Michael McDowell (Dublin South East, Progressive Democrats)

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.

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 misunderstanding 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 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 Government 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 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 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 pragmatic 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 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.

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 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 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 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.

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.