Seanad Éireann - Volume 178 - 01 December, 2004

Irish Nationality and Citizenship Bill 2004: Second Stage.

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

  Mr. M. McDowell: I welcome this opportunity to address the House again on the subject of Irish citizenship laws. Senators will recall that my last major excursion into this august Chamber on this topic was in connection with the Bill for the referendum proposal which is the direct antecedent of the measure now before us. Previous to that, in autumn of last year, I was here to address Senator Quinn’s Private Member’s Bill on investment-based naturalisation. At that time, in welcoming and supporting the principle of that Bill, I promised the Senator and this House that I would avail of the next legislative opportunity to bring forward Government legislation to deal with the issue, and I am pleased to say that the Bill before us also delivers on that promise.

[1598] Before I get down to the detail of the Bill, I take the opportunity to put it in context of the Government’s overall policies regarding, not just to the acquisition of Irish citizenship, but the totality of the relationship between Irish society and the non-nationals who increasingly form a welcome part of that society. We are becoming day by day a much more cosmopolitan society, having within the past decade turned the economic corner from being a country of net outward migration to one of net inward migration.

People who are not Irish have long been coming to Ireland to make their new lives here, to establish themselves, and usually in the fullness of time to become Irish citizens themselves. For many years the numbers were outweighed by Irish people who were obliged, often by economic necessity, to go abroad and make their own lives and futures elsewhere. That is all changed. Now this prosperous island is an attractive place for our own to stay and for more and more non-nationals to make their way to, with plans to share in and contribute to our prosperity and to our cultural diversity.

Ireland’s immigration policy has enabled many thousands of people from outside the European Union to come and start new lives for themselves in this thriving economy, and to bring to Irish society new and often refreshingly vibrant influences, such that just as Irish culture rubs off on them, some of their cultures rub off on us. All we ask of such people is that they observe the immigration requirements for coming here and for remaining in the State and, as they settle in our workforce and establish new roots for themselves, they can be reasonably confident that, when the time comes, and if they wish it, we will welcome them not simply into Irish society as guests but as full members of the Irish nation by granting them citizenship.

Our immigration policies have so far served us reasonably well but I am on record as agreeing that there is plenty of scope for improvement. While there has been some modernisation in recent years of the legislative basis underpinning the implementation of Irish immigration policies, there is general consensus that we need to carry out a complete overhaul of immigration law and to take advantage of that process to include provisions that will facilitate the development and implementation of changes to immigration policy and practice so that Governments can keep adapting to changing circumstances and responding with appropriate refinements.

That is why I have in the course of development in the Department of Justice, Equality and Law Reform, a comprehensive immigration and residence Bill that will put the necessary legislative framework in place to achieve this aim. As part of that development, I expect within the next few weeks to publish a discussion document that I am sure will stimulate and inform public debate on the comprehensive legislative measure.

All too often, discourse in various public fora and in the media can be characterised by misun[1599] derstanding of the principles involved, lack of awareness of the factual position, or the sometimes quite understandable over-emotionalising of debate. I hope the proposed discussion document will help to advance the issues in a calm and rational way without these pitfalls, just as I can, in keeping with the usual norms of this House, be confident of a high standard of calm and rational debate on the matter now before us.

There is one misunderstanding that I would like to take this opportunity of nailing, namely, the oft-heard but completely erroneous assertion that we have no immigration policy. We have in place active policies regarding migration for entry into the employment market. These are designed to meet the needs of the marketplace where they cannot be met by locally recruited staff, while at the same time protecting the availability of job opportunities for Irish and EEA nationals who have access as of right to the employment market here, as elsewhere within the European Economic Area.

It is worth stressing that there is a right invested in migrant workers, particularly from the new candidate states but from every member state of the European Union, to come to Ireland and avail of the job opportunities here. In order to vindicate that right we have to have a migration policy which gives them preference, otherwise their right would mean nothing. For high-skill occupations where there are particular shortfalls in local availability of suitably qualified personnel, our policies have in place special work visa and work authorisation facilities to ease the difficulties for employers and potential non-national employees alike.

These policies are working. We have seen the numbers of employment permits mount year by year during the past five years or so. That there is a falling off this year is, I think, attributable to the fact that many of the countries whose nationals had been availing of the employment permit as the conduit to the Irish employment market are now full members of the European Union. As a result, their nationals no longer need employment permits and may live and work here as of right.

I do not claim that these policies are perfect, far from it. I acknowledge that there is much validity in some of the criticisms levelled from time to time. There is room for improving the policies and the manner in which they are delivered. I am taking steps to address those criticisms.

I do not accept the charge that there is no policy at all. In that context another myth that should be addressed is one that was recently propagated by a series of unfortunate circumstances. The National Consultative Committee on Racism and Interculturalism held a press conference recently. It published a report which stated that instances of people facing discrimination increased since it established a monitoring telephone line to which people could phone in their complaints and record their experience. A [1600] newspaper headline followed — it was not the fault of the journalist’s story — stating that racist attacks had grown dramatically. The survey said nothing about racist attacks, it merely said that people faced discrimination and were making increased use of a reporting and monitoring mechanism. More recently, responsible people whom I admire have built on that myth by saying that since the referendum there has been an increase in racist attacks in Ireland, which is wholly and completely untrue. The Garda Síochána has established for a number of years a mechanism to monitor all attacks in order to determine whether a racist element is involved. Curiously since the referendum, far from there being an increase in the number of racist attacks, there has been a steady pattern of decline in racist incidents of violence in the past three years. While some people posture as being concerned about the issue and simply assert that there has been an increase in racist attacks since the referendum, the opposite is the truth. There has been a decline in this pattern of behaviour. This does not mean that the referendum caused the decline. It equally means, however, that it is nonsense to claim that the passage of a referendum in regard to citizenship has made Ireland a more dangerous place for people from ethnic minorities. This type of self-serving wishful thinking has got out there and I feel like someone chasing balloons. I will have to chase around until it comes down to earth again because this notion has escaped from the intellectual Pandora’s box in the circumstances I described.

In the immigration context, it is important to advert to asylum and our international obligations to offer Ireland’s protection to those who are in need of it. Some commentators insist that asylum is not an immigration matter but a question of human rights. Others address immigration issues solely in terms of asylum and fail to recognise that most of the non-nationals we encounter in our daily lives in Ireland are people who have come here through normal, regular immigration processes. Of course, asylum is a question of human rights, but it also has a significant immigration dimension because of the frequency with which the State’s systems for dealing with the human rights of asylum seekers are used and abused, not just here but throughout the developed world, as a means to circumvent normal immigration controls by those who have neither a likelihood of being admitted by those controls nor any basis for a claim to protection.

Ireland has an active asylum policy. We offer protection to those who have a well-founded fear of persecution and need our protection. We aim to identify those with a genuine protection need as soon as possible after they arrive in the State with such claims. For those who make claims for protection, which turn out after independent examination to be ill-founded, we aim to remove them as soon as possible from the State. There are many who welcome the fact that we have an asylum policy, but then accuse me or the Govern[1601] ment of racism if I follow its logic and deport those who are not entitled to avail of it. Let me remind Senators that without deportation as a resource of last resort, there is no asylum policy. If we do not remove those who have claimed protection but do not need it, then we may as well say to the world, “Come in, we will not throw you out, even if you should not be here”. No Minister of any developed society could operate on that basis, and no Minister relishes the responsibility for removing people from the State. As I said on another occasion, it is never pleasant because we all know that we are dealing with real people, with real human problems and real hopes and concerns. However, the Government cannot shirk its responsibilities to Ireland, legal migrants and the international legal institution that is asylum.

The sad fact is that approximately 90% of those whose asylum claims are examined under our system of independent investigation and independent appeal turn out to be without foundation. Ireland has been seen as a good mark for people with no prospect of gaining access under normal immigration criteria, because it is a thriving economy within the European Union. Another considerable factor in the remarkable rate of asylum seeking until recently, which was the second highest per capita in Europe, was the fact that if one had a child born in Ireland, the child became entitled to Irish citizenship and the parents could thus make a subsidiary claim to be allowed to stay, even though they might have no other basis for being in the State. It is the second phenomenon which gives rise to the Bill today.

Irish nationality legislation traditionally had three major aspects, namely, jus soli, the law of the soil, whereby birth in Ireland imparts Irish nationality to the person so born and jus sanguinis, the law of blood, whereby birth to an Irish parent, wherever that birth took place, imparts Irish nationality, and naturalisation, whereby the Minister for Justice of the day might, as a matter of absolute discretion, exercise the executive power of the State once certain statutory conditions had been met and thereby confer Irish nationality on a non-national. Constitutionally, the position traditionally has been that the Oireachtas had largely unfettered power to legislate for the acquisition of Irish nationality and citizenship, which are spoken of in the same breath in Article 9 of the Constitution and are regarded as identical concepts. The manifestation of the exercise of the parliamentary power in section 2 of that article is the Irish Nationality and Citizenship Act 1956, as amended in 1986, 1994 and 2001. People sometimes ask why two words, nationality and citizenship, are used where one would suffice. This relates to the historical context in which the Constitution was originally framed. One could be a national of a European country without being a citizen. Many countries did not confer full citizenship on women for instance. The concept of citizenship and nationality was a basket of rights which means one thing now but could have meant two things in those [1602] circumstances. This is why the two words are used in a kind of Siamese twin way to mean one thing.

One of the effects of the 1986 amending legislation was to put certain limits on the absolute operation of jus sanguinis for successive generations of Irish descendants born abroad. In 1986, we provided that for the third and later generations of children born abroad to Irish citizens themselves born abroad, the child would not inherit Irish citizenship unless, before the child’s birth, the parent’s birth had been registered in the foreign births register maintained by the Department of Foreign Affairs. The unlimited trickle-down effect of Irish citizenship from parent to child, which existed until 1986, was limited by the expedient, namely that after the second or third generation, for citizenship to go any further, the parent had to do a positive act and register as an Irish citizen prior to the birth of the child in question. The Oireachtas was able to modify absolute jus sanguinis because it had power to do so under the Constitution and considered in 1986 that it needed modification. It was like a chain letter whereby if one simply did nothing, one would allow Irish citizenship to trickle down exponentially.

As regards jus soli, arising out of the former constitutional territorial claim to Northern Ireland, Irish citizenship law conferred Irish nationality on persons born in Northern Ireland as well as within the State. In 1999, as part of the Good Friday Agreement, the people agreed by referendum to remove the territorial claim from the Constitution, and to replace it with a provision that declared it is the entitlement and birthright of every person born in the island of Ireland, its islands and its seas, to be part of the Irish nation. This change came about in the context of the British-Irish Agreement, arrived at as part of the complex of agreements that is the Good Friday Agreement, between Ireland and the UK whereby both Governments agreed that it was the entitlement of the people of Northern Ireland to regard themselves and be recognised as British or Irish or both British and Irish as they may so choose.

The effect of the constitutional change made then as far as Irish citizenship law was concerned was that now it was a constitutional entitlement, not a statutory entitlement, as jus soli and jus sanguinis had been as a status up to that point. It was a constitutional entitlement that everyone born in the island of Ireland was entitled to be an Irish citizen. Any law which Parliament might seek to pass which sought to confine Irish citizenship to certain categories of person born in Ireland would be in conflict with the Constitution. The changes necessary to keep the 1956 Act consistent with the amended Constitution were made in 2001.

It was evident in the past few years that many non-nationals who had no substantial link to Ireland were arranging their affairs so as to give birth to a child in Ireland and thus avail not only of Irish citizenship law but also, in some cases, of [1603] the 1991 Supreme Court decision in Fajujonu that had apparently given the parents of such an Irish citizen child a strong claim, but not an absolute claim, to remain in the State on that basis alone, even though they might have been unlawfully in the State at the time of the birth. This manifested itself most obviously in the rate of applications for asylum made by persons who, following the birth of the child, withdrew their asylum claims. The Supreme Court decision in the L and O case in early 2003 made it clear that a person’s right to remain in the State solely on the basis of parentage of an Irish child was not strong, but the court also made it clear that such a parent could not be removed from the State without first giving careful consideration to the effect of removal on the rights of the child.

Another way in which advantage has been taken of Irish citizenship law is exemplified by the Chen case, where a non-national mother resident in the UK secured the birth of her child in Belfast, which is part of the island of Ireland, thus giving the child an entitlement to Irish citizenship under our Constitution, and then asserted a claim to be permitted to remain in the UK on the basis of the child’s treaty rights as an EU citizen in another member state. The European Court of Justice upheld the mother’s claim.

In order to change the law so as to be able to eliminate this incentive for non-nationals to take advantage of Irish nationality law, the Government asked the people, by way of referendum proposal in June of this year, to restore to the Oireachtas the power to legislate for the acquisition of Irish nationality by birth on the island of Ireland in circumstances where neither parent was Irish or entitled to be an Irish citizen. The proposal was approved by an overwhelming majority of the people.

Before getting into the detail of the Bill, I would like to turn to an issue which was raised during the passage of the Bill through the Dáil, namely, the status of those parents of Irish-born children already in the State at the time of the L and O judgment, and of those who have arrived in the State and given birth since that judgment. I have repeatedly stated, and I emphasise again in this House, that every outstanding claim to reside in the State on the basis of parentage of an Irish-born child will be examined and decided individually in accordance with section 3(6) of the Immigration Act 1999 as amended and section 5 of the Refugee Act 1996, which prohibits the removal of any person who may be subject to refoulement.

My Department has taken on extra staff on a temporary basis to process these cases in a unit that was set up for this purpose. In examining these cases, factors mentioned by the Supreme Court, such as family and domestic circumstances and humanitarian considerations, are taken into account. I have also indicated on more than one occasion more recently that I will examine the entire situation in a decent, sensible and prag[1604] matic way once this legislation is enacted. This is not a matter directly involving citizenship law; there is no clamour for the parents of the children in question to be made Irish citizens. On the contrary, it is a question rather of the operation of our immigration laws and specifically of the Immigration Act 1999. It is not something this Bill could or should deal with, though I recognise it is a matter of great interest to Senators in the overall context of this Bill.

Let us look, then, at what exactly this Bill before the House proposes. It is designed to implement the people’s decision in last June’s referendum and to exercise once again this Parliament’s power to set the rules for acquisition of Irish citizenship. It does so by setting out the conditions under which a child born in Ireland, North or South, to parents, neither of whom is Irish, can acquire an entitlement to be an Irish citizen. The principal condition is that at least one of the parents must have been lawfully resident in Ireland for at least three of the four years preceding the birth; periods of temporary lawful stay for the purpose of seeking asylum or for study purposes are not reckonable in calculating that period.

The three out of four rule is there so that people can legitimately leave the State and come back for purposes which are fairly obvious. These proposals are in line with the draft Bill which the Government published as part of its proposals announcing the referendum and the Government is keeping faith with the electorate which accepted the Constitutional amendment by a substantial majority. I emphasise again those essential elements that the Government stated last April it would seek to put in place and is now doing. Those essential elements again are that Irish citizenship of a child born here to non-national parents would depend on a period of residence that is lawful and for a permanent purpose; that precedes the birth of the child; and that is, in duration, at least three out of the four years preceding the birth.

Along with that, as I have mentioned already, I have included at section 10 of the Bill a provision to address the discontinuance of the future possibility of schemes for naturalisation based on investments in the State. The technique that the section adopts for achieving this is simplicity itself. The theoretical basis for the former investment-based scheme was a decidedly generous interpretation of the expression “Irish associations” as it appears in section 16 of the Irish Nationality and Citizenship Act 1956, an interpretation which served as the basis for waiving the normal conditions for naturalisation in cases encompassed by the scheme. It is not an interpretation that I, either as Minister for Justice, Equality and Law Reform, or in my former role as Attorney General, was ever happy with on a purely legal basis, and the current Attorney General shares my deep reservations on that score.

The Bill, in section 10, makes future uses of this broad interpretation impossible by giving the [1605] expression a restrictive definition. The term “Irish associations” will in future mean simply a connection by blood, affinity or adoption to a person who is or was an Irish citizen or entitled to be an Irish citizen or who, if alive, would be an Irish citizen. While, as Deputy O Moráin said, tongue in cheek, in the debate on the Bill for the 1956 Act, drinking a glass of Irish whiskey in a bar in Cairo might conceivably have come within the admittedly loose parameters of the phrase, undefined, this Bill narrows its scope to the specified links only.

I am happy that this achieves the goal that Senator Quinn and the Government share, namely, putting beyond future possibility any revival of a passports for investment scheme. In its day, many Members on all sides of both Houses were supportive of particular proposals under the scheme and saw it as an important means of preserving jobs and enterprises that were in jeopardy in darker days. I have made no secret of my personal disquiet with the scheme both in principle and as regards the way in which some individual applications were handled and I will not be sorry to see the back of it.

I will turn now to the detail of the Bill’s provisions regarding the entitlement of persons born in Ireland to be Irish citizens. In considering the detail, Senators will find useful the consolidated version of the 1956 Act circulated to them today, which includes all of the amendments of that Act made to date, together with the changes this Bill would make shown in bold print. This is an updated version reflecting the amendments to the Bill made in the Dáil. I am sure this will be an aid to debate. However, I would ask Members of this House to appreciate that this is an aid to the debate. It is not the law as it now stands but the law in draft form as it emerged from Dáil Éireann and as it would be if this Bill were enacted.

The guiding principles of the changes being made in the Bill include conformity with the Constitution as now amended; the need to adhere to our obligations to the people of Northern Ireland, to which the two Governments solemnly subscribed in the British-Irish Agreement; and, importantly, the Government’s policy requirement that there should be, to the greatest extent possible, equality in the conditions for entitlement to Irish citizenship north and south of the Border.

Under Article 1, paragraph (vi) of the British-Irish Agreement, the two Governments recognise the right of the people of Northern Ireland to regard themselves and be treated as Irish or British or both, as they may choose. In this context, the terms “people of Northern Ireland” is defined at annexe 1 to the Agreement as consisting of those born in the North to parents, at least one of whom is Irish or British, or a person who has a right to reside in Northern Ireland without restriction as to period of residence. Compliance with the Agreement requires that Irish citizenship be available as an entitlement to any person who comes within that definition.

[1606] Section 6 of the 1956 Act as it stands meets that requirement — and goes beyond it in that it confers an entitlement to Irish citizenship on anyone born in the island of Ireland, which includes persons born in the North to parents, neither of whom is British or Irish, or a person with unrestricted residence rights. This Bill, at section 3, modifies section 6 of the 1956 Act and does so by reference to the new rules set out in the new section 6A, which is one of the sections inserted by section 4 of the Bill.

That is the section of the Bill containing the main changes that flow directly from the amendment to the Constitution in June. The two new sections that it inserts into the 1956 Act are section 6A, dealing with the entitlement to Irish citizenship of persons born to certain non-nationals, and section 6B, which specifies what periods of residence in Ireland are to be reckoned where that is a factor under the new section 6A. Section 6A(1) provides that a person born, North or South, to non-national parents, either of whom has been lawfully resident in the island of Ireland for at least three out of the four years immediately preceding the birth, will have an entitlement to Irish citizenship. This introduces the new general rule for the children of non-national parents born in the island of Ireland.

The exemptions from this general rule are set out in subsection (2) of the new section 6A. Naturally, the first two of these exemptions, at paragraphs (a) and (b), cover those children whose continuing entitlement to Irish citizenship remains unaffected by the proposals in the Bill, namely, at paragraph (a), those who were born before the commencement of the Act, although not before the referendum, irrespective of the nationality or period of residence in the State of their parents and, at paragraph (b), those born to an Irish citizen parent.

Next, at paragraph (c) of section 6A(2), comes a person born, whether North or South, to parents, one of whom is a British citizen or has an entitlement to reside in the UK, and thus Northern Ireland, without any restriction on his or her period of residence. This exemption from the general rule is dictated by our commitments under the British-Irish Agreement, to the extent that it relates to persons born in the North. However, by applying it also to children born in the South to such parents, we are ensuring that the rules that apply in the North are mirrored in the same circumstances in the South. This means, for example, that if a child is born to a British person at Altnagelvin Hospital in Derry, the child is entitled to be an Irish citizen and we are obliged to have this as part of our law under the British-Irish Agreement. However, if this change was not made and the same British person went to Letterkenny General Hospital to have the child, we would discriminate between the child’s right based on the fact that it was born south of the Border, which would be an anomaly.

This is also the reason for the next exemption, in paragraph (d) of the subsection, which applies [1607] to a person born anywhere on the island to parents, either of whom has an entitlement to reside in the State without any restriction on his or her period of residence. Irish immigration practice differs from UK immigration and citizenship law in that we grant permission without condition as to time after the person has already completed a number of years of satisfactory residence on foot of regularly renewed permissions, whereas the holders of certain nationalities have permission to remain in the UK without restriction as to time from the moment they arrive in the UK. Persons granted refugee status in the State, however, have an entitlement to reside in the State without restriction as to the period of residence from the date of granting of such status. Thus, parents covered by paragraph (d) of this subsection would almost certainly have completed sufficient years of lawful residence to meet the requirement of the general rule anyway. In regard to each of these exemptions, special provisions safeguard the entitlement to citizenship where one or both of the parents are deceased at the time of birth.

The last of these exceptions, at paragraph (e) of subsection (2), brings me to a matter that was not originally in the draft Bill published by the Government at the time of the referendum, namely, the question of the entitlement to Irish citizenship of a child born to a foreign diplomat while on service in Ireland. Until the 2001 changes to citizenship law, which implemented the changes arising out of the new Articles 2 and 3 of the Constitution, the children of foreign diplomats were excluded from citizenship here as they are in many other countries throughout the world — this was and is a matter of international custom and practice for which there are good reasons and which require exploration by those interested in the matter. However, the wording of the new Article 2 was such that, as a matter of constitutional law, that exclusion could not continue in the Irish context because everybody born here had the birthright to be an Irish citizen. Therefore, the 2001 Act put in place a special procedure whereby the children of diplomats could if they wished exercise their birthright entitlement to be Irish citizens. With the change made by the most recent amendment, in June last, we are now able in the main to revert to the former position, which is what has been done in the last exclusion in the new section 6A(2), together with section 3 of the Bill.

The new section 6B sets out what periods of residence are reckonable for the purposes of the new rule at section 6A. The exemptions at the new section 6A(1) address the situation where either or both parents have pre-deceased the birth of the child in question. Section 6B(1) covers another aspect of the question of pre-decease of a parent. Its effect is that if a parent who dies before the child is born was residing in Ireland, North or South, and the period immediately prior to the death was reckonable for the [1608] purposes of section 6A, then the period between the death of the parent and the birth of the child is also reckonable. I draw Members’ attention to section 9 of the 1956 Act, which at the time addressed the posthumous aspects of Irish citizenship, but did so in a manner typical of its time by referring only to the pre-decease of fathers. Section 5 of the Bill as originally introduced sought to gender-proof the 1956 provision but since the question of posthumous birth has now been dealt with comprehensively by a combination of the new sections inserted by the Bill and the new section 7 that was put into the 1956 Act in 2001, we are now in a position to repeal section 9 of the 1956 Act because it is redundant and surplus to requirements.

Subsection (2) of section 6B provides a means whereby the reckonable residence in Ireland, North or South, of parents who are EU, EEA or Swiss nationals can be verified by declaration. Citizens of EU member states are entitled to be present in Ireland in exercise of their treaty rights of free movement and establishment. Nationals of the three other countries of the European Economic Area and of the Swiss Confederation have analogous rights arising out of international agreements to which Ireland and the other EU member states are parties.

While we have in place a statutory procedure whereby such nationals can obtain residence permits, European law on the matter is very clear — the residence permit is merely evidence of the exercise of a treaty right and not a pre-condition to its exercise, and exercising treaty rights derives directly from the treaties themselves and not from domestic laws that implement or facilitate those rights. Therefore, there is no obligation on nationals of these countries to register all of their lawful presence in the State or to seek permission from the State to be here. In those circumstances, it would be incongruous if the Bill were to disapply a child from a citizenship entitlement on the basis of an absence only of an official record of his or her parent’s residence in the State. The declaration process provides a means by which they can overcome the documentation gap. Members will note, however, that this section does not apply to British citizens, since their children born in Ireland will anyway be entitled to be Irish citizens without the question of periods of reckonable residence coming into the matter.

Section 6B(3) covers the situation where the EU, EEA or Swiss national parent whose residence is reckonable under subsection (2) is not in a position to make the declaration himself or herself.

Section 6B(4) sets out the circumstances in which a period spent in the State by a parent is not reckonable. The first of these, at paragraph (a) of the subsection, is the most obvious. A period of residence will not count if it is unlawful, that is, if it is in contravention of section 5(1) of the Immigration Act 2004.

Some of the comments I received during the summer on an earlier draft of the Bill expressed [1609] concern that this might operate to deny an Irish citizenship entitlement to a person whose parent had, perhaps inadvertently or through oversight, allowed an interval to elapse between the expiry of permission to remain and its renewal. It is precisely to cover this sort of temporary oversight, as well as to cover short absences from the country on holiday, business or family trips, that the basic period of qualifying residence is set at three out of the previous four years, rather than three straight years, preceding the birth.

Paragraph (b) excludes from the reckoning periods where the parent’s permission to be in the State was for the purposes of study, and paragraph (c) excludes periods where the person’s only basis for being in the State was on foot of a temporary residence certificate issued to asylum seekers to cover the duration of their claim. Both of these exclusions apply where the parent in question is a non-EEA national at the relevant times. These exclusions mirror the provisions in place in section 16A of the citizenship Act, inserted in 2001, dealing with reckonable periods towards meeting the residence conditions for naturalisation. The exclusions in paragraphs (b) and (c) were also the subject of criticisms in commentary on the earlier draft Bill and a number of amendments were tabled during the passage of the Bill through the other House aimed at making such periods reckonable for citizenship purposes.

While I acknowledge the basis on which the criticisms were made, the Government has no proposals to deviate from this policy in either respect. Permission to reside in Ireland for the purposes of study is purely temporary in nature. It is given for the expected duration of the course of study only and the expectation is that the person will return at the end of the course or, in the case of a multi-year course, at the end of each academic year. To simply be present in the State does not imply the long-term attachment to the State which should, as a matter of law, automatically confer citizenship on a child born to a student. However, for example, a person may come to Ireland to study, fall in love with another person and have a child. If that couple lawfully remains in Ireland for five years, they will in the fullness of time be able to apply for naturalisation for themselves and their child.

12 o’clock

It is not a very exclusionary mechanism. It merely says that people who arrive in Ireland pregnant and planning to attend a short course in an Irish language college or university will not as a consequence of that have Irish citizenship conferred on the child. Most people who arrive in Ireland while pregnant would not be in the country for three years in any event, but people who come here and decide during the course of their studies to have a child in Ireland as a means of conferring citizenship on the child and invoking the Chen and Fajujonu rights will be on notice that this will not work.

[1610]   Mr. Norris: If it were only a six-week language course it would have very little impact. It would be negligible.

  Mr. M. McDowell: That is true.

  Mr. Dardis: Could we leave the discussion until Committee Stage?

  Mr. M. McDowell: As for asylum, any proposal to include in the reckoning a period spent as an asylum seeker as distinct from a refugee would serve to encourage false claims and the protraction of the asylum process.

The reckonability or otherwise of periods of residence in the State by non-EEA or Swiss nationals can be easily ascertained by examining the passports of the persons concerned for stamps affixed by the Irish immigration authorities. That is in respect of periods in the Irish State, but as regards periods in Northern Ireland the situation is considerably more complex. As I said earlier, the Government’s aim is to mirror conditions for the entitlement to Irish citizenship North and South and as regards this category of parent, subsection (5) of the new section 6B does just that. Immigration laws and practice in Northern Ireland, however, are not the same as those in this State and we cannot rely on them to converge with those in this State or even remain as they are. In particular, the immigration stamp in the passport of a non-EEA national legally residing in the North records a permission to remain in the UK, not in the part of it that is Northern Ireland.

We therefore have to put in place a means whereby the Irish authorities can verify that the period of residence of a non-EEA national parent before the birth of a child was lawful and reckonable, and that it was in the North as distinct from some other part of the United Kingdom. The approach that the Bill takes to deal with this is set out in section 14. This inserts a new section 28A into the 1956 Act, adapting the procedure already in section 28 of that Act whereby a person who is an Irish citizen, other than a naturalised one, can seek a certificate of Irish nationality. In any case where the question of the entitlement of a person to Irish citizenship depends on an assertion of reckonable residence of a non-EEA national parent in the North, whether that be for all or part of the three-year period, the first step will be to apply for a certificate of Irish nationality and to support that application with a statutory declaration together with whatever verifying documents are necessary.

It is not possible to set out in the primary statute what those documents might be since some of them will be UK immigration documents or stamps which the UK authorities have the right to change from time to time to suit themselves, and it would be impractical for me to bring amending legislation before the House every time that became necessary. Instead there is a power to prescribe documentation by statutory instru[1611] ment and a power to require further documentation as may be necessary in particular cases.

This category of person, where the Irish citizenship entitlement depends on a period of residence of a non-EEA national parent in the North, is the only one where a form of administrative intervention is required in order to establish Irish citizenship. In all other cases, the official documentation necessary to show the entitlement is either readily available in the form of birth certificates, immigration documents and the like or else can be generated by way of statutory declaration supported by the appropriate documents. There is no simpler way around this. It is a practical difference dictated by the fact that the North is another jurisdiction. The important element is that it is a way of implementing the Government’s policy of ensuring that an entitlement to Irish citizenship will arise out of similar conditions, whether North or South.

To go with that new system, there are some new measures designed to address the situation where a person attempts to secure an appearance of Irish citizenship by making false declarations. The first of these is in section 13, which enables the Minister to revoke a certificate of nationality that was based on false or mistaken information. The other important feature is in section 15, which puts a new general offences provision into the 1956 Act, covering the possibilities that will now exist for potential abuse of the system. Consequent on that, we are able to repeal the only offence provision at present in the Act by means of section 12.

Section 9 addresses a potential anomaly that could arise in the operation of the special naturalisation conditions for spouses of Irish citizens, where the non-national spouse is living with his or her Irish citizen spouse who is resident abroad in the public service, for instance, in an Irish embassy overseas. The nature of postings abroad is such that without the change which I am proposing here to deem time spent abroad in the public service as time spent in the State, the non-national spouse might never build up the periods of residence in Ireland required under section 15A or section 15.

Senators will be aware that I asked the Human Rights Commission for comments on the earlier draft of the Bill, published last April. The commission raised a number of general points in its observations on the draft legislation and adverted in a general way to obligations under a number of international instruments such as the UN Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the UN Convention on the Elimination of All Forms of Racial Discrimination. I assure the House that the provisions of the Bill are fully consistent with the State’s obligations under these instruments and I am heartened by the fact that the commission’s observations did not indicate anything to the contrary.

[1612] However, one of the aspects on which the commission commented was a concern that there was no provision in the 1956 Act for the naturalisation of minors. While this concern is in fact mistaken — section 16 contains specific provisions addressing the naturalisation of minors — one side effect of the new narrow definition of “Irish associations” in section 10 of the Bill would be to limit the power to naturalise some classes of children. While section 16 envisages applications made on behalf of minors who are of Irish descent or have Irish associations or who have a parent who has been naturalised, without the change proposed in section 8 other children could not be naturalised. This change permits the possibility of naturalising a child born to non-national parents after the coming into effect of the new rules for entitlement to Irish citizenship in the Bill but whose parents did not at the time of the birth meet the residence requirement for that entitlement. This will ensure that the matter raised by the Human Rights Commission will not give rise to the concern that it voiced.

I am satisfied that the proposals in the Bill will result in a fair and sensible citizenship law, one which will acknowledge the stake that non-nationals established in Ireland have in Irish society by ensuring that their children born here have the entitlement to be Irish citizens. We are not concerned with their skin colour, the language they speak or their appearance. What matters is that they have a substantial connection with Irish society and that, accordingly, their children will be part of the Irish nation by operation of law. As a people, we have decided by an overwhelming majority in a referendum that we do not believe the mere accident of birth in Ireland should be the sole criterion in determining Irish citizenship.

Nobody will be left stateless as a consequence of the changes we are bringing about in the law. Nobody who would otherwise be stateless will be deprived of Irish citizenship in any circumstance whatsoever. Under international law we are obliged to maintain that situation. For instance, in the frequently cited case of a Filipino nurse, if she does not qualify because of the shortness of her stay in Ireland, her child will nonetheless be a Filipino citizen under Filipino law. If that were not the case, if we are dealing with some country which did not have jus sanguinis citizenship rights for children of short-stay parents in Ireland, they will be entitled to Irish citizenship as a fallback position.

Everyone born in Ireland will be a citizen of some state. That important point is sometimes lost sight of and it is suggested that we are producing some second class of children in Ireland who are of an inferior status in the eyes of our law. That is not so. Every child born in Ireland, whether before or after the passage of this legislation, will be a citizen of a sovereign state. If a child is not an Irish citizen because of the shortness of its parents’ connection with the Irish state, and is not a citizen of some other state on the [1613] basis of descent, then that child will be an Irish citizen because that is the fallback position of Irish law.

  Mr. Norris: Will the Minister agree that there would be some circumstances in which a child would be better off being stateless than having the citizenship of a really deplorable state foisted on him or her?

  Acting Chairman: The Senator cannot continue to engage in a Committee Stage debate.

  Mr. Norris: It is the Minister’s fault. He is so interesting.

  Mr. M. McDowell: The answer to the Senator’s question is “No”. We have decided that there must be a more tangible, long-term and real link between the parent of the child before citizenship, as of right, becomes available. In this respect, we as a people have decided to restore to the Houses of the Oireachtas the power to judge collectively, by legislation, whether there is a sufficient link between a parent and Ireland as a State and a community to warrant the granting of citizenship as of right to the children of that parent.

The people were told at the time the referendum was being discussed of the broad thrust of Government policy which was to follow upon the licence to legislate in this area that the passing of the referendum would give. What has been put before this House is a realistic and sensible policy based on the establishment of a real link between parents of children born in Ireland and the State and society.

Some other states have an absolute jus soli entitlement to citizenship but no other state, of which I am aware, combines an absolute jus soli right with the inability to prevent people coming to have children on its soil. By virtue of our common travel area with the United Kingdom and our membership of the European Union, we do not have the right to refuse admission to people coming here in the same way as every state which has an absolute jus soli entitlement to citizenship can control access. That is the difference between this country and the United States. What the legislation puts in place is, of course, more restrictive than the position heretofore. However, I emphasise that it will remain the case that Ireland’s citizenship and nationality laws are among the most liberal and generous in Europe and, indeed, in the world.

The proposals reflect Ireland’s high regard for those who have come from abroad to establish themselves in, to share in and to contribute to Irish society by entitling their children born here to be Irish citizens by operation of law. At the same time, they will ensure that Irish citizenship is not something which can be bought, sold, bartered or acquired on foot an arranged birth in order to secure a passport to a wider Europe but something which is important to those who hold [1614] it or, as Article 9 of the Constitution puts it, who have a sense of fidelity to the Irish nation and loyalty to the Irish State. For those reasons, I commend the Bill to the House.

  Mr. Cummins: I welcome the Minister. I read his Second Stage contribution in the other House and I am glad he has not adopted the same confrontational style he did there. It did little for the caring and sharing image the Government wishes to portray.

  Mr. M. McDowell: That is because I got a decent hearing in this House whereas I did not get one in the other House.

  Mr. Cummins: I am glad that style has not been used in this House. I am sure the Minister will hear a lot more reasoned, calm and constructive contributions on the Bill, to which I look forward. I have no intention of speaking about what should have happened as regards consultation and debate prior to the referendum. The referendum has taken place and the people have spoken and made their intentions known in a clear and emphatic manner. As a democracy, we must implement the will of the people and put legislation in place which will reflect the wishes of the electorate. The people’s wishes include actively promoting integration, inclusion, protection and participation in society and a recognition and respect for cultural diversity. My party believes the Bill should be supported and we hope the Minister will address our concerns in regard to it.

We need an integrated immigration, residency and citizenship policy in place. The Minister said we have some kind of policy but we do not have a clear one. Immigration policy must be applied in accordance with human rights laws. International standards of refugee protection recognises that people fleeing from human rights violations are not always in a position to obtain proper documentation under those circumstances. I ask that asylum seekers are not penalised for not having proper documentation when their applications are being dealt with.

The fact the EU has failed to agree a comprehensive and coherent policy on immigration does not help the situation. I was a member of the EU committee of the regions and agreement was reached in Tampere in 1999 which envisaged a common asylum and immigration policy along with common border controls. I had hoped that would have been implemented by now but the process seems to have ground to a halt. Nevertheless, it is the duty of the Government to outline a clear and coherent policy, which is lacking. We have a mishmash system which gives rise to total confusion. There is no transparency and, in many instances, there is little criteria.

I echo the call of my colleague, Deputy Jim O’Keeffe, in the other House that an Oireachtas helpline be set up to assist Members. Every Member will have received representations on a [1615] number of issues. Rather than table parliamentary questions and raise issues on the Adjournment, it would be much better for the taxpayer and for everybody else if there was a specific person who we could contact to deal with our queries. I hope the Minister will deal with that matter.

I welcome the provisions in the Bill to end the passports for sale scheme, or investment based naturalisation. The abuse of this scheme, especially under the Charlie Haughey-led Fianna Fáil Government, when passports were given out like snuff at a wake and when procedures were not followed, was a disgrace and it devalued the currency of an Irish passport internationally. I, like the Minister, am glad the scheme is to be abolished. While I recognise it was beneficial in many instances from an economic point of view, the Minister is correct to end the scheme. It brought shame to the country in some cases.

I turn to the question of non-national parents of Irish born children who applied for residency on the basis of the birth of their child in this country prior to the Supreme Court decision of January 2003. I admit many of those people came to Ireland because the law, as it stood, provided the right of residency to parents of Irish citizens. The Supreme Court decision and the referendum ensures these circumstances cannot exist again. It is estimated that 11,000 people find themselves in this position. I ask that an amnesty is granted to these people granting them the right of residency. The public would not want a hard-headed approach to be taken to this situation and would want compassion and generosity to be shown to these families and their Irish children. I hope the Minister adopts a humanitarian approach to the issue.

The manner in which work permits are issued is flawed and can lead to exploitation of immigrant workers. We have all seen programmes on television about the exploitation of people. I firmly believe work permits should be issued to employees which would, at least, allow them to change their employer within a particular sector.

The economy has undergone much change recently and it has made Ireland attractive for economic migrants. Let us face it, the country needs migrant labour to sustain output and growth in our economy. These people must be viewed as a potential permanent members of our society with equal rights — perhaps just short of citizenship. They must be recognised as a great asset to the country.

The Minister mentioned students. I read recently about bogus students and institutions exploiting the student visa scheme. I hope strong action will be taken against unscrupulous operators who use this scheme to generate a lucrative income to facilitate the evasion of visa and immigration controls. I support strong action in this regard.

I hope the Minister will address the thoughts and concerns I have outlined about various aspects of the Bill. I look forward to the debate [1616] and the contributions of my colleagues. Fine Gael will be positive and constructive in the passage of the Bill through the House. We are implementing the will of the people in putting this legislation in place. I shall put down some amendments, possibly on Committee Stage, on behalf of my party. Nevertheless, the Bill deserves to be supported and my colleagues and I will provide that support.

  Mr. J. Walsh: Cuirim fáilte roimh an Aire go dtí an Teach leis an Bhille Náisiúntachta agus Saoránachta Éireann a phlé, Bille tábhachtach. As Senator Cummins observed, the people have spoken. In many respects, today’s discussion is a reflection of the debate that took place in the House, prior to the referendum, on the draft legislation. The purpose of the Bill is to prevent the abuse of the jus soli entitlement to citizenship of any person born in Ireland. The previous debate revealed elements of contention, some not clearly articulated and some others concerned with timing in that the referendum was to be held in conjunction with the local and European elections. At that stage, there were pessimistic comments and fears regarding the possibility of racist or xenophobic influences.

However, many also felt that these fears were unfounded and that it was opportune to hold the referendum at the same time as the elections. Moreover, the Minister was strongly convinced that such an approach would ensure a far more representative decision. The turnout for the elections bore out this conviction and represents a lesson for the future. If the referendum had been held on its own, there is every probability a much lower turnout would have been secured and, therefore, a less representative pronouncement of the will of the people.

We should also acknowledge that the ensuing debate during the referendum campaign was calm and mature. It served to address the issues well and avoid any of the racist tendencies that some felt would arise. The outcome of the referendum, whereby some 79% voted in favour, represented a strong endorsement by the people. Moreover, it was an endorsement of the Bill now before us because the Minister had prudently set out the draft legislation prior to the referendum. This ensured that people were well aware when voting in the referendum of the content and provisions of the associated legislation. In considering the people’s decision, we are reminded of the value of our Constitution, now 67 years in operation. The thoroughness of the civil servants and politicians of 1937 in constructing it laid the foundations for a democratic operation of the apparatus of the State. The will of the people is sought even in instances where decisions are made by Parliament in other EU member states. This is something I value as a citizen of the Republic.

I commend the Minister for his statement on the record that “migration may be a phenomenon but, in fact, migrants are people, flesh and blood, and must be dealt with accordingly”. In that regard, I welcome his comments to the effect that [1617] the Government is now committed to the development of a comprehensive immigration and residency Bill. This will serve to marry the interests and concerns of our citizens with the needs of immigrants. I am minded of my school history lessons in which we learned that in the last great influx of immigrants in 1169, the Normans, became “more Irish than the Irish themselves.” Many of us are successors of those early immigrants. It is important in preparing the legislation, including this Bill and that which the Minister now proposes to introduce to deal more comprehensively with residency and so on, to provide both the circumstances and the framework in which the situation of the Norman immigrants can be repeated. In decades to come, those who have come to Ireland in recent times and will do so in the future, including Lithuanians, Poles and so on, should be able to claim that they have become “more Irish than the Irish themselves.”

The Bill deals with the naturalisation entitlement which, as the Minister has observed, currently applies to those who have resided in the country for five years. This is among the most liberal provisions in this regard in the EU. Hitherto, universal entitlement to Irish citizenship was available to those born here. We should be mindful that this entitlement also secured EU rights of residency, which is part of the reason we were obligated to bring forward the referendum. The Minister has pointed out that the provisions of the Bill compare favourably to those of other EU partners.

A cursory glance at the situation that pertains in other EU member states underlines this point. A child born in Britain on or after 1 January 1983, for example, is entitled to British citizenship if either parent is a British citizen or is legally entitled to reside in that country. If neither parents satisfies one of these conditions, the child is not a British citizen at birth. A child born in France to foreign parents automatically becomes a French national at age 18. In Germany, if one parent has been a legal resident for at least eight years and possesses a permanent residency permit, a child born to that parent in Germany acquires citizenship at the parent’s request. Children born to non-Danish citizens do not receive Danish citizenship at birth. Since 1999, young foreigners aged 18 to 23 years with a minimum of ten years’ residency in Denmark are entitled to apply for naturalisation. In Sweden, a child born to non-Swedish parents does not acquire nationality at birth. It is accessible, however, by making a declaration when such a child is between 21 and 23 years old. Spain does not grant citizenship to children born to non-Spanish parents. Such children gain citizenship during the ages of 18 to 20 years by declaration. Likewise, Greece provides no entitlement to nationality at birth. Instead, a child can apply for naturalisation when he or she reaches 18 years of age. With continuous residency since birth, a child can apply for Italian citizenship at the age of 21.

[1618] These examples illustrate that the change we have made compares more than favourably to the provisions of our European partners. Here, a child will attain citizenship if at least one parent has been legally resident for three of the preceding four years. The Minister has also pointed to the entitlement to Irish citizenship of people born in Northern Ireland. This is consequential on the provisions of the Good Friday Agreement and was part of the Constitution prior to that. The Bill removes the three-year restriction for children born to British citizens and there is no restriction for those entitled to reside in Northern Ireland. This creates an anomaly, which I am aware is underwritten by the Good Friday Agreement, between the sovereign states of Britain and the Republic, whereby people entitled to reside in Britain automatically qualify for Irish citizenship. In this, we are conferring preferential status on certain nationalities not because of any relationship with this State, but because of their relationship with Britain. That is now a fait accompli but it is important that we do not arrogate the decision on Irish citizenship to another State.

Consequent on this Bill, any changes in the British system which would confer preferential status on nationalities which may have a historic relationship with Britain would also automatically qualify those nationalities for citizenship here. This anomaly should be recognised and rectified at some stage. There are many facets to the Good Friday Agreement and one does not wish to unravel it. Nevertheless, anomalies in the Agreement should be recognised and dealt with.

The Minister has pointed out that the Bill does not affect anyone who has an entitlement to Irish citizenship at present. That is important and the people of Ireland would not want that entitlement to be removed. In the manner he constructed the referendum, the Minister ensured that would not happen. The Bill also reflects the State’s commitment against statelessness. Only those born to short-stay parents who hold citizenship elsewhere will be affected by it.

I welcome the Minister’s comments on the changes in the investment-based naturalisation scheme. As the Minister said, the scheme was a product of another time and was abused. On the other hand, it is acknowledged that it helped companies. Fóir Teoranta was the bank of last resort when the economic climate was very poor and when the jobs outlook and future prospects led many people to emigrate. This Bill is concerned with immigration. Despite the abuses, much good was done by the scheme to secure jobs which otherwise would not have been secured. Times and circumstances have changed and our economic health has altered dramatically for the better. This is to be welcomed. Such a scheme would now be incongruous and I am sure all Members of the House support its removal.

In recent debates in the House on this issue comments were made regarding the effect of changes on a child who was entitled to citizenship [1619] on the basis of a parent who had died before the child was born. The Minister has dealt with this possibility sensibly by making provision for such a child to qualify for citizenship and for the period between the death of the parent and the birth of the child to be included in the period needed for qualification. This provision is welcome.

The immigration laws and practices within Northern Ireland differ from those in this State. The Minister alluded to this difference in his speech and it is his intention to deal with it by regulation, which is sensible. The difference between procedures and regulations in the two jurisdictions presents difficulty in establishing a residency period in Northern Ireland as distinct from other parts of the United Kingdom. As this arises under the Good Friday Agreement, will there be scope at some stage for harmonising the regulations and practices in Northern Ireland with those in the Republic of Ireland, which might assist or facilitate the effective implementation of this arrangement? In the past we have been inclined to follow British practice. There is a historic reason for that as much Irish legislation has its genesis in the period before independence. Nevertheless, we should try to move in the other direction where it is in our interest to do so.

The Bill is another step in providing the legislative framework to deal with changing circumstances as we move towards a multi-cultural Ireland. Making that move in a coherent and sensible fashion will provide the foundation for achieving the integrated and socially inclusive society to which we aspire. I am sure the Minister will have the full support of the House in pursuing that objective. I commend him for introducing the Bill.

  Mr. Norris: I welcome the Minister to the House and thank him for his informative disquisition in his speech. I learned a good deal from it and followed it with great interest. It was clear and logical. However, the speech left out salient areas and I wish to explore them.

The Minister was very interesting when he spoke about Garda statistics regarding racist attacks. I welcome what he said and I hope it reflects accurately the situation on the ground. Nevertheless, the perception of vulnerable people, and even of some who are not legally vulnerable, is different. I listened with great sadness to an articulate and distinguished Irish citizen, who is a doctor from Sri Lanka and is married to an Irish person. This person was extensively interviewed on Marian Finucane’s radio programme and later on another programme. She made the point that since the referendum and the atmosphere generated by it she has felt so badly about the situation that she has returned to Sri Lanka. In addition to the Garda statistics, we must bear in mind that educated and articulate people have formed this perception.

Although I completely exonerate the Minister from any charge of racism, certain figures — prin[1620] cipally outside the two Houses of the Oireachtas — are strongly in support of some of the changes in the Bill and have lobbied for them. I am thinking of groups like the anti-immigration platform, or whatever they call themselves. There is a context in which the Bill must be placed. For that reason, although I accept some of the logic of what the Minister says, I have real grounds for concern.

The Minister is right when he says many people want to come to Ireland. Why would they not? I think it is a wonderful accident of fate that I have the right to live in this country. It has been adjudged the best country on the planet in which to live. It is one of the wealthiest countries on earth. Why would people who are in awful conditions not want to come here? Of course, Ireland is a small country and we cannot solve the world’s problems all on our own. In geopolitical terms, the world must move towards greater equality and justice so that people will be happy to stay at home. It must take a great deal of suffering to drive people out and we must be compassionate in understanding this.

The Minister spoke about the attraction of Ireland to non-nationals who make their way to our country “with plans to share in and contribute to our prosperity”. I was glad to hear the Minister add to his prepared speech the words “and to our cultural diversity”. This shows the humane element in the Minister’s own make-up.

The Minister talks about people observing immigration requirements. That is fine, depending on what are those requirements. There has been a notable reluctance on the part of the Department of Justice, Equality and Law Reform to spell out clearly and precisely what are the criteria and guidelines and how people who are placed in this anomalous position can effect this decently and legally. We need much greater transparency, clarity and fairness in dealing with people.

The Minister says our immigration policies have served us reasonably well. I am glad he included the word “reasonably”. I do not think they have. I am not blaming the Minister but I remember the queues of people in the rain and all that misery and wretchedness. I know the Minister took that very much to heart and was not in support of it.

The Minister referred to work permits. While not directly relevant to this debate, there is a scandal here in that the work permits are in the sole possession and judgment of employers. Very often, these permits are used to militate against rights of people. There was a case involving two unfortunate people from Pakistan who were badly treated. They had concluded an agreement that they would be paid a certain amount of money and would have certain conditions, yet the employer simply said: “You can bugger off [if the House will excuse the expression] if you don’t like it, because I hold your work permits.” This is a regular feature so I ask the Minister to address it. He says these work permit policies are work[1621] ing. They are if one uses a kind of mathematical calculation and says there are more applications but underneath that there is concealed a nasty human problem.

I wish to raise the question of safe countries. Would the Minister consider Nigeria to be a safe country?

  Mr. M. McDowell: Yes.

  Mr. Norris: He would? I wish him joy then. How about Iraq? How about Falluja? Would that be a nice place to go back to? Let us consider these sort of places.

  Mr. Dardis: North Great George’s Street.

  Mr. Norris: Even there I think one would be a lot safer.

  Mr. M. McDowell: Every country in Europe considers Nigeria to be a safe country——

  Mr. Norris: There are large sections of it where it is not particularly safe.

  Mr. M. McDowell: ——generally speaking.

  Mr. Norris: They have a very peculiar view and perhaps they do not know that much about it. It is not a particularly safe country. Certain sections of it are extremely dangerous, particularly for women who may be subjected to genital mutilation, as one’s female child might be if one is sent back there. There is a constitutional requirement on the Minister and on the Government to protect the rights of such children. I would remind the Minister that whereas the referendum entitles him to take away the citizenship rights of the parent, there is no entitlement to take away the citizenship rights of the child. It is the responsibility of the Minister and the Government to guarantee those rights but there are areas in which there has been a significant failure to do so.

I am glad that the Minister dealt with the passports for sale issue. It is about time that was done. That is what my colleague, Senator Quinn, was examining in his Bill which he has generously withdrawn for various reasons.

Why should students be excluded? The Government is encouraging people to come here to study. We have increased enormously the number of students we invite here and now we want to treble that number, yet we are saying that if someone is here for four years, acclimatising themselves, getting to love Irish culture and getting to understand the place, that period will not count. Are these not the very kind of people whose skills would be useful to the country? Why exclude them? It seems daft.

  Mr. M. McDowell: They are not excluded at all.

[1622]   Mr. Norris: However, the period to which I have referred has been excluded from reckonability.

  Ms O’Meara: Order please. Senator Norris, without interruption.

  Mr. Norris: No, I like the Minister interrupting me. His interruptions are most illuminating. He is a very clever man.

  Acting Chairman: Thank you, Senator, but the Minister will have an opportunity to reply, as you know. Please address your remarks through the Chair.

  Mr. Norris: I beg your pardon. I will certainly address you. I forgot.

  Mr. Dardis: Senator Norris interrupted a few times himself, when you were not here, Acting Chairman.

  Acting Chairman: I am sure he did. Senator Norris without interruption.

  Mr. Norris: You are not quite as voluble as the Minister, Acting Chairman, but I will now confine my remarks to your good self.

  Acting Chairman: Thank you, Senator.

  Mr. Norris: I have made the point that the rights of the child survive this legislation but I wish to ask the Minister some questions. What about the children who are left behind in Ireland? Who is looking after them? Are any measures being put in place to guarantee the rights of the child in these instances? The Minister has agreed, by nodding, that he is also charged with protecting the rights of the child who is an Irish citizen. How will those rights be protected while such children are outside the country? How will consular officers ensure that such children will be able to realise their rights? They have rights which are clearly specified in the Constitution. These include the right to a proper education, decent health care and protection from abuse, as well as all the other rights under the Constitution, the European Convention on Human Rights and the UN Convention on the Rights of the Child. If they are in one of these wonderful countries — for example, Nigeria, about which the Minister is so lyrical — how will he be able to assure the House that he is protecting these legal rights? What will happen to a child who, for example, is forced to move to a country where there is not an Irish ambassador or even a consul? How will we monitor such children’s rights?

Leaving aside the parents for the time being, these children are Irish citizens. What will be done if the Government of a foreign country decides not to accept them? If they find themselves in a country that routinely engages in serious breaches of human rights, what provisions are being made to protect them? I have already [1623] raised the questions of forced marriage and female genital mutilation. These are Irish citizens, as determined under the law and the Constitution, so is the Minister content that they could be subject to such conditions?

Are any statistics available concerning the number of children left behind here? Do we know where they are? Do we know how these Irish citizens are being looked after here, as required under the Constitution? A child impact review should be undertaken on these Irish citizens. We need to know what the effect of this measure will be on them and only in light of that can we make certain decisions.

There may be test cases and I am sure the Minister knows much more about this than I do. In a 1999 case entitled Baker v Canada, the Canadian supreme court ruled that insufficient weight had been given to the fundamentally important impact that a migrant parent’s deportation would have upon her children and upon their rights. That is a case that is arguable and which creates precedent that is, to some extent at least, persuasive in Irish law.

The Minister provided an interesting background to the situation, arising as it does from the Government’s interpretation of a Supreme Court action in January 2003. That led to the retroactive termination of the procedure which had existed whereby migrant parents of Irish children could apply for residency. That left approximately 11,500 parents in this position, although so far in the debate, nobody has mentioned that fact. Some 11,500 human beings are in this anomalous situation. That is the scale of the problem. Would the Minister be prepared to grant some amnesty to these people, except those who have a prior proven track record?

In a situation that almost amounts to retrospective or retroactive legislation, the administrative practice of the Department of Justice, Equality and Law Reform was to accept applications for residency in the State from the non-national parents of Irish children. They could have been refused but in almost all cases they were granted up to this case. Following the decision in the Lobe and Osayande case in 2003, which confirmed the Government could refuse to grant residency to the parents of Irish children, the Government announced it would no longer accept these applications. More strikingly, considering there will be no fundamental change in the law, the Government announced it would not process any of the 11,500 applications made prior to the Supreme Court decision and which remain outstanding. Now, apparently, the Department considers all those people to be in the State without permission, even though they lawfully made these applications. Worse than that, in human terms, there has been no communication whatever, as I understand it, from the Department to these people who are placed in this anomalous situation. That puts them in an appalling human predicament.

[1624] The Minister has discretion but he is obliged under section 3(6) of the Immigration Act 1999 to examine a number of matters. These include, for example, the age and domestic circumstances of the applicant, the applicant’s prospects of employment and the length of his or her stay in Ireland. The Minister is also obliged to have regard to the principle of non-refoulement to which he referred in his speech. However, he still retains absolute discretion on whether to grant permission. There are, as yet, no clear guidelines. Perhaps the Minister will now take the opportunity to put these guidelines and circumstances clearly on the record of the House. There are far reaching consequences of a decision to refuse to grant leave to remain or, in other words, to allow for deportation.

There are also consequences for the families, which need to be able to make a fully informed decision. If a family is deported from Ireland it is extremely difficult, if not impossible, for its members to migrate legally to another country in the future, which is a real consideration. In some countries people who have been deported from another country have their passports confiscated.

Some 3,239 notices of intention to deport have been issued. The Department explicitly states that it does not monitor the impact of the deportations on the Irish children involved, which is an abuse of the rights of Irish citizens. The Department does not retain statistics in respect of the numbers of Irish children who accompany their parents or even the number in the State or wherever they are, which seems frightful. It is very important for people to be granted legal aid.

If all these people appeal and exhaust the legal processes, it will cost the State a whale of a lot of money. It could be cheaper, more humane, more efficient, more justifiable and more in accord with the provisions of the Constitution safeguarding the rights of those Irish children — forgetting about their parents — to take on board the possibility of granting most of these a retrospective right to stay. We can then clear the decks and proceed with what might be a more limiting policy.

At no stage in my speech have I accused the Minister of being racist or miserable. He made a most illuminating contribution, with some of which I agree. However, much was left out and I am glad that, having been briefed by various organisations, I have had the opportunity to place some of these concerns on the record of the House and I look forward to the Minister answering them.

  Mr. Dardis: I wish to share my time with Senator Maurice Hayes.

  Acting Chairman: Is that agreed? Agreed.

  Mr. Dardis: I welcome the Bill and I welcome the Minister to the House. As he may have heard stated here before, the Minister for Justice, Equality and Law Reform is by far the best [1625] Cabinet member to come and stay for debates; he does not just present his Bill and do a runner.

  Mr. Norris: Hear, hear.

  Mr. Dardis: However, I would understand if he did a runner at this stage. The Bill derives from the original Supreme Court case and the constitutional referendum in which the people gave an overwhelming endorsement of the policy now detailed in the Bill. In light of that overwhelming support, it must be supported by almost everybody in this House. I also commend the Minister for the courage he showed during the referendum campaign in enunciating clearly and calmly the issues involved and putting down some of the canards frequently peddled during that debate, which by and large was very reasoned. Thankfully it was not marked by some of the more extreme racist remarks we thought might emerge. It was a good reflection on Irish society in general. While obviously I do not want to reopen the issues raised during the referendum campaign, it was conducted in a good fashion and the outcome was clear.

We have come a long way since Enoch Powell spoke about the “rivers of blood”. Society on both sides of the Irish Sea has advanced to the point where we tolerate people with different ethnic and racial complexions from our own and embrace them within our society. These standards are important irrespective of whether the person in the country is a citizen. There seems to be a presumption that citizenship accords a higher level of protection or responsibility with regard to how the State treats people, which is wrong, as I am sure the Minister is well aware. I am sure he and all other Members of the Houses of the Oireachtas would accord those protections to people coming to the country regardless of whether they are asylum seekers, economic migrants or whatever.

During the last general election campaign it was my experience that asylum seekers, economic migrants and even tourists were regarded as some homogeneous mass and no distinctions were made between them. Some people felt pejorative statements could be made irrespective of the nature of the reason for the person being in the country. It is obvious that some people must flee for their lives and the State has a responsibility to accord them sanctuary and give them due process, as it does. Thankfully some of the Jeremiahs and bogeymen during the campaign were proven wrong. I can recall the Minister having to correct a Member of the other House on the public airwaves when it was suggested that somebody could be left in mid-air, so to speak, without any citizenship, which is obviously wrong. While people might not always have the protection of the state from which they came, they are entitled to the citizenship of that state.

We also need to consider the effect of the Good Friday Agreement. It is frequently the case, as would be the experience of Members of the [1626] House, that something done with the best of intentions can have totally unexpected side effects. It was only after the Good Friday Agreement that people began coming to the country in numbers and the problem of people coming here to have a baby to accord citizenship to the child developed as an issue. It is appropriate for the Bill to address this aspect also.

I have some sympathy with remarks about people coming here to study. While I accept it would be wrong to use the short-term course as a way of circumventing the legislation, I have experience of a person who came from Hong Kong, completed all his secondary education here, went to university here, became a doctor and then returned to Hong Kong. When he came back to Ireland after China took over Hong Kong, if that is the correct phrase, it was very difficult to get citizenship for him, which I thought was wrong. Everything about the man indicated he knew very well what his responsibilities to this State were and all his education took place here. While I know the Minister has the power to make decisions in this regard, this area needs further consideration.

I am very glad that the passports for sale scheme has finished and I commend Senator Quinn on his work in that area. An element of hindsight applies to this matter. When one considers how desperately we needed inward investment, it was understandable by the lights of the time why such a scheme existed. The way the scheme was operated was not understandable or acceptable, which is a separate issue. Given the state of the economy today, the scheme is clearly no longer necessary even if it were desirable.

Responsibility for work permits lies with the Department of Enterprise, Trade and Employment. I have some sympathy for the remarks made by Senators Cummins and Norris regarding workers. Nevertheless this is a very difficult issue. While on the one hand nobody should be the property of an employer, which could derive from the way the system operates, against that checks and balances are needed. While on balance I would favour the worker getting the permit, I accept it could be difficult to operate in practice.

1 o’clock

I know Deputy Jim O’Keeffe and Senator Cummins raised the issue of a helpline. It would be desirable for the Department to have a system whereby Members of the Oireachtas would have access. The provisions regarding the diplomatic service are good. The area of adoption is fraught. We have come from a position where most adopted children were of Irish parents to one where most adopted children come from outside the State. Obviously if adopted children have Irish parents they should be entitled to Irish citizenship. On balance I believe the Bill is good and I support it wholeheartedly.

  Dr. M. Hayes: I thank Senator Dardis for sharing time with me and I welcome the Minister to [1627] the House. I was cheered by the tone of the Minister’s speech on which I commend him.

It is important to put this Bill in a context in which this country is seen to be welcoming to those who come to contribute to it. I look forward to the discussion paper on migration law. Our future economic development will depend on people coming to work here and it is clear that those countries around the world that have sustained economic development have open immigration policies.

The Minister has spiked one of my guns. I was going to ask for consolidated legislation and I understand from his speech that it is on its way.

I was concerned about the position of people in Northern Ireland, particularly Nationalists, and I am glad the Bill makes it clear that their entitlement to citizenship has not been diminished by this in any way. Having said that, there is not much point in messing around too much. The Minister is simply following the wish of the people expressed in a referendum that the changes should be made and these flow from it.

I do not have the definitions section of the primary Act and there is a provision in section 9 for the public service. It is proper that should be covered but to ensure the rights of people in Northern Ireland, does it include the public service in Northern Ireland? It might be defined as the public service of this State and, if so, it might be necessary to make a slight adjustment. There are people in Northern Ireland who would be entitled to Irish citizenship and might not get the benefit from that.

I too opposed the idea of obstetric tourism and I am glad that the Minister has dealt with that unintended consequence of the Good Friday Agreement. I join with Senator Norris, however, in asking the Minister to deal as sympathetically as possible with those people who have an Irish-born child. There is now a quantified number of people that will not increase and children who were entitled to Irish citizenship should have the benefit of their parents. Those who have had to leave should also have their cases examined. It is possible to make a distinction between those who have shown a commitment to the country and an interest in staying and those who merely used the loophole as a means of getting to other parts of the EU. As Senator Norris said, it might be better, cheaper and more merciful in the long run to deal with these issues by a general amnesty.

I commend the Bill to the House and wish the Minister well.

  Mr. Ryan: It would be wrong to re-fight the referendum. It was a clear and decisive decision of the people, although the circumstances under which it was offered to the people and debated, and the haste and the language used on both sides, were not suitable.

The pressure on the maternity hospitals in this city was cited as the matter that had come to the Minister’s attention but the crisis of unparalleled [1628] proportions apparently will occur next year, after the enactment of this legislation. The babies born next summer will have been conceived after the outcome of the referendum was known. The Minister was correct that there were instances of people coming here deliberately but I believe we have not seen the end of the matter.

I accept that a significant number of the people who voted for this were not driven by any feelings of racism. There is, however, without a doubt, a segment of our society which rallied to this cause with enthusiasm and in whose company neither the Minister, who believes himself to be a card carrying liberal and libertarian, nor I would be happy. The phone-in shows during the referendum uncovered a line of anti-immigrant sentiment that was most unpleasant. If there was a loophole in our legislation, and I am still sceptical about that, the referendum was interpreted by that section of our society as the beginning of a successful campaign to raise the shutters around Ireland. Those in the Immigration Control Platform who were entirely on the periphery of Irish society now believe themselves to have been heeded once and to have a foothold. No one who has spoken in this debate in this House is in that category, including the Minister. The view of those elements of our society is that they have begun a campaign and it is up to everyone in our society, particularly the Government, to say that we have done what was needed to deal with a specific loophole and that this will remain a State that both in its rhetoric and in its laws is generous to those who come to live and work among us — not just tolerant but generous.

I am delighted with the draft of the Irish Nationality and Citizenship Act as it will appear following enactment. It is an idea the Minister might circulate to other Departments. It is helpful to have a draft of complicated legislation and I compliment the Minister on the idea. Whoever thought it up will get the credit for it. That is the nature of politics. It is a good idea and I welcome it.

The Minister mentioned asylum seekers and I have one question for him, which I have always wanted to ask. There are reports that the refusal rates for asylum applications for citizens of some of the contentious countries are higher in Ireland than in other states. In other words, we allow a lesser proportion of asylum applications from some of the more troubled countries, in comparison to the United Kingdom, France, Germany or anywhere else. Is that true? Do we say “No” to a higher proportion, because if we do the question must be asked. Why do we refuse a greater proportion of applicants from Somalia, Nigeria or any of the countries where there has been civil strife and persecution? Is there a lesser quality of applicant coming here or are we applying more stringent tests? Perhaps I am wrong, but a number of bodies have said studies show that Ireland is more inclined to say “No” than other countries. I would like the Minister’s comments in this regard.

[1629] There is a wonderful tone of humanity in the Minister’s speech about people who are here, with Irish-born children, when he refers to “the families of Irish children, whose parents do not have the right to be here”. The Minister has said that “every outstanding claim to reside in the State on the basis of parentage of an Irish-born child will be examined and decided individually”, etc. The Department has taken on extra staff and the Minister stated: “I have also indicated on more than one occasion that I will look at the entire situation in a decent, sensible and pragmatic way.” Nobody with any kind of heart could do other than welcome what the Minister has said. My problem is that the practice and the rhetoric are hard to reconcile. The Department does not know how many Irish children have been removed from the State as a consequence of deportations.

This State, notwithstanding the wonderful rhetoric of Article 40 of the Constitution — which I was going to read, but will not, as the Minister probably knows it — has not done much about the rights of those Irish citizens, some of who are now in peculiar situations. They are Irish citizens and therefore cannot become citizens, in some cases, of the countries to which they have been returned. In some cases, it is alleged they are being denied social and health services because they are not citizens of the country to which they have been returned. The Department either does not know or will not tell us how many children are in this position. I do not know how many children have been left behind by parents who have been deported. At what stage does the State become concerned about those citizens of Ireland? Is it when the children left behind end up on the street? Is it when the children who are sent out of this country end up on the streets in the other country, or is it when they come back later and demand their rights as citizens and, as a number of people have suggested, sue the State because it abandoned them?

This State has no right to abandon any citizen. I cannot reconcile the humanity of the Minister’s remarks on the issue of the parents of Irish citizens with the practice of his Department, which clearly is to obfuscate on the issue of children being removed from this country who are citizens of the State. This is to ignore the fact that the State has obligations to its citizens, just as the citizens have to the State. It would be the ultimate irony if the State used the sanctity of the family as the issue on which to justify its non-interference, having argued successfully all the way to the Supreme Court that this very sanctity should not be allowed to guarantee the parents’ rights to stay here. It got a decision from the Supreme Court, which, to put it mildly, is difficult to reconcile with ordinary logic.

I accept that without a deportation policy there could not be a policy on immigration, legal or otherwise. The reality of the serious possibility of deportation is a necessary part of the instruments of a good immigration policy. The problem is this [1630] country’s priorities have focused more on that aspect of immigration rather than the other. We seem to be much more enthusiastic about getting deportation organised than about the other harsh realities of immigration. I know a practitioner of Chinese medicine, about the same age as myself, who has been living here legally for a number of years. His spouse has been living with him and has now been refused an extension of her residency visa, even though everyone knows that this man is here to make money so that he can return to the home and the property he owns in China. In this case somebody says, in effect, “No, your wife cannot stay here with you”. I cannot find a humane immigration policy in that. When I hear of people being told they may work here, but their spouses or children cannot join them, in this so-called welcoming country, where is the humanity in that?

In terms of its demographic profile over the next 50 years, the United States will see a spectacular increase in population, just as Europe’s is undergoing an equally spectacular decline. One of the reasons is that the United States has an enlightened immigration policy. It was interesting to watch the presidential debates in which President Bush and Senator Kerry discussed the issue of immigration. When one considers the hysteria that enters into every debate about immigration in virtually every state in the European Union, and sees the relatively solid consensus between the contenders for the US presidency on the importance of immigration, the contrast is real.

Turning to more general issues, why does the Minister insist on holding on to absolute discretion, even where people meet most of the other conditions? I am concerned about the issue of Irish associations because a young man I know of Japanese origin, living here from the age of five to 20 years, was finally granted citizenship on the grounds of his Irish association. This happened, despite the fact that his parents were Japanese and they broke up. His mother stayed for a while, but the father went back. He spoke far better English than Japanese, with an impeccable Cork accent. He did not speak Japanese with a Cork accent, or at least I cannot judge that. However, it seems to me that his claim to Irish association will now be removed under this legislation. I do not know whether this was a deliberate or intended consequence of the legislation.

Will the Minister clarify whether the current three out of four years’ rule could be changed to nine out of ten years? It is no longer a guarantee of anything. It could be nine out of ten. The citizenship requirements in respect of Britain could be changed if that was required as could the citizenship requirements in respect of the European Economic Area. In this regard, we have not just changed a detail to close a small loophole but have opened up the possibility of an enormously more restrictive immigration and citizenship policy in the future.

I regret that this legislation is going through. The manner, timing and tone of some of the [1631] debate on the issue in the referendum was regrettable but it is a fact of life and we have to observe and respect the will of the people. That is our form of democracy and it is the correct way. However, the country is not operating in a spirit of generosity either in its immigration policy or in the way it has dealt with the children born here who are Irish citizens and their parents, some of whom have been deported. The legality of the deportation of Irish citizens is highly questionable and the apparent indifference of the Government to the conditions under which young Irish citizens live abroad is a matter of great concern and does not augur well for the general humanity of our immigration policy.

  Mr. Daly: I will not delay the House for long. I welcome the Minister. I think all Members will agree he deals with these matters in a confident and efficient manner. That this legislation is going through the House has given rise to a number of queries on the general issue of citizenship and applications.

Representations have been made to some of us concerning the long delays in getting decisions made. There has been a considerable reduction in the delays in recent years but there is still a backlog and a delay of, perhaps, two to three years in having applications determined. A matter that has given rise to much discussion on the Bill and the changes in the law generally is whether the Minister will give some indication of what can be done to expedite decisions on applications which are dragging on for many years in some cases.

There is a necessity for some amendment whether to the Bill under discussion or another Bill. It relates to applications for post-nuptial citizenship. The case in question concerns an Irish man who married in the Philippines in 1971 and is now deceased. His widow applied for post-nuptial citizenship but in order to qualify, the marriage must be in existence.

  Mr. M. McDowell: I can deal with her in the Irish associations Bill.

  Mr. Daly: The Minister can deal with it.

  Mr. M. McDowell: Yes.

  Mr. Daly: Her application to the consulate general in Manila was turned down on the basis that the affidavits for post-nuptial citizenship were not signed before her husband died. She has five children, four of whom live in Ireland and one in England, and all are Irish citizens but she cannot get Irish citizenship. If the Minister can deal with that issue I can conclude my contribution. I thank the Minister for the expeditious manner in which he is dealing with this detailed and complex legislation. I would appreciate if he could make some effort to expedite applications which are awaiting determination for many years.

[1632]   Ms Terry: I welcome the Minister to the House and thank him for remaining in the House as he always does when dealing with legislation. This Bill follows from the referendum in June. While we will table some amendments on Committee Stage we support the thrust of the Bill as we supported the referendum in June. We must accept that an overwhelming number of the people supported the referendum which is a good thing and makes it easier for us, as legislators, to deal with this legislation.

I agree with the Minister that as a result of the large number who have come to live here, we have developed a more open and cosmopolitan society, certainly one that I welcome and from which the country benefits. One has only to walk down the street to see many different nationalities and to hear the different accents and languages, all of which bring colour and diversity to the nation. Within our schools it is wonderful for Irish children to mix with children from different countries. That enriches all of us; it opens our horizons and broadens our minds. It is great for young people to grow up in that atmosphere as against the closed atmosphere in which I grew up.

Immigration brings with it great opportunities for Ireland. Not only does society benefit from people coming here but we rely heavily on large numbers of immigrants coming here. We are dependent on them in many sectors and must welcome them. We have an obligation to offer protection to them and, therefore, we are obliged to have proper laws in place to deal with immigration, citizenship and so on. We were taken unawares and were unprepared for the influx of immigrants and are still playing catch-up. This legislation is necessary and will help the whole process.

There are a few issues I wish to highlight, which are not included in the Bill, in the overall context of dealing with our immigration laws, to which some speakers have already referred. I wish to add my voice to those concerns. More than 11,000 parents had Irish-born children prior to the Supreme Court decision. I plead with the Minister, as did my colleague, Senator Cummins, to grant an amnesty to those people as they have been in Ireland for many years and have put down their roots here. I ask the Minister to use his humanity, as displayed in his contribution today, and consider granting an amnesty to those. Whenever we hear on the airwaves that a family is being deported, the community in which that person lives pleads with him over the airwaves and, I am sure, by letter to relent and grant citizenship or residency to these people because they have become part of the fabric of the community. At this stage the Irish people would accept that many, if not all, of these people should be granted an amnesty and become full citizens of Ireland.

On the issue of the numbers seeking asylum whose applications are before the Minister, something should be done to speed up the process. Given that more than 600 officials are employed [1633] in the special unit to deal with asylum applications, I do not understand why it takes so long to assess these applications. We must remember that we are dealing with people who are living in limbo and who are extremely concerned about their future. In the interests of everyone, something should be done to speed up the entire process because the current system is unacceptable and unfair to everyone concerned.

Another issue relates to work permits. While this is not part of the Minister’s brief, one of the problems is that immigration is covered by the different Departments, which sometimes leads to confusion. I recommend changing the work permits system whereby employers are the holders of these permits. This is not in the interests of people coming here to work who are tied to that employer. I would like employees to have greater power over their destiny while in this country.

Another change I would like to support relates to people who have work permits but are not allowed to bring their family members here. We immediately think of Filipino nurses on whom we depend to keep our hospitals in operation. There are also a large number of people working in child care. I read an article over the weekend about a Filipino person who works in child care. This individual must leave her spouse and children in the Philippines and, out of necessity, come to Ireland to work and look after other people’s children. She is not allowed to bring her own spouse and children to this country, which is an aspect we must consider. If people are allowed to work here for a number of years and accept the regulations attached to the permit, they should be allowed to bring their family with them, if that is their wish. This is an issue which should be considered.

I welcome the end of the passports for sale system, which is a welcome provision in the legislation. I hope the Minister will consider the points I raised. While they are not directly included in the Bill, they involve immigration regulations. I look forward to further debates in this regard.

  Dr. Mansergh: I welcome the Minister and the Bill. I compliment the Minister on presenting the primary legislation, together with amendments, which is helpful in terms of understanding the changes being made.

The legislation follows on foot of the referendum which was passed decisively earlier in the year. The Minister in his speech rightly pointed out that we have a completely different social situation from what existed previously. Much of what is being discussed here would have been entirely academic in the past in practical terms. However, the prosperity of the country has made it inviting to many people from all parts of the world to live and work here.

The change in the legislation was partly necessitated by the change in the Good Friday Agreement, but only partly, because the jus soli aspect was included in the 1956 legislation. As someone who was heavily involved in the Good [1634] Friday Agreement, the precise nature of the changes to Articles 2 and 3 of the Constitution were a necessary part of the agreement. Nonetheless, some regret must be shared collectively that more weight was not attached at the time to a problem that was just beginning to emerge in regard to the knock-on effects of the change in terms of immigration. Underlying the proposed change was a pragmatic correction of what had existed and worked fairly well until then and adjusting to a more multicultural society.

This aspect goes back to the 1997 Government and the Minister’s predecessor. It has been a new challenge with which we have had to deal and there has been an element of trial and error in the response, which is inevitable. By and large, we have managed this area quite well and it is encouraging that the number of racist attacks have decreased. I commend the Department on its anti-racism media information campaign, which is important and should be continued. What is important for a reasonably relaxed society in that regard is that there should be public confidence in the immigration and asylum policy pursued by the Government. It should be considered firm, fair and humane. I do not wish to suggest that everything is perfect. While we are progressing, systems should be adjusted and refined. The principal aspect of the legislation is that it is shifting from a jus soli position to a jus sanguinis element to avoid artificial citizenship acquisition, which quite apart from its effect here is not fair to our EU partners. This is something we must bear in mind, particularly in light of the Chen case.

There are two or three points I would like to raise, one of which has been referred to by other speakers. There is a certain backlog in processing these citizenship-type applications. Public representatives are approached from time to time by people who have close relationships either of an employment nature or friendship nature with people who are seeking visas either for themselves or their dependants. I hope it will be possible to staff the offices so that the backlog can be alleviated and there can be a reasonably prompt response to various applications, rather than dragging the issue out for months. It would aid efficiency if these offices were located without distraction in Tipperary town. We debated that yesterday, and the Department of Justice, Equality and Law Reform would be very welcome there.

Senator Terry correctly stated that one of the less satisfactory aspects of our immigration and employment permit system is lack of mobility. People from the non-EU parts of eastern Europe agree they earn good money which is much appreciated, even if it is not much above the minimum wage. Most of the people concerned are here to earn some money so that when they go home they will be on a better financial footing to start up a business or help with various matters. However, if they are unable to change their employment they become — I am not sure [1635] whether this is the correct term — like indentured servants of a particular employer. That is not satisfactory, even in the short term. I accept there is a need to keep track of people coming from outside of the EEA area, but I hope that aspect of the regulations will be reformed and to some extent relaxed.

I strongly endorse the firm exclusion of a passports for sale scheme. I have always taken the view that while the system had certain superficial attractions in terms of bringing investment to particular places, the idea that citizenship was for sale if one had enough money left a very bad taste. I therefore very much welcome that part of the legislation.

  Mr. Quinn: I wish to share my time with Senator Henry?

  An Leas-Chathaoirleach: Is that agreed? Agreed.

  Mr. Quinn: I welcome the Minister. I also welcome the Bill because it is a practical solution to problems we did not foresee. As Senator Mansergh said, it was not the Good Friday Agreement alone that prompted the introduction of this legislation, but clearly the Good Friday Agreement required legislation and the Minister has adopted a simple and common sense approach to this.

I will confine my contribution to my interest in this issue. I have listened to the debate today and to the Minister’s words. Rather than delay matters by repeating what others have said, I will concentrate on section 10, which deals with passports for sale. The House will be aware of my interest in this and the fact that I felt so strongly about it and believed that nothing had been done to close a loophole that had been abused. The Minister has explained this very well. In the Second Stage debate on my Bill, the Minister was kind enough to give an assurance that he would address the issue in his own way in the forthcoming legislation. I thank the Minister because he has done that and has done it very efficiently and effectively.

The passports for sale link was the reference in the 1956 legislation to “Irish associations”, to which the Minister referred. It is a reminder to Members of this and the other House of our responsibility as legislators to examine what could go wrong with legislation. When the 1956 legislation was being debated the loophole was identified by former Deputy Moran when he gave the example that an Arab drinking Irish whiskey in Cairo could claim to have an Irish association. Another Deputy gave the example that an Asian playing in an Irish band in New York could claim to have Irish associations. The loophole was identified in these Houses and yet the legislation was passed. There is, therefore, an onus of responsibility on us to identify possible loopholes. It should give us pause to recall that such doubts [1636] were not listened to on a previous occasion. It should serve as a reminder to us of what can go wrong.

In 1956, the then Minister explained that “Irish associations” covered three things: first, aliens who may join the Defence Forces, second, aliens who while normally resident in Ireland for prolonged periods may not have a full year’s continuous residence here prior to application or, third, aliens who join Irish religious orders with the intention of going abroad permanently as missionaries when ordained but who remain under the direction of the Irish branch of the order. That was the intention of the term “Irish associations” and the Minister of the day insisted that the best way to handle these was by using this term. However, it took 30 years or so to reveal that this created a loophole. The way things turned out should give us pause for thought in the future when we do our daily job here of scrutinising legislation.

The passports for sale scheme came into being as a result of that loophole and continued under successive governments for nearly a decade until it was finally closed in 1998. Since then the Government has given an assurance that it would not reintroduce such a scheme, but until now the loophole that permitted the abuse to take place has been left on the Statute Book. In campaigning for the loophole to be closed off, I was not seeking to tie the hands of future parliamentarians. I wanted to ensure that any future scheme would be subject to the full rigour of scrutiny and of law. If any future government wants to introduce another passports for sale scheme it will have to amend the law the Minister has introduced here today. That will ensure that the matter will be properly discussed and not introduced by stealth as happened previously.

I have much pleasure in supporting the Bill. I thank the Minister for his efforts in this area and for the manner in which he has introduced the legislation and put it together because it is easier to understand, although getting to grips with it has been convoluted. I congratulate the Minister on the Bill.

  Dr. Henry: I thank Senator Quinn for sharing his time with me. I welcome the Minister to the House, whatever about the Bill. I do not know why so many have said they did not know this would happen. In the debate on the constitutional changes which were required following the Good Friday Agreement I warmly welcomed the fact that anyone born on the island of Ireland would retain the right to citizenship. I do not know what goes on between the Department of Justice, Equality and Law Reform and the Department of Health and Children, but I know that from the early 1990s the Department of Health and Children has been told that a very large number of non-nationals were coming here late in pregnancy and delivering their children here. That was at a time when it was almost automatic for people to get the right of residency if they had a child here.

[1637] We need to be more foresighted in the future. When this House discussed the legislation for the referendum I asked what would happen to all the little Irish citizens who would be cast out onto the waters of the world when we began to deport their parents. I am extremely grateful to the Coalition Against the Deportation of Irish Children for all the information it gave us and which was put on the record by Senator Norris.

This is a very serious issue. There is a tribunal inquiring into the abuse that happened to children in industrial schools and other institutions here. We will have something similar in years to come regarding children we deport who say they were deprived of their rights.

I am glad the Minister is going to address the general situation regarding rights to Irish citizenship because it is too opaque. One person regarding whom I have been making recommendations to the Department of Justice, Equality and Law Reform is very badly needed by the Department of Health and Children and has children who are Irish citizens. He cannot get Irish citizenship and cannot get employment here on a consultant basis because he is not an Irish citizen. It is necessary sometimes to take our own interests into account. These people must be very valuable to get as much support as they do to keep them here. We have terrible problems in the Department of Health and Children because residency and work permits do not coincide in terms of the length of time involved. There are people who were allowed residency for only six years whereas the duration of their course in the College of Surgeons is seven years and they could not stay on to take their examinations. That has been solved. However, such situations should not arise.

It would be good to welcome an expansion of the genetic pool in this country as we are pretty inbred and few people have come here for a long time. While we all thought we were descended from Celts who arrived with wolfhounds and long blond hair, the department of genetics in Trinity College would tell us that most of our ancestors came from the Iberian Peninsula. Therefore, we should not worry about some genes coming from further south. To take the example of the Olympic Games, not one sprinter without west African blood won a race. We should have foresight in this regard and should perhaps begin training people from west Africa who are currently in Ireland for the 2016 games so that we can take part on a more equal basis.

I wish the legislation had been left as it was. I am glad the Minister stated he will consider the position of the approximately 11,000 applicants on a case-by-case basis. If any of those who have been deported could be brought back, it should be done. Irish citizens should be brought up in Ireland if that is the will of their parents.

  Mr. O’Toole: I welcome the Minister to the House and applaud his diligence in sitting through the debate. Such debates are useful because there has almost never been a proper, [1638] balanced debate on this issue. It is approached at all times from the extremes, making for a polarised debate. Some points need to be recorded and a certain courage needs to be shown in the approach to this issue.

The reality is that the State cannot be open to all who arrive at our borders, neither can we be seen to take a hard and difficult line. One of the problems is that we have not put in place a system which expresses the humanity we feel in certain individual cases while also protecting the validity and value of Irish citizenship and residency. A poor effort has been made to explain to the people the difference between asylum seekers, economic migrants and other migrants who arrive in the country. Therefore, pressure has been put on all sides to try to exert control over the issue in regard to children born in this country. I do not accept we cannot find a way in which those children can be accepted as Irish citizens who may remain in the State and, in that sense, that their parents can remain with them. We should find some reasonable way of dealing with this issue, which is an example of the wider issues I am discussing.

The other side of the argument, that of those who have opposed the Minister’s position, has also raised questions. We need to be clear that our first responsibility and concern is for Irish citizens, our second line of responsibility is to European Union citizens and our third line of responsibility is to citizens outside the European Union. I have no difficulty in saying this. Even in an equal world, priorities must take their place.

We must address this in a fair, open and reasonable manner. In all discussions I have had with refugee, immigrant or asylum groups, I have always asked which country offers best practice in terms of immigration policy. In putting that question to some of the most liberally minded people in this area, I have never received a reply that did not include Canada, New Zealand or Australia. Despite the fact that I would push the argument, particularly in the case of Australia with its camps, ships, etc., the representatives of these groups, who would seek an expansive immigration policy, would put forward that view.

I took the trouble to consider the immigration policies of the three countries referred to and remember having a brief discussion with the Minister on New Zealand’s immigration policy. Those countries take a balanced view of the economic needs of the country plus a more liberal view in regard to opening that to a wider group, before considering how they can also give an opportunity to those without any clear talent or qualification to bring with them, but who it is felt could make a contribution and live in a fair and equitable way within the country.

The three countries appear to have made a better fist of this. Canada is a perfect example of a country with integrated cities, including cities such as Toronto and those in western Canada. New Zealand is also a good example, as is Australia, in the main. However, they are working [1639] with a type of — I hate to use this word — quota system. If the Minister was to announce a proposal such as a quota system, after suffering the initial flak which he would definitely take, many of us would be prepared to say that if this system operated in an open, fair and equitable way with which we could all live, there would be a way forward. Any argument brought to its logical conclusion would have to agree that there must be some clear method. The concomitant of this is that there would also be hard times when hard decisions would have to be taken. However, if we all bought into the system, we would all have to live with the hard decisions.

My difficulty is that in dealing with these issues, some of the decisions being taken currently are too harsh and do not sit easily with me, because they do not form part of a broader context. There should be a broader context in which we would do our business and whereby we could all hold the line on issues because we would feel we were acting properly and correctly. I will deal with this concern more fully as the debate on the Bill progresses.

  Mr. M. McDowell: I thank Members for participating so actively in what was an interesting debate. I agree with Senator O’Toole that a balance needs to be struck on this issue because the debate on it has become too polarised. As I irritate others, I am entitled on occasion to say what I find irritating in others, which in this regard is what I would call the politics of competitive compassion. Some feel they are more compassionate than others and will show this come what may.

  Mr. Ryan: We know that.

  Mr. M. McDowell: They will posture further and further towards the compassionate end of the spectrum to find whether anybody will be foolish enough to challenge their bona fides.

Ireland is not a xenophobic society and has responded well to a novel situation. However, we are at times inclined to airbrush events out of our history. I think of the Jews who came to Ireland in the late 19th and early 20th centuries and established a significant community in Dublin city, where there were perhaps 5,000 Jews living until relatively recently. They participated fully in our society but it is undoubted they were at the receiving end of social discrimination which excluded them from clubs and otherwise. They were kept boxed in as a community. While I do not know the explanation for it, the decline of the Jewish community in Ireland is a matter about which we have nothing to be proud.

  Mr. Ryan: Hear, hear.

  Mr. M. McDowell: They were boxed in and discriminated against.

[1640] We should look forward to the kind of society which is emerging. Let us not have ghettos and under-classes which are culturally or ethnically distinct but, instead, let us try to create a new society. We are beginning this process from a simple position. Let us not make the mistakes other societies have made in the wake of immigration.

Some aspects of immigration are almost natural, namely, that there will be clannishness among immigrant groups, immigrants will tend to stick together and, in the first instance, will be at the lower end of the economic spectrum. That is the nature of migration. Let us not cod ourselves on that issue. By the same token let us remember there is a series of international precedents from which we can learn to ensure we do not make the mistakes that have done so much damage elsewhere in Europe. I am hopeful that Ireland can, with a bit of luck — the luck of the Irish — and some commitment, avoid some of the adverse effects of internal social polarisation which leads to racist thought.

2 o’clock

I believe I have acted reasonably in all of these matters, as has the Government. If we had not enacted this legislation, the opportunity for right-wing racism to enter Irish politics would have been enormous. Our system, like most systems in the northern European political world, is wide open for people to campaign on anti-immigration issues. It is very strange that Holland, Denmark and other countries, which we would regard as bastions of liberalism, have seen the emergence of a revanchist right achieving quite significant parliamentary representation because of a perception that the society was somehow inadequate in its response to internal migration. Irish people should reflect on the fact that the few people who put their heads up over the parapet with the intent to exploit race in an electoral context, in the European, parliamentary and local elections, got nowhere. They did not register.

  Mr. Ryan: That is not true. Not in my city.

  Mr. M. McDowell: One only has to look at what happened to the candidacy of Justin Barrett in the Leinster constituency to see that there is no rich seam of votes to be obtained by exploiting race or fears about immigration. That is an encouraging feature.

  Mr. Ryan: The Minister should ask Senator Minihan.

  Mr. M. McDowell: Regarding what will happen now, I have indicated that we will take a common sense, decent and pragmatic approach to the numbers of people in this country who in effect arrived before the Supreme Court decision when the law was different — as perhaps were expectations — to what it will now be. It is not reasonable to think that everyone was reading the Irish reports in foreign places. We must have a decent, pragmatic approach. As time goes by it is clear [1641] that where children are being brought up in an Irish school, have Irish friends and so on, common humanity says that we should not then start disassembling those families, breaking them up and sending them away. Equally, I could not just have some kind of legislative amnesty. For instance, that would simply have the effect of saying to Mrs. Chen, who came to Northern Ireland to have a child, that if she is in any difficulty she can come to Ireland again, just like that. There are also many people who came to Ireland from Nigeria and have gone back with passports in their back pockets, saying to Ireland, “Thank you, that is one in the bank”. An amnesty would allow them to suddenly return to Ireland with their entire families, siblings and so on and announce they have now arrived by right in the European Union.

I will not do something of that kind but I will address on a pragmatic basis the people who are now in a form of limbo. I will bring forward proposals to deal with their situation in a decent way. That is all we can do.

  Mr. Cummins: That is what we want.

  Mr. M. McDowell: I must first halt the process we have been facing until recently. That is why, when this legislation is passed, one of the first steps I will take is to bring a memorandum to Government to show how we will quickly deal with all the problems left in the aftermath of this controversy and the legal development.

  Ms O’Rourke: That is very exemplary.

  Mr. M. McDowell: Just in case people get the contrary impression, no Minister takes any pleasure in destroying someone’s dreams, irrespective of whether people exploited the asylum system or behaved in the most proper manner. They are human beings and are entitled to have their dreams as well as the ambitions for their families and children which one would expect.

I am reminded of the Swiss architect and writer, Max Frisch, who commented on Switzerland’s Gastarbeiter policies, which I think are fairly typical of central Europe. He said “Wir suchten Arbeiter, und es kamen Menschen”, meaning “We sought workers but what came were people”. That is the big problem. One can have an economic analysis of migration but one must remember that it is people who come in response to whatever situation is created for them.

We are dealing with 11,000 people who had an Irish-born child before the referendum. I am not clear on how many of them are still in Ireland. Since the referendum we are dealing with some 6,000 or 7,000 people in the same situation. They involve a parent or two parents making applications to reside in Ireland. One could therefore be talking of some 17,000 people, some of them one-parent families. By the time one allows for siblings and so on being brought into the equ[1642] ation, perhaps siblings abroad, in Nigeria for example, one could be talking of between 25,000 and 40,000 or 50,000 people. As I said on Committee Stage in the Dáil debate, it will clearly be a matter of some concern whether, if a mother has a child in Ireland who is an Irish citizen, that person should remain in Ireland and also bring in her spouse or partner and perhaps her four other children which she has somewhere else in the world. One would have to make up one’s mind about such an issue on a pragmatic basis.

Likewise, if someone in Ireland has an Irish child but has been seriously misbehaving, perhaps engaging in credit card fraud, drug dealing, prostitution and so on, I will have to decide whether it is in the interests of Ireland for that person to remain in the country simply because he or she has produced an extra Irish dependant. I must have a system which will distinguish between one situation and another. It will not be a simple line across a page, but must be based on an expedited examination of each of the cases involved to see who the people are, whether they have more children outside Ireland, whether they are married or single and so on. These aspects must be dealt with.

I acknowledge the delays in dealing with immigration matters — visas, employment permits and asylum and naturalisation applications. There is significant delay across the board. However, we are now dealing with a substantial problem which engulfed a Department which was not prepared for it. We now have approximately 600 civil servants dealing with the issue and those now redeployed will use better administrative practices to deal with all of the complexities of a migration service.

In addition to the Immigration and Residency Bill, to which I will quickly return, we are actively looking at the possibility of establishing a single immigration and naturalisation service for Ireland as a single agency within my Department. By definition, one of the major issues which will arise in that context is whether the employment permit or green card situation, as it might be, will be dealt with by the same agency which decides whether one comes into the country, or whether two Departments should, as at present, deal with these matters as two independent republics. That is a matter we must deal with very soon.

I accept that it is a bit strange that one can get into Ireland on the basis of a work permit to work for a single employer, with one’s subsequent status contingent on remaining in that employment. I accept that is strange but, equally, there are implications in terms of social partnership to adopting an approach based on the Australian and New Zealand models where, for example, I or another Minister decides that the country needs 12,000 more construction workers and decides to go to the international market to bring them in. There are social partnership implications to decisions of that kind.

Perhaps next year we will make statutory provision for quotas along the lines of the Australian [1643] and New Zealand models but if we say there are 4,000 slots available for people from sub-Saharan Africa to come to live in Ireland and we get 60,000 applications, who will go through those applications fairly and work out whether a person from Malawi is more entitled to come here than a person from the Democratic Republic of Congo? Without conducting interviews, who will make a fair decision?

We must think all these issues through because they are easy to talk about. I am constantly amazed by people who say there should be a simple policy and that we should establish quotas but they must look at the other side of that equation and ask who will go through 40,000 applications, as the Americans have done on occasion. They have ended up holding lotteries and saying there is no way they can deal with all the paperwork. They have randomly selected the first ten, or the first 10%. It is fair but arbitrary.

Members should not imagine all these issues are easy to settle. Although they are difficult, it does not mean they should be avoided nor should complexities be minimised. There are serious issues of policy which this and the other House will have to address next year in the context of the new legislation.

I welcome what has been said in the House and I compliment my officials on drawing up consolidated legislation which has helped to make this a rational debate. I look forward to the Committee Stage debate and to getting the legislation through the Houses not because I am trying to rush it through, but because it allows me to address my mind to the common sense, pragmatic and decent business, which is work undone and must be addressed sooner rather than later.

Question put and agreed to.

  An Leas-Chathaoirleach: When is it proposed to take Committee Stage?

  Ms O’Rourke: Next Friday.

Committee Stage ordered for Friday, 3 December 2004.

Sitting suspended at 2.15 p.m. and resumed at 5 p.m.