The referendum on citizenship might close a loophole, but only by creating an inequity, writes Peter Finlay
The Government argues that citizenship should no longer be based on where a person happens to be born (the jus soli principle), that the situation is anomalous and undermines what we mean by the terms "citizenship". It proposes to remove unfettered access to Irish citizenship for the children of those who are now called "passport tourists". It is preferable, the argument goes, for a child to have some connection with the State, so either one of his or her parents will be required to reside three years in Ireland before the birth of the child. This seems reasonable and not too restrictive. Perhaps.
The difficulty with this proposal to amend the Constitution is that while it attempts to correct a perceived abuse, it does not address the many other categories of people who are granted Irish citizenship without ever having lived in the State.
The Constitution protects the position of those who are already Irish citizens or who would be entitled to be Irish citizens, notwithstanding their absence from the State. It gives a real and constitutional right to children and grandchildren of citizens who may only have a theoretical link with Ireland, while simultaneously excluding categories of immigrants who, by contrast, may have a practical contribution to make.
If the reasoning at the heart of the current proposal is that persons calling themselves Irish citizens ought to have a connection with the State, either by reason of parental residence or work, then it follows that one must disqualify the offspring of Irish immigrants born outside the State who demonstrate no interest in living here.
An analysis of the register of foreign Irish births under Section 27 of the Irish Nationality of Citizenship Act of 1956 would show how this avenue to citizenship has been exploited for decades by people who have no desire to live here.
Has this referendum anything to do with preventing the abuse of Irish or EU passports, one wonders?
The only way this referendum could be defended from allegations of national or racial discrimination is if it were redrafted to expressly embrace the principle of equality as between all persons who wish to call themselves Irish citizens by reason of their habitual residence or work in the State.
In the end equality matters. We only have to look at the opening line of Article 3 of the 1922 Constitution to be reminded of that fact.
And surely no one will argue that Irish and EU jurisprudence have not consistently underlined the importance of this principle when adjudicating between competing rights and interests.
In addition, the draft legislation to follow the referendum, if it is carried, proposes an amendment to the Citizenship Act of 1956 by the insertion of a new Section 6(a) to provide citizenship to be granted to a person born on the island of Ireland if either parent has been lawfully resident on the island for at least three out of the four years preceding the birth of their child. This is not objectionable. But how will it operate in practice?
Take, for example, the case of a Filipino nurse or other worker in the service sector who has worked here lawfully for a period of one or two years with a valid work permit and visa. She is later joined by her husband who works in another institution in a nearby town.
They decide to postpone having a child until three years have elapsed so as to avail of the new statutory provision. If during that period for any reason their work permits lapse, it is not inconceivable that they would be refused a renewal of their visa to reside here.
Furthermore, some lapses in work permits have occurred through the fault of the employer, who is responsible for obtaining the permit in the first place.
While the new Section 6(a) provides for the aggregate of three years' lawful residence within the previous four years prior to the birth, I can foresee circumstances in which continuity of lawful residence would be interrupted for a variety of reasons, thus negativing the required period of residence for citizenship entitlement.
This could also apply to a couple whose child is born prematurely. Numerous other permutations come to mind and, from experience, one is not encouraged to think that the Department of Justice would take a liberal approach to such matters.
Nor is there much comfort in the naturalisation provisions of Part 3 of the 1956 Act. There the Minister for Justice may grant a certificate of naturalisation to an applicant in his "absolute discretion".
In the past applicants have often satisfied the statutory requirements of long-term residency and good character only to be refused after considerable delay. They have rarely received explanations and have not been encouraged to re-apply.
Furthermore, this process of becoming an Irish citizen has been subject to considerable abuse in the past in circumstances where wealthy individuals have paid politicians to send them passports in the post. One is relieved to read that the current Minister for Justice has terminated this practice. He must be commended for his efforts.
By isolating one category or group of people in this way, we run the risk of sending a signal that devalues the contribution made by our many immigrants of the last decade or so. Garret FitzGerald's analysis of the recent ESRI report on migration to Ireland (Irish Times, May 15th) could leave us in no doubt that immigration to Ireland has benefited us and helped to sustain the Celtic Tiger.
He helps to dispel growing myths about the aspirations of these people, many of whom are highly skilled and others who are less so, and who seem determined to pick themselves up and make a future for themselves and their families in Ireland. The timing of this referendum is unfortunate if it is unaccompanied by the strongest encouragement and support to the newest members of our Irish family.
At the end of the day, who can argue with the need to cure a defect in any system? Abuse of our laws should never be tolerated, even where the occasion for such abuse was created by the Government. But the solution to such a problem must be fundamentally fair by being equally applicable to all groups, while the proposed new measures must be sensitive to the individual circumstances of each family so as not to cause an even greater injustice in the future.
Peter Finlay is a senior counsel with considerable experience of immigration and deportation issues