Michael McDowell (Dublin South East, Progressive Democrats)

This referendum, if passed, will not deprive anybody of citizenship who is an Irish citizen. Therefore, to take the Senator's example of two Albanians who have had a child in Ireland who is now an Irish citizen, as matters stand their presence in Ireland falls to be decided in accordance with the principles laid down in the L and O case. Having an Irish citizen child is not an absolute guarantee of a right to remain in Ireland. On the other hand I emphasise the Supreme Court never ruled that the Minister for Justice, Equality and Law Reform could deport people casually and at will notwithstanding that they had a citizen child. The ruling of the Supreme Court was that if there were compelling grounds in the view of the Minister for requiring the parents of the child to leave, it did not constitute an absolute bar on their deportation that the child was an Irish citizen. The Supreme Court never ruled that the Minister could deport anybody he considered inconvenient or whose presence he found undesirable.

Between the beginning of 1999 and the end of 2003 some 10,335 European Economic Area non-nationals secured residency in the State on the sole basis that they had an Irish born child. A total of 2,400, roughly 25%, of these parents never claimed asylum. The vast majority of such parents were not married to EU nationals since, save in exceptional circumstances, the general policy is to grant the EEA non-national spouses of Irish or EEA nationals permission to reside here, whether or not they have Irish born children. There are no figures available on the break-down between mothers and fathers. At present more than 9,000 EEA non-nationals have indicated that they have Irish born children and wish to remain in the State on this basis. They constitute the 10,000 we have heard about in discussions. The position regarding these was set out in the dictum of Hardiman J. in the Supreme Court in the L & O case. He said: "it seems to me that the existence of an Irish born child does not fundamentally transform the rights of the parents, though it requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation." The notion that I was suddenly handed a free-flowing pen with which to authorise the mass deportation of 9,000 people is not grounded in reality. I committed myself to considering the rights of each of them on a case by case basis. It is not true, therefore, that cases involving Irish-born children who are Irish citizens are in some sense a foregone conclusion in administrative terms as a consequence of the L and O cases. That is far from being the case.

A significant additional ingredient in such cases demands more rigorous and labour intensive consideration by the Department of Justice, Equality and Law Reform. It appears that people continue to have a perception that there is a strong possibility of success in securing permission to stay in Ireland at the end of the process. If one follows what Mr. Justice Hardiman said, there has to be a "grave and substantial" reason to tell the parents and their child to leave. If the child is not an Irish citizen, there is an expectation that the process of reaching a decision will be less time-consuming and more straightforward. Where deportation is appropriate, it will not be a question of "grave and substantial" reasons, but of the balance of what is fair, having regard to humanitarian concerns.

The matter does not end if the parents of a child who is an Irish citizen are deported. The child cannot be made the subject of a deportation order. I cannot deport an Irish child. It is likely to arise at some point that parents will refuse to take the child with them in an attempt to frustrate the deportation process. I point those who think I am inviting such a case to be brought against me to the language of the Constitution, specifically Articles 41 and 42, which we discussed during Private Members' business. Article 42 of the Constitution states, that parents have an "inalienable right and duty" to look after their children.

If parents are being deported as a matter of Irish law, it could be strongly argued that they are obliged to bring their child with them. They have no legal right to dump or abandon a child in Ireland. I do not believe that would happen because the vast majority of parents are sane and loving. I do not want to suggest that people would consider abandoning a child to embarrass the State. Only a person with a very bad value system would think of doing so. There has never been a hint of such a move in any of the cases I have come across. Regardless of the country from which they come, parents throughout the world have an absolute and total commitment to their children, especially young children. This is equally the case in respect of asylum seekers.

The amendments before the House would raise a further layer of complication if a child who is a citizen returned to the jurisdiction with a deported parent, for example, a year after the deportation. If a three year old arrives at Dublin Airport waving an Irish passport saying "this is my mother", should I tell him that he can enter the country, but his mother cannot? I agree that the scenario is somewhat fanciful, but it is not the case that I can separate children from their parents without humanitarian and constitutional regard to the interests of the child. I cannot act in an arbitrary manner by saying that I do not care about the child's family relations and by decreeing that the child can enter but his mother should be sent back. If one examines the Preamble to the Constitution, one will see that it refers to the virtues of "Prudence, Justice and Charity" and to the Christian nature of the State. One cannot conduct migration policy on such a crude basis.

A good number of people face the circumstances mentioned by Senator Terry. Many decisions remain to be made. I have to maintain the integrity of our immigration laws. The Supreme Court has said that when I am of the view that a decision is necessary to maintain the integrity of the law, I can act to deport. I will need to have a "grave and substantial" reason, to adopt Mr. Justice Hardiman's phrase, to do so. I will not be permitted to do so as a matter of light and superficial policy preference.