with the acquisition of citizenship on marriage but it pointedly excludes those who have become citizens by naturalisation. Does this mean in the case of a person who is a naturalised citizen that the spouse has to go through the same process of naturalisation or is there no special situation as far as they are concerned?

I have on many occasions in the past complained about the way Bills and Acts have been amended in such a complicated way that it is almost impossible to find out exactly what the amendments mean and how the previous Act or Acts have been affected. In this case the draftsmen have substituted sections for previous sections, substituted sections in toto instead of putting in numerous small amendments. This is something I have advocated many times in the past and I commend the fact that it has been adopted in this Bill. There are some matters which will arise on Committee Stage but as far as the Bill is concerned in principle it is an extremely good one and I welcome it.

Mr. O'Leary: On behalf of the Fine Gael Party I welcome the proposed change in the Irish nationality and citizenship legislation. It is a change which undoubtedly is of significance in so far as it is further evidence of the developing equality in the legal status of men and [1313] women to which the Minister referred on Second Stage. It is easy enough to look back at the Oireachtas of 1956 and to be critical of it but, as the Minister said, it did reflect the social mores of that time. I note that the Minister, in amending the legislation, has chosen not to apply in the future in respect of either spouse the rules which applied previously on the marriage of a person but to give citizenship as a right to the spouse but a waiting period and certain other reasonable matters must be attended to before the actual citizenship is granted. I think that is right.

The privilege of citizenship of this country is not one that should be given too easily. It is right that we should be careful about it. In that regard the Minister is quite right in closing the loophole which, obviously, arose as a result of the problem of the date which the acquisition of citizenship related to and which, obviously, was of particular importance relative to applicants from places like South Africa where a person's parents could retrospectively apply for citizenship and bring along with them their children and their grandchildren even though the children and grandchildren themselves would not be entitled to citizenship.

In that regard there is one thing that I should like to hear the Minister refer to in her reply. The Minister said that the amended section 7 of the Act of 1956 will continue to apply in the same way except with regard to the date of registration. She outlined the position as being that people will be able to continue to obtain citizenship where a parent or grandparent had been born in Ireland. Does the Minister consider in the present climate, bearing in mind the problems which might arise in South Africa or other places like that, it is reasonable to continue to give a person whose grandparent was born in Ireland the right to citizenship or should it be restricted to one's parents? Why should you be able to get citizenship of a country purely on the basis of your grandparents? With the increasing mobility of people, if that was the rule in every country you could have people with the ability to get citizenship from a variety of [1314] countries and to pick and choose as and when they wanted to. Is it appropriate that consideration should be given to that point at some time in the future? I am speaking on that on Second Stage because it is not in the Bill and this is the appropriate time to speak about something which might usefully have been put into the Bill. Would the Minister like to consider that matter before replying? I should like generally to welcome the Bill and to assure the Minister of our speedy passage of the legislation subject, of course, to the detailed examination on Committee Stage which is an essential part of the process.

Mr. Fitzsimons: I should like to take this opportunity also to welcome the Bill. As Bills go, it is a very short one but, as Senator E. Ryan and Senator O'Leary said, it is also a very important one. I find in dealing with such Bills that an explanatory memorandum is very helpful. Unfortunately, for some reason, with a number of Bills like this we do not have an explanatory memorandum and that is a pity. Nevertheless, as I said, it is an important Bill and I welcome it like tha other Members.

Acting Chairman: Could I interrupt the Senator for a moment? It is coming near 10 p.m. and, perhaps, out of deference to himself the Senator might consider leaving his contribution until a later time. It would not be fair of me to interrupt him at 10 p.m. Would he agree to that?

Mr. Fitzsimons: I agree.

Debate adjourned.