Former minister for justice Michael McDowell has rejected criticism of a constitutional amendment championed by him which meant Irish-born children were not entitled to Irish citizenship unless one of their parents had Irish citizenship at the time of the child’s birth.
Now a Senator, Mr McDowell was part of a Fianna Fail-Progressive Democrats government which introduced the proposed amendment, endorsed overwhelmingly by the people in a referendum in June 2004. The measure was opposed by Sinn Féin, the Labour Party, the Green Party and civil liberties and human rights groups, and has continued to attract strong criticism from migrant rights and other organisations in the intervening years.
In an address to a conference of the Immigration, Asylum and Citizenship Bar Association, Mr McDowell said claims the amendment was racist were "threadbare and offensive" but they were still repeated.
No child was rendered “stateless” as a result of the amendment because, if a child born here was not entitled to citizenship of another country, they were entitled to Irish citizenship, with the effect the measure fully conformed with international law despite suggestions otherwise, he said.
The amendment did not have an "earth-shattering" effect on migration, asylum seeking or the rights of the new Irish and was not intended to. Ireland remained "one of the most open countries" in the EU in respect of conferring citizenship pathways on migrant residents and their families.
Pattern of births
There was still no parliamentary majority in favour of according citizenship to all people born in Ireland, he added.
He said he was not engaging in some form of post-event rationalisation of the referendum and maintained all the issues were clearly and fairly put before the people in 2004.
For reasons including a significant pattern of births here of children whose parents lacked any other entitlement to be in the State, the FF/PD government had pledged in 2004 it would increase the repatriation of failed asylum applicants to maintain the integrity of the State’s immigration policy and speed up the asylum process, he outlined.
A case referred to the European Court of Justice in 2002 had potentially far-reaching consequences for the UK and Ireland because it was argued the child involved, born in Northern Ireland to Chinese parents, had EU citizenship and could thus remain with her carers, her parents, in Ireland regardless of her parents having no right under domestic law to remain.
At that time, Ireland was the only EU member state retaining citizenship on the basis of being born on its territory, he said.
Zambrano decision
The government was advised the matter was urgent and a referendum was required rather than await the ECJ decision.
Since 2004, the ECJ had delivered the “very controversial” Zambrano decision holding the EU Treaty precluded national measures which had the effect of denying a right of residency and work to a third-country national if the consequence was that an EU-born child would effectively be forced to leave the EU in order to be cared for by their parents.
If the 2004 amendment had not been introduced, the Zambrano decision would have had “huge consequences” for Ireland, Mr McDowell said.
He also told the conference on Friday there was “a strong case” for amending legislation to accord an improved statutory right to apply for citizenship, and for improved pathways to citizenship, to all medium-term residents here whose children had grown up in the State.
That could best be done by accelerating the operation of a fair and effective international protection system to determine asylum and international protection claims quickly, he said.
No case could be made for a return to an absolute right to citizenship on the basis of being born here in light of Ireland’s circumstances as an EU member state and as a State which was part of a common travel area with the UK, he said.
