JoAnne Mancini1 and Graham Finlay2
“Citizenship Matters”: Lessons from the Irish citizenship referendum”
The Irish Citizenship Referendum of 2004 removed the last example of
unrestricted birthright citizenship, or jus soli, from the list of European nations. Now
similar pressures are building up in the United States of America, the most significant
jus soli country in the rest of the world, where the principle of unrestricted birthright
citizenship is enshrined in the 14th amendment. These pressures have similar parallels
to the Irish case and push towards the same conclusions: lack of access to citizenship
is strongly tied to the creation of ‘guest workers’ and the reduced status of such
workers in terms of their employment rights strongly affects their ability to challenge
exploitation in various forms. In both countries, immigration is being encouraged on a
basis that leads to two groups of workers in the labour force: one group with
citizenship, opportunities for political participation and rights, the other with restricted
access to citizenship, fewer real opportunities for political participation and fewer
rights either regarding their conditions of employment or in terms of their access to
social welfare services. In this paper, we argue that since migration is inevitable, this
trend against jus soli in a number of high income countries represents both unjust
treatment of the migrant workers themselves and an attempt to increase competition
for jobs through the deliberate alteration of the terms under which migrant workers
are to compete.
It is important to emphasise the inevitability of migration as a background to the issue
of access to citizenship, particularly the movement of people from poor countries to
wealthy ones, and its link with development. Robin Cohen has argued, persuasively,
that development aid cannot reduce migration pressure. Reviewing studies of several
sending countries, he notes that the amount of aid necessary to reduce the inequalities
between countries to the point that the incentive to migrate is significantly diminished
is vastly more than wealthy, receiving countries currently propose to provide and that,
even if such aid were forthcoming, migratory pressures still might not be reduced. 3
1
2
3
Department of Modern History, NUI Maynooth
School of Politics and International Relations, University College Dublin
Robin Cohen, ‘Trade, aid and migration’, in Migration and its Enemies. Aldershot: Ashgate, 2006.
Accordingly, migration is a force that will have to be dealt with justly for the
foreseeable future: both in terms of justice within the receiving country and between
the receiving and the sending country. In terms of the latter, as is well known,
remittances are a remarkably efficient transfer of wealth between rich and poor
countries—‘nearly three times the world’s foreign aid budgets combined’. 4 In this
paper, we will focus on the issue of justice within the receiving country, but a fuller
account would also incorporate the benefits of remittances and the relief of population
pressure from the sending country.
The exact long-term implications of the Irish Citizenship referendum are difficult to
gauge, but two significant changes may be noted. First, the amendment to Article 9
removes the provision of citizenship to the Irish-born children of non-nationals from
its protected place within the Constitution to the more uncertain sphere of legislation.
Henceforth, sitting elected officials will determine not only the terms under which
immigrants can become naturalized citizens—a process over which the Justice
Minister has discretionary power—but also the conditions under which the children of
foreigners are eligible for birthright citizenship.5 The Irish Nationality and Citizenship
Bill, 2004 limits access to birthright citizenship for the children of non-nationals,
restricting access to those children whose parents had resided legally in the state for
three of the four years previous to the birth.6 The government also specified that time
spent on student visas or in the asylum process would not count as residence, even
retroactively. Thus, the resulting Act virtually guarantees that there will be a class of
children, born in Ireland to legal residents, who have access to citizenship solely
through the naturalisation process.
Moreover, the removal of citizenship to the
legislative realm also presents the possibility that future governments might propose
more onerous barriers to birthright citizenship for those without a hereditary
connection to the nation. Currently, naturalisation requires 5 years residency, even of
minors born in Ireland, and “The Minister for Justice, Equality and Law Reform... has
4
‘Western Union Empire Moves Migrant Cash Home’, New York Times, November 22, 2007,
Accessed at:
http://www.nytimes.com/2007/11/22/world/22western.html?_r=1&th&emc=th&oref=slogin
5
See Irish Nationality and Citizenship Act, 1956, Section 15,
http://www.referendum.ie/archive/display.asp?ballotid=11.
6
See the explanatory notes of the proposed Bill at
http://www.justice.ie/80256E010039E882/vWeb/flJUSQ65ADJS-en/$File/B402004.pdf and the text of
the Act at: http://www.justice.ie/80256E010039E882/vWeb/flJUSQ68YFYB-en/$File/Act2004.pdf
absolute discretion as to whether or not to grant naturalisation.”7 Legislation proposed
on September 6, 2006 places a number of restrictions on immigrants including
requiring them to carry residence permits issued by the Minister, in the form of
Identification Cards with photos and biometric information. Although some of these
restrictions are not directly related to the issues raised in this article, a notable clause
provides the full complement of social services only to “long term residents”,
identified as individuals who have resided in the state for five years, although the
residence requirements may be shorter for “particularly sought-after migrants”.8 This
places the bulk of legal residents, including those on work permits, in the same
condition with relation to social services as the workers from EU accession countries
who have, to some extent, replaced them.
Second, the amendment to Article 9 represents a fundamental philosophical shift in
Irish law from the principle of citizenship based on birth within the territory, to
citizenship based on blood descent from the citizenry.9 Prior to the amendment, Irish
law did employ jus sanguinis as a device for recognising the citizenship of persons
born beyond its borders: due to its emigrant history, Ireland (unlike the United States)
grants citizenship to the foreign-born grandchildren of citizens, and under certain
circumstances even to subsequent generations.10 However, until 2004 Irish law had
never used parentage as a basis for the civic exclusion of persons born inside its own
borders. The passage of the referendum marks a sharp break from both this tradition
and the universalism it entails. By imposing a barrier to citizenship that must be
crossed only by persons who are not the descendants of citizens, as Oran Doyle
argues, the new Article 9 gives Constitutional sanction to the granting of legal
privilege on the basis of pedigree.11 By tying the future citizenry more firmly to the
7
See the information on naturalization from the government’s own website:
http://www.citizensinformation.ie/categories/moving-country/irishcitizenship/becoming_an_irish_citizen_through_naturalisation
8
See “McDowell publishes draft Immigration legislation - initiates radical overhaul of immigration
laws and processes” http://www.justice.ie/80256E01003A02CF/vWeb/pcJUSQ6TEJ7G-en
9
Gerard Hogan, “Citizenship and the Constitution: 1922 to Date,” 6.
10
In order to be eligible for citizenship beyond descent from an Irish grandparent, an applicant’s parent
must have taken up Irish citizenship before the applicant’s birth: “The Irish citizenship of successive
generations may be maintained in this way by each generation ensuring their registration in the Foreign
Births Register before the birth of the next generation.” Oasis Information on Public Services, “Irish
Citizenship Through Birth or Descent,”
http://www.oasis.gov.ie/moving_country/migration_and_citizenship/irish_citizenship_through_birth_or
_descent.html#id3109961.
11
As Doyle argues, this is elsewhere proscribed: the Supreme Court’s decision in An Blascaod Mór
Teoranta v. Commissioners of Public Works prohibits discrimination on the basis of pedigree (Doyle
citizenry at the time of the referendum, moreover, the amendment also works to limit
temporal and ethnic change in the composition of “the Irish Nation.”
There is a very important difference between unrestricted and restricted birthright
citizenship. Migration theorists like Christian Joppke claim that there is a trend
towards jus soli in European citizenship regimes, because Spain, the Netherlands and
Belgium have added some jus soli component to their previous jus sanguinis
(citizenship by descent) traditions, and Germany has, in 1999, admitted a right to
citizenship for second generation immigrants at birth, provided one parent has been
legally resident in Germany for eight years.12 Although Germany’s reforms are
important, they are not reflective of a general European trend. Austria, which also has
a large population of long-time alien residents, has not changed its citizenship law and
has no jus soli component.13 Several southern European countries have restricted
access to citizenship by raising the residence requirements for naturalisation for nonEU nationals, even, in the case of Italy, while simultaneously reducing it for people of
Italian descent.14 The Netherlands and Belgium have introduced “double jus soli”, on
the French model, into their citizenship regimes.15 Although double jus soli, which
automatically grants citizenship to third generation immigrants, i.e. to an individual
born in a country to someone who was also born in the country, is a form of jus soli, it
has very different results than unrestricted jus soli. By giving access to citizenship
115-116).
12
For Joppke’s claims, see, Christian Joppke and Ewa Morawska, “Integrating Immigrants in Liberal
Nation-States: Policies and Practices”, in Christian Joppke and Ewa Morawska, eds., Toward
Assimilation and Citizenship: Immigrants in Liberal Nation-States, (London: Palgrave Macmillan,
2003), p. 18 and Christian Joppke, “Response to Sassen”, in Displacement, Asylum, Migration, 205.
On the liberalization of German and Belgian naturalization regimes, see Randall Hansen, “A European
citizenship or a Europe of citizens? Third country nationals in the EU”, Journal of Ethnic and
Migration Studies Vol. 24, No. 4: 757-758 [751-768] and Patrick Weil, “Access to Citizenship: A
comparison of Twenty-Five Nationality Laws” in Citizenship Today: Global Perspectives and
Practices. T. Alexander Aleinikoff and Douglas Klusmeyer (ed.) Carnegie Endowment for International
Peace. Washington, DC. 2001, p.17-35. See also “Reform of Germany’s citizenship and nationality
law”, German Embassy London,
http://www.london.diplo.de/Vertretung/london/en/06/other__legal__matters/Reform__Germanys__citiz
enship__seite.html
13
Although individuals born in Austria have a “privileged” access to citizenship, in terms of a reduced
waiting period for naturalization, as of 1998. See Patrick Weil, “Access to Citizenship: A Comparison
of Twenty-Five Nationality Laws”, in T. Alexander Aleinikoff and Douglas Klusmeyer, eds.,
Citizenship Today: Global Perspectives and Practices, (Washington: Carnegie Endowment for
International Peace, 2001), 30. Weil notes that “Foreign citizens born in Austria, however, still do not
have an individual entitlement to naturalization.”
14
Hansen, “A European citizenship or a Europe of citizens? Third country nationals in the EU”, p. 757760.
15
See Patrick Weil, “Access to Citizenship: A comparison of Twenty-Five Nationality Laws”, 29.
only to the third generation of immigrants, it substantially excludes the same people
as a jus sanguinis rule would (and possibly more, since individuals who have a distant
jus sanguinis claim would also be excluded) for at least two generations. France, the
home of double jus soli, has also substantially restricted access to citizenship
(although some of the more extreme provisions were repealed) especially for “thirdgeneration ‘colonial’ migrants”.16
More important, the Irish referendum marks part of a long trend of successful
agitation against unrestricted birthright citizenship in countries governed by the
Common Law tradition with which jus soli is traditionally associated. Australia
removed unrestricted birthright citizenship in 198617 and India in 1987.18 South Africa
required that one parent be either a citizen or permanent resident in the South African
Citizenship Act of 1995 (the South African case is complicated by the repressive
apartheid era approach to citizenship that preceded it)19 and New Zealand has
removed unrestricted jus soli as of January 1, 2006, for much the same reasons cited
in the case of the Irish Citizenship Referendum.20
Similar pressures to move away from unrestricted jus soli abound in the United States.
Over the past ten years, every Congress—including the last one—has seen the
introduction of amendments proposing citizenship proscription for the children of
some immigrants.21 FAIR, the Federation for American Immigration Reform, appeals
16
Hansen, “A European citizenship or a Europe of citizens? Third country nationals in the EU”, 757.
For an exceptionally helpful comparison of the French and American regimes regarding access to
citizenship, see John W. Guendelsberger, “Access to Citizenship for Children Born within the State to
Foreign Parents”, The American Journal of Comparative Law, Vol. 40, No. 2 (Spring, 1992), 379-429.
17
See “Australian Citizenship: Citizenship by birth in Australia”,
http://www.immi.gov.au/allforms/pdf/975i.pdf
18
Citizenship (Amendment) Act 1986. This was made more restrictive by denying citizenship to
children one of whose parents was illegally resident by The Citizenship (Amendment) Bill, 2003. See
http://rajyasabha.nic.in/legislative/amendbills/XXXIX_2003.pdf
19
http://home-affairs.pwv.gov.za/sa_citizenship.asp
20
http://www.citizenship.govt.nz/diawebsite.nsf/wpg_URL/Whats-new-Changes-to-Citizenship-byBirth-in-New-Zealand-from-2006-FAQs?OpenDocument. This site’s FAQs answers the question
“Why were the changes made?” by saying: “The Government chose to amend the Citizenship Act 1977
to recognise the value of New Zealand citizenship. The changes mean that a person cannot travel to
New Zealand on a temporary permit solely to give birth and gain New Zealand citizenship for the child
born in this country. By restricting citizenship by birth to the children of citizens and permanent
residents, the Act’s new provisions ensure that citizenship and its benefits are limited to people who
have a genuine and ongoing link to New Zealand.”
21
H.R. 698 109th Cong. Citizenship Reform Act of 2005 ; H.R. 814 (2005); H.J. Res. 42, 108th Cong.
(2003); H.J. Res. 44, 108th Cong. (2003); H.J. Res. 59, 107th Cong. (2001); H.J. Res. 10, 106th Cong.
(1999); H.J. Res. 4, 105th Cong. (1997); H.J. Res. 60, 105th Cong. (1997); H.J. Res. 56, 104th Cong.
(1995); H.J. Res. 64, 104th Cong. (1995); H.J. Res. 88, 104th Cong. (1995); H.J. Res. 190, 104th Cong.
to the example of the Irish Citizenship Referendum in its campaign to reinterpret the
Fourteenth Amendment to exclude the children of illegal aliens.22 A similar argument
has been made by Representative Tom Tancredo.23 As in the Irish case, FAIR’s
position emphasises the costs of births to “illegal alien mothers”, specifically citing
the California’s Medi-Cal programme. FAIR has also used the threat of disease to
make its case for restricting immigration.24 Friends of Immigration Law Enforcement
(FILE) argue that birthright citizenship is a threat to national security, citing the case
of Yaser Esam Hamdi, born in Louisiana to Saudi Arabian parents, raised in Saudi
Arabia and imprisoned as an “enemy combatant” after being captured allegedly
fighting with the Taliban.25 Once Hamdi’s citizenship status was known, he was
transferred from Guantanamo to naval prisons and his lawsuit challenging his
detention, Hamdi v. Rumsfeld, eventually was decided by the Supreme Court in 2004.
Both FILE, the Center for American Unity and a number of members of the House of
Representatives filed an Amicus Curiae brief urging an understanding of the
Fourteenth Amendment that would deny birthright citizenship to children of
individuals, like Hamdi’s parents, in the United States on work permits.26 This brief
has been used by print and broadcast commentator, Michelle Malkin, herself born to
parents present in the United States on work visas, to call for a reinterpretation of the
Fourteenth Amendment that would prevent the creation of “accidental Americans”.27
With the recent increase in anti-immigrant sentiment and the increasing adoption of
anti-immigrant legislation at the state or local level, it is not surprising that access to
citizenship has also been the subject of state legislation. Leo Berman, a Texas state
representative, has put forward a bill that would deny state benefits to the children of
undocumented immigrants, including U.S.-born children, because otherwise they and
their parents would be rewarded for committing the crime of crossing the border
(1995); H.J. Res. 117, 103rd Cong., (1993); H.J. Res. 129, 103rd Cong. (1993); H.J. Res. 396, 103rd
Cont., (1993).
22
See “Anchor Babies: the Children of Illegal Aliens”,
http://www.fairus.org/site/PageServer?pagename=iic_immigrationissuecenters4608. See also Garrett
Epps, “Happy 14th Amendment Day!”, salon.com,
http://www.law.uoregon.edu/faculty/gepps/happy14th.html
23
Tom Tancredo, “Birth rules degrade U.S. immigration”, The Mountain Mail, January 30, 2006.
http://www.themountainmail.com/main.asp?SectionID=7&SubSectionID=7&ArticleID=7180
24
“Latin American parasite surfacing in U.S.”, Houston Chronicle, March 15, 2007,
http://www.chron.com/disp/story.mpl/nation/4635657.html
25
"An accident of birth (or job assignment) isn't what citizenship is all about.",
http://fileus.org/dept/citizenship/hamdi/index.html
26
http://www.cfau.org/hamdi/amicusmerits.html
27
“What makes an American?”, Jewish World Review, July 4, 2003,
http://www.jewishworldreview.com/michelle/malkin070403.asp
illegally, including to give birth.28 The bill explicitly defines children born after the
date of its passage as “illegal aliens”, including U.S.-born children.29 Berman sees this
as an explicit attempt to alter the current interpretation of the Fourteenth
Amendment.30 In this way, the Irish Citizenship Referendum and its justifications are
central to the legal arguments of the most prominent anti-immigrant organisations and
legislators.
In the cases of Ireland and the US—including the former US Bracero programme and
other existing or proposed ‘guest worker’ programmes like the current H-2 Guest
Worker Programme—citizenship proscription serves not to prevent “aliens” from
working, but to create and maintain a dual and subjugated workforce.31 While the
government of Ireland successfully argued in the Supreme Court in 2003 that it could
constitutionally deport the non-citizen parents of a citizen child,32 then promoted the
citizenship referendum, it also moved to increase the number of immigrants. In
Ireland, non-nationals on work permits exceeded seekers of asylum by approximately
4 to 1 in 2002. A sharp reduction in asylum petitions means that the ratio is increasing,
although these figures are profoundly affected by the absence of work restrictions on
the citizens of the first ten accession countries, the new workers of which also serve
this role.33 Without social services and arriving from poor countries to a wealthy and
expensive one, accession country workers are almost in the same situation as ‘guest
workers’ and equally capable of being discouraged and disposed of by a sustained
economic downturn. As Aristide Zolberg notes, this is a “common solution” to two
conflicting demands on “industrial societies—to maximize the labour supply and to
28
Ellis Cose, “American-Born, But Still ‘Alien’?”, Newsweek, March 19, 2007.
See the text of the Bill, Texas HR 28, at:
http://www.capitol.state.tx.us/tlodocs/80R/billtext/html/HB00028I.htm.
30
For the intent to challenge the received interpretation of the Fourteenth Amendment, see “More
Apply to Be Citizens”, Dallas Morning News, March 19, 2007.
29
31
See Oasis: Information on Public Services,
http://www.oasis.gov.ie/employment/working_in_ireland/work_permits.html#id3113705 and
http://www.oasis.gov.ie/employment/working_in_ireland/work_visas_authorise.html. For a critical
view on how U.S. guest worker programmes tie workers to employers see: Southern
Poverty Law Center, Close to Slavery: Guestworker Programs in the United States.
Available at: http://www.splcenter.org/pdf/static/SPLCguestworker.pdf
32
L. & O. v Minister of Justice, 23 January, 2003.
Applications for asylum are down from the high of 11,634 in 2002 to 4314 applications in 2006. This
seems to be a result of the L. & O. decision of the Supreme Court, mentioned below. See also
Angelique Chrisafis, “Country’s emigrant past lies forgotten as Irish accused of racism,” The Guardian
21 June 2004, 3.
33
protect cultural integrity.”34 The solution is “to confine migrants strictly to their
economic role by reinforcing the barrier against citizenship, a legal device which can
be translated sociologically as the erection of a boundary within the territorial
confines of the receiving society to offset the consequences of physical entry.”35 This
analysis of the role that differentiated access to citizenship plays in maintaining
economic inequality has been generalised by migration theorists like Robin Cohen—
using the Bracero program as one example—and Nigel Harris.36 Cohen argues that
global capitalism requires differentiated access to citizenship and that the status of
being a “helot”—an unskilled worker from a poor country, as opposed to a denizen,
who may be a highly skilled worker from a rich country—is increasingly an “indelible
stigmata, determining a set of life chances, access to a particular kind of employment
or any employment and other indicators of privilege and good fortune.”37 Cohen
compares this status unfavourably with the case of immigration at the beginning of
the twentieth century. “The “huddled masses” that inform the Irish debate about
access to citizenship, Cohen notes, “threw off their poverty and feudal bondage to
enter the American dream as equal citizens.”38
Currently, Ireland’s immigrant workers do not enter the Irish dream as equal
participants. Workers on work permits are not allowed to change jobs and all of the
new workers are less likely to join unions or complain about ill treatment. The same
conditions prevail in US guest worker programmes. The scenario posed by immigrant
“insourcing” raises one of the central ethical questions surrounding globalisation:
whether or not it is acceptable for wealthy nations to impose policies and conditions
upon the citizens of poor countries that it would not normally impose upon their own
people.39 Immigration may not solve the problem of global inequality,40 but if, as
34
Aristide R. Zolberg, “International Migrations in Political Perspective, in Mary M. Kritz, Charles B.
Keeley and Silvano M. Tomasi, eds., Global Trends in Migration, (Staten Island: The Center for
Migration Studies of New York, 1981), 15.
35
Ibid. Zolberg cites slavery, apartheid and restrictions on Asians in the United States.
36
Robin Cohen, The New Helots: Migrants in the International Division of Labour, (Aldershot:
Avebury, 1987). For Cohen on the Bracero Program, see Chapter 2. See also his more recent research,
“Citizens, denizens and helots: the politics of international migration flows after 1945”, in Migration
and its Enemies. For Harris, see Nigel Harris, The New Untouchables, (London: I.B. Tauris, 1995)
37
Cohen, “Citizens, denizens and helots: the politics of international migration flows after 1945”, p.
152-153.
38
Ibid
39
Stiglitz, Globalization and its discontents, (New York: Norton, 2003).
40
On this see, Thomas Pogge, “Migration and Poverty”, in Veit Bader, ed., Citizenship and Exclusion,
(New York: St. Martin’s Press, 1997).
citizens of nations that have benefited from globalisation, we are to rely on immigrant
labour, we must make sure that that labour is not coerced. One of the ways that we
can do that is to give immigrants full access to the protections of citizenship.
One of the most significant recent turns in the debate surrounding globalization has
been a heightened understanding of the importance of taking human migration into
account when discussing globalization’s ethical and policy dimensions.41 With an eye
towards addressing this issue, both Mary Robinson and Joseph Stiglitz, have noted
that migrants in the current era of globalisation are exposed to anomalously high
levels of regulation vis-à-vis both the present flow of goods and capital. Robinson, in
particular, has followed this observation with the call for a “new language” about
migration, both to counteract resistance to immigration and to combat the xenophobia
that migrants face upon crossing national borders.42 Most political theory has focused
on the sovereign nation-state and the role of citizenship within it. Too many political
theorists have followed John Rawls in simplifying the theory of justice by considering
the “well-ordered society” as “a complete and closed social system.”43
Others,
including communitarians like Michael Walzer, have affirmed this state-centred
emphasis for the consideration of actual states or communities and have approved of
restrictive immigration policies.44 Recently, however, a number of philosophers and
political theorists have begun to consider the international implications of our theories
of justice, including the implications for immigration. A number of theorists have
concluded that this national focus and the restrictive immigration policies it purports
to justify cannot be defended and have advocated open or much less restrictive
41
For historical works, see, e.g., Timothy J. Hatton and Jeffrey G. Williamson, The Age of Mass
Migration: Causes and Economic Impact (New York: Oxford University Press, 1998); Kevin O’Rourke
and Jeffrey G. Williamson, Globalization and History: The Evolution of a Nineteenth-Century Atlantic
Economy (Cambridge, Mass.: MIT Press, 1999). For sociological works, see, e.g., Cohen, Robin,
Migration and its Enemies, (Aldershot: Ashgate, 2006) and Saskia Sassen, ‘The Repositioning of
Citizenship and Alienage: Emergent Subjects and Spaces for Politics’ in Kate E. Tunstall, ed.,
Displacement, Asylum, Migration, (Oxford: Oxford University Press, 2006). On the need for political
theorists to reconsider migration, see, among many others, Schwartz, Warren F., ed., Justice in
Immigration, (Cambridge: Cambridge University Press, 1995), Seyla Benhabib, ‘Citizens, Residents,
and Aliens in a Changing World: Political Membership in the Global Era’, Social Research, Vol. 66,
No. 3, Fall 1999; Brian Barry and Robert E. Goodin, eds., Free Movement, (University Park, PA:
University of Pennsylvania Press, 1992).
42
For example, at the launch of the Report of the Global Commission on Migration, of which she is a
member. See
http://www.compas.ox.ac.uk/events/Reports%20Presentations/GCIM_Introduction_and_Commissioner
s.pdf
43
John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 41.
44
See Michael Walzer, Spheres of Justice, (New York: Basic Books, 1983).
immigration policies.45 In the aspect of migration under consideration, it is clear that a
concern for equality—whether of equal rights, opportunities or shares—requires
access to citizenship for the children of migrants, born in Ireland, and, through them,
for their parents. There is no justification for honouring migrants’ rights to movement
in terms of entering a wealthy country, only to deny them the substances of other
rights on their arrival. The Citizenship Referendum, however, does just that: it takes
away this opportunity for equality of treatment and with it a crucial entitlement of
some of the worst off people in Irish society. Such treatment violates, for example,
both the liberty and difference principles of Rawls’s theory of justice. The first
principle proclaims the importance of equal liberty for all participants in the social
‘scheme of cooperation’, the second principle that inequalities be for the benefit of the
least well off class in society. Migrant workers in Ireland and the United States have a
very good claim to be the least well off class in society: unlike the indigenous poor,
they lack social benefits, and are thus vulnerable to exploitation and unemployment,
both of which threaten an inability to meet basic needs.
An increased reliance on migrant labour accords with some of the government’s
central policy directives: checking inflation (which gained Ireland the censure of the
EU in the late 1990s), and maintaining low levels of taxation. The tremendous
growth of the Irish economy in the past decade has also seen a correspondingly rapid
rise in wages. Although this rise has provided the government with just cause for
satisfaction, it also caused it concern by raising the twin spectres of inflation and
protracted, expensive demands for further pay increases. Migrant labour addresses
both of these issues: the recruitment of 5,000 Filipino nurses, for example, averted a
near-catastrophic labour shortage that threatened to cripple the health service. It did
so, more importantly, while limiting expansionary or inflationary alternatives such as
further increases in outlay for the pay, training, and recruitment of Irish or EU nurses.
In even less well-paid industries like hospitality services or domestic work, many
immigrants work for the Irish minimum wage or less.46
45
See, e.g., Benhabib; Joseph H. Carens. ‘Aliens and Citizens: The Case for Open Borders’, The
Review of Politics 49. For an activist’s view, see Teresa Hayter, Open Borders: The Case Against
Immigration Controls, (London: Pluto Press, 2000).
46
Migration Policy and the Rights of Workers,
http://www.ictu.ie/html/publications/ictu/Migrant%20Policy.pdf
Conclusion: why jus soli matters
Why, three years after the referendum was passed, should we continue to
contest it and to reinvigorate the study and defence of unrestricted jus soli? The first
answer is that the need for an ethical response to globalisation demands it. The
movement of capital and persons and the dynamics of international labour markets
mean that we must take an interest not just in migrations across the American or Irish
border, but in migrations across all borders.
In so doing, we must be sure to
understand how citizenship, like immigration policy, creates borders between the
global haves and the global have-nots. Just as the trade policies and farm subsidies of
the European Union are relevant for an understanding of the ethical dimensions of
U.S. trade policy and vice versa, so the citizenship regulations of European Union
states are relevant for the ethical consideration of U.S. citizenship regulation and vice
versa. In both these fields of movement, whether of goods or people, the chief ethical
concern is the impact of these policies on the poorest people on earth. They are the
ones whose livelihoods in their home countries are compromised by inequitable trade
relations, among other factors, and who come to our wealthy countries only to be
exploited under our inequitable civic relations.