Against the backdrop of heightened racism, an emboldened far-right and nascent anti-migrant sentiment, the passage of legislation that would revoke the right of naturalised Irish citizenship went largely unnoticed this month.
The Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024 that passed the Seanad on the last day before summer recess will, when enacted, amend the relevant provisions of the Irish Nationality and Citizenship Act 1956 that deals with the revocation of naturalised citizenship.
The Irish Human Rights and Equality Commission has serious concerns about this piece of legislation, particularly given the momentous impact it will have on the lives of those it affects, including the risk of rendering some of them stateless.
It has the potential to empower a minister for justice to use revocation of naturalised citizenship in inappropriate or disproportionate circumstances. Yet despite this, it passed through both Houses of the Oireachtas, just eight days after the relevant amendments were published. This significantly limited the time available for appropriate pre-legislative scrutiny, meaning that members of the Oireachtas had no real opportunity to ensure that constitutionally compliant safeguards are built into it.
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If the Government intends to only use this power for terrorism and citizenship obtained through fraud, then it should legislate for that
It is our view at the commission that the Bill contains provisions that will likely not reach the constitutional requirements set out by the Supreme Court in a previous case, Damache v Minister for Justice. In that case, the Supreme Court found that high standards of natural justice must apply to the revocation of naturalised citizenship, given the implications of such a decision for the individual involved.
We believe that the threshold test in this Bill continues to be too vague. For example, the charge of failing in “fidelity to the nation and loyalty to the State” could be open to extremely wide interpretation. Could this lead to a situation where someone’s citizenship is revoked for publicly protesting against a government policy, or in a case where they maintain dual nationality with their country of origin? Matters of such importance require clarity and scrutiny so that issues are resolved in the Oireachtas and not in the courts.
We also have concerns regarding how the Minister will contact someone threatened with having their citizenship revoked. Notice of intention to revoke citizenship can be left on any electronic interface on which an individual is registered. This could, for example, be a State portal that they had used a number of years ago to apply for naturalisation, and which they do not check regularly. Just by failing to access this communication – within 14 days – they might miss their opportunity to request a committee of inquiry to review the Minister’s decision.
Likewise, the legislation, in setting strict time frames, appears to take no account of the possibility that naturalised Irish citizens might, for example, be travelling abroad to visit family. Nor does it take account of the fact that some naturalised Irish citizens may have disabilities, or may be operating in English as a second or third language and find dealing with official documents challenging.
The potential consequences of this are stark. In as little as six weeks, an individual could be stripped of their citizenship with no recourse. If notification by the Minister is to an electronic interface that they do not check regularly, their citizenship could even be revoked without their knowledge.
Should they seek a review, they may not in some cases even get to see the reasons for the decision, as the legislation gives the Minister a discretion to withhold their reasons for revocation on the grounds of national security. In fact, we have no reassurance that the law requires the Minister to share with the committee any national security information that is the basis of the decision to revoke. This in turn makes it exceptionally difficult to appeal a decision. This provision does not sit well with the rationale of another Supreme Court decision which confirmed the right for a person to be given reasons for the Minister’s decision to the minimum extent necessary to protect national security.
We tell people when they receive Irish citizenship that it is the same citizenship as those of us who are born here. But to ensure the integrity of that citizenship, the State must ensure that the rights enjoyed by those who are citizens by naturalisation are as close as possible to those who hold citizenship by birth.
Although this is a power that has been used sparingly in the past, this is no indication of future use, especially when we cannot predict the make-up of future governments. If the Government intends to only use this power for terrorism and citizenship obtained through fraud, then it should legislate for that.
We have communicated our concerns to the Minister for Justice regarding this Bill and it is our recommendation to Helen McEntee that, given the issues at stake, this legislation must be revisited in autumn. Should it come in to force, further litigation is, in our view, inevitable. We need confidence in our system of revoking Irish citizenship, particularly for our fellow citizens who are Irish by naturalisation. Unfortunately, this does not provide it.
Mr Justice Bryan McMahon, speaking at the citizenship ceremony in 2022, said, “after this ceremony, I will have no greater legal rights in this community than you will have. Under our Constitution all citizens are equal. The new are equal to the old. We have no second-class citizens, we have no half citizens. You are a citizen in the fullest sense of the word and you are entitled to all the protections of the Constitution.” The Government and society would do well to reflect upon his words.
Deirdre Malone is director of the Irish Human Rights and Equality Commission
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