Human Rights Commission
Observations on the
Proposed Referendum on Citizenship and on the
27th Amendment to the Constitution Bill 2004
25th May, 2004
Background to the Referendum and Outline of Commission Observations
In March of this year the Government announced its intention to hold a referendum on
the issue of Irish citizenship. On April 6th the Government indicated that it proposed
to hold the referendum on June 11th 2004, coinciding with local authority and
European Parliament elections and on April 8th the Government published a Proposals
Paper outlining and explaining the proposed constitutional amendment. The
Proposals Paper provides background information on the issue and includes a draft
Nationality and Citizenship Bill, which the Government intends to introduce should
the amendment be approved at referendum.
The Twenty-seventh Amendment of the Constitution Bill 2004 proposes a new
section be added to Article 9 of the Constitution to read:
“9.2.1 Notwithstanding any other provision of this Constitution, a person
born in the island of Ireland, which includes its islands and its seas,
who does not have, at the time of his or her birth, at least one parent
who is an Irish citizen or entitled to be an Irish citizen is not entitled to
Irish citizenship or nationality, unless otherwise provided for by law.
9.2.2 This section shall not apply to persons born before the date of the
enactment of this section.”
The proposed new section would be inserted between the existing Article 9.1 and 9.2
(now to be 9.3). The stated object of the Twenty-seventh Amendment of the
Constitution Bill, as outlined in the Government’s Proposals Paper, is to restore to the
Oireachtas the power to legislate for citizenship in relation to persons born on the
island. As also outlined in the Proposals Paper, this power was removed by the
Nineteenth Amendment to the Constitution following from an obligation entered into
by the Irish Government under the Agreement signed by the British and Irish
Governments on April 10th 1998 (hereafter referred to as the British-Irish Agreement)
and under the agreement reached in the Multi-Party Negotiations in Northern Ireland
(hereafter the Multi-Party Agreement). These two agreements are collectively known
as the Good Friday or Belfast Agreement.
On April 7th, the President of the Commission wrote to the Minister for Justice,
Equality and Law Reform expressing concern regarding a number of aspects of the
proposed referendum, emphasising in particular the short timeframe that was
available for consideration of the matter. The President went on to request of the
Minister:
“In order that the Commission can fully discharge its statutory responsibility
under Section 8(a), 8(c), 8(d) and 8(i) of the Human Rights Commission Act
2000, we would be obliged if we could have the earliest possible sight of the
proposed referendum wording and any accompanying legislation.”
On April 13th 2004, the Private Secretary to the Minister replied to the President
requesting that the Commission should consider the draft Irish Nationality and
Citizenship (Amendment) Bill, in accordance with the Commission’s function under
section 8 (b) of the Human Rights Commission Act.
1
The principal effect of the proposed amendment would be to remove the automatic
right to Irish citizenship of children of non-nationals born in the State, subsequent to
which legislation will re-establish rights to citizenship in relation to a limited category
of such children. The introduction of the draft Irish Nationality and Citizenship
(Amendment) Bill 2004 is contingent on the passing of the referendum, and the
Commission notes that the Government has indicated that it intends to introduce and
accept substantive amendments to the existing draft in the Oireachtas, should the
referendum be carried.
The Commission welcomes the referral by the Minister of the proposed draft
legislation. However, the Commission reiterates its initial view, as expressed in the
President’s correspondence of April 7th, that the proposed referendum may in itself
raise issues relating to the protection of human rights. In the circumstances, therefore,
the Commission wishes to focus its analysis here on the proposed constitutional
amendment and the Twenty-seventh Amendment to the Constitution Bill 2004, and to
reserve any analysis of the published draft Irish Nationality and Citizenship
(Amendment) Bill 2004 at this point. However, if the referendum is passed it is likely
that the Commission would wish to make detailed comments about the parameters of
any future citizenship legislation and its potential impact on particular groups within
Irish society.
At the outset the Commission wishes to state that, in examining the proposed
constitutional amendment, it does not perceive its role as being to advocate for or
against the proposal. The remit of the Human Rights Commission as set out in the
Human Rights Commission Act 2000 is to review law and practice within the state
with reference to the human rights standards set out in the Constitution and in
international treaties to which Ireland is a party (section 8 (a) of the Act), and to make
recommendations to Government, either of its own volition or on being requested to
do so by Government in respect of “measures which the Commission considers
should be taken to strengthen, protect and uphold human rights in the State” (section 8
(d) of the Act). The Commission also has functions to consult with such national and
international bodies as it sees fit (section 8 (c) of the Act) and to take whatever action
is necessary to participate in the Joint Committee of the two human rights
commissions on the island (section 8 (i) of the Act), as is set out in the Multi-Party
Agreement referred to above (the role of the Joint Committee is discussed below at
section 3). The Commission is also prescribed a specific role under the UN
Convention on the Rights of the Child to monitor and make recommendations on any
initiative that potentially affects the rights of children within the State (see section 2
below).
Therefore, in addressing the present issue, the Commission aims to highlight the
human rights issues that may arise in the context of the proposed amendment, to
seek clarification in relation to those issues and to make recommendations as to
how they may be addressed where that is possible. The analysis contained in this
submission is based on the principles of respect for the human rights of the child and
the best interests of all children within the State, and assesses the proposed
amendment and associated legislative proposals against the existing guarantees of
rights contained in the Constitution, the British-Irish Agreement and international
human rights treaties.
2
In the view of the Commission the present issue is one instance of a much broader
issue relating to the protection of the human rights of persons who are not nationals of
Ireland and their children. The Commission is cognisant that there are many and
complex difficulties relating to the legal status and protection of migrants and their
children in Ireland and that the present initiative must be seen in the context of
national immigration policy. In this context, the Commission, while fully recognising
the legitimate role of the State in regulating inward migration, residency in the State
and national citizenship, is committed to contributing in whatever way it can to
developing an Irish immigration policy which is based on respect for the human rights
of migrants. To this end the Commission has recently published, together with the
National Consultative Committee on Racism and Interculturalism, a report setting out
the human rights standards which should inform policy with regard to migrant
workers and their families.1
In relation to previous legislative initiatives in this area, the Commission made a
submission to the Minister for Justice, Equality and Law Reform in October 2003
expressing its concern at the proposed deportation of non-national parents of Irish
citizen children, subsequent to the Supreme Court decision in the L. and O. cases,2
and the potential effect of those deportations on the rights of the children involved; it
also commented on the impact of the Immigration Bill 2004 on the protection of the
right to asylum as guaranteed under international human rights law.3 In both areas of
policy it is clear to the Commission that existing Irish law does not adequately protect
the rights of persons, including children, who are not Irish nationals.
The current proposal to remove a group of persons born in Ireland from the category
of persons who enjoy citizenship and the grouping of other rights which flow from
citizenship must therefore be viewed in the context of a much broader question of
how the State aims to protect the human rights of migrants and other non-citizens
within the State. The Commission’s analysis of Irish constitutional law, drawing from
the analysis of the Constitution Review Group and the leading academic authorities in
the area, suggests that there are competing interpretations of the current legal position
on this point. One line of interpretation suggests that, in general, the courts do afford
constitutional protection to the fundamental rights of non-citizens, while a competing
line of interpretation suggests that the constitutional protection of the fundamental
rights of non-citizens is uncertain in a number of respects and in section 1 below we
set out both arguments. The conclusion reached by the Commission is that there is at
least a legitimate question as to the constitutional protection of the fundamental rights
of non-citizens and against that legal background any proposal to change Irish
citizenship law should demonstrate a full consideration of the likely impact of the
proposed change on the affected persons
Our analysis of the obligations of the State under international human rights law
points to two principles which are of particular relevance in the present context.
Under the Convention on the Rights of the Child, the Government is obliged to
1
Safeguarding the Rights of Migrant Workers and their Families, Joint Human Rights
Commission/NCCRI Publication, April 2004, available at www.ihrc.ie.
2
Position of Non-National Parents and their Irish-Born Children, October 2003,
available at www.ihrc.ie.
3
Preliminary Observations of the Human Rights Commission on the Immigration Bill
2004, available at www.ihrc.ie.
3
consider the best interests of the child as a primary consideration in bringing forward
any legislative initiative that might impact on children’s enjoyment of fundamental
rights. Also, under the International Covenant on Civil and Political Rights the
Government has an obligation to ensure and to demonstrate that any legislative
initiative does not impact in a discriminatory fashion on any particular group in
society, and that where it does, there must be an objective and reasonable justification
for so doing. The Commission concludes that the present proposal must be justified
by a clear and demonstrable necessity that is acceptable under the principles of
international human rights law. Finally, the Commission believes that there is also
some uncertainty as to the potential impact of the proposed amendment and the
obligations of the State under the Good Friday Agreement.
In conclusion, the Commission is primarily concerned that the process which has been
adopted in bringing forward the present proposal for constitutional amendment has
not facilitated proper consideration of the human rights issues that the proposal raises.
The Commission regrets, in particular, that it was not consulted on this matter at an
earlier point. From a human rights perspective any proposal for significant legal
change, particularly a change in the fundamental law of the State, must be premised
on a full consideration of the human rights consequences of that. In the present case,
the onus to demonstrate that pressing social need and the proportionate and nondiscriminatory nature of the proposed response lies with the Government. In the view
of the Commission, it is questionable whether that burden has adequately been met.
In the context of the decision to hold a popular referendum on the issue, the
Commission hopes that further information will be put before the public to meet these
requirements.
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1.
Citizenship and Rights under the Irish Constitution
1.1
Citizenship in Irish law
At present Irish citizenship is bestowed by Article 9 of Bunreacht na hEireann.
Article 2 also confers the right or entitlement to membership of the Irish Nation of
persons born on the island of Ireland. Article 9.1.1 states that all persons who
previously had been citizens of Saorstat Eireann qualify as citizens. The 1922
Constitution and the Citizenship Act 1935 had granted citizenship to all persons
domiciled in Ireland who were born in the Irish Free State or one of whose parents
had been born in Ireland. Section 2 of the 1935 Act also granted a right of citizenship
to any person whose father had been a citizen of Saorstat Eireann.
Article 9.1.2 of the Constitution goes on to state that future citizenship will be
determined by law. The relevant legislation is found in the Irish Nationality and
Citizenship Acts, 1956-2001. Section 6 (1) of the 1956 Act states that every person
born on the island of Ireland is an Irish citizen from birth. No restrictions were
imposed on the basis of the nationality of a child’s parents, although section 6 (5) of
the 1956 Act excludes from the general definition of citizenship the children of
diplomats. Article 9.1.3 of the Constitution proscribes any discrimination in
citizenship on the basis of gender, as had pertained under the 1935 Act and Article 9.2
of the Constitution provides that in tandem with the rights that derive from
citizenship, citizens also have duties of fidelity and loyalty to the Nation and to the
State.
The Irish Nationality and Citizenship Act 2001 amended some of the provisions of the
1956 Act, including section 6 which now reads:
“6
(1)
Every person born on the island of Ireland is entitled to be an
Irish citizen.
(2) (a) Subject to subsections (4) and (5), a person born in the island
of Ireland is an Irish citizen from birth if he or she does, or if
not of full age has done on his or her behalf, any act which only
an Irish citizen is entitled to do.
(b) The fact that a person so born has not done, or has not had done
on his or her behalf, such an act shall not of itself give rise to a
presumption that the person is not an Irish citizen or is a citizen
of another country.
(3)
A person born in the island of Ireland is an Irish citizen from
birth if he or she is not entitled to citizenship of any other
country.”
Therefore, the 2001 Act retains the general principle of citizenship by birth (jus soli)
in Irish law. Section 6 (4) of the 2001 Act retains a limited exclusion from citizenship
of the children of diplomats and persons born on a foreign ship or foreign aircraft
within the territory of the State. The Irish Nationality and Citizenship Acts 19562001 also provide for citizenship by descent and by naturalisation.
5
1.2
The rights that flow from citizenship
A curious feature of the Irish Constitution is that some of the rights protected under
the Constitution refer explicitly to citizens while others do not. For instance, the
provisions under Article 41 relating to the right to family life and under Article 42
relating to the right to education contain no reference to being restricted to citizens;
whereas Article 40, which provides for rights to equal treatment, to freedom of
association, to freedom of expression and other rights, including unenumerated rights,
does refer specifically to citizens. A notable example of this difference can be seen
in Article 40.4.1 which provides that “no citizen shall be deprived of his personal
liberty save in accordance with law”, while the following provisions relating to
habeas corpus explicitly apply to “any person”.
This distinction would be of only academic interest if both citizens and non-citizens
were treated equally before the courts in respect of the vindication of the relevant
constitutional rights. There are competing views among commentators and academics
as to the significance of the references to the rights of ‘citizens’ as opposed to
‘persons’. One train of analysis holds that, in general, the courts have applied
fundamental rights universally to citizens and non-citizens alike, while another line of
reasoning contends that the application of constitutional rights to non-citizens has
been inconsistent. In the following sections, the Commission sets out the main caselaw in this area as an illustration of the complexity of this issue.
1.2.1 Non-citizens and access to the courts
In relation to locus standi, Kelly, the leading academic authority on the Constitution,
concludes that,
“The courts now appear to lean against drawing any distinction based on
citizenship for the purpose of locus standi, at least in cases involving
fundamental rights”4
Kelly refers to the case of Re Article 26 and the Illegal Immigrants (Trafficking) Bill
19995 which contains a clear statement of the law on this point, stating that,
“It would be contrary to the very notion of a state founded on the rule of law,
as this State is, … if all persons within the jurisdiction, including nonnationals, did not, in principle, have a constitutionally protected right of access
to the courts to enforce their legal rights.”6
Therefore on the point of the right to raise issues of fundamental rights in the courts,
there is, in principle, no distinction between citizens and non-citizens, although in that
4
Kelly, The Irish Constitution, (4th ed. by G. Hogan & G. Whyte), 2003 at para.
6.2.122.
5
[2000] 2 IR 360
6
Ibid. at para. 56 of the judgment.
6
case, the Supreme Court did acknowledge that in certain circumstances the rights of
access to the courts of non-citizens might be restricted or subject to certain conditions
that do not pertain to citizens.
1.2.2 Non-citizens and the fundamental rights under Article 40
The position with regard to the extent of protection of rights that is then afforded by
the courts is more complex. Kelly notes that “[t]he case law …. contains a range of
views”7 on whether non-citizens are able to rely on the fundamental rights provisions
of the Constitution, or at the very least, those provisions which explicitly
acknowledge a natural law origin. On an analysis of the case-law Kelly concludes
that “[a] number of decisions and dicta deny or cast doubt on the proposition that
aliens can rely on the fundamental rights provisions of the Constitution.”8
In the Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 case mentioned
above, the Supreme Court was directly concerned with the right to bring legal
proceedings, but did refer to the broader issue of the legal rights of non-citizens,
stating,
“…The rights, including fundamental rights, to which non-nationals may be
entitled under the Constitution, do not always coincide with the rights
protected as regards citizens of the State, the right not to be deported being an
obvious and relevant example.”
It is self-evident that the State should have a right to deport non-citizens; however
what of the wider question of other rights that do not coincide with those of citizens?
Article 40 is a crucial Article in the Constitution so far as human rights are concerned.
Article 40.1 guarantees equality for citizens and Article 40.3 guarantees protection for
the personal rights of citizens. Kelly refers to the decision of The State (Nicolaou) v
An Bórd Uchtála.9 In the High Court consideration of that case, differing views were
expressed on the entitlement of the father to make this claim. In his judgment in that
case, Henchy J quoted the text of Article 40.1 and Article 40.3.1. He went on to state:
“[I]t is important to remember that Articles 40, 41, 42, 43 and 44 are headed,
‘Fundamental Rights’. Article 40 is sub-headed, ‘Personal Rights’, Article
41, ‘The Family’, Article 42, ‘Education’, Article 43, ‘Private Property’, and
Article 44, ‘Religion’. When one reads through these five Articles one
sees that certain of the fundamental rights laid down are stated in terms of the
citizen and others in terms which are not restricted by the test of citizenship.
This is understandable, and, in some cases, necessary, when one considers the
nature and scope of the rights protected by these Articles.
It is not, therefore, possible to say that the words ‘citizens’ or ‘citizen’ are
equivalent to ‘persons’ or ‘person’ throughout these Articles.
7
Kelly at para. 7.1.31.
Kelly, para. 7.1.32.
9
[1966] IR 567.
8
7
…
The purpose of Article 40.3 of the Constitution – and of other provisions with
which I need not concern myself – is to state a constitutional right which
attaches to citizenship and falls as a duty on the State. It is only a citizen who
can claim that right, and he is entitled to it as a constitutional incident of his
citizenship. The prosecutor, being an alien, has no claim to it.”
In the same case Teevan J came to a different conclusion. He stated:
“There must, of course, be many cases wherein the non-citizen must submit to
a position of un-equality with the citizen, where the law will deny to the noncitizen privileges and legal remedies enjoyed by the citizen. Where, however,
there is no conflict between the common good and the right sought to be
asserted by a non-citizen, I do not think the Court should feel obliged willynilly to refuse to hear the non-citizen’s plaint; that is to say where, if his case
be well founded otherwise, his own personal rights are involved… In my view
it is one for discernment according to the particular circumstance. ”
Teevan J’s analysis fell well short of the conclusion that citizenship is irrelevant to the
scope of the constitutional protection. Its thrust rather is to deny the absolute
proposition that non-citizenship is invariably fatal to a claim for such protection
afforded by Article 40. On appeal, the Supreme Court did not attempt to resolve the
question.
Another case in which the application of the protection of the right to life under
Article 40 was extended to non-citizens was Finn v Attorney General.10, where
Barrington J, obiter, also adopted a natural law perspective in concluding that:
“[t]he fact that the wording of Article 40.3 commits the State to protect and
vindicate the life of ‘every citizen’ does not justify the inference that it
relieves the State of the obligation to defend and vindicate the lives of persons
who are not citizens.”
However, in relation to the equality provisions of Article 40.1, Kelly states that
another line of precedent indicates that Article 40.1 cannot be restricted in its
application to citizens. Kelly refers to the case of Re Article 26 and the Employment
Equality Bill 1996,11 which again appears to apply a view of fundamental rights close
to natural law theory, stating that Article 40.1 and other provisions of the Constitution
do not bestow any rights that a person would not anyway enjoy as a human being.
Kelly summarises the general position as being that non-citizens do not always have
to be treated equally in all circumstances, but neither can there be an assumption that
non-citizens are as legal persons inferior to citizens.12
10
[1983] IR 154
[1997] 2 IR 321
12
Kelly at para. 7.2.58.
11
8
Kelly notes that in cases dealing with matters of procedural rights within the criminal
justice system, there appears to be a consistent application of the fundamental rights
provisions of the Constitution to all persons, regardless of citizenship.13 In Re Article
26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill 199914, a case also
concerned with the right to liberty, Keane CJ summarised the constitutional position
of non-citizens who are not entitled be in the State in the following terms:
“[A] person who is not entitled to be in the State cannot enjoy constitutional
rights which are coextensive with the constitutional rights of citizens and
persons lawfully residing in the State. There would, however, be a
constitutional obligation to uphold the human rights of the person affected
which are recognised, expressly or by implication, by the Constitution,
although they are not coextensive with the citizen’s constitutional rights.”
While in this case Keane CJ was extending the habeas corpus provisions of the
Constitution to non-citizens, his dicta points toward a distinction between
constitutional rights that are ‘coextensive’ with citizenship and those that are not.
Against the background of these conflicting lines of reasoning on the extent of the
constitutional protection of non-citizens, the Constitution Review Group examined the
question of whether the guarantee of equality in Article 40 should be explicitly
extended to non-citizens and in its analysis the Group concluded,
“…Equality before the law is a fundamental human right, and fundamental
human rights inhere in all human beings by virtue of their humanity not
merely in citizens. Extension of the guarantee to everyone does not preclude
the State from distinguishing between citizens and non-citizens where there is
a legitimate reason for so doing, for example in relation to voting and
immigration.”
The Constitutional Review Group goes on to recommend, “[T]hat the guarantee of
equality should not be confined to citizens, but should be extended to all individuals”.
The Group also recommended the replacement of the word ‘citizen’ with ‘person’ in
Articles 40.3.1, 40.4, 40.5, 40.6.1 iii, and 44.2.1.
1.2.3 Non-citizens and family rights under Article 41 and 42
Even where the relevant constitutional provisions are not expressly limited to citizens,
it can be argued that a degree of uncertainty prevails. Article 41 of the Constitution
sets out a number of rights in relation to family life and Article 42 provides for rights
in the sphere of education, including the right to free primary education. Both
Articles are not explicitly limited to citizens and are therefore implicictly applicable to
13
14
Kelly at para.s 7.1.36 and 7.1.41.
[2000] IR 360
9
all human persons. In the case of Northants Co. Council v. ABF,15 a case involving an
adoption order, Hamilton J based his judgment on natural law theory, stating,
“The natural law is of universal application and applies to all human persons,
be they citizens of the State or not, and it would be inconceivable that the
father of the infant child would not be entitled to rely on the recognition of the
family contained in Article 41.”16
However, a number of decisions of the Irish courts relating to Articles 41 and 42 have
held that non-citizens are not automatically entitled to invoke such protection. This
view finds expression in the decisions of Finlay CJ in Kent County Council v. CS17
and Saunders v. Mid-Western Health Board18, where aliens were denied the right to
invoke Articles 41 and 42 with a view to avoiding the jurisdiction of foreign court
orders against them, and also in the decision of the Supreme Court in Fajujonu v
Minister for Justice19where aliens were prohibited from relying on any constitutional
right to reside in the State. The more recent decision of the Supreme Court in
Osayande v Minister for Justice, Equality and Law Reform20 endorses the view of
Walsh J in Fajojonu that enjoyment of fundamental rights is contingent on the extent
of the person’s relationship with the State.
Kelly concludes thus,
“At the end of the day, there would appear to be no fewer than three positions
articulated in the case law on the position of aliens under Articles 41 and 42.
At one end of the spectrum is the argument that, given that the rights protected
by these Articles are grounded in the natural law, they apply to citizen and
alien alike. An intermediate position appears to make the application of those
Articles to aliens contingent on the latter having established roots in the
country while, finally, support can be found for the view that aliens have no
rights whatsoever under Articles 41 and 42.”21
1.3
The proposed insertion of new clause Article 9.2 “Notwithstanding any
other provision in the Constitution”
The substance of the proposed amendment is the insertion of a new clause 9.2
providing that, “notwithstanding any other provision of the Constitution”, persons
born in Ireland without at least one parent who is entitled to Irish citizenship will not
be regarded as Irish citizens, save as may be provided by legislation. A general
principle of constitutional interpretation is that the Constitution as a legal document
should be read in its totality and the proposed insertion of the ‘notwithstanding any
15
[1982] ILRM 164.
Ibid. at p 166.
17
[1984] ILRM 292
18
Supreme Court judgment of 23rd June 1987.
19
[1990] 2 IR 151.
20
[2003] 1 IR 1
21
Kelly at para. 7.6.52
16
10
other provision of the Constitution’ is unusual and it is not immediately clear what the
significance of this provision might be. The relationship of this new provision with
two specific existing provisions in the Constitution raises particular concerns.
1.3.1 Relationship with Article 2 of the Constitution
The Nineteenth Amendment to the Constitution, implementing the State’s obligations
under the Good Friday Agreement, amended Article 2 of the Constitution to read,
“It is the entitlement and birthright of every person born on the island of
Ireland, which includes its islands and seas, to be part of the Irish Nation.
That is also the entitlement of all persons qualified by law to be citizens of
Ireland. Furthermore, the Irish Nation cherishes its special affinity with
people of Irish ancestry living abroad who share its cultural identity and
heritage.”
Given that Article 2 of the Constitution bestows membership of the Irish Nation on all
persons born in the island, it might be thought that the proposed new clause is
intended to refer to Article 2. On the face of it at least, there appears to be some
conflict between excluding a category of children born in the State from Irish
citizenship and nationality, while they nevertheless retain an entitlement to
membership of the Irish Nation. Article 2 of the Constitution clearly grants an
entitlement to all persons born in the island and would appear to be unambiguous in
this respect. It is not clear what significance, if any, ‘entitlement and birthright to be
part of the Irish Nation’ will have in practice or how the Irish courts might interpret
the entitlements under Article 2 of persons who are part of the Irish Nation, but who
would be explicitly excluded from entitlement to Irish citizenship or nationality under
the proposed amendment.22
In this regard the Commission notes that the
Government’s own Proposals Paper states at paragraph 2 that the power to legislate
for citizenship in a way that could exclude persons born on the island of Ireland has
not been available since the passing of the Nineteenth Amendment of the Constitution
Act, which amended Article 2.
1.3.2 Relationship with the fundamental rights provisions of the Constitution
Although it might be thought that the ‘notwithstanding’ clause in the proposed
amendment is intended to refer primarily to Article 2 of the Constitution, the
amendment is not so restricted in its application and refers to ‘any other provision’ of
the Constitution. This would suggest that the exclusion from citizenship of this
category of children overrides other constitutional provisions as well as Article 2,
including the fundamental rights provisions contained in Articles 40-44. The
application of the phrase ‘notwithstanding any other provision of the Constitution’
may also be interpreted as applying to subsequent legislation which might confer
22
The relationship between the proposed amendment and Article 2 of the
Constitution, as it impacts on the Good Friday Agreement, is discussed further in
section 3 below.
11
citizenship on some category or categories of children of non-nationals to the
exclusion of others.
The significance of this point is that should future citizenship legislation provide for
citizenship criteria that might be deemed to be unreasonably discriminatory, the right
of persons excluded from citizenship on this basis to challenge that legislation might
be frustrated. As indicated above the issue of the substance of any future citizenship
legislation is beyond the scope of the present analysis, however the Commission
raises the point here because it is unclear as to the intended meaning of the
‘notwithstanding’ clause in relation to provisions of the Constitution other than
Article 2. The Commission would welcome clarification on this point.
1.4
Conclusion
In the view of the Commission, the question of the constitutional protection of noncitizens raises broader questions than those presented by the present proposal to
restrict the citizenship rights of children born in Ireland, and emphasises again the
complex issues relating to the legal position of all non-citizens within the jurisdiction
of the State. We note, in particular, the Constitution Review Group’s proposal to
extend the protections afforded under Article 40 of the Constitution to all persons. In
the view of the Commission, if the recommendations of the Constitutional Review
Group in this regard were to be accepted, many of the constitutional human rights
concerns outlined above would be resolved or at least clarified. However, in the
absence of any proposal to explicitly extend all constitutional rights to non-citizens,
the Commission believes that legitimate questions arise about the possible
consequences of removing a category of children from entitlement to citizenship.
The Commission’s analysis of the relevant constitutional law is that qualification for
citizenship makes the enjoyment of constitutional rights certain, whereas denial of
citizenship raises at least a question as to the extent of that person’s enjoyment of
fundamental rights. The Commission notes that the Minister for Justice, Equality and
Law Reform has stated that, in his opinion, all of the fundamental rights provisions of
the Constitution apply to all persons within the State. While the Commission accepts
that the Minister’s analysis has some support in the case-law, it is not convinced that
the authorities are as certain as has been suggested.
The Commission is also concerned at the potential implications of the
“notwithstanding any other provision of the Constitution” aspect of the proposed
amendment. On the one hand, the clause has implications for any future
interpretation of the entitlement set out in Article 2 of the Constitution. On the other
hand, the clause is not restricted to the relationship between Article 9 and Article 2 of
the Constitution and the Government’s Proposals Paper does not address the possible
impact of the proposed amendment on other provisions in the Constitution, including
the fundamental rights provisions in Articles 40-44. In particular, the Commission is
concerned at whether the proposed clause might have the effect of frustrating the
rights of persons denied citizenship to challenge any future citizenship legislation that
might conflict with the fundamental rights provisions of the Constitution.
12
A wider issue than the discrete issue of citizenship is the question of how any
significant area of constitutional change should be approached. In the view of the
Commission, the principles of human rights law provide standards against which any
proposal for constitutional change should be considered. The key relevant principle is
that any proposal for constitutional change must be accompanied by a serious and
comprehensive consideration of the potential impact of the proposed change on the
enjoyment of constitutional and human rights. While the Government has stated that
human rights concerns have been considered by the Office of the Attorney General in
preparing the present proposals, it is not apparent to the Commission that a
comprehensive consideration of the human rights consequences of the proposed
referendum has taken place, nor has an account if any such consideration been placed
in the public domain. In this regard, the Commission is concerned that the
Government chose not to consult with the Human Rights Commission, or indeed the
All-Party Committee on the Constitution in advance of publishing the proposed Bill,
or in advance of taking the decision to proceed with a referendum on this issue.
13
2.
Relevant International Human Rights Standards
A foundational aspect of human rights theory, which finds general expression in
international human rights treaties, is that human rights are universal and grounded in
a belief in the inherent dignity of every human person. On this principle, the human
rights obligations of the State under the international treaties to which it is a party
apply not only to the State’s own nationals or citizens, but to all those within the
territory of the State, and even in some cases to persons outside the State. Article 2
of the Universal Declaration of Human Rights states,
“Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under
any other limitation of sovereignty.”
This principle is reflected in subsequent human rights treaties, including the European
Convention on Human Rights. The Commission wishes to emphasise that, while
certain rights may be restricted at the national level to citizens, many of the State’s
international human rights obligations apply to both citizens and non-citizens within
the jurisdiction of the State and do not discriminate between nationals or citizens and
others, just as they do not discriminate on the basis of gender, religion, race or any
other ground.
2.1
International perspectives on the differential treatment of citizens and
non-citizens
While the Commission accepts that amending citizenship law falls within national
discretion and does not, in itself, necessarily affect human rights protection,
citizenship and the restriction thereof may have practical and legal significance at the
national level which can indirectly affect the protection of human rights. Ireland, like
many other states, discriminates in many areas of legislation in its treatment of those
within its territory on the basis of their legal status as citizens or as aliens. The
Government Proposals Paper states that,
“By becoming an Irish citizen and thus an EU citizen, a person acquires
significant rights throughout the territory of the European Union, as well as
significant social, political and economic rights within Irish society.”23
23
Government Proposals Paper at para. 3.
14
Achieving equal human rights protection of non-citizens is a challenge for all states,
but standards can be used to assess how different states meet that challenge. An
international perspective on the constitutional position of non-citizens in Ireland can
be seen in the First Report of the European Commission against Racism and
Intolerance (ECRI) in respect of Ireland made public in September 1997.24 The report
stated,
“4….As regards the rights of non-citizens in Ireland, the position is less clear.
Many of the rights referred to in the Constitution are guaranteed for citizens,
however existing jurisprudence has applied many of these rights to noncitizens. Moreover, the extent to which these Constitutional guarantees may
be relied upon otherwise than against the State has been the subject of some
uncertainty and it is clear that not all cases of private discrimination would be
held to be unlawful.
5. ECRI considers that consideration should be given to the possibility of
adopting a constitutional amendment expressly ensuring equality and other
human rights for all individuals under Irish jurisdiction, not just for Irish
citizens. Although some distinctions may be necessary under certain
circumstances, such distinctions should only be made when justified in a
democratic society and prescribed by law.”
The Irish constitutional position can be contrasted with the legal status of non-citizens
in several other European states which afford constitutional protection of fundamental
rights to all persons within the jurisdiction. Among those states which afford equal
constitutional protection as between citizens and non-citizens are Germany, Portugal,
Finland and Italy.25 On the other hand, other states clearly afford differential
protection to non-citizens and ECRI has consistently criticised France for its rigid
differential treatment of non-citizens.
ECRI has shown a willingness to address discrete initiatives to change domestic
national citizenship legislation from a human rights perspective.26 For example,
ECRI recently criticised Denmark when it amended its nationality legislation in such
manner as to eliminate the previously automatic right of non-citizens between the
ages of 18 and 23 who have lived in Denmark for 10 years or more to acquire
24
ECRI is a Council of Europe body set up following a decision of the 1st Summit of
Heads of State and Government of the member States of the Council of Europe, held
in Vienna in October 1993. ECRI’s task is to combat racism, xenophobia, antisemitism and intolerance at the level of greater Europe and from the perspective of the
protection of human rights. ECRI’s first report on Ireland can be found at Council of
Europe Document CRI (97) 55 available at www.coe.int/t/e/human_rights/ecri/ .
25
In respect of Italy, although Article 3 of the Italian Constitution states that “all
citizens have equal social status and are equal before the law without distinction as to
sex, race, language, religion, political opinions, and personal or social conditions”, the
principle of equality also applies to non-citizens, as Article 3 should be interpreted in
the light of Article 2 which guarantees the inviolable rights of the individual. The
Constitutional Court has confirmed this interpretation in several rulings.
26
ECRI second report on France, Council of Europe Document CRI (2000) 31.
15
citizenship.27 In that case ECRI encouraged the Danish authorities to closely monitor
the impact of the proposed change to ensure it does not result in discriminatory
practices or delays or complications in the granting of citizenship to long-term
residents, and to consider the possible negative repercussions such an amendment
may have upon public attitudes towards Danes of foreign origin and their ability to
integrate into Danish society.
Domestic incorporation of international human rights treaties into domestic law
provides another means by which states can provide for individuals, including noncitizens, to vindicate their human rights at the domestic level. Ireland has chosen to
give effect in domestic law only to the European Convention on Human Rights and
Fundamental Freedoms28 and in its second national report under the International
Covenant on Civil and Political Rights, the Irish Government outlined in detail its
legal reasons for not incorporating that treaty into domestic law.29 The rationale
contained in that report has been referenced in subsequent reports to UN treatymonitoring bodies. In its report the Government relied on the dualist nature of the
Irish legal system and on the existing fundamental rights provisions of the Irish
Constitution as the justification for Ireland’s failure to incorporate international
treaties.
However other states have either incorporated international human rights treaties into
domestic law by legislation or by constitutional initiative, or have a monist system of
law, whereby treaties which those states ratify automatically penetrate the domestic
legal order. In those states questions of the legal and constitutional position of noncitizens are less likely to arise. In the absence of universal application of
constitutional rights or the domestic incorporation of international human rights
standards, the Human Rights Commission has already expressed serious concerns at
the level of protection of the rights of non-citizen children in Ireland and of citizen
children of non-national parents. In the following sections we wish to focus on a
number of aspects of international human rights treaties which present particular
issues in the context of the proposed removal of citizenship rights.
2.2
Rights protected by the UN Convention on the Rights of the Child (CRC)
The Convention on the Rights of the Child is the most widely ratified international
human rights treaty with 189 ratifications and represents a clear exposition of the
norms of the international community relating to the rights of the child. Ireland
ratified the Convention in September 1992 and its first national report to the UN
Committee on the Rights of the Child was examined by the Committee in January
27
ECRI second report on Denmark, Council of Europe Document CRI (2001) 5.
The Human Rights Commission, and other bodies including the Bar Council and
Law Society, has criticised the means of incorporation chosen by the Government,
which falls short of full incorporation in a number of important respects, see
Submission on the European Convention on Human Rights Bill 2001 to the Joint
Oireachtas Committee on Justice, Equality, Defence and Women’s Rights, June 2002,
available at www.ihrc.ie.
29
See Ireland second report under the ICCPR, UN Document CCPR/C/IRL/98/2, at
paragraphs 13-17.
28
16
1998. General Comment 2 of the UN Committee on the Rights of the Child, asserts
the importance of National Human Rights Institutions (NHRIs), such as the Irish
Human Rights Commission, as a mechanism to promote and ensure the
implementation of the Convention.
Among the activities recommended of NHRIs at paragraph 19 is, “[I]n accordance
with article 3 of the Convention requiring that the best interests of children should be
a primary consideration in all actions concerning them, to ensure that the impact of
laws and policies on children is carefully considered from development to
implementation and beyond.” Paragraph 25 of the General Comment provides that,
“The role of NHRIs is to monitor independently the State’s compliance and progress
towards implementation and to do all it can to ensure full respect for children’s
rights.”
States parties to the Convention undertake obligations to respect (the negative
obligation not to violate rights) and ensure (the positive obligation to take the
necessary measures to secure) the rights set out in the Convention.30 These rights
include:








the right to survival and development (article 6)
the right of all children to participate meaningfully in all matters affecting
them (article 12)
the right to family life (articles 5, 9, 18).
the right to the highest attainable standard of health (article 24)
the right to education (articles 28 and 29)
the right to rest and leisure (article 31)
the right to privacy (article 16)
the right to a standard of living adequate for physical, mental, spiritual, moral
and social development (article 27)
The Convention, similar to the Irish Constitution, recognises the family as “the
fundamental group of society” and recognises children’s rights in the context of
parental rights and duties and children’s rights to participate in their community.31
Under the Convention, all children are entitled to grow up in a positive family
environment, with parents or legal guardians of the child having the primary
responsibilities for his or her upbringing. In this regard, the Preamble to the
Convention makes clear the fundamental importance of the family to the child:
30
See Commission General Comment 3 in relation to the corresponding Article 2
ICCPR right. Unlike Article 26 ICCPR, Article 2 CRC does not contain an
independent guarantee against discrimination.
31
See articles 3(2), 5, 7, 8, 9, 10, 18 and 22, Convention (right to parents), article 14
(freedom of religion under guidance of parents), article 16 (prevents arbitrary or
unlawful interference with the child's family), article 20 (where a child is deprived of
a family environment, there should be cultural continuity in their upbringing), article
21 (repeats this for inter-country adoption), article 29 (respect for culture in the aims
of education) and articles 10 and 22 (require positive measures for child asylum
seekers).
17
“… Convinced that the family, as the fundamental group of society and the
natural environment for the growth and well-being of all its members and
particularly children, should be afforded the necessary protection and
assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or
her personality, should grow up in a family environment, in an atmosphere of
happiness, love and understanding…”
2.2.1
The duty to base legislation and policy on the best interests of the child
Under the Convention, the best interests of the child is one of four general principles
which guide interpretation of the Convention as a whole and should inform national
implementation of the State’s obligations under the Convention.32 These four
principles are:
-
The best interests of the child (article 3);
Non-discrimination (article 2);
Participation in all matters affecting the child (article 12); and
Survival and development (article 6).
The principles of best interests, non-discrimination and participation have been
referred to as a “triangle of rights” that reinforce each other to achieve the objective of
“the survival and development” of the child as stated in article 6. Survival and
development refers not only to the child’s physical survival and healthy development,
but also to his or her mental and emotional development. The child’s survival and
development must also be considered in the context of his or her relationships,
especially the relationship with family and community.
The most significant of these obligations in the present context is the obligation to
base national policy on the best interests of the child. General Comment 5 of the
Committee on the rights of the child outlines in detail what the duties under the
Convention to respect the best interests principle entail:
“12. ….Every legislative, administrative and judicial body or institution is
required to apply the best interests principle by systematically
considering how children’s rights and interests are or will be affected by their
decisions and actions – by, for example, a proposed or existing law or policy
or administrative action or court decision, including those that are not directly
concerned with children, but indirectly affect children.”
The obligation is broad and clearly encompasses any legislative initiative including
the present proposal to amend citizenship law. Indeed, the Commission notes that, on
See the Committee’s general guidelines on initial and periodic reports – see the
Committee’s General Comments 5 and 8 at UN Docs. CRC/C/5 (1991); and
CRC/C/58 (1996); see also UNICEF Implementation Handbook for the Convention on
the Rights of the Child, (1998), p 37.
32
18
the specific point of nationality legislation, the Committee on the Rights of the Child
recently commended Germany for extending its citizenship laws to groups previously
excluded, indicating that the assessment of the impact of legislation in this sphere is
within the remit of the Committee.33
2.2.2
Non-discrimination in the protection of rights under the Convention
Article 2 of the Convention on the Rights of the Child provides that:
“1.
States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of
any kind, irrespective of the child's or his or her parent's or legal guardian's
race, colour, sex, language, religion, political or other opinion, national, ethnic
or social origin, property, disability, birth or other status.
2.
States Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or punishment on the
basis of the status, activities, expressed opinions, or beliefs of the child's
parents, legal guardians, or family members.”
The wording of Article 2.1 of the CRC is not dissimilar to Article 2.1 of the
International Covenant on Civil and Political Rights (discussed below) and prohibits
discrimination of any kind against any child in a State party’s jurisdiction, irrespective
of the child’s own or his or her parents’ or legal guardians’ … “national, ethnic or
social origin, birth or other status.” Article 2.2 CRC supplements this principle of
non-discrimination by requiring States to ensure the child is protected from all forms
of discrimination or punishment on account of the status of his or her parents, legal
guardians or family members. Read together with the State’s obligations to respect
the best interest principle by placing the children’s rights at the centre of policymaking and of the legislative process, the principle of non-discrimination requires the
State to ensure that law and policy respects the rights guaranteed under the
Convention of all children within the State equally and without unlawful
discrimination.
2.3
The International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights is, along with the
International Covenant on Economic, Social and Cultural Rights, one of the two core
international human rights treaties developing the rights set out in the Universal
Declaration of Human Rights. Ireland ratified the Covenant in 1989 and to date has
submitted two national reports to the relevant treaty-monitoring body, the Human
Rights Committee.
33
Concluding Observations issued on 26th February 2004, UN document
CRC/C/15/Add.226
19
2.3.1
Protection against discrimination under the ICCPR
Article 2.1 of the ICCPR sets forth the general obligation on State parties to guarantee
protection of rights at the national level and also outlines the concept of unlawful
discrimination in the enjoyment of human rights,
“2.1 Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”
Article 26 of the ICCPR also contains a separate non-discrimination and equality
provision which states that,
“26. All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”
The General Comments of the Human Rights Committee clarify the scope of the
rights under Article 26. General Comment 18 of the Human Rights Committee states
at paragraph 12 that:
“… Article 26 does not merely duplicate the guarantee already provided for in
article 2 but provides in itself an autonomous right. It prohibits discrimination
in law or in fact in any field regulated and protected by public authorities.
Article 26 is therefore concerned with the obligations imposed on States
parties in regard to their legislation and the application thereof. Thus, when
legislation is adopted by a State party, it must comply with the requirement of
article 26 that its content should not be discriminatory. In other words, the
application of the principle of non-discrimination contained in article 26 is not
limited to those rights which are provided for in the Covenant.”
General Comment No. 18 of the Human Rights Committee, goes on to outline what
constitutes discrimination under the Covenant by drawing on the provisions of
Article 1 of the International Convention on the Elimination of All Forms of Racial
Discrimination and Article 1 of the Convention on the Elimination of All Forms of
Discrimination against Women. Paragraph 7 of the General Comment describes
discrimination in the following terms:
“… the term “discrimination” as used in the Covenant should be understood to
imply any distinction, exclusion, restriction or preference which is based on
any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, and which has
20
the purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise by all persons, on an equal footing, of all rights and freedoms.”
The General Comment clarifies that “the enjoyment of rights and freedoms on an
equal footing, however, does not mean identical treatment in every instance” and
gives as an example the fact that Article 25 ICCPR, while guaranteeing certain
political rights to vote and participate in public affairs, differentiates on grounds of
citizenship. The General Comment makes clear that some rights are fundamental to
all persons, whereas some may reasonably be restricted to citizens.
The significance of the non-discrimination provisions of the ICCPR to the present
proposal depends on whether it can be demonstrated that the constitutional
amendment is likely to impact on fundamental rights, beyond political rights narrowly
linked to citizenship (such as the right to vote in Irish elections or to hold an Irish
passport. The analysis in section 1 above shows that in an Irish context citizenship
may be the only means of accessing the right to equal treatment before the law and
other constitutional rights at the domestic level. Therefore, issues of fundamental
rights do arise under the present proposal and the obligations to protect against
discrimination are engaged.
2.3.2
The rights of children to freedom from discrimination under the ICCPR
Article 24.1 of the ICCPR addresses the specific human rights protection needs of
children and provides for positive measures to be taken in respect of every child:
“24.1 Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or birth, the right to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.”
General Comment 17 of the Committee clarifies the scope of Article 24 of the ICCPR
and provides that States are required to indicate whether the principle of nondiscrimination is included as a binding principle in the Constitution or in domestic
legislation specifically with respect to children. Article 24 also requires that all the
possible grounds for discrimination spelled out in Article 2 of the Covenant are
reflected in such legal provisions and that the State outlines “the specific measures
adopted to reduce economic, social and geographical disparities, including between
rural and urban areas, to prevent discrimination against the most disadvantaged
groups of children, including children belonging to minorities or indigenous
communities, disabled children, children born out of wedlock, children who are nonnationals, migrants, displaced, refugees or asylum-seekers, and children who are
living and/or working on the streets.”34
34
General guidelines for periodic reports, op. cit., at paras 25-47. See too General
Comment 5 of the Committee on the Rights of the Child (2003) on the General
measures of implementation of the CRC (34rd session).
21
2.2.3 The rights of the child to nationality under Article 24 of the ICCPR
Article 24 goes on to address the issue of registration of birth and the right to acquire
a nationality
“24.2 Every child shall be registered immediately after birth and shall have a
name.
24.3 Every child has the right to acquire a nationality.”
While there is no right under international law for a person born in a country to attain
that country’s citizenship, Article 24 of the ICCPR makes it quite clear that State
parties must take positive measures to ensure that children have their birth registered,
name afforded and enjoy the right to acquire a nationality. The scope of the State’s
obligation under Article 24 is developed in paragraphs 7 and 8 of the Human Rights
Committee’s General Comment 17. In Irish law, section 6 of the Irish Nationality and
Citizenship Act 1956 currently guarantees Irish nationality to children born in the
State who would otherwise be stateless. The draft Irish Nationality and Citizenship
(Amendment) Bill 2004 would retain that provision in line with Ireland’s obligations
under Article 24 of the ICCPR and under the UN Convention on the Reduction of
Statelessness and the UN Convention on the Status of Stateless Persons. The
Commission wishes to emphasise the importance of Ireland’s international obligations
to prevent statelessness and recommends that the current statutory protections should
be retained regardless of the result of any referendum on the issue of citizenship.
2.4
Conclusion
Apart from the issue of statelessness, there is no human right to any particular
citizenship or nationality. Therefore, if the conferral of Irish citizenship was a neutral
exercise in relation to the protection of fundamental rights, the proposed restriction of
citizenship would have no significant impact on Ireland’s compliance with its human
rights obligations under international law. However, if, as we have demonstrated in
section 1 above, the citizenship status of a category of children has the potential to
affect the fundamental constitutional rights of those children, national citizenship law
is open to being measured against international human rights standards. In this
context, any initiative by a government to amend citizenship laws gives rise to
legitimate human rights concerns which must be assessed both in terms of the
substance of that proposal and the considerations which have informed its
introduction.
The Government also has a clear duty under international law to show that the
principle of the best interests of the child has been fully considered in bringing
forward the present proposal, and on that point the Commission is not convinced that
the there has been a proper assessment of the likely impact of the proposal on
children. Neither does there appear to have been an attempt to balance the purported
necessity or justification of the proposed amendment with the potential negative
impact of the change on children born in the State of non-national parents. The
question of the proportionality of the present proposal is examined further in section 4
below.
22
The potential discriminatory nature of the proposed restriction of citizenship is of
special significance. As the proposal has the potential to impact upon fundamental
rights, the Government is under a duty to ensure that the proposed initiative will not
lead to discrimination in the enjoyment of rights or will not be applied in a
discriminatory fashion. On this point the Commission notes that, the Government has
referred to the importance of preserving the integrity of Irish citizenship with respect
to persons “who have little or no historical or familial connection with Ireland” as
being the objective of the present proposal. However, the proposed restrictions on
citizenship and associated rights are targeted only at one such group and Irish
citizenship will continue to be available to other groups who also have “no other
claim to be present in the European Union and no substantial connection with
Ireland”, such as some persons who qualify for Irish citizenship through descent.
The Commission submits that if integrity of citizenship is to be the standard by which
the proposed restriction of rights is to be justified, the selection of one particular
category of citizens for restriction of their rights requires some objective justification.
We believe it is relevant, in this regard, to point to the presumably significant number
of persons who have availed of Irish citizenship for legal or other reasons through a
grandparent, for example, without displaying any fidelity or loyalty to the State, or
perhaps even without having ever visited Ireland.
We wish to emphasise that the human rights protection of non-citizens, and of noncitizen children in particular, is a much wider question and that there are many other
groups of non-citizens in Ireland, whose enjoyment of human rights is compromised
by existing policies and legislation. While the present Observations focus only on the
discrete issue of the proposed change to citizenship, the Commission recognises that
many of the human rights concerns outlined here might be greatly alleviated if the
Legislature were to adopt a more structured and indeed generous approach to granting
rights of residence as distinct from citizenship for humanitarian or employment
purposes, accompanied by adequate legal protections.35 It is regrettable that the
present proposals have not been accompanied by any proposals to address these wider
shortcomings, or indeed by any proposal to address the position of the non-national
families of Irish citizens who currently face deportation, having previously relied on
the citizenship of their child as a basis on which to claim rights to residency.36
35
Refugee Protection Policy Group, The Case for Provision of Complementary
Protection Status in Irish Law, Position Paper No. 1, (May 2000).
36
Commission Document, “Position of Non-National Parents and their Irish-Born
Children” where the Commission made a number of recommendations including that
the Government should reconsider its position in relation to this group of families.
23
3.
The Good Friday Agreement
3.1
Background to the Good Friday Agreement
As part of the British-Irish Agreement, the Irish Government undertook to put an
amendment to Articles 2 and 3 of the Constitution to a referendum, along with four
other constitutional amendments relating to the Agreement.
The proposed
amendment to Articles 2 and 3 was set out in the Multi-Party Agreement and its
adoption is referred to in the British-Irish Agreement, which provided that the passing
of this amendment was a condition precedent to the coming into force of the
Agreement as a whole. The amendment was passed on May 22nd 199837 and the new
Article 2 of the Constitution is set out in section 1.3.1 above.
Article 1 (vi) of the “Constitutional Issues” section of the Multi-Party Agreement
states that both Governments will:
“[R]ecognise the birthright of all the people of Northern Ireland to identify
themselves and be accepted as Irish or British, or both, as they may choose…”
There appears to be a contradiction between the two provisions, whereby the latter
provision is restricted to the ‘people of Northern Ireland’, whereas the former refers to
all persons ‘born on the island of Ireland’. This apparent contradiction has been the
source of some confusion as to the potential impact of the proposed referendum on the
Agreement.
3.2
The relationship between the proposed amendment to Article 9 of the
Constitution and the existing text of Article 2 of the Constitution
In the view of the Commission, the effect of the proposed amendment on the rights set
out in the revised Article 2 of the Constitution remains unclear (see section 1.3.1
above). While the British and Irish Governments have issued an Interpretative
Declaration as to their intentions in drafting the relevant provisions of the Good
Friday Agreement, the Commission is conscious that Article 2 of the Irish
Constitution was amended by popular referendum and not by the two governments.
Therefore, the subsequently stated intention of the States parties cannot, in our view,
be viewed as presenting a definitive interpretation of the constitutional change
involved. In this context, the Commission believes that the intention of the sovereign
people in passing the Nineteenth Amendment to the Constitution should also be
assessed with reference to the ordinary meaning of the text of Article 2, which it may
be contended is clear and unambiguous as to covering all persons born on the island
of Ireland.38
37
The Agreement was also endorsed by a referendum in Northern Ireland, held on the
same date, which posed a more general question of approval for the Agreement in its
totality.
38
It would appear that the Governments are relying on Article 31.3. (a) of the Vienna
Convention on the Law of Treaties to argue that their recent Interpretative Declaration
is definitive as to the interpretation of Article 2 of the Constitution and that it
24
3.3
The function of the Joint Committee of the Northern Ireland Human
Rights Commission and the Irish Human Rights Commission
Chapter 6 of the Multi-Party part of the Good Friday Agreement deals with human
rights and in addition to providing for the establishment of the Northern Ireland
Human Rights Commission and the Irish Human Rights Commission, paragraph 10
provides for the setting up of a Joint Committee of the two bodies. Paragraph 10
reads,
“It is envisaged that there would be a joint committee of representatives of the
two Human Rights Commissions, North and South, as a forum for
consideration of human rights issues in the island of Ireland. ….”
The potential impact of the proposed amendment to the citizenship provision in the
Constitution on the Good Friday Agreement makes the present proposal a matter of
particular interest to the Joint Committee, which met on April 28th to consider the
proposal. The Committee issued the following statement:
“The Joint Committee concluded that the proposal does have implications for
rights protected by that Constitution, including the rights of persons born in
the island of Ireland as set in Article 2 of the Constitution.
In so far as the Irish Government’s proposal impacts on Article 2 of the Irish
Constitution, which was amended in order to allow the Good Friday
Agreement to come into force, the Joint Committee believes that the
proposal ought to be considered in the manner indicated in paragraph 7 of the
section of the Agreement dealing with Validation, Implementation and
Review. That paragraph requires the two Governments to consult with parties
in the Assembly if relevant legislation [such as the Irish Nationality and
Citizenship Acts] requires amendment.”
The review procedures referred to here are set out in the Multi-Party political
agreement, which while not part of the British-Irish Agreement is appended as an
annex to that Agreement and is referred to in the British-Irish Agreement as an
integral part of that bilateral international treaty.
establishes that the proposed amendment to allow the restriction of citizenship is
compatible with Article 2. A contrary view is that an interpretation of the revised text
of Article 2 “in good faith and in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose”,
under Article 31.1 of the Vienna Convention raises some doubt as to the compatibility
of the proposed amendment with Article 2.
25
3.4
Conclusion
The Commission believes that there is at least an arguable case as to the potential
impact of the proposed amendment on the Good Friday Agreement. In the
Commission’s view there appears to be some conflict between the assertion on the
one hand that the amendment to Article 2 of the Constitution required by the Good
Friday Agreement provides a barrier to a legislative change of citizenship law, and on
the other hand, the position expressed in the Interpretative Declaration that the
proposed constitutional amendment, which is aimed at enabling such legislative
change, does not affect the Good Friday Agreement. There may well also be an
inherent contradiction between the text of Article 2 of the Constitution and Article 1
(vi) of the British-Irish Agreement, as outlined above. Against the background of
such complex issues the Commission regrets that the Government did not take the
opportunity to refer the proposal to the Joint Committee of the two human rights
commissions, and/or to the parties of the Northern Ireland Assembly, who have a
prescribed role within the Multi-Party Agreement to review any material changes to
the British-Irish Agreement or relevant legislation.
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4.
The Necessity for and Proportionality of the Proposed Amendment
As set out in sections 1 and 2 above, a human rights perspective on legislative or
constitutional change demands that any restriction or limitation of human rights must
be justified by reasonable grounds and must be proportionate to the aim pursued. In
particular, discriminatory treatment, or any legislative change that is likely to lead to
discriminatory treatment, must be based on criteria that are reasonable and objective
and aimed at achieving a legitimate purpose. Furthermore, any proposal to restrict the
protection of human rights should demonstrate that other, less detrimental means to
achieve the stated policy aim have been explored.
The role of the Human Rights Commission in this regard is to set out the standards
which must be met in asserting the necessity for the proposed measure and the
proportionality of the measures proposed, both in terms of the pressing social need
that has been put forward as requiring a change to Irish law or in terms of the means
chosen. In the view of the Commission these standards must be assessed with
particular regard to the potential impact of the proposed constitutional amendment on
the human rights of a particular category of persons. In setting out these standards,
the Commission also believes that the selection of measures that will affect one
specific group to the exclusion of others in similar or analogous position also requires
justification.
4.1
International human rights standards of justifiable restrictions of rights
In line with the definition of discrimination set out by the UN Human Rights
Committee, the proposed restriction of citizenship rights and the human rights impact
of this proposal would appear to have “the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights
and freedoms.” It would also appear to be a “distinction, exclusion, restriction and
preference” based on the child’s parents’ or legal guardians’ … “national, ethnic or
social origin, birth or other status.” On the face of it, then, the proposed removal of
the right to citizenship, restricting the protection of children’s rights based on the
nationality status of a child’s parents constitutes prima facie discrimination.
The question is then whether this differentiation is legitimate. Paragraph 13 of
General Comment 18 of the Human Rights Committee provides that:
“The Committee observes that not every differentiation of treatment will
constitute discrimination, if the criteria for such differentiation are reasonable
and objective and if the aim is to achieve a purpose which is legitimate under
the Covenant.”
The standards set by the Committee on the Rights of the Child also require that in
assessing the possible discriminatory effect of the current proposal, the affected
children should be compared to other children born in Ireland in a similar situation
who are currently conferred with citizenship. Such a comparison could extend, for
example, to older siblings of non-citizen children who may have had citizenship
conferred on them in the past. In the view of the Commission, the Government would
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need to show that the differentiation of treatment which is likely to result from the
proposed amendment is not primarily a punitive measure targeted at the nationality
status of one or both of a child’s parents. The State has yet to show that the move to
create a new category of persons excluded from citizenship is reasonable and
objective and that the aim is to achieve a purpose which is legitimate under the
Covenant.
4.2
The Government’s Proposals Paper
The Proposals Paper, at paragraph 4 states,
“…People with no other claim to be present in the European Union and no
substantial connection with Ireland are arranging their affairs so as to ensure
the birth of a child in Ireland in order that it will acquire this status, with an
eye to increasing the chances of the parents of securing for themselves, by
association with the EU national child, some claim to be able to remain
within Ireland or the wider EU territory or some rights within that territory.
Maternity hospitals in particular in Dublin are experiencing a high incidence
of the unannounced arrival in their facilities of non-national women in late
pregnancy, or in the early stages of labour and have expressed concern that as
a result the lives of the mothers and their children are put at risk. This
phenomenon is directly related to the fact that Irish law at present gives to the
children the entitlement to Irish citizenship and thus to citizenship of the
European Union….”
The Paper does not provide empirical evidence to show the extent to which
individuals with no connection to Ireland are at present deliberately contriving to have
their children born within the State. The Government did publish an Information
Note with the Paper which does provide some data relating to births to non-nationals
in the State. The Note states that in 2003 24.3% of births in the Dublin maternity
hospitals were to non-national mothers. However, while acknowledging that these
figures have only recently begun to be collected by the Reception and Integration
Agency and that no systematic collection of statistics has taken place in the past, the
Information Note claims, “It is clear that citizenship entitlements of children born in
Ireland and the resulting claims to residence by their parents has been the single most
important factor in bringing non-EU nationals to Ireland to give birth.”39
The Note continues, “Anecdotal evidence suggests that many women are travelling
from the UK in the later stages of pregnancy”. There is no analysis or breakdown of
the figures to show the particular nationality or legal status of non-national mothers,
nor does the Note provide any information on the length of time that such mothers
have been in the State before giving birth or whether their husbands or partners might
be Irish or EU citizens, or citizens of the new accession states, or whether the mothers
may already have other children who are Irish citizens. When the Government was
pressed to produce figures for the number of women arriving in Dublin hospitals in
39
Appendix 1, paragraph 3.2.
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the last stages of pregnancy, the numbers were quite low and there has been a
suggestion from some of the maternity hospitals that as many as half of such women
are Irish. Nor was there any qualitative data on reasons for giving birth in the State,
which might, for example, include factors unrelated to citizenship such as the lack of
medical facilities in the mother’s country of the origin. As a result these figures are
inadequate in many respects as a basis for taking a major policy decision that may
affect the rights of significant numbers of children born in Ireland in the future.
Elsewhere in the Information Note figures are provided for ‘Pregnant Female Asylum
Seekers’, which suggests that 1893 pregnant females over the age of 16 claimed
asylum in Ireland in 2003, although this figure includes re-applications from persons
who may previously have withdrawn from the asylum process. The figures offered
show that the number of female asylum seekers declined throughout the year 2003,
however, no data is offered on the length of time such women may have been in the
State or indeed on how many of these women gave birth in the State during that
period. A figure of 638 is given for the period July-December 2003 in respect of new
applications by pregnant asylum seekers. Significantly, elsewhere it is stated that, “At
present their [Dublin maternity hospitals] major concern is the rise in births to nonnational mothers other than those in the asylum process.” No figures are given for
such women.
The Information Note does not address the likely long-term effect of the Supreme
Court’s January 2003 decision in the L. and O. case, which held that parents of Irishborn children were no longer entitled to Irish residency, and the subsequent
deportation of significant numbers of persons in that category. It is likely that the full
effect of these measures will not be seen for such time, but it seems likely that they
will lead to a significant reduction in the number of persons coming to Ireland with a
view to availing of rights on the basis of the birth of an Irish child.
4.3
Conclusion
The Commission believes that the data provided by the Government to justify the
proposed amendment is weak and much of the evidence and rationalisation offered in
support of the proposed amendment seems to be vague or anecdotal in nature. In
particular, the data provided in the Information Note does not sufficiently support the
assertions contained in the Proposals Paper as to the motivation of non-national
mothers. It is notable that the Committee on the Rights of the Child, at paragraph 48
of its General Comment 5, also requires States to provide disaggregated data on all
children within its territory. The absence of data as to the national origin and legal
status of mothers of Irish citizens would appear to mean that Ireland does not meet
this requirement.
As a point of principle the Commission believes that any restriction on the human
rights of children within the State must be guided by the principle of proportionality
set out in international human rights law. Therefore, if there is a matter of public
concern which needs to be addressed, the State may only address the matter with a
restriction of human rights where all other, less restrictive, means of addressing the
difficulty have been explored. Furthermore, as outlined above in section 2.4, the
Proposals Paper and Information Note provide no justification as to why one category
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of citizenship “with no substantial connection to Ireland” should be targeted for denial
of status, while others are not.
The Commission believes that the collection of comprehensive disaggregated data is
crucial to the development of a coherent immigration policy and notes that a recent
EU Action Plan for the collection and analysis of Community Statistics in the field of
Migration (Com 2003: 179) contains a commitment on the part of the Member States
to establish annual country reports on the development of a common migration policy
within the EU. This involves the development of a framework for collection, analysis
and reporting of common data with contact points having been set up in each State.
The ESRI is the contact point in Ireland, and its new section dealing with migration
data should prove an important source of data for the development of policy. Data
(standardised and disaggregated) will play an essential role in highlighting trends and
needs in terms of the development of a properly managed migration policy based on
international human rights standards.
However, in the present context, the data disclosed in the Government’s Proposals
Paper and Information note are inadequate in a number of respects. The Commission
believes that insufficient data exists on which to base the assessment contained in the
Proposals Paper as to the motives of non-national parents giving birth in Ireland. The
statistical data, such as it is, fails to disclose a matter of sufficient public concern to
merit a restriction of constitutional and human rights at this time and the Government
has not demonstrated that all other means of addressing the matter of public concern
identified have been exhausted. Furthermore, the material published does not present
any empirical basis which attempts to justify singling out one category of citizens
with “no substantial connection to Ireland” upon which to impose restrictions as to
citizenship entitlements, while not addressing the citizenship entitlements of other
equivalent groups.
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5.
Summary of Commission’s Conclusions
5.1
Qualification for citizenship makes the enjoyment of constitutional rights
certain, whereas denial of citizenship leads, in some cases, to legal uncertainty
and possible exclusion from these same rights. Therefore, to remove the
qualification for citizenship of a group of persons may well inhibit their
enjoyment of the rights set out in the Constitution and the effect of the
proposed amendment will be to create a new category of persons born in
Ireland whose entitlement to legal rights and to social rights and services will
be uncertain at best. This problem could be addressed by accepting the
Constitutional Review Group’s proposal to extend the protections afforded
under Article 40 of the Constitution to all persons or by incorporating
international human rights treaties into domestic law. However the present
proposal contains no reference to addressing this matter.
5.2
In the view of the Commission, any proposal for constitutional change must be
accompanied by a serious and comprehensive consideration of the potential
impact of the proposed change on the enjoyment of constitutional rights. It is
not apparent to the Commission that a comprehensive consideration of the
human rights consequences of the proposed constitutional amendment has
taken place. In this regard, the Commission is concerned that the Government
chose not to consult with the Human Rights Commission, or indeed the AllParty Committee on the Constitution in advance of publishing the proposed
Bill, or in advance of taking the decision to proceed with a referendum on this
issue.
5.3
The Commission believes that if the proposed referendum is passed it is not
clear what will be the significance, if any, of the rights set out in Article 2 of
the Constitution regarding the ‘entitlement and birthright to be part of the Irish
Nation’, or how the courts might interpret the entitlements under Article 2 of
persons who are part of the Irish Nation, but not considered under statute to
have any entitlement to Irish citizenship or nationality. In the view of the
Commission this adds to the legal uncertainty as to the constitutional rights of
this category of children.
5.4
The Commission is concerned that the “notwithstanding any other provision of
the Constitution” aspect of the proposed amendment may impact on the
fundamental rights provisions in Articles 40-44.
In particular, the
Commission is concerned whether the proposed clause might have the effect
of frustrating the rights of persons denied citizenship to challenge any future
citizenship legislation that might conflict with the fundamental rights
provisions of the Constitution.
5.5
As exclusion from Irish citizenship could nullify or impair the enjoyment of
fundamental rights at a constitutional level, any initiative by Government to
amend the citizenship laws to restrict the qualification for citizenship gives
rise to legitimate human rights concerns which must be assessed both in terms
of the substance of that proposal and the considerations which have informed
its introduction.
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5.6
The Government has a clear duty under international law to show that the
principle of ‘best interests of the child’ has been fully considered in bringing
forward the present proposal. Insufficient evidence has been brought forward
to demonstrate that such a consideration has taken place.
5.7
As the proposal has the potential to impact upon fundamental rights and the
State’s obligations under international human rights law, the
Government is under a duty to ensure that the proposed initiative will not lead
to discrimination in the enjoyment of rights or will not be applied in a
discriminatory fashion. On this point the Commission notes that the
Government has referred to the importance of preserving the integrity of Irish
citizenship with respect to persons “who have little or no historical or familial
connection with Ireland” as being the objective of the present proposal. The
Commission notes that other sources of citizenship, such as citizenship by
descent, can also lead to persons becoming citizens who have very little
connection with this country. The Commission believes that the selection of
one particular category of such persons for restriction of their rights might
constitute unacceptable discrimination in the absence of objective .
5.8
The Commission believes that there is at least an arguable case as to the
potential impact of the proposed amendment on the Good Friday Agreement.
In view of the complex issues surrounding the interpretation of the Agreement
the Commission regrets that the Government did not take the opportunity to
refer the matter to the Joint Committee of the two human rights commissions,
and/or to the parties of the Northern Ireland Assembly, who have a prescribed
role under the Multi-Party Agreement to review material changes to the
Agreement or relevant legislation.
5.9
The Commission believes that the data so far provided by the Government to
justify the proposed amendment has not been adequately researched or
analysed and that much of the evidence offered in support of the proposed
amendment seems to be anecdotal in nature and inconclusive. Specifically,
the Commission believes that the data offered is insufficient to allow anyone
to draw inferences as to the motives of non-national parents giving birth in
Ireland to the extent argued by the Government.
5.10
The Commission believes that the Government has not demonstrated that all
other means of addressing the matter of public concern identified which would
be less detrimental to the rights of children have been exhausted and has not
demonstrated any justification for singling out one category of citizens with
“no substantial connection to Ireland” upon which to impose restrictions as to
citizenship entitlements.
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