Migrancy
Citizenship
and
The 2004 Referendum
Michael McDowell SC
IACBA Conference Friday 26th November 2021
Bar of Ireland Distillery Building Church Street Dublin 7
Introductory
I want to thank the IACBA for its kind invitation to participate in today’s conference. It is an honour to be part of this afternoon’s proceedings and to share the platform with so many distinguished contributors.
I intend to take this opportunity to set out the legal and historical background to the Citizenship referendum of 2004 and to throw some light on the reasons why the referendum was proposed and the change that it was intended to achieve.
The fact that the referendum was carried by a massive majority of Irish citizens has to be seen in the legal and historical context of 2004. It did not have some earth shattering effect on migration, asylum-seeking or the rights of the “new Irish”. Nor was it intended to.
A mistaken view has been propagated that the referendum has worked against the rights of migrants in a way which makes Ireland an exception to internationally accepted norms. In fact, Ireland remains one of the most open countries in the EU in respect of conferring citizenship rights pathways on migrant residents and their families.
An equally mistaken view has been propagated that the amendment made to Article 9 of the Constitution is, in some way, an impediment to affording justice to migrants and their families.
In truth, the terms of Article 9, as amended, prevent nothing at all from being done by our parliament to fashion a fair and just citizenship law in accordance with the wishes of the Irish people.
Historical Context
When Ireland first became an independent constitutional democratic state in 1922, the issue of citizenship, as distinct from the status of Crown subject, came into focus.
The Treaty of 1921, in the context of the oath of allegiance for parliamentarians made reference to the King as head of the community of nations known as the British Commonwealth and to the “common citizenship of Ireland with Great Britain”. The Treaty did not accept or use the term “subject”.
For the Irish negotiators of the Treaty and the draftsmen of the Irish Free State’s constitution, it was a political imperative that the people of the Free State (from whom all powers of government and all authority, legislative, executive and judicial in the Free State were derived, in the words of the IFS constitution) should have the status of citizen. That was a break from the pre-existing common law of these islands which regarded the population as “subjects” of the Crown arising from their birth within the realm.
The distinction between citizenship by descent (“ius sanguinis”) and citizenship by place of birth (“ius soli”) had been an historic difference between the Civil Law and Common Law systems respectively.
The parliamentary oath, in the text of the Treaty and in the Irish Free State constitution, reads as follows:
“I…………….do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H M King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations”.
Article 3 of the Constitution of the Irish Free State, adopted by Dáil Éireann sitting as a Constituent Assembly 1922 on 6th December 1922, went on to provide as follows:
“ Article 3. Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose parents was born in Ireland or who has been ordinarily resident in the area of jurisdiction of the Irish Free State (Saorstát Eireann) for not less than seven years, is a citizen of the Irish Free State (Saorstát Eireann) and shall within the limits of the jurisdiction of the Irish Free State (Saorstát Eireann) enjoy the privileges and be subject to the obligations of such citizenship : Provided that any person being a citizen of another State may elect not to accept the citizenship hereby conferred ; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State (Saorstát Eireann) shall be determined by law.”
It should be noted that Article 3 defined as a citizen any person, without distinction of sex, domiciled in the jurisdiction of the Irish Free State at the time that the constitution came into effect December 6th 1922 provided he or she was either born in Ireland (the entire island), or either of his or her parents had been born in any part of Ireland, or who had been ordinarily resident in the Free State’s jurisdiction for not less than seven years.
Any person being a citizen of another state, including Northern Ireland unionists asserting British nationality wherever resident on the island, was given a right of election not to accept the IFS citizenship conferred by the Article.
The Article provided that “conditions governing the future acquisition and termination of citizenship in the Irish Free State (Saorstát Éireann) shall be determined by law”. In the absence of any statutory provision until 1935, this clause remained ambiguous. Did previous common law continue to apply and, if so, how?
Most curiously, because the Northern Ireland parliament only exercised its opt-out from the Irish Free State on 7th December 1922, there was a 24 hour period in which the Free State’s constitution operated to permanently confer Free State citizenship on all persons domiciled and born in either part of Ireland up until 7th December 1922.
Thus, a retrospective variant of “ius soli” citizenship, but dependent on domicile in the Free State, was conferred on the great majority of Irish-born persons or their off-spring, and Irish citizenship was also conferred on certain long-term residents, but the Free State Oireachtas was given broad legislative freedom in respect of prospective acqiuisition and loss of citizenship.
But the IFS Oireachtas left the matter of citizenship largely unregulated by statute until 1935, a time when its exclusive right to legislate and determine status was put beyond any doubt by the Statute of Westminster in the aftermath of the Imperial Conference in 1931.
In 1935, the Oireachtas passed an Act for the first time codifying the Free State’s law of citizenship which gave an entitlement to “natural born” citizenship to all persons born in the Free State, and post 1922 up to the date of its passing, and on any person born in the Saorstát after the passing of the Act, regardless of domicile. This was “ius soli” citizenship simpliciter.
The 1935 Act also conferred citizenship entitlements on persons born outside the Free State whose father at the time of such birth was a Free State citizen but only subject to certain registration requirements applying to Northern Ireland and to other jurisdictions. However such entitlement was governed by paternity – not maternity. That would have been conventional internationally at the time but was a step back from the gender equality in Article 3.
The 1935 Act formally abrogated any common law entitlements to acquisition and loss of citizenship.
Great Britain and the Irish Free State had sharply differed (and continued to do so) on whether Irish citizens were also crown subjects from the 1920s right up until the legislative establishment by name of the Republic of Ireland in 1948. At that point the UK finally accepted, in its 1949 statute, the separate status of Irish citizenship.
Bunreacht na h-Éireann
Article 9 of Bunreacht na hÉireann, as enacted in 1937, had simply provided as follows:
“ Article 9
1.1 On the coming into operation of this Constitution any person who was a citizen of Saorstát Eireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.
1.2 The future acquisition and loss of citizenship shall be determined in accordance with law.
1.3 No person may be excluded from Irish nationality and citizenship.
2 Fidelity to the Nation and loyalty to the State are fundamental political duties of all citizens.”
Consideration had originally been given to replicating the ius soli determinant of entitlement to citizenship in what became Article 9, as is evident from a reading of Hogan’s The Origins of the Irish Constitution 1928-1941, particularly at pp 286, 287.
But Article 9.1.2, as adopted, gave the Oireachtas a general legal competence and discretion in the enactment of post-constitution citizenship laws. The Article also conferred citizenship of Ireland on the existing citizens of the Irish Free State.
The Free State constitutional strait-jacket of defined ius soli citizenship was, in this way, dispensed with.
However, during the height of the Anti-Partition Campaign in 1956, Section 6 of the Irish Nationality and Citizenship Act, 1956 accorded, but only on a prospective basis, Irish citizenship to “[e]very person born in Ireland…from birth.” (“Ireland” for this purpose expressly included all of the “national territory” as defined in Article 2 of the Constitution, and that included Northern Ireland.)
The sole exceptions to this general conferral of citizenship by ius soli were persons born in Ireland before the passing of the Act who were not citizens and any child of an alien who, at the time of the child’s birth, was entitled to diplomatic immunity.
Thus, by statute, rather than by constitutional entitlement, Ireland post 1937 now conferred citizenship on a ius soli basis on all persons born anywhere on the island of Ireland, regardless of entitlement to citizenship of any other state.
The 1935 paternal parental domicile restriction in respect of persons born in Northern Ireland was ended by the Oireachtas by the 1956 Act.
And that was how matters stood as a matter of domestic legislation at the time of the negotiation of the 1998 Good Friday Agreement.
The Maastricht Treaty and the Good Friday Agreement
Under the terms of the 1992 Treaty on European Union (“the Maastricht Treaty”) citizens of any of the European Union’s member states were deemed to also be citizens of the “European Union”, a treaty entity thereby created which was not and is not a sovereign entity, as well as being citizens of the relevant member states, and were accorded limited treaty rights, including limited rights of movement and residential establishment, as EU citizens under the provisions of the EU treaties.
It was in that overall context that the terms of the Good Friday or Belfast Agreement were negotiated and, in particular, that the text of the revised Articles 2 and 3 of the Constitution was considered and drafted.
Articles 2 and 3 of the Constitution were radically amended from including a de jure claim that the Constitution was applicable to the whole of the “national territory” to a declaration, instead, of an aspiration of the Irish Nation to unite all the people who share the territory of the island of Ireland in all the diversity of their identities and traditions by peaceful means in harmony and friendship and with the consent of a majority democratically expressed in both jurisdictions on the island.
Until such unity, the territorial jurisdiction of the Constitution and of the Oireachtas is to remain the same as that of its predecessors in the Irish Free State.
But Article 2 was now being amended to state that it was the entitlement and birthright of every person born in the island of Ireland, including its islands and seas, to be “part of the Irish Nation”, and, so it appears, a constitutional entitlement and birthright to be considered to be a citizen of Ireland, a member state of the European Union. That provision automatically conferred EU citizen status under the Treaty of Maastricht on every person born in either jurisdiction on the island of Ireland.
This implication was noted and was apparent to the Irish drafters of the new Article 2, but there were predominant policy reasons to accept the result, because a more nuanced or restrictive approach to conferring citizenship to long term, legally present or permanent Northern Ireland residents might made for difficult and complex constitutional drafting, and might have resulted in UK legislation playing a part in the constitutional citizenship entitlements of Irish people born in Northern Ireland.
In this way, an absolute ius soli entitlement to Irish citizenship became, for the first time, constitutionally enshrined for anyone born anywhere in the island of Ireland in post-independence Ireland as and when the new Article 2 became part of the Constitution on 2nd December 1999.
Irish Constitutional Jurisprudence
The statutory entitlement of ius soli citizenship conferred by section 6 of the 1956 Act had, in the meantime, itself given rise to a considerable volume of domestic constitutional jurisprudence.
This related to the right of the Irish state to regulate the status and rights Irish born infant citizens and of non-national family members (including parents) of Irish born citizens to enter, remain in, or resist deportation from, the State, having regard to the constitutionally protected rights of citizens and of families (“possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”, in the words of Article 41.1.1).
In the Fajujonu case ( [1990] 2 IR 151 ) a family consisting initially of two non-national parents and an IBC child born in 1983 (but later having two further IBC siblings) in 1987 sought an order prohibiting the parents’ deportation, citing their family rights under the Constitution, a majority of the Supreme Court (including Chief Justice Finlay) held that the non-national parents, while not having a constitutional right to remain in the state, nonetheless had a constitutional right as parents of an IBC to assert a choice of residence for their child who had been present in the State for an appreciable period of time, which right could only be over-ridden by an exercise of ministerial discretion which took fully into account the constitutional rights of three citizen members of the family, balanced against the State’s right to protect the common good.
Walsh J, with whom a majority (not including the Chief Justice) concurred, went further and opined that, on the facts before the court, the deportation of the parents or their children, would be unlawful as contrary to their family rights under Article 41, in the absence of overwhelming and predominant reasons based on the common good or the protection of the people.
Two other earlier High Court decisions, Osheku ([2008] 3 IR 795 )and Pok Sum Shun ([1986 ILRM 593) were considered by the Supreme Court in Fajujonu and their correctness was left in some doubt.
Post-Fajujonu, the position of families in similar circumstances was one of de facto entitlement to remain in the state in the absence of grave reason to the contrary.
However, increasing migration and asylum-seeking, coupled with the births of IBC children to persons including migrants and asylum-seekers seeking to remain in the State led to the later decision in L&O v Minister for Justice, Equality and Law Reform [2003] 1 IR 1] decided in October 2002, in which a 5:2 majority of the Supreme Court approved Osheku and Pok Sum Shun, and rowed back considerably on the reasoning of Fajujonu, declaring that it was not the case that short-term resident parents of IBC children could only be deported in exceptional circumstances, and that the State was entitled to uphold the integrity of its immigration law regime notwithstanding the birth of an IBC child to persons facing deportation.
Thus, in 2002, the birth of an IBC child no longer established an insurmountable legal obstacle to the enforcement of the State’s statutory immigration and deportation powers.
Superficially, the 1999 constitutional guarantee of ius soli citizenship to children born in the island of Ireland was, by 2002, no longer an insurmountable legal obstacle to the deportation of the child’s parents.
On the other hand, virtually every deportation case involving an IBC child became a potential High Court matter and that entailed significant delay, with time running against the immigration authorities seeking to uphold or apply the law.
The L&O decision was therefore of limited use in the face of a considerable pattern of IBC births to parents lacking other entitlement to be present or remain in the State. Repatriations and deportations involving parents of an IBC child remained legally difficult, expensive and uncertain.
Enter Chen
In June 2002, the incoming FF-PD government published its Programme for Government. That published programme committed the incoming Government to “increase the repatriation of failed asylum applicants whose applications have been progressed to finality in order to maintain the integrity of asylum policy.”
The Programme specifically committed the Government to speed up the asylum process and to consider “the number of applications from non-nationals to remain in the State on the basis of parentage of an Irish-born child”.
The new Government stated its intention to “initiate all-party discussions on the issue of such constitutional or other measures as might be required” in respect of IBC children
Why was this clearly possibility of constitutional amendment being considered in 2002?
In the United Kingdom, a very interesting legal issue had emerged in the Chen case.
A well-to-do Chinese couple, temporarily resident in the UK without long-term leave to remain, and parents of one child born in China, were anxious to have a second child, and were naturally very apprehensive about the consequences for their family, economic and social, of breaching China’s infamously cruel “one-child policy” regime.
Mrs Chen’s husband was the majority shareholder in a very large company based in China and having extensive business in the UK and the rest of the EU. Mrs Chen also worked in that company
On legal professional advice (which turned out to be sound), they arranged for their second child to be born in Northern Ireland with a view to having Irish citizenship conferred on the child with resulting EU citizenship. This, they were advised would create a basis for a legal claim that they were entitled under to remain in the UK to care for a dependant EU citizen-child.
Their daughter, Catherine Zhu, was born in Belfast on 16th September 2000. She acquired Irish nationality by birth under Irish constitutional and statute law, but did not acquire UK nationality under UK law.
Mrs Chen and her daughter moved to Cardiff and applied for residency in the UK. Her application was rejected by the UK Secretary of State and she then appealed the rejection to the UK’s Immigration Appellate Authority.
The Immigration Appellate Authority found that the Home Secretary’s rejection was valid in accordance with UK domestic law.
The Authority wondered, however, whether, as a matter of EU law, the child might have residence rights as an EU citizen, and whether her mother might have derivative residence rights under EU law as her carer. In addition, the issue arose as to whether the child was entitled to remain in the UK to avail of health services, or as part of a family which was economically self-sufficient and no drain on public resources.
Catherine, as a second child, was apparently not entitled to Chinese nationality or to long term residence in China.
The Immigration Appellate Authority referred these and related issues to the ECJ in May 2002. This reference shortly preceded the published intention in the incoming Irish Government’s programme to consider the possible need for an amendment of the Constitution to end automatic citizenship on a ius soli basis.
The 2002 reference potentially had far-reaching consequences for the UK and Ireland. In each jurisdiction, the fact that an IBC child had EU citizenship was now the subject matter of a potential ECJ judgment allowing the child to remain with its carer(s) in an EU member state even in the absence of any domestic law right to remain.
Ireland, as a state, was unique in the EU in conferring constitutional ius soli citizenship rights unconditionally on a child regardless of the parents’ legal status or legal entitlements to be in the state (or in Northern Ireland). No other member state retained ius soli citizenship at the time of the Chen reference.
In principle, if the Chen’s position was upheld by the Luxembourg court, any person without EU citizenship might obtain the right to reside and care for his or her child in any EU member state if their child was born in either part of Ireland.
Such an outcome would, in domestic Irish terms, seriously undermine the outcome of the L&O Supreme Court decision and leave the State’s capacity to operate its immigration law in a very seriously compromised condition. For other EU member states, including especially the UK, there would also be potentially far-reaching consequences if the Chen case succeeded.
Because of freedom of movement within the EU and because of the Common Travel Area between Ireland and Britain and the open border between the North and the South, there was no practical way of controlling entry into Ireland by persons wishing to have a child in Ireland as a means to establish residency rights under EU law if the Chen case succeeded.
The ECJ Chen Process
Following the UK reference to the ECJ, in May 2002, a hearing before the Luxembourg court occurred on 11th November 2003. There then appeared a very real likelihood that the proceedings would uphold the substance of the Chen claims in relation to the rights of the child and its mother to residence in the UK.
The issue then became urgent and the Government was advised that the only way of addressing the emerging problem was by way of amendment to the Constitution.
The UK and Irish governments had made extensive submissions seeking to avoid the ultimate outcome of the proceedings. Some of these are dealt with in the lengthy Opinion of Advocate General Tizzano later delivered on 18th May 2004.
Amendment of the new Article 2 was, for the reasons already stated, politically difficult.
While the UK was of course willing to have the right of citizenship referred in the wording of Article 2 as proposed in the 1998 agreement between the UK and Ireland amended, the consensus in Dublin was that this would best be achieved by the amendment ultimately made to Article 9. The two Governments published a joint declaration that the proposed amendment would not breach the Good Friday Agreement.
Consideration was given to the issue as to whether the matter would be dealt with by a stand-alone single-issue referendum held separately, but the consensus in Government was that the amendment was unlikely to be very controversial, given that it was simply designed to restore to the Oireachtas the underlying right it had enjoyed from 1937 to 1999 to determine by legislation the conditions for entitlement to citizenship by birth for persons born to parents neither of whom were Irish citizens.
In the ultimate, it was decided that a referendum would be better held on an occasion when a reasonable turnout by voters could be expected and so it was decided that the referendum would be held on the same date as the date fixed for the Local and European elections, June 11th 2004 rather than on a stand- alone basis.
The alternative of waiting for the ECJ to pronounce its judgment and then holding a remedial referendum to amend the Constitution seemed unwise and likely to give rise to division and possible extremist debate.
The referendum date chosen secured amendment of the Constitution well in advance of the decision of the ECJ on the 19th October 2004 (which as expected concurred with the Tizzano Opinion in trenchant terms).
The referendum was to amend the Constitution by inserting a new section 2 in Article 9 which reads as follows:
“2. Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen, is not entitled to Irish citizenship or nationality, unless provided for by law”.
Thus the absolute constitutional right to ius soli citizenship given by Article 2 was to be maintained but restricted in future to Irish citizenship by descent from a parent. In other cases, citizenship entitlement was re-established as being regulated by statute law, as it had been from 1937 to 1999.
Opposition to Ending Unconditional Ius Soli Citizenship
When the Government consulted with the other political parties in early 2004, it emerged that the Fine Gael party was not opposed in principle to the amendment, but wanted to proceed more slowly than the June referendum date would allow. The Labour Party flatly opposed on equality grounds the proposal to end ius soli citizenship for all Irish born children, as did the Green Party and Sinn Féin.
The SDLP argued that the amendment was an interference with the balance of the Good Friday Agreement. That argument was not accepted by the two sovereign governments.
In particular, the Irish Government took the view that the post-1998 wording of Article 2 was intended as an under-pinning, accepted by the UK, of the right of those in Northern Ireland who wished to be identified as Irish to have that wish recognised as a matter of accepted international status.
Given that the UK and Ireland were, by international treaty, undertaking to accord and respect the right of all the people of Northern Ireland to assert equally that they were British or Irish or both British and Irish, it would run counter to that basic treaty provision and aim for the UK to put in the position that a person born in Northern Ireland could, in consequence of the implementation of the 1998 Agreement, become entitled to Irish citizenship but not be entitled to assert a full right to British nationality and citizenship.
The implication of such an outcome could be that the UK were to be bound by treaty to according ius soli rights of UK citizenship to anyone born in that part of the UK, regardless of the status in UK law of the child’s parents or the lawfulness of the parents’ presence in the UK, or the duration of their right of residency (if any).
Non-party opposition was also voiced by the Irish Council for Civil Liberties and by a committee of the Irish Commission on Human Rights.
The Human Rights Commission critique was to the effect that the amendment might contravene Ireland’s obligations under international law. That argument was vaguely articulated and hard to follow, as Ireland, if the amendment were carried, was only giving its parliament a limited right to determine the circumstances in which birth in Ireland of a child to non-national residents would confer citizenship.
No other European Union country’s parliament had, or has, a constitutional impediment to doing so, and nobody seriously advanced the view that failure to have an absolute rule of ius soli citizenship on their part breached international law. Nobody seriously argues that today.
The Charge of Racism
A small ideological minority of participants in the debate claimed that the measure was somehow racist in motivation or effect. That threadbare and offensive claim is still sometimes repeated today.
Unless you assert that an absolute entitlement to ius soli citizenship is the only permissible approach in the matter, and that any other approach is inherently racist, that political charge is simply un-stateable and not worthy of serious consideration.
Some ideological opposition was even based on a view that immigration controls by nation states, including EU member states, were bourgeois in nature and contrary to international human values including human rights of migration.
No Child Rendered Stateless
It should be emphasised that no child has or would become stateless in consequence of the amendment made to Article 9. As a matter of international law, and as a matter of current Irish statute law, a child born in Ireland is entitled to Irish citizenship if the child is not entitled to citizenship of any other state on birth.
In effect, therefore, the amendment made to Article 9 only had application in cases where an IBC child was obtaining, or would obtain, a second or a substituted citizenship by reason of the un-amended constitutional provisions.
Thus the amendment made was fully in conformity with Ireland’s obligations under international law.
The Referendum Proposal Was Approved By A Very Substantial Majority
As a matter of record, the constitutional amendment was fully debated and approved by an overwhelming majority in every part of the state. I have appended to this paper the results of the referendum process.
The Oireachtas Has Its Competence Restored
If the majority in the Oireachtas wants now to accord Irish citizenship today to all persons born in Ireland, the Constitution as amended permits them to do so freely. But sixteen years after the referendum, no parliamentary majority in favour of doing so exists.
Yes, a strong case can now be made for amending legislation to accord an improved statutory right to apply for and improved pathways to citizenship to all medium term residents in Ireland and to their children who have grown up in this State.
This should, I think, be best done in tandem with accelerating the operation of a fair and effective international protection system to determine asylum and protection claims quickly.
But no case can be made, I think, for a return to an absolutely inflexible, constitutional right to ius soli citizenship in Ireland’s present circumstances, particularly as a member state of the EU and as a state which is part of a Common Travel Area with the UK.
The Foregoing Points Are Not Ex-Post Rationalisations
All of the foregoing was part of the consideration in the process of amending the Constitution. Some commentators seem to have lost sight of the issues as articulated at the time of the referendum.
To illustrate this point, I have appended to this paper the text of the leaflet issued nationally by the Progressive Democrats urging a Yes vote in support of making the amendment in 2004.
The issues discussed in this paper were fairly put before the people in 2004.
Zambrano Rights – A Later Development
The ECJ later delivered a judgment in the case of Ruiz Zambrano on 8th March 2011, a decision which has been referred to as “certainly one of the most controversial decisions of the last decade”.
All intervening member states had argued that the issue at stake – the right of a third country national to obtain residency rights in the EU on the basis of being a parent of an EU child citizen – was outside the competence of EU law in the absence any internal cross border dimension.
The ECJ held that Article 20 of the Treaty on European Union precluded national measures which had the effect of denying a right of residence and a right to work to a third country national if the consequence was that an EU minor child would be effectively forced to leave the territory of the EU to be cared for by his or her parent(s).
The “genuine enjoyment test” of guaranteed rights to EU citizens was adopted by the court as a means of determining whether EU fundamental rights were impermissibly infringed by member state laws as a matter of EU law.
Whatever the legal or political merits of the Zambrano decision (and I do not propose to examine them here), the decision and, indeed, subsequent ECJ case law has emphasised that the Charter of Fundamental Rights and Freedoms when taken in combination with the Chen decision would have had profound implications for the ability of EU member states to control residency rights if the Chen decision had been left operative as a matter of Irish constitutional law.
Conclusion
While opinions may differ, I hope that this paper puts the controversy surrounding the amendment made in 2004 to Article 9 of the Constitution in some informed context and perspective.