Michael McDowell (Independent) | Oireachtas source

I support this Bill and it should be given a Second Reading. It is well-intentioned and addresses an aspect of our current law which needs to be addressed by the Oireachtas. I want to put a number of matters on the record. Firstly, in 2002, the Fianna Fáil-Progressive Democrats programme for Government stated that we would deal with the situation that then existed, that any person born on the island of Ireland, in no matter what circumstance and no matter where or whatever, became entitled to Irish citizenship. The programme for Government stated that it would be dealt with by whatever means, legislative or constitutional, as was required. It was clearly signalled in advance and a commitment to consult the Opposition parties was put into that programme.Let us remember that that is the origin of that referendum.At the time it was not accused of being mean-minded or based on lies or propaganda, but it was to bring Irish law into conformity with the laws of the rest of Europe on these matters.

France had a jus soli entitlement to citizenship but it operated in a very different way. French children could be deported and told they could come back when they were 18 years of age. Ireland, on the other hand, had a Constitution which provided that the family had rights separate from the individual. In Ireland, therefore, family rights combined with absolute citizenship based on jus solieffectively meant that - this was found by the courts - unless there were overwhelming reasons, no family who had a child born in Ireland could be deported in any circumstances. That was the law as it emerged.

It has been suggested on a number of occasions in this House that the referendum was mean-minded, but it was not. Some 80% of Irish people voted for it and if the matter was put back to them again, I dare say 80% of the people would vote to keep it as it is. The reason is that the issue is looked at when shorn of emotion. It is not sustainable in a Europe without borders to have a situation where one must admit people to live in one's territory on the basis of European law, but where one's state is the only member state of the European Union which cannot say a person's status there is unlawful and he or she must go, if in the interim, a child has been born. When I was Minister for Justice, Equality and Law Reform - the Minister of State, Deputy Stanton will know this - I left that Department in circumstances where it was anticipated that a new immigration and nationality Bill would be passed in which the entire process of considering applications to remain in this country, either on humanitarian grounds or on refugee-asylum-seeking grounds, would be accelerated and decided in rapid order by a new procedure. Unfortunately, that legislation never came to pass and the result is that we have had unconscionable delays in dealing with the situation of people seeking asylum in this country.

Perhaps the situation has improved, and I hope it has. We must recall that likewise, when I was Minister for Justice, Equality and Law Reform, the accumulated number of applications which were then not being addressed had reached such proportions that - perhaps people might think about this when they use the phrase mean-minded - I introduced, against considerable opposition, a scheme whereby those who were in the queue, so to speak, to seek asylum were given a way out of that queue and given a right to remain in Ireland because of the delays. Between 15,000 and 18,000 people availed of this path to citizenship at the time. I want to put on the record that that measure was humane and decent. Senator Ó Ríordáin can get emotional in this House, and I could turn on emotion just as fast as he can if I wanted to, but I know the situation described to the people was accurately described to them. I know that the masters of the maternity hospitals made representations to Government to say that the situation untenable, despite all the claims now that it did not happen. I also know, and this is important, that the Government at the time said to the people that in the inevitable result of case law in Ireland and in the European Union, with the Chen and other cases, would be that we would as a matter of European and Irish constitutional law combined, be in a position that we would not be able to deport any family who had a child in Ireland because they would have had European rights and Irish constitutional family rights. The combination of all these events was going to make Ireland's position unique in Europe as a place where we had no right to exclude people at our borders, and at the same time guaranteed jus solito an extent that no other European state admits. I want to put all of that on the record.

When we come to Eric's case, it is a matter for ministerial discretion at the moment. I welcome what Senator Bacik has proposed, which is that there is a pathway for someone to move the Sword of Damocles, which is discretion, away from someone and to give some pathway to seeking permanence and some degree of predictability. No child should be in the position of Eric, no matter what has happened or what the cause of the delay is, where a child at that age is effectively threatened with deportation to a country he or she has never been in. I agree with Senator Conway in one respect. Discretion is not a bad thing in these matters.One will come across situations where apparently identically cases are radically different. In the end, under our citizenship and nationality law, a Minister is given discretion. Senators may recall Olukunle, the student who I had to bring back from Nigeria to do his leaving certificate examinations. Most of these cases arise from a situation where a more or less mechanical process arrives at one decision and discretion has to be applied to reverse it. That should not be the case. As the Minister of State knows, every ministerial discretion is subject to judicial control. I believe Senator Bacik's Bill is timely and appropriate and there has to be a mechanism for children in these circumstances to enter into a process where discretion will be exercised rather than just sit in a limbo for years, wondering if a knock will ever come at the door. That is not appropriate and it is the situation that Senator Lawless is dealing with in America. It is unjust and inhuman and we have to provide for it.

The effect of that referendum was to vest in the Houses of the Oireachtas total responsibility for our citizenship laws to deal with it in any way it likes. That is not mean-minded but democratic.