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Citizenship and family life in Ireland: asking the question ‘Who belongs’?

  • Siobhán Mullally (a1)
Abstract

Citizenship laws provide us with models of membership. They define the terms on which strangers and natives belong to political communities, allocating both the benefits of membership and the brutalities of exclusion. Recent legal changes in Ireland, restricting the right to citizenship by birth and limiting the rights of migrant families, highlight the vulnerability of children in migrant families and the limits of citizenship status. Many other states have grappled in recent times with the right to citizenship by birth and the entitlements to family life that come with such a claim. In both the UK and Australia the jus soli principle has been significantly restricted. In the US, Canada and elsewhere, while the jus soli principle continues to apply, citizen children born to undocumented migrant parents are subject to de facto deportations, their right to membership of the nation-state ‘postponed’ because of the legal status of their parents. In challenges to deportation proceedings involving such children, the perspective of the child as a bearer of rights is marginalised, with disputes turning largely on the balancing of states' interests in immigration control against the residence claims made by migrant parents.

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1. See Twenty-Seventh Amendment of the Constitution Act, 2004 (Irish Citizenship of Children of Non-National Parents).

2. European Convention on Human Rights Act, 2003. See generally U Kilkelly (ed) The ECHR and frish Law, (Bristol: Jordans, 2004).

3. Chen v Secretary of State for the Home Department: C-200/02 [2005] QB 325, ECJ, 19 October 2004.

4. See Perdido v INS 420 F 2d 1179; (1969) US App LEXIS 9566.

5. This point is forcefully made by Jacqueline Bhabha. See J Bhabha ‘The Citizenship Deficit: On Being a Citizen Child’ (2003) unpublished paper, copy on file with author.

6. See art 41 of the Constitution of Ireland, Bunreacht na hEireann.

7. See North Western Health Board v W (H) [2001] IESC 70, 8 November 2001; DPP v Best [1999] IESC 90; [2000] 2 IR 17; [2000] 2 ILRM 1,27 July 1999; Western Health Board v M (K) [2001] IESC 114, 21 December 2001.

8. See Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (British-Irish Agreement); and the Agreement reached in Multi-Party negotiations (Belfast Agreement), concluded 10 April 1998, reproduced in (1998) 37 ILM 751. See also British-Irish Agreement. See generally C Harvey and S Livingstone ‘Human Rights and the Northern Ireland Peace Process’ (1999) European Human Rights Law Review 162–177; C J Harvey Human Rights, Equality, and Democratic renewal in Northern Ireland (Oxford: Hart Publishing; 2001); C Harvey ‘Governing After the Rights Revolution’ (2000) 27 JLS 61–97.

9. See Nineteenth Amendment to the Constitution Act, 1998. The full text of art 2 of the Constitution of Ireland (as amended) reads: ‘Article 2 It is the entitlement and birthright of every person born in 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 otherwise qualified in accordance with 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.

10. See art 3 of the Irish Constitution, inserted following the enactment of the Nineteenth Amendment to the Constitution Act, 1998.

11. See L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1 at [451], per Fennelly J, 23 January 2003. See generally C Breen ‘Refugee Law in Ireland: Disregarding the Rights of the Child Citizen, Discriminating Against the Rights of the Child’ (2003) 15(4) International Journal of Refugee Law 750.

12. In L Land O v Minister for Justice, Equality and Law Reform [2003] IESC I, counsel arguing on behalf of the appellant families described their citizen children as ‘anchors', tying the remaining family members to the state. See at paras 293–296, per Hardiman J.

13. See S Schachar ‘Children of a Lesser State: Sustaining Global Inequality through Citizenship Laws’ in S Macedo and I M Young (eds) Child, Family and state. NOMOS LXIV (New York: New York University Press, 2002) pp 345–397. Schachar argues that citizenship should be viewed as a property right, with important implications for allocating valuable resources. Allocating citizenship on the basis of the ‘naturalising veil of birthright', she argues, is arbitrary and hides the important distributive implications of citizenship decisions (p 381). Schachar does not propose a new model for allocation of citizenship status, but points to the need to recognise the granting of such status as a question of distributive justice. See also R Beiner Theorising Citizenship (Albany: State University of New York Press, 1995).

14. Irish Nationality and Citizenship Act, 1956.

15. Article 9 of the Constitution of Ireland.

16. Constitution of the Irish Free State (Saorstát Éireann), 1922. The full text of art 3 provides: ‘Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose parents was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State and shall within the limits of the jurisdiction of the Irish Free State enjoy the privileges and be subject to the obligations of such citizenship: Provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred: and the conditions governing the future acquisition and termination of citizenship in the Irish Free State shall be determined by law’.

17. Irish Nationality and Citizenship Act 1935, s 2.

18. Deputy Esmonde, Dr Dáil Debates vol 154 29 February 1956., Irish Nationality and Citizenship Bill, 1955 - Second Stage, paras 1014–1015.

19. [1982] ILRM 164 at 166.

20. [1986] IR 733.

21. [1986] IR 733 at 746.

22. [1986] IR 733 at 745.

23. Fajujonu v Minister for Justice [1990] 2 IR 151; [1990] ILRM 234.

24. In a statement that is likely to have relevance to many families facing deportation proceedings in the future, Walsh J went on to point out that deportation proceedings could not be taken against a family that included citizen children, simply because of poverty, particularly where that situation of poverty was induced by the absence of a work permit.

25. Bhabha, above n 5, p 13.

26. See ‘What's to befall these Irish children?’Irish Times, 9 April 2002.

27. See L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1.

28. [2003] IESC I at para 34, per Keane CJ.

29. Norris v Ireland (Application 10581/83) (1988) 13 EHRR 186, ECtHR, 26 October 1988.

30. [1974] IR 284 at 310.

31. North Western Health Board v HW and CW [2001] 3 IR 622.

32. [2001] 3 IR 622.

33. [2001] 3 IR 622 at 732.

34. See Constitution of Ireland, 1937, Bunreacht na hÉireann, art 2.

35. L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1 at para 495, per Fennelly J. Fennelly J's judgment echoes the findings of the US Supreme Court in Phyler v Doe 457 US 202 (1982), where the court held that a child's right to access state-funded education should not be denied because of the undocumented status of her parents - the so-called ‘corruption of blood’ principle. This principle could equally apply in the context of a citizen child's right to residence within the state of which she or he is a national. It was, however, given little weight by the majority in the L and O cases.

36. Department of Justice, Equality and Law Reform ‘Notice to Non-National Parents of Irish Born Children', 18 July 2003, available at http://www.justice.ie/80256E01003A21AS/vWeb/pcJUSQ5YHLJR-en.

37. The Joint Committee issued the following statement: ‘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.’ See Joint Committee Statement on Proposed Citizenship Referendum, 28 April 2004, available at http://www.ihrc.ie/home/wnarticle.aspNID91&TN&Print=.

38. Sinn Féin Gerry Adams calls for NO vote in the citizenship referendum', 9 June 2004, available at http://sinnfein.ie/news/detail/5125. M Durkan ‘Profound Concern at the Revision of the Constitution', 19 April 2004, available at http://www.sdlp.ie/prprofoundconcernattherevisionoftheconstitution.shtm.

39. Human Rights Commission ‘Observations on the Proposed Referendum on Citizenship and on the 27th Amendment to the Constitution Bill 2004′, 25 May 2004, available at http://www.ihrc.ie/documents/documents.asp?NCID=6.

40. See Report of the Constitution Review (Dublin: Government Stationery Office, 1996) pp 216–217.

41. See Kavanagh v Governor of Mountjoy Prison, the Special Criminal Court, the DPP the Minister for Justice, Equality and Law Reform and the Att Gen 29th [2001] IESC 11,1 March 2001; Horgan v An Taoiseach & ors [2003] IEHC 64, 28 April 2003.

42. Section 4 ‘Citizenship of Children of Certain Non-nationals’.

43. Section 4(2)(d).

44. Department of Justice, Equality and Law Reform ‘Minister announces details of revised arrangements for residency', 14 January 2005, available at http://www.justice.ie.

45. See Department of Justice, Equality and Law Reform, Application Form IBC/05.

46. Department of Justice, Equality and Law Reform ‘Minister announces revised arrangements for processing claims for permission to remain from parents of Irish born children', 14 December 2004.

47. Chen v Secretary of State for the Home Department: C-200/02 [2005] QB 325, ECJ, 19 October 2004.

48. See Directive 90/364/EEC, art 1(1).

49. L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1.

50. M Fineman ‘Taking Children's Interests Seriously’ (2002) XLIV NOMOS p 234.

51. [2005] QB 325 at [39], ECJ.

52. See Bhabha, above n 5.

53. [2002] ECR 1–6279.

54. Parliament and Council Directive 2004/58/EC of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely with the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, [2004] OJ L229/45.

55. Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification, [2003] OJ L 251/12. See generally R Cholewinski ‘Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right’ (2002) European Journal of Migration and the Law 271.

56. See European Convention on Human Rights Act, 2003, signed by the President on 30 June 2003.

57. L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1 at 44.

58. [1996] 22 EHRR CD 94.

59. Application 14830/89, decision adopted on 30 June 1992, European Commission of Human Rights.

60. Application 14830/89, at para 43.

61. Application 14830/89, at para 43.

62. (1988) 11 EHRR 322, ECtHR, 21 June 1988, series A no 138.

63. Application 29192/95 (2000) 33 EHRR at 623, judgment of 11 July 2000.

64. Application 50963/99, judgment of 20 June 2002.

65. [2001] UKHRR 307.

66. [2001] UKHRR 307 at 329.

67. Application 31465/96 (2003) 36 EHRR 7, ECtHR, 21 December 2001. See generally, S van Walsum ‘Comment on the Sen Case. How Wide is the Margin of Appreciation Regarding the Admission of Children for Purposes of Family Reunification?’ (2002) European Journal of Migration and Law 1; C Forder ‘Family Rights and Immigration Law: a European Perspective’ (2003) Irish Journal of Family Law 2. See also J M v The Netherlands Application no 38047/97, 9 January 2001.

68. Application 21702/93 Ahmut v Netherlands (1996) 24 EHRR 62, Reports of Judgments and Decisions 1996-VI, p 2017.

69. Gul v Switzerland Application 23218/94, 19 February 1996, Reports of Judgments and Decisions 1996-I. p 159.

70. L and O v Minister for Justice, Equality and LAW Reform [2003] IESC 1.

71. Solomon v Nederland Application no 44328/98, 5 September 2000.

72. Application no 53 102/99, Decision of 13 May 2003.

73. British Nationality Act 1981, s 1.

74. See Commonwealth Immigrants Act 1962; Commonwealth Immigrants Act 1968; Immigration Act 1971; Immigration Act 1988; Asylum and Immigration Appeals Act 1993; Asylum and Immigration Act 1996; Immigration and Asylum Act 1999; Nationality, Immigration and Asylum Act 2002.

75. Australian Citizenship Amendment Act 1986, inserting s 10(2) to the Australian Citizenship Act 1948 (Cth). A child born in Australia to undocumented migrant parents may obtain citizenship following ten years’ residence in the state after birth. See generally K Rubenstein ‘Citizenship Law: Citizenship and the Centenary -Inclusion and Exclusion in 20th Century Australia’ (2000) 24 Melb ULR 576; M Crock Immigration and Refugee Law in Australia (Sydney: Federation Press, 1998).

76. See L Eisgruber ‘Birthright Citizenship and the Constitution’ (1997) 72 NYULR 54; T A Aleinikoff, D A Martin and H Motomura Immigration and Citizenship: Process and Policy (Washington DC: West Custom Publishing, 5th edn, 2003) vol 1; R Rubio-Marin Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States. (New York: Cambridge University Press, 2000). Attempts at legislative and constitutional reform, aimed at removing birthright citizenship, continue. See, for example, Citizenship Reform Act of 2003 (Introduced in House), HR 1567 IH, 108th Congress, 1st Session.

77. See Inglis v Sailor's Snug Harbour 28 US 99 (1 Pet, 1830); Murray v Schooner Charming Betsy 6 US (2 Cranch) 64 at 120 (1804).

78. Scott v Sanford 60 US (19 How) 393 (1857).

79. Prior to the enactment of the Fourteenth Amendment, the Civil Rights Act 1866 declared ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby… citizens of the United States’. This was the first legislative definition of citizenship provided by Congress. As a legislative enactment, however, it was subject to repeal also by Congress. A concern to provide stronger protection for citizenship rights led to the passage of the Fourteenth Amendment, Civil Rights Act 1866, Act of April 9, ch 31, 1 (15 Stat 27).

80. See Statement of Professor Gerald L Neuman ‘Societal and Legal Issues Surrounding Children Born in the United States to Illegal Alien Parents', Joint Hearing Before the Subcommittee on Immigration and Claims and the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Congress, 1st Session 105–09,13 December 1995.

81. In the early 1990s, several Philippines facing deportation from the US sought to argue that they were in fact US citizens because their parents were born in the Philippines while it was still a US territory. Therefore, they claimed, they were born ‘in the U.S., and subject to the jurisdiction thereof’ as required by the Fourteenth Amendment. Their claims were rejected by the Court of Appeals of the Ninth Circuit. A strong dissent was entered by Judge Pregerson. The court concluded that the citizenship clause expressly identified a territorial limitation that precluded extension of birthright citizenship in all places where the US maintained sovereignty, and did not, therefore, include all territory under the political jurisdiction of the US government. See Rabang v INS 35 F 3d 1449 (9th Cir, 1994), especially at 1453.

82. 112 US 94,5 SCt 41,28 L Ed 643 (1884). The Allotment Act 1887 remedied this exclusion, extending citizenship to many Native Americans. Later statutes expanded this grant further: p 16.

83. US v Wong Kim Ark 169 US 649 (1898).

84. 169 US 649 at 694 (1898). Dissenting judgments were entered by Fuller J and Harlan J. Harlan J dissented in Plessy v Ferguson 163 US 537 (1896), attacking the Jim Crow laws as a denial of equal citizenship. In Wong Kim Ark 169 US 649 (1898), however, he concluded that the government had the power, ‘notwithstanding the Fourteenth Amendment, to prescribe that all persons of a particular race, or their children, cannot become citizens’. See G J Chin ‘The Plessy Myth: Justice Harlan and the Chinese Cases’ (1996) 82 Iowa LR 151.

85. Aleinikoff, Martin and Motomura, above n 76, p 18.

86. P Schuck and R Smith Citizenship Without Consent: Illegal Aliens in the American Polity (New Haven: Yale University Press, 1985).

87. D A Martin ‘Membership and Consent: Abstract or Organic?’ (1985) 11 Yale JIL 278 at 291.

88. See Neuman, above n 80.

89. See United States ex rel Hintopoulos v Shaughnessy 353 US 72 at 77 (S Ct, 1957), 618 1 L Ed 2d 652; Harisiades v Shaughnessy 342 US 580 (1952), 72 S Ct 512, 96 L Ed 586; Mendez v Major 340 F 2d 128 (8 Cir, 1965).

90. 420 F 2d 1179; 1969 US App LEXIS 9566.

91. 420 F 2d 1179 at 1181; 1969 US App LEXIS 9566.

92. 515 F 2d 1222; 1975 US App. LEXIS 13618.

93. Immigration and Nationality Act, s 240A(b). The ‘exceptional and extremely unusual hardship’ standard is more difficult to meet than the previous ‘extreme hardship’ standard, discussed in INS v Jong Ha Wang 450 US 139 (1981). See Rosalba Ramirez v Attorney-General Petitioner No A 76–849-185 (US Ct of Apps (9th Cir), 2003), filed 18 July 2003, holding that court retained jurisdiction to review the BIA's exercise of discretion in cases involving claims of ‘exceptional and extremely unusual hardship’.

94. See In Matter of Monreal 23 I & N Dec 56 (BIA, 2001). Here, the BIA held that a 34-year-old Mexican national who was the father of three US citizen children and had been working in the US for ten years did not satisfy the hardship standard. See Matter of Andaloza 23 I & N Dec 319 (BIA, 2002). This case involved a single Mexican woman who had two US citizen children, aged 11 and six. The children's father was authorised to remain in the US and was found by the BIA to be a continuing presence in the lives of the children. Despite this finding, however, the BIA concluded that the case presented a common fact pattern that was insufficient to satisfy the hardship standard.

95. 23 I & N Dec 467 (BIA, 2002).

96. 98 CV 5381 (EDNY, 2002), 2002 US Dist Lexis 757.

97. 68 F Supp 2d 206 (EDNY, 1999), holding at 233 that international human rights law, to the extent that it formed part of customary international law, was part of the domestic law of the US.

98. 314 F 3d 303 (7th Circ, 2002). See also Abay v Ashcroft 368 F 3d 634 (6th Circuit 2004).

99. 314 F 3d 303 (7th Circ, 2002) at 307.

100. 314 F 3d 303 (7th Circ, 2002) at 307.

101. See generally, J D Galloway ‘The Dilemmas of Canadian Citizenship Law’ (1999) 13 Geo Immigr LJ 201; S Buhler ‘Babies as Bargaining Chips? In Defence of Birthright Citizenship in Canada’ (2002) 17 Journal of Law and Social Policy 88.

102. Standing Committee on Citizenship and Immigration Canadian Citizenship:A Sense of Belonging (Ottawa: Public Works and Government Services Canada, 1994) p 17.

103. 102 HC Official Report (6th series) col 1230, 29 May 2000, R Anders.

104. Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 8 17.

105. [1999] 2 SCR 817 at [5].

106. [1999] 2 SCR 817 at [5].

107. Toronto IMM-6196-99 (FCTD) at 12, 12 December 2000.

108. (2002) FCA 125.

109. (2002) FCA 125 at [13].

110. In support of its balancing approach to the rights-claims at stake, the court invoked the recent Supreme Court decision, Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, which has, of course, also been criticised as undermining the protections afforded by international human rights law.

111. See J Carens ‘Who Belongs? Theoretical and Legal Questions about Birthright Citizenship in the United States’ (1987) 37 UTLJ 413; J Carens ‘Aliens and Citizens: the Case for Open Borders’ (1987) 49 Review of Politics.

112. See Nottebohm Case (Lichenstein v Guatemala) Second Phase (1951-1955) ICJ Rep 4.

113. L and O v Minister for Justice, Equality and Law Reform [2003] IESC 1.

114. Bhabha, above n 5. pp 6–7.

115. Chen v Secretory of State for the Home Department: C-200/02 [2005] QB 325, ECJ.

116. See generally I Ward ‘Identifying the European Other’ (2002) 14 International Journal of Refugee Law 219.

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