Some pro-immigrant provisions now need to be introduced, writes Carol Coulter.
As had been widely predicted, the citizenship referendum was passed by a very large majority. The argument that the existing constitutional provision was open to abuse by those with no real interest in Irish citizenship was one accepted by the electorate.
The RTÉ exit poll found that a significant proportion of those voting Yes were motivated by hostility to immigrants. While this was not a scientific poll, there is no doubt that such hostility was a factor, and the legislature needs to turn urgently to outlining a rational immigration policy that distinguishes between immigrants and asylum-seekers.
The Government was helped in its poll victory by the timing of the preliminary judgment from the European Court of Justice in the Chen case, where the Advocate General found that the Chinese parents of a child born in Belfast had the right, as parents of an Irish citizen child, to live in the UK.
This judgement's implications, combined with the L and O Supreme Court case, which ruled that the parents of Irish-born children had no automatic right to live in Ireland, produced the absurdity that the non-national parents of Irish-born children could live in any EU member-state except Ireland.
The arguments of those opposed to the referendum concentrated on possible future inequalities between two children born in Ireland, on the possible impact on the Belfast Agreement, on the negative message the amendment was sending out to immigrants. They also suggested that it was pandering to those with racist leanings.
The Minister for Justice can now act speedily to regularise the situation of the 11,000 families with Irish-born children living in suspense in a legal limbo. Many of them have put down roots here, their children are attending school and it would be unreasonably cruel to seek to deport them.
The Irish Nationality and Citizenship (Amendment) Bill will not be introduced immediately. As one senior counsel put it, there is no need for non-national pregnant ladies to push hard right now. First, the returning officer must issue a provisional certificate of the result. There is then a 21-day period within which a petition challenging the result can be lodged in the High Court.
If no such petition is lodged, the Master of the High Court will issue a certificate to this effect, and the amendment will then by signed by the President. The Minister has indicated he will wait until the autumn to allow for full consultation on the Bill.
Mr McDowell has also indicated his willingness to listen to proposed amendments to this Bill, and has said he will introduce some amendments of his own, specifically to deal with the "passports for sale" issue.
The Bill will set out to amend the 1956 Irish Nationality and Citizenship Act, which granted the right of citizenship to anyone born in the island of Ireland. That entitlement was inserted into the Constitution in 1998, but has now been removed.
The 1956 Act states that a person born on the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country.
It also states that a person born here is entitled to Irish citizenship if he or she does any act which only an Irish citizen is entitled to do, normally taken to refer to acts like applying for a passport or voting in elections.
The 2004 Bill will insert a new section stating that a person born on the island of Ireland will not be entitled to be an Irish citizen unless a parent of that person has, during the four years immediately preceding the person's birth, been resident in the island of Ireland for not less than three years.
This does not include those entitled to Irish citizenship through one of their parents, or to a child of a British citizen entitled to live in Northern Ireland on an unrestricted basis.
The proposed new section of the Act also defines what can not be counted as parents' residency in order to qualify for a child's citizenship. This includes residency as a student or as an asylum-seeker. It also includes residency on an illegal basis. Therefore, the children of those in the asylum process for three or four years will no longer be entitled to Irish citizenship. This and the period of residency required are likely to be the focal points of the debate when the Bill comes before the Dáil.
The 1956 Act provides for excluding time spent as students, living here illegally or awaiting refugee status from calculation for the purpose of naturalisation as an Irish citizen. It is based on calculations that a student does not intend to live here permanently, that refugee status can be denied and the person deported, and that illegal entry is to be discouraged. It is difficult, therefore, to foresee great willingness to change similar provisions in the 2004 Bill.
Where there may be some generosity shown by the Minister is in relation to the length of time necessary for a parent to live in Ireland before the child can be an Irish citizen.
Work permits are granted for a year, and then renewed. There can be gaps between one work permit and the next. There are now thousands of immigrants coming here with the clear intention of spending their lives here. It seems unduly harsh to expect them, if they are married, to postpone starting a family here, with the certainty of citizenship for their children, for three years. The example that comes to mind is that of the thousands of Filipino nurses, who are now bolstering our health service and often making huge sacrifices in their own families to do so.
In the debate the Government will have an opportunity to demonstrate that it welcomes immigrants contributing to our society. The opposition parties are likely to seek amendments to the residency requirements when the Bill comes up for debate. The Government can confront the racism that exists among sections of the electorate, and make its pro-immigrant message a reality, by being generous in the residency requirement for those seeking Irish citizenship for the children that will be born and grow up here.