Background: Irish people are to be asked to end the automatic citizenship rights of children of foreigners born here, while protecting the rights of Northern nationalists, writes Mark Brennock, Chief Political Correspondent
It seemed like a very good idea at the time. The Belfast Agreement of 1998 stated that every child born on the island of Ireland was entitled to Irish citizenship. This concept was enshrined in the Irish Constitution as a new Article 2 in the referendum that followed the signing of the agreement. The idea was to ensure that anyone in Northern Ireland who wished to be an Irish citizen could become one - a situation sought by Northern nationalists.
But as the Irish economy grew dramatically in the late 1990s, Ireland was becoming a stronger magnet for immigrants, legal and illegal. If illegal immigrants or asylum-seekers had children born in Ireland, they would become entitled to Irish citizenship and their parents would acquire rights to remain here.
Ireland became the EU state with the most liberal regime in relation to citizenship rights of children of non-national parents, and the only state offering an unqualified right to citizenship.
The number of pregnant non-national women arriving in Ireland grew steadily. In 2001, 3,153 people were granted residency on the basis of parenting Irish-born children. This rose to 4,027 in 2002. In December 2002, some 312 new asylum applicants stated that they were pregnant - 55 per cent of the total applications in that month from females over 16.
Last year, between 20 and 25 per cent of births in the three Dublin maternity hospitals were to non-nationals.
The 2002 Programme for Government promised to "keep under review the number of applications from non-nationals to remain in the State on the basis of parentage of an Irish-born child and initiate all-party discussions on the issue of such constitutional or other measures which might be required". The new Minister for Justice, Mr McDowell, then effectively instigated a test case.
The result was that in January last year the Supreme Court ruled by a five-two majority that non-national parents of Irish-born children did not have an automatic right to residence in Ireland.
This meant that in law while the Irish-born child had Irish citizenship, the parents could be deported. Since the change some 358 letters have been sent to people in these circumstances, saying the Minister is considering deporting them. Around a dozen have actually been deported, and all have taken their children with them.
However, the expectation that this court judgment would lead to a decline in non-national births has not been realised. The proportion of female asylum-seekers over 16 who are pregnant when they apply remained at 60 per cent over the past year. According to a briefing paper from the Department of Justice: "The fact remains that a non-national becoming the parent of a child born in Ireland attracts greater entitlements than would be the case if they were present in any other member-state of the European Union - in terms of the child's entitlement to Irish and European citizenship and the perceived benefits of this for the parents now or in the future."
Mr McDowell's proposed solution is a referendum to qualify the constitutional right to Irish citizenship for children born on the island.
The Constitution would have a new element inserted, stating that the right to Irish citizenship of children born in Ireland to non-national parents, neither of whom were themselves entitled to citizenship, would be determined by law.
It is clever, in that it appears to keep intact the Belfast Agreement commitment to Northern nationalists who wish to be Irish citizens, while cutting non-nationals out of the benefits of the provision.