Irish Independent


ONE negative by-product of the Good Friday Agreement is the immigration, or citizenship tourism problem that the Government helped create in 1998, when it negotiated the terms of that accord. Six years later it is now trying to resolve a difficulty of its own making, by once again amending the constitution.

Except this time, its proposed solution has become a political problem, upsetting parties north and south, including the SDLP, Sinn Fein and the Opposition. All claim a lack of consultation about the Government's constitutional amendment, while some argue that the proposed solution jeopardises the Good Friday accord.

The Government hopes to close a loophole in the country's liberal citizenship laws, which encourages too many non-national pregnant mothers from non-EU states to have their babies in Irish maternity hospitals. And they come here to secure Irish, and therefore EU, citizenship and passports for their offspring.

The precise scale of the abuse of the citizenship laws by non-nationals is disputed: only in the past two years are figures available, mainly from Dublin's three maternity hospitals. These show that in 2003 there were some 4,424 births to non-EU nationals.

And of these, the Minister for Justice, Michael McDowell, estimates that up to half that number who gave birth here, did so to secure Irish citizenship for their children. Last year some 58 per cent of female asylum applicants were pregnant at the time of application.

As well, a couple of hundred non-EU-national women came here on a maternity holiday to give birth, collect the birth certificate and passport of the new-born infant, before returning home.

Whatever the strength of its case for change, the Government, however, has embarked on this referendum exercise in a pretty inept fashion. It has offered little real consultation, and provided very limited time for parliamentary discussion. Last week was a case in point.

The bill to enable the referendum take place on June 11 was guillotined through its second-stage debate after a mere two days' discussion, but with the vote deferred until next Tuesday. The debate was unsatisfactory, not merely because of the time restriction, but also because of the efforts of the Opposition parties to shout down Michael McDowell, both in introducing the measure, and later in summing up the debate on Thursday night.

But if the Government was wrong to rush the debate, then the Opposition was even more ill-advised to filibuster it, and to employ the guerrilla tactics that it did in the Dail, whatever the level of provocation. And there indeed was some.

In February, the Taoiseach denied that any referendum was planned in 2004. But we now know that in January there were some official, though unspecified, contingency plans made for a possible third ballot in June.

By early March the Government, clearly, had changed its mind. It announced the citizenship referendum. The announcement caught everyone off guard, and not only the Government which was sponsoring the constitutional amendment. The Opposition was caught out too.

The current difficulty stems from the decisions taken in relation to the Good Friday Agreement. There, the Government insisted on turning an existing statutory right to citizenship (under the 1956 Irish Nationality and Citizenship Act), which could be regulated by the Oireachtas, into a constitutional right to citizenship for Irish-born, which can only be changed by amending the constitution.

It was clearly a political move. It was taken to reassure and compensate nationalists for the removal of the old territorial claim over Northern Ireland, by bolstering the entitlement to Irish citizenship of the people there. So the constitutional claim to jurisdiction was dropped, and replaced with a new Article 2, which conferred a right to citizenship on all those "born in the island of Ireland".

The move was wrong, quite unnecessary, and counter-productive. For it created the legal loophole on immigration that the Government, much to its own embarrassment, is now seeking to close.

The Department of Justice opposed the elevation of citizenship to constitutional status at the time, anticipating correctly much that has since occurred: that the right to citizenship for anyone born on the island would encourage non-EU nationals to exploit the opportunity. The department's objections, however, were overruled.

The Government wanted to keep the immigration issue out of the 1998 referendum debate and, clearly, it never envisaged the scale of the problems that have emerged.

In contrast, the British government defined the qualification for British citizenship in Northern Ireland much more narrowly. There it applies only to children, one of whose parents is either a British or Irish citizen at the time of birth.

Those who don't meet that requirement cannot claim British citizenship. But, as they were born in the island of Ireland, they can claim Irish citizenship. In the Chen case now before the European Court of Justice, the non-national parent of an Irish-born child is seeking to remain in Britain as a dependent relative for immigration purposes. There, the parents, faced with deportation from Britain, on legal advice moved to Belfast for the birth.So this proposed change in the constitution is not merely to tackle an Irish legal loophole, but one that has potential consequences for Britain as well. Hence, in part, the evident urgency of the Government move to amend the constitution before the Chen case is decided.

When, in 1998, the Government chose to put the right of citizenship into the constitution, it did so against the advice of the Constitution Review Group, chaired by Dr TK Whitaker. It concluded that, given the complexity of the issue, and the difficulty in defining exceptions and conditions, it should remain a matter to be dealt with by ordinary legislation, and not by constitutional provision.

And in the referendum on the Good Friday Agreement, the Referendum Commission, as Joan Burton pointed out in the Dail, in presenting the case for and against the amendment, specifically warned: "The new Article 2 will give a constitutional right of citizenship to anyone born in Ireland. This will make it very difficult to change the laws on citizenship, and it may prevent the enactment of necessary laws to regulate immigration."

The argument was compelling, but it was ignored. Except by a few, including the former leader of the Labour Party, Ruairi Quinn, whose own suggested amendment at the time has some similarities to what Michael McDowell is now proposing, much to Labour's current discomfort.

Joseph O'Malley

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