SENATE SPEECHES
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Irish Nationality and Citizenship Bill, 1999: Committee Stage
26th January, 2000

SECTION 1.

Mr. Ryan: I move amendment No. 1:

In page 3, to delete lines 12 and 13.

I wish to begin in a reasonable, quiet fashion. Amendment No. 1 proposes the deletion from the Bill of the reference to the Act of 1986. Having read the Bill carefully I understand that the only reference to that Act relates to the spectacular change in public policy which will deny to Irish citizens the right of being certain that the person they marry will be entitled to citizenship. The current position is that this country, for good reason, given that there are probably more people born on this island living outside the island than on it, has stated that if they marry a person who is not entitled to Irish citizenship then a simple and sensible procedure based on the requirement that they must be legally married and must remain married for three years comes into force. Then that spouse of an Irish citizen is entitled as of right to Irish citizenship. I wish the Minister would listen to me.

Mr. O'Donoghue: The Senator is completely out of order because he is discussing section 4.

Mr. Ryan: I am not.

Mr. O'Donoghue: Yes, he is.

Mr. Ryan: I am discussing the reason the 1986 Act needs to be in this Bill, which is to deal with the offensive denial of the right to marry whom they wish which Irish citizens used to have and which this Minister proposes to take away because of the xenophobia that runs his Department. That is what it is about. If the Minister can explain to me how I could deal with the text of section 4 and attempt to amend it and leave a reference to the Act of 1986 in the list of definitions, let him do so. We have plenty of time to discuss it. I am attempting to raise the point that the text of the 1986 Act should not be in this Bill, that it is an addition to the main thrust of this Bill which is connected to the Good Friday Agreement.

The parts of this Bill related to the Good Friday Agreement are most welcome. It is a matter of regret that matters of great controversy were slipped in using ambiguous language. For instance, it does not say anywhere in the explanatory memorandum that the spouse of an Irish citizen would no longer have a right to citizenship. We have an extraordinary explanation that does not explain what is in the Bill. It gives the clear impression that there are new conditions attached to the right, whereas the right is being taken away. This is in a country where the majority of the people born on the island live outside the island, yet we are saying we will make it more difficult for them to marry people who are not Irish. That is the first of my remarks but since the Minister took exception to them he might as well reply now.

Dr. Henry: The Taoiseach and the Minister came here when we were discussing this Bill on Second Stage. On both occasions I said I felt that there were parts of this Bill which the Good Friday Agreement did not require and that is why I support what Senator Ryan has said. On both occasions neither the Taoiseach nor the Minister referred to the fact that there were parts of this Bill which had nothing to do with the Good Friday Agreement. If we do not remove this reference to the 1986 Act now we will not be in a position to oppose the section on marriage later.

I regret that, without public debate, there have been major changes made in how people can acquire Irish citizenship. It is so serious that I sometimes think public debate has been stifled in this area rather than clearly explaining in the explanatory memorandum how these changes would affect people other than those of Northern Ireland. I regret that. When we were poor we were good about giving citizenship to people, but now that we have become a little richer it will be more difficult for people to become Irish citizens.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): As I indicated earlier, Senators Ryan and Henry are discussing the substance of section 4. That should not happen in regard to an amendment. That was the point I was making to Senator Donovan, the Government spokesperson in the Seanad, when Senator Ryan accused me of not listening to him. I listened to what he said but I disagree with his comments. I reject his notion that staff in the Department of Justice, Equality and Law Reform suffer from xenophobia. That is a regrettable assertion on his part against civil servants who are not entitled to speak in this House. He should withdraw his remark because it is incorrect. It is unfair to blame public servants for framing legislation in accordance with Government policy. If he has criticisms to make I and the Government will accept them. I will make my political points in my own way. I assure him that I am in a position to defend this legislation through this House and any other House. Any reasonable person listening to me will agree with what I have to say.

I oppose amendment No. 1, "In page 3, to delete lines 12 and 13". The Irish Nationality and Citizenship Act, 1986 is referred to in this Bill and that definition should be retained. It is disingenuous of Senator Ryan to state that the legislation does not make it clear what section 4 is doing. The explanatory memorandum, which has been published along with and parallel to the legislation, makes the position clear. Page 2, section 4 it states:

Along with the changes necessary as a consequence of the Constitutional changes, the Bill includes measures--

replacing the present system of post-nuptial declarations of Irish citizenship for the non-national spouses of Irish citizens with a naturalisation procedure for such spouses involving a reduced residence requirement.....

The reality of the position which has not been put forward by Senator Ryan is that the non-national spouse of an Irish citizen, other than a naturalised Irish citizen, may make a declaration accepting Irish citizenship as post-nuptial citizenship after three years from the date of the marriage or where later from the date on which his or her spouse became an Irish citizen. There are conditions which must be met. The marriage must be subsisting at the date of lodgement of the declaration and the couple must be living together as husband and wife. The Irish spouse must provide an affidavit to that effect at the time the declaration is lodged. This provision, which I thought we would deal with when we came to section 4, inserted into the 1956 Act by the amending Act of 1986, replaced the original provision under which only the wife of an Irish citizen could make such a declaration. She became a citizen from the date of her marriage.

The declaration is of acceptance of Irish citizenship. Unlike the provisions relating to naturalisation there is no requirement of residence, good character or a declaration of fidelity and loyalty to the State. Subject to the person satisfying the necessary conditions, he or she becomes a citizen from the date of lodgement of his or her declaration. A declaration may be lodged directly to the Minister or with any Irish diplomatic mission or consular office.

It has been the experience of my Department and the Department of Foreign Affairs that a variety of fraudulent schemes have been organised to exploit loopholes in this provision with the intention of securing an Irish passport. These abusive practices are of serious concern. An Irish passport is a most valued possession and gives open access to the territory of the European Union and its employment markets. The fact that declarations can be made by spouses who have never set foot in Ireland, and who may never do so, makes the process of validating such declarations within my Department or the Department of Foreign Affairs extremely difficult. I do not think anyone will disagree with me when I say that this is hardly a satisfactory basis for the acquisition of Irish citizenship, particularly when abuses are taking place.

Senators may recall the position which arose in the Irish embassy in London in 1987 involving the issue of Irish passports based on bogus marriages. The person concerned was convicted of fraud and given a custodial sentence. However, the cases are still active and the true extent of the fraud may never be known. This was abuse on an organised scale but individuals trying to defraud the system are also encountered on a regular basis.

It is informative to look at the practices of our European neighbours in this area. Many European countries require a minimum period of residence as an absolute precondition to naturalisation, whether or not the applicant is married to a national of the country. They also apply other conditions such as good character, intention to remain in the state and language competence. Greece, Denmark, Estonia and Canada have similar absolute residence requirements. Some countries have such absolute requirements but impose a shorter minimum residence period for spouses of nationals and other applicants for naturalisation, for example France, Germany, and the UK. The US is a common law jurisdiction with similar, more favourable residence requirements for spouses. A small number of European states - Austria, Belgium and Italy - permit the naturalisation of a spouse after a certain period of marriage without regard to residence in the state but reduce the marriage period required of spouses resident in the state. In addition to, for example, Turkey, Cyprus and Portugal, Ireland is one of the few Council of Europe states where the only consideration for acquisition of citizenship by a spouse is marriage for a greater or lesser period.

Mr. Ryan: It is not for me or the Minister to decide what is in order in this House but for you, a Leas-Chathaoirligh. The procedure in the House is that amendments are grouped and usually the Department dealing with the legislation suggests the grouping. It is not my fault if the Department of Justice, Equality and Law Reform did not suggest any grouping.

I propose to pursue this amendment at great length. I wish the Minister would return to the issue. He has said that the current situation is that a declaration is sufficient after three years of a validly subsisting and continuing marriage. We could rationally discuss possible ways of tightening up this requirement provided the person knew what qualifications were needed in order to obtain citizenship. We could talk about a minimum period of residence, although I might not agree, or a declaration of fealty. We could talk about any such issue. However, because it is indefensible, the Minister will not talk about the fundamental change provided for by this Bill. This change means that, even if someone meets what the explanatory memorandum coyly describes as the conditions for naturalisation of the non-national spouse, which are no more than the conditions one must meet before one is allowed to apply, "the Minister may in his or her absolute discretion grant an application".

It is a diversionary tactic to go on about tightening up the conditions when we are changing the underlying fact which is that currently, subject to certain conditions, spouses of Irish citizens are entitled to Irish citizenship as of right. I am prepared to listen to evidence of the scale of abuse. The scale of abuse in Britain concerned a corrupt official and not fraudulent marriages. That official was convicted because of corruption.

The Minister may wish to tighten up on residence. It is an interesting concept that an Irish citizen living abroad will have to identify his or her potential spouse's character in advance of marriage for fear that they would not be allowed citizenship. The truth is that additional requirements such as good character, full age, living together as husband and wife and living in the State are not conditions which guarantee citizenship but conditions which give one the right to ask for it. Having met the conditions one can still be refused citizenship because the Minister retains his or her absolute discretion to do what he or she likes with each application. That is the issue I would like the Minister to address. I do not ask him to address the tangential issue of possible abuses or individual states and their different rules.

The fundamental issue is that having gone through an increased number of hoops the spouse of an Irish citizen is still not given a right to be a citizen of this State. This has nothing to do with the abuse of the old system but with the peculiar attitude of the Department of Justice, Equality and Law Reform to citizenship generally. We will come back to this issue later.

I know what "absolute discretion" means because I have a letter written by the Minister to a Member of the Dáil about a particular application for naturalisation which was turned down in which the Minister said that, because he had absolute discretion, it was not the practice to give any information as to why the application was refused. Under this provision, in spite of the Minister's departure in the direction of good administrative practices, and maybe he has a case, the real change is not the extra conditions or the sensible requirement that people should live in the State for a while. We could discuss such conditions rationally if there was a right to citizenship at the end. The real change is that even if applicants meet all the conditions they still do not have a right to citizenship.

This is a fundamental change from the previous system which is neither signalled in the explanatory memorandum nor the Minister's speech from which he quoted liberally in his reply. I read his speech this morning and there is nothing in it or the explanatory memorandum to explain or justify, not the changes in procedure or the details, but the fundamental deprivation of the right to citizenship. This means that if an Irish citizen living abroad wants to return here the Minister for Justice, Equality and Law Reform will decide whether their spouse can become an Irish citizen no matter how many conditions they meet. The Minister has claimed for himself the right not to have to give an explanation so that he can exercise arbitrary judgments without accountability. A refugee seeking asylum will have a fairer procedure for having his or her application dealt with than the spouse of an Irish citizen who is refused citizenship by the Minister. There is no appeal, no independence and no transparency. That is the nub of the issue and it is time the Minister addressed it.

Mrs. Taylor-Quinn: Two different positions are being taken on this section neither of which has been clarified. Why does the Minister require the inclusion of the Irish Nationality and Citizenship Act, 1986, in this legislation? The amendment seeks to exclude the 1986 Act and the Minister has not clarified why he requires the inclusion of that Act.

This Bill has been introduced on the basis of the Good Friday Agreement. There are a number of citizenship Acts and two positions are being taken. On what grounds does the Minister require the inclusion of this section in the Bill? What is the relevance of the 1986 Act to the general thrust of this legislation? Can the Minister proceed without the 1986 Act?

Dr. Henry: Citing criminal activities involving the fraudulent issuing of passports from the basement of the Irish embassy in London in 1987 is not a good reason for making these changes. We encourage people to work abroad to obtain experience. We encourage multinational companies to come to Ireland and working for such companies means that one will probably have to work in their operations in various parts of the world. We encourage people to go to areas of the developing world to assist in aid programmes. The people we are encouraging to undertake these activities are likely to be at a marriageable age - in their late 20s and 30s. Under this section these people will have serious problems if they marry a non-Irish person. How will they definitely be able to say they can return here for one year, if that does not suit Intel or Motorola and they must move on to one of their other operations after six months? How will they be able to say, in good faith, that they intend to reside in Ireland from the time of naturalisation?

This section makes it extraordinarily difficult for people who will not be in a position to undertake the various commitments required. The number of people who have fraudulently married to obtain citizenship is very small. It would be better to deal with them in the courts than to include this section which could seriously disadvantage many of our citizens who marry non-nationals.

Mr. O'Donoghue: Let me make it perfectly clear that it is not the objective of this legislation to make it difficult for genuine spouses of Irish nationals to achieve Irish citizenship.

Mr. Ryan: How do we know?

Mr. O'Donoghue: This is a nonsense and should not be taken seriously. This provision prevents abuse of the process. It prevents marriages of convenience, which are taking place and result in people obtaining Irish citizenship. I wish to make it clear that on no account is this legislation about preventing genuine spouses of Irish nationals obtaining Irish citizenship - that is neither the intention of the Bill nor is it stated anywhere that that is the position, other than in the mind of Senator Ryan and perhaps to a lesser extent in the mind of Senator Henry. The Senators are entitled to formulate their opinions and as Senator Ryan is aware, I would be the last-----

Mr. Ryan: I appreciate that. Sometimes I think the Minister's Department would also abolish that if it got the chance.

Mr. O'Donoghue: -----to disallow any person the right to express his or her opinion - that would be quite wrong. When those opinions are at variance with the facts, however, I am equally entitled to give my opinion. If Senator Ryan will stop interrupting me, I will continue to do so.

I have explained the realistic position. I do not believe the citizens of this or any other country should have to stand by and watch their citizenship laws being abused in this fashion. I would not be doing my duty as Minister for Justice, Equality and Law Reform if I did not try to ensure that this does not continue.

The termination of the scheme of post-nuptial citizenship means effectively that non-national spouses of Irish citizens habitually resident outside the island of Ireland will, after the transitional three year period provided in subsection (2) of this section, no longer be in a position to obtain citizenship based on their marriage. However, new section 15A in the 1956 Act, being inserted by section 5 of the Bill, which provides a special scheme for the naturalisation of spouses of Irish nationals, contains at subsection (2) a provision whereby the Minister may waive certain of the conditions for naturalisation of spouses. The conditions which can be waived include the residence requirements in the island of Ireland at subsection (1)(f) and (g) of that section, where the applicant would suffer serious consequences in respect of his or her bodily integrity or liberty if not granted Irish citizenship.

I consider sections 4 and 5, taken together, to be a reasonable and well balanced approach which takes into account the position in the EU and other states. The balance achieved is between the desirability of having a means for non-national spouses to become Irish citizens on the one hand and the protection of the interests of Irish society by reducing the scope for abuses - to which I referred - of our citizenship on the other. The conditions attaching to this special scheme of naturalisation are not in any sense unreasonable and would be regarded in many states as basic requirements for the grant, something which I am sure we value greatly and would not wish to see bestowed lightly or dishonoured by abuse. We can discuss them in more detail when we come to section 5 of the Bill.

Mr. Ryan: For a man who is so assertive about his willingness to explain himself, the Minister did not explain why he retains absolute discretion after all these conditions. Is this because he is embarrassed by it? Are Ministers perfect? Do they never act out of mistaken belief or prejudice? The rest of us make mistakes and jump to conclusions. We do things which perhaps we should not, which is why any powers we have are constrained by the law and the Constitution and none of us can act out our fantasies, prejudices or our less than worthy impulses. However, the Minister for Justice, Equality and Law Reform can say what he likes - he has absolute discretion. Will the Minister tell me what constraints there are on his absolute discretion? A person cannot appeal to the courts and the Minister does not have to explain himself to anybody. I have a letter in which he says he does not propose to give any reasons for his decisions because he has absolute discretion.

Spouses of Irish citizens must go through all the hoops - I have no objection to many of them although some are impractical - before they can apply and the Minister can refuse them without a reason or an explanation of what conditions they must meet. This is the nub of the issue and he will not discuss it because it is indefensible. The power which already exists under naturalisation is indefensible and I am certain that sooner or later he will be caught in the courts. Just as he was caught on deportation, he will be caught on this absolute indiscretion. It is an extraordinary power to claim for oneself in a democracy.

The Minister is now saying he has absolute discretion vis-à-vis the spouse of an Irish citizen to decide whether they can become Irish citizens or not. That is what is less than worthy in the Minister's speech and the explanatory memorandum. They do not address the nub of the issue which is the complete reversal of the situation. Prior to this, there were conditions which gave one a right. Now there are conditions which one has to meet before one can apply to the Minister who will then exercise his absolute discretion. During this debate, either now or later, the Minister will have to address this issue or we will be here until midnight.

I will not leave this House without the Minister explaining to me what absolute discretion means, why he believes he must have it and why he has introduced such a fundamental change. The conditions are not the fundamental change, although I do not like some of them. The fundamental change is that we have gone from having a right to having none. The only right spouses will have is to apply for naturalisation. They must meet certain conditions and then they can apply. As far as I am concerned, that is totalitarian.

Mrs. Taylor-Quinn: On a point of order, are we discussing section 1 or section 4?

Mr. O'Donoghue: I do not blame the Senator for asking.

Mrs. Taylor-Quinn: I asked a question in relation to section 1, which is fairly clear. Are these sections being discussed together?

An Leas-Chathaoirleach: We are on amendment No. 1.

Mrs. Taylor-Quinn: To section 1?

An Leas-Chathaoirleach: Yes.

Mrs. Taylor-Quinn: Can we deal with the issues section by section?

An Leas-Chathaoirleach: We are on amendment No. 1 to section 1 and I ask Senators to confine themselves to it.

Mrs. Taylor-Quinn: We are all over the place.

Mr. O'Donoghue: We are on sections 4 and 5 as far as I can see.

Mr. Ryan: On a point of order, can the Leas-Chathaoirleach explain how I can be in order and discuss the reason the reference to the 1986 Act should not be in this Bill? If the Minister were to accept the amendments, the Bill would be flawed because there would be a reference to the Act of 1986 in the definition section and no reference to the Act of 1986 anywhere else in the Bill.

Mrs. Taylor-Quinn: I have already asked the Minister a question in relation to this matter which has not been explained

An Leas-Chathaoirleach: The Senator will have an opportunity to contribute again. We are on section 1, amendment 1, and there is no grouping of the first amendments.

Dr. Henry: In order to get an idea of the numbers who have entered into fraudulent marriages to acquire Irish citizenship, will the Minister give us the Department's figures from 1988 to 1997? This would not include the period in London in 1987 when there certainly was a problem. What were the approximate numbers each year? Was it tens, twenties, hundreds or thousands?

Mr. O'Donoghue: Unfortunately, it is not possible for me to give Senator Henry the precise number for the simple reason that I do not know the extent of the fraud. However, I am aware that the Department of Foreign Affairs comes across this matter from time to time. If Senators Ryan or Henry can table an amendment this afternoon which will ensure that abuse does not take place in the future, I will be willing to consider it. I am obliged to listen to what the Senators have to say, but if they have a constructive method whereby abuse can be prevented, I will be willing to listen. While the Senators are normally very constructive, on this occasion they have not come forward with proposals which would protect the type of situation emerging which I have described, that is, the whole issue of marriages of convenience whereby people get married in order to become Irish citizens.

As I have already explained, Irish citizenship is a very valuable possession. My difficulty is bringing forward a measure which will prevent this type of abuse while at the same time satisfying Senators Henry and Ryan. I have no such proposal at present.

The Laurentiu judgment was a learned judgment which re-emphasised and reinforced the power of the Minister in relation to making decisions on deportation, together with specifying that the policy itself should be laid down in legislation. This measure was introduced in 1935 under the Aliens Act. It was the Aliens Act, 1935, operated under successive Ministers, which was dealt with in that learned judgment. I do not believe the legislation will be found to be unconstitutional. If tested, the Supreme Court or High Court will decide. I am confident it is constitutional. It is my duty to ensure in so far as I can that legislation coming before this House is constitutional . However, I cannot give any guarantee in this regard.

I remind Senators Ryan and Henry that I am constrained by the rules of natural justice, and this is an excellent thing. In exercising what Senator Ryan describes as an absolute discretion, I must nonetheless have regard to the rules of natural justice and ensure it prevails. If it does not prevail, people can have recourse to the courts. I do not believe that any Minister for Justice worthy of the name would discriminate unfairly against any individual.

Mr. Ryan: In deference to the Leas-Chathaoirleach and Senator Taylor-Quinn, perhaps we should not pursue this issue for too long and wait until we reach the section. For someone who is so sensitive about natural justice, the Minister has a view on absolute discretion. My understanding of natural justice is that if one has a negative judgment made against them, they ought to be entitled to see the evidence on which that judgment was made. I am aware the Minister does not tell people who are refused naturalisation the reasons this has been refused. Perhaps he could begin his commitment to natural justice by meeting that preliminary requirement. People should be informed why naturalisation has been refused and be given the right to reply to the accusations made against them. Currently this is not the case and that is why I am concerned about the issue.

An Leas-Chathaoirleach: The Senator is being repetitive.

Mr. Ryan: I am just beginning.

Dr. Henry: I will not be repetitive. I am surprised the Minister has no idea of the scale of the problem. To introduce legislation which will adversely affect so many Irish people who may marry non-Irish and are living abroad, I would have thought the Minister must know of thousands of cases. However, I only read of occasional cases in the newspapers. I presume that if it was thought there were fraudulent cases, the Department would have pursued them. I find it extraordinary that such a draconian measure is being introduced when it appears there is no knowledge in the Department about the scale of the problem.

Mr. O'Donovan: As someone who some time ago lived in London for a number of years, I am satisfied, from first-hand information, that marriages of convenience in order to obtain Irish citizenship were widespread at a particular time. This was well documented. Whether the Minister or the Department of Foreign Affairs have the figures is irrelevant because this happened in another jurisdiction. I believe the number was several hundreds. The practice was quite common during a certain period until the incident in the embassy brought it to a head. It is not too long ago since there was uproar in this House regarding the alleged passports for sale controversy whereby a number of people from foreign countries received passports by investing money in this country when investment and jobs were badly needed. Even though the numbers involved were trivial, there was uproar in this House, particularly on the Opposition side. Yet when the Minister tries to introduce a measure which will restrict abuse in the issue of Irish passports, which should be done, there is an outcry and a claim that this is wrong. We cannot have it both ways. If just a dozen passports are granted for spurious reasons, such as contrived marriages of convenience in Great Britain, South America or wherever, then we should legislate against this practice.

We seem to have been debating sections 4 and 5 rather than section 1. It is a pity these sections were not taken together as they are co-related and I fear there will be a rehash of the debate. I am not criticising what Senator Ryan said because I know he is sincere in his views. However, in essence, what we have been discussing for the last 45 minutes is sections 4 and 5. These sections are inter-related and should have been taken together.

An Leas-Chathaoirleach: Is the amendment being pressed?

Mr. Ryan: Not at this stage.

Mr. O'Donoghue: I have already outlined that the Laurentiu case reinforced and re-emphasised the discretion of the Minister of the day, the Executive, in regard to naturalisation matters. That matter has come before the courts on a number of occasions and the courts have upheld the right of the Minister. This may come as a surprise to the Senators, but that is the position. The Laurentiu case is an example of that. When the Supreme Court dealt with this case, which dealt with deportation of a failed applicant for asylum, there is no question that the right of the Minister in this respect was reinforced and re-emphasised. In his judgment, Mr. Justice Keane - soon to Chief Justice - expressed a concern about the delegation of powers to non-elected officials. He was concerned that those who were elected would exercise the powers for which they were elected. In that context, there are no circumstances in which there is a particular attitude in the Department of Justice, Equality and Law Reform - not in my time. In fact, policy is determined firmly, reasonably and fairly - though Senator Ryan may not agree - by me as Minister and by the Government and that is the way it should be. Any notion to the effect that the attitudes of particular officials are paramount is nonsense. It is also unfair to the officials concerned to say things like that.

The Irish Nationality and Citizenship Acts, 1956 to 1994, give the Minister absolute discretion in naturalisation matters. That is a matter of fact and implies that even if an applicant meets the criteria for naturalisation set out in the Act, it does not follow that the Minister must grant naturalisation. Any other arrangement would change the nature of naturalisation from a privilege bestowed on the applicant as a right. Of course, none of this absolves the Minister from the requirement to follow fair procedures in considering applications for naturalisation The Minister is obliged, without question, to follow fair procedures and there is no doubt about that. It is also true to say that the courts have upheld the right of the Minister of the day not to disclose information to applicants as to why they did not obtain naturalisation.

What am I doing here in this legislation? I am doing no more than is done in the United States, which is a traditional country of immigration. In the United States the position is that if someone marries a United States citizen, the procedure I am setting out in this legislation is followed. I am doing nothing that is in entirely or in any sense illiberal - I am applying common sense. I am ensuring our citizenship laws are not abused. That is what I am trying to do. If any Senator has a formula which would be better than this, I like to think I am reasonable and would listen to it. Senator Ryan is quite correct - even the Pope has accepted he is not infallible and what is good enough for the Pope is good enough for me. In that context I am telling Senators I am not trying to disadvantage or be unfair to anybody. If a Senator has a formula which resolves this abuse of Irish citizenship, tell me what it is and I will listen to it.

Mr. Ryan: Very simple.

Mr. O'Donoghue: Senator Henry said she was amazed I could not give her exact figures-----

Dr. Henry: Not exact figures, just a general idea - tens, twenties or thousands.

Mr. O'Donoghue: - or a general idea. The situation is that I cannot, with any amount of certainty, say what is the extent of the abuse. I can tell the Senator that the Department of Foreign Affairs has come across this problem.

Dr. Henry: How frequently?

Mr. O'Donoghue: Just because I cannot tell Senator Henry how many cups of tea I had last week does not mean I did not have tea last week. I cannot give a precise figure or even an average guess for the simple reason that I do not know the extent of the fraud. Were I give to a figure that was to prove wholly and wildly inaccurate, I would probably then be accused of giving wrong information to the House. Obviously I cannot take that route, but the Department of Foreign Affairs officials and I are satisfied that this abuse should be stopped. If there are other ways of dealing with it that people would be happier with, bring forward the amendments and I will listen to them.

Mr. Ryan: It is very easy to deal with the Minister's problem, which is to add those conditions in section 5 to the conditions that already exist and then give anyone who meets them the right to citizenship. That simply means that the conditions are met - the situation is tightened up with a residency requirement and some other matters. Anyone who applies for citizenship will have to have lived here for a considerable period.

The Minister is saying that because there are a number of abuses - the precise number of which he cannot say - he is going to take away the rights and certainties of the vast majority of non-Irish citizens lawfully married to Irish citizens in order to deal with a problem, though he cannot tell us of the precise magnitude of that problem.

This is the Minister who was prepared to tell us of a huge "glut" of asylum seekers. He had no problems with sweeping language when talking about asylum seekers. Now he will not, and I know why - he does not know. Regarding the attitude of his Department, I am sorry he has not read my Second Stage speech as he would have noticed something I have raised a dozen times here. It is the practice of refusing visas to visit this State, which happened in two successive years-----

An Leas-Chathaoirleach: I would prefer not to hear the Senator's Second Stage speech again.

Mr. Ryan: The Minister is springing to the defence of his officials, which he is entitled to do. I know there are wonderful people in his Department, but it is the culture of that Department, not the individuals, which bothers me. However, on two successive years, two 15 year old Asians from Shipley College, Bradford, who were coming to Ireland on an educational tour organised by their school in the 1980s, were refused visas to enter the State. As there is no accountability and nobody will discuss the issue, one can only conclude that they were picked out because they were Asians. They were on a school tour and were going back to the UK, where they were legal residents, when they were finished.

Amendment, by leave, withdrawn.

Section 1 agreed to.

SECTION 2.

An Leas-Chathaoirleach: Amendment No. 2 is consequential on amendments Nos. 5 and 6 and they are to be taken together, by agreement.

Government amendment No. 2:

In page 3, to delete lines 15 and 16 and substitute the following:

"(a) the deletion of the definitions of -

(i) 'alien'

(ii) 'full age', and

(iii) 'Ireland',".

Mr. O'Donoghue: Senators will recall that on Second Stage I undertook to bring forward an amendment on Committee Stage to the commencement provisions for section 9(3) of the Bill which would have the effect of stitching into the Bill the specific date the new sections 6 and 7 of the Act as inserted by section 3 of the Bill are to have effect. These new sections deal with the changes to citizenship by birth in Ireland consequent on new Articles 2 and 3 of the Constitution and restatement of the law on citizenship by descent. Amendment No. 8 spells out that these provisions will, once passed into law, operate with effect from that historic day, 2 December 1998, on which the Government made the declaration under Article 29.7.3 of the Constitution which brought new Articles 2 and 3 of the Constitution into effect. That intention was already clear from the terms of the Bill as introduced. This amendment will have the effect that future readers of the Bill, when enacted, will have full information on the operation of the Act as well as a reminder of that significant day.

Amendments Nos. 2 and 6 are consequential drafting amendments to the interpretation and other commencement provisions of the Bill to ensure that the necessary definitions also operate with effect from 2 December 1999. I am sure Senators will have no difficulty in supporting these amendments.

Mrs. Taylor-Quinn: Will the Minister explain specifically what will be the effect of the deletion of the definition of Ireland? Will he explain what is meant by the term "island of Ireland" in other sections?

Mr. O'Donoghue: The Senator normally asks difficult questions. The definition of Ireland is being removed. The present definition is based on that of the national territory in the former Article 2 of the Constitution. The new Article 2 contains no corresponding definition. It refers to the island of Ireland, which includes its islands and seas. Section 2(d) provides that reference to the island of Ireland in the Act includes a reference to its islands and seas. References to Ireland occurring elsewhere in the 1956 Act at present are replaced by references to the island of Ireland or to the State as contextually appropriate. Those occurrences, which are not covered by substantive replacement sections, by repeal or otherwise, are dealt with at section 8 which deals with miscellaneous amendments. I am sure everybody will accept that this is a progressive change, as is the deletion of the definition of alien.

Mr. Ryan: Even I agree with that.

Mr. O'Donoghue: We have discovered that there is not a man on the moon. I am sure people will welcome the deletion of the term "alien". It is a progressive move. Where the legislation is not regarded as progressive, it is only because there are certain measures one must take at times in order to prevent abuse.

Mrs. Taylor-Quinn: I take it from what the Minister said that the term "island of Ireland" means the 32 counties, the islands of the island of Ireland that come under the Government's jurisdiction and Ireland's seas. I agree with him that this is a progressive move, but it has been taken very slowly. I congratulate the Minister and his party on coming around to the Cumann na Gael way of thinking. It has taken his party 78 years to take this progressive step forward.

Mr. Ryan: If the Bill was only about these things, the Minister would have left the House by now. Building on his welcome deletion of the term "alien", he should address terms in other legislation in his capacity as Minister with responsibility for law reform. Our legislation, historically, is full of offensive and vulgar language, particularly that dealing with people who are mentally handicapped, which would not be used in society any more. It would be useful to pursue a programme of the removal of that language from legislation. Some of the language dealing with children and handicapped children dates back 20 or 30 years and contains offensive phrases that I do not even want to put on record. Their removal would be useful. I accept the Minister is busy but given that he accepts the principle that language should represent our values, it is important this matter, which would come under law reform legislation, should be on the agenda.

Mr. O'Donoghue: I accept there is language in legislation that would be considered offensive today. The legislation to which the Senator referred is probably in the purview of the Minister for Health and Children. It is timely to remind ourselves when reviewing legislation across all Departments that offensive language should be removed. This opportunity should be taken in regard to the matters the Senator mentioned. I subscribe fully to that belief.

I cannot subscribe to the view of Senator Taylor-Quinn, but that will not come as a surprise to anybody. I remind the Senator-----

Mrs. Taylor-Quinn: Does the Minister not remember that Articles 2 and 3 were the foundation stone of Fianna Fáil?

Mr. O'Donoghue: -----that my party brought us to this stage.

Mrs. Taylor-Quinn: Think of the mayhem it caused for 78 years.

Mr. O'Donoghue: My party led the posse as opposed to following it.

The term "island of Ireland" includes the islands and the territorial seas. It includes Rathlin Island but there is still some dispute about Rockall.

Mrs. Taylor-Quinn: Does it include Inisvickillaun?

Mrs. O'Donoghue: It does.

Mr. Ryan: I have no problem and never had with Fianna Fáil's attitude to the national question.

Mr. O'Donoghue: I know that.

Amendment agreed to.

Section 2, as amended, agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Dr. Henry: I am somewhat confused on this matter but I am sure the Minister will be able to clarify the position. I accept that a considerable purpose of this section is to ensure that those born on the island of Ireland or on Rathlin Island who do not want to become Irish citizens are not coerced into being Irish citizens, but does the position on citizenship by birth still maintain? Section 6 of Part II of the 1956 Act dealing with citizenship states that every person born in Ireland is an Irish citizen from birth. There are no qualifications about that, whereas in this section a person seeking citizenship would have to jump through a number of hoops.

We have discussed this matter previously. If a pregnant lady from Latvia, her husband and two children booked into a guest house in Gardiner Street, not intending to stay here for long but the lady went into premature labour and gave birth to a baby in the Rotunda Hospital, under the 1956 Act that child would be a citizen of Ireland and his or her parents and siblings would be entitled to stay here. The Minister may not believe this might happen but I aware of similar cases. Such a child's parents and siblings would not be citizens but under the 1956 Act they would be entitled to stay here because such a child would be entitled to the care and comfort of his or her parents under the UN Convention on the Rights of the Child, which we have signed and under a Supreme Court judgment handed down in 1991. Will that situation still pertain if section 3 is passed?

Mr. O'Donoghue: The Senator has outlined the present law on this matter very well. Since 1956 the statutory position has been that every person born on the island of Ireland is an Irish citizen. As she correctly outlined, this applies irrespective of the immigration status of one or either of the parents. One effect of the new Article 2 of the Constitution is to declare the constitutional entitlement and birthright of every person born on the island of Ireland to be part of the Irish nation. The new section 6 of the 1956 Act provides that section 3 of the Bill reflects this constitutional entitlement. In a nutshell, there was a statutory entitlement and now there will be a constitutional entitlement. This is much stronger than a statutory entitlement.

There was a landmark decision in the Fajujonu case in 1989 in which the Supreme Court held that when non-nationals had resided for an appreciable time and become a family unit in the State with children who were Irish citizens, such children had the constitutional right to the company and care of their parents. This was a landmark decision for obvious reasons. It was a good decision with which most people would agree. Although the parents as non-nationals had no constitutional right to remain in Ireland, they were entitled to assert the choice of residence on behalf of their minor children in the interests of those children.

Parents of Irish children have the alternative of applying for residency on this basis. Such applications are generally granted by the Department of Justice, Equality and Law Reform. The only matter which would militate against such an application would be a strong public interest in the opposite direction. As Senator Henry pointed out, minor siblings are also allowed to remain. The families of Irish born children are in practice allowed to take up employment without the need for a work permit and, Senator Ryan will be glad to hear, to set up a business without seeking the Minister's permission. In respect of applications over the last two years, 1,300 people have been given permission to remain in the country on the grounds of having an Irish born child. The move from a statutory right to a constitutional right, allied to the landmark judgment, takes account in a caring way of the position of Irish born children.

Mrs. Taylor-Quinn: Will the Minister clarify the position when there is a marriage and when people are living together as partners? The rules in sections 4 and 5 are specific but what is the position if a married couple is living in Ireland, where one partner is a non-national and has not complied with the rules for citizenship under the Bill, and a baby is born? What is the situation if an Irishman is living in Ireland with a non-national, such as an Asian girl, and they have a child? What citizenship applies to a child whose mother is Asian and father is Irish and who are living in this jurisdiction?

Mr. O'Donoghue: As I outlined in regard to the position of a child born in this jurisdiction, it would not matter if the person concerned was Asian or of other extraction. This would be irrelevant. The same position I outlined in regard to Irish born children would apply. The nationality of the father or the mother in that respect would not matter once the child was born in Ireland.

Senator Taylor-Quinn wants to know the position if the child was born abroad. If that was the case and the child had an Irish father, for example, he or she would have citizenship by descent. I hope that answers the Senator's query.

Mrs. Taylor-Quinn: What is the position if a couple is not married and do not have a legal marriage certificate in the jurisdiction in which they reside but the father is claiming paternity?

Mr. O'Donoghue: It does not matter whether they are married. That is irrelevant. The Status of Children Act, 1987, abolished the distinction in so far as there was a difference at that time between a child born in marriage or outside marriage. It would not make any difference whether the couple was married. It would not be a determining factor in terms of the child having Irish citizenship. If the child was born in Ireland, the position is that he or she would be an Irish citizen. Otherwise, if one of the parents is Irish, the child is entitled to citizenship by descent.

The provisions of Irish law regarding citizenship by descent, as provided under sections 6 and 7 of the Irish Nationality and Citizenship Act, 1956, or under the proposed section 7, to be replaced by section 3 of the Bill, apply irrespective of the marital status of the parents. Section 5 of the Status of Children Act, 1987, states:

It is hereby declared that, in relation to a child, any reference to father, mother or parent in the Irish Nationality and Citizenship Acts, 1956 and 1986, includes and shall be deemed always to have included the father, mother or parent as the case may require who was not married to the child's other parent at the time of the child's birth or at any time during the period of 10 months preceding the birth.

For example, a person born abroad who can show that his or her father or mother was an Irish citizen, even if the parents were not married to each other, may be able to claim Irish citizenship by registering in the foreign births register. He or she must make a claim because he or she is outside the State. Unfortunately, I do not have figures regarding the frequency of such births. The Department of Foreign Affairs rather than my Department is involved with regard to the foreign births register. I hope this answers Senator Taylor-Quinn's query.

Dr. Henry: I have moved to a different seat because I am having trouble hearing due to 12 flights in 12 days. Why is subsection (3) included? It states that a person born in the island of Ireland is an Irish citizen from birth. Why is it necessary to also include "if he or she is not entitled to citizenship of any other country"? It is curious.

Mr. O'Donoghue: Senator Henry asked why section 3(3) is included. The blunt answer is that it is to avoid what I would describe as statelessness. Section 6(3) provides for the passive circumstance that a person born in Ireland who had no entitlement to citizenship of another state would be an Irish citizen. This applies to most people born in the State after 1 January 1949. This is the effective date for the British Nationality Act, 1948, which is a United Kingdom Act. People born in the State before that can also claim British citizenship. The idea is to avoid statelessness. We do not want a limbo in our citizenship laws. This is the concept behind the provision.

Dr. Henry: How could they be stateless? If they were born here they would be entitled to be Irish citizens.

Mr. O'Donoghue: But is that not the whole point? I accept this matter is complex. A person has an entitlement to be an Irish citizen. For example, if I live in Belfast and do not want to be an Irish citizen I need not be an Irish citizen. It is a question of entitlement. The concept behind it is one of inclusiveness and allowing people to make up their own minds.

Mrs. Taylor-Quinn: They would have a choice.

Mr. O'Donoghue: They have a choice. Nobody is being forced to do anything. The idea is to allow people to decide whether they want to be Irish citizens or not.

Mrs. Taylor-Quinn: But they do not.

Mr. O'Donoghue: The option is available. The idea behind subsection (3) is to avoid statelessness. Senator Henry asks what is the need for this subsection if one is already a citizen. The reason is that it is an entitlement where one can exercise the option. I trust that alleviates any concerns the Senator may have in that respect.

Dr. Henry: I would have thought subsection (2) covered that issue.

Mr. O'Donoghue: My view is that it does not cover that issue. I appreciate the view expressed by Senator Henry but subsection (3) seeks to avoid the statelessness of a person who does not exercise an option.

Mr. Ryan: I appreciate this is a complex and difficult matter. I am a bit bothered about section 6 which is to be inserted in the 1956 Act, subsection (1) of which states: "Every person born in the island of Ireland is entitled to be an Irish citizen." That seems absolute, unambiguous and clear. Subsection (3) states: " A person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship ..." I understand subsection (3) would apply to citizens of Northern Ireland. They are entitled to be Irish citizens because they are born in the island of Ireland, but unlike those of us who were born here they do not automatically become Irish citizens because they are entitled to be citizens of some other state.

A document produced by the Minister's Department, about a year ago, suggested the question of automatic citizenship for the children of asylum seekers might have to be reconsidered. Some people are concerned that the children of two Romas here who were born in this State are entitled to citizenship of Romania. I cannot see how we can do this one way and not the other. If we were to imply that the child of two Romanians was not entitled to citizenship, then equally anybody born in Northern Ireland would not be entitled to citizenship either. My understanding of the difference is that an Irish citizen from the moment of birth has the unqualified right to become an Irish citizen without any dilution of that right, but in the second case one has to ask for it or, if under age, somebody has to ask for it for you. Senator Henry has had eminent members of the legal profession interpret it quite differently.

Mrs. Taylor-Quinn: Can we take it from this section that all people born in the island of Ireland, including the Unionist community in Northern Ireland, automatically become citizens of the island of Ireland now? Is it true that, as the law stands and until the abolition of Articles 2 and 3, all people in the 32 counties of Ireland were automatically citizens of Ireland under the Constitution? As the law stands, are most of the elderly Unionist community in Northern Ireland citizens of the island of Ireland or the Republic as was the case until the Constitution was amended? Will this legislation ensure that all communities in Northern Ireland continue to be citizens of the island of Ireland or will they have to repudiate that citizenship or confirm seeking that citizenship? We recognise there is a Northern Ireland dimension to this section and Senator Ryan raised the broader dimension at international level. There is a need for further clarification of the section.

Mr. O'Donovan: This matter was discussed comprehensively on Second Stage. My understanding of the point raised by Senator Taylor-Quinn is that under the provisions of this Bill, birth in the island of Ireland or any of its islands gives an option to people in Northern Ireland, particularly those of the Unionist tradition. There is no obligation or compulsion on a person living in Northern Ireland who wishes to take up the option of becoming a British citizen but it provides a platform, if they so wish, to do it. It is not forced upon them. The thrust of this legislation is to give an option to people on the island, particularly those in Northern Ireland, who may choose otherwise.

Mr. O'Donoghue: The legislation reflects the Good Friday Agreement. The objective of the exercise is to ensure that all people born in the island of Ireland, North and South, have an entitlement to Irish citizenship. Anybody born in the jurisdiction is an Irish citizen. It was not the case under the 1937 Constitution that people born in the North were Irish citizens, though that was a widely held belief. The legal situation is changed through this legislation. What will now happen is that a person born in the North will have an entitlement to be an Irish citizen. Obviously the legislation does not specify what act is required by an individual to exercise that right of entitlement but one can envisage the kind of circumstances which would be required. For example, if a person applied for an Irish passport, that could be validly interpreted as a person exercising his or her right or entitlement to be an Irish citizen; if one were to make a declaration of citizenship under the citizenship Acts, that would also be interpreted as a person exercising his or her entitlement; seeking to register one's child under the foreign birth register would be reasonably interpreted as an act which would lead one to conclude that one was exercising his or her entitlement to be an Irish citizen; seeking to be registered on the register of electors or exercising a right to vote could reasonably be interpreted as leading to the conclusion that a person was exercising his or her entitlement to be an Irish citizen.

Many people born in the North of Ireland do not want to be included automatically as part of the nation consistent with the British-Irish Agreement and it is important that they are in a position to exercise their entitlement also. Therefore, the doing of any act of the nature which I have described is a reasonable way of dealing with the issue.

With regard to the issue of section 6(3), to which the Senators referred, the position is that we had to avoid the case where a person might be stateless altogether. What we are providing for there is somebody who is passive, in other words, somebody who does none of the things which I have mentioned. If that person did not have an entitlement to citizenship of another state, then section 6(3) catches such a situation and that person would be deemed to be an Irish citizen. As I said, it applies to most people born in the State after 1 January 1949, which was the effective date for the British Nationality Act, 1948, because people born in this State before that date can claim British citizenship also.

I hope that explains the position, although I suppose it is fair to say that section 6(3) might be pointed to by people born in the North of Ireland as discriminating against them because they will have to take an active step to show that they are Irish whereas most people born in the State are Irish by default. It would be impossible, however, to argue logically against section 6(3) because it could lead to a vacuum in which the citizenship of a large number of people was uncertain from an international perspective. That would not be right. Therefore, there would be no procedural difference - this is crucial - between people North or South demonstrating that they are Irish citizens.

I accept it is quite complex but I hope my explanation is adequate because, as Senators pointed out, this is very important. It is necessary that we debate it fully. I am glad the issues have been raised so that I had the opportunity to answer, dare I say it, very intelligent questions on this subject.

Dr. Henry: Good. I have not heard that in a while.

Mrs. Taylor-Quinn: In view of what the Minister said, are all citizens in the Six Counties born prior to 1949 automatically citizens of the Republic of Ireland? Do I take it that people born before 1949 in Northern Ireland are actually citizens of Ireland?

Mr. O'Donoghue: No.

Mrs. Taylor-Quinn: Is the Minister sure? Is he sure that Dr. Ian Paisley is not an Irish citizen?

Mr. O'Donoghue: I am as sure as I can be.

Mrs. Taylor-Quinn: How sure is the Minister?

Mr. O'Donoghue: I am as sure as I can be.

Mrs. Taylor-Quinn: I think there is a question mark there.

Mr. O'Donoghue: We dealt with the fallibility issue.

Mrs. Taylor-Quinn: The Minister is not sure. Let us be honest.

Mr. O'Donoghue: I am sure as I can be.

Mrs. Taylor-Quinn: That is not very sure.

Mr. O'Donoghue: I will tell the Senator why. When I spoke about the British Act I was referring to an Act, the effective date of which was the date in 1949 but which was enacted in 1948. Therefore, I am that sure.

Mrs. Taylor-Quinn: We declared a republic in which year?

Mr. O'Donoghue: 1949.

Mrs. Taylor-Quinn: Before that declaration-----

Mr. O'Donoghue: Mr. John A. Costello I think was described as the honest broker in the days of stronger men.

Mrs. Taylor-Quinn: In view of that, technically is there not a case-----

Acting Chairman (Mr. Finneran): We are moving a good bit away from section 3 at this stage.

Mrs. Taylor-Quinn: Is there not a case because of Articles 2 and 3 of the Constitution to say that all people born before the Republic was declared in 1949 are actually citizens of Ireland?

Dr. Henry: I thank the Minister for going into the explanations so carefully. I think it was worthwhile clarifying this because it is a very important section. Can I definitely take it that my hypothetical Latvian lady's baby's rights are in no way diminished?

Mr. O'Donoghue: Certainly.

Dr. Henry: I thank the Minister. I thank him for clearing up section 3. I understand it now.

Mr. O'Donoghue: To reply to Senator Taylor-Quinn again, I am-----

Mrs. Taylor-Quinn: As sure as he can be.

Mr. O'Donoghue: Yes. I am as sure as I can be. The important point is interestingly that Articles 2 and 3 in the 1937 Constitution were diplomatically silent on issue of citizenship. They referred to the national territory and they dealt with "land masses" but I do not think they dealt with mind masses, if the Senator understands what I am saying, nor masses of minds.

Mrs. Taylor-Quinn: I thought Fianna Fáil was legislating for 32 counties all the time.

Mr. O'Donoghue: Section 6(3) of the 1956 Act, to put this in perspective, provides that "Every person born in the island of Ireland is an Irish citizen from birth" - we will take that as the starting point. Section 7(1) of that Act provides that

Pending the re-integration of the national territory, subsection (1) of section 6 shall not apply to a person, not otherwise an Irish citizen, [in effect, by descent] born in Northern Ireland ... after the 6th December, 1922, unless, in the prescribed manner, that person ... declares himself to be an Irish citizen.

It was necessary, therefore, for the person to make a declaration to become an Irish citizen. What we have done here, in accordance with the Good Friday Agreement, as I have already stated, is to give people an entitlement. I instanced the ways in which they can be seen to exercise that entitlement, but the important thing is that the entitlement is the same for everybody.

Mr. Ryan: The Minister has been helpful. I have two questions. First, how does somebody who is underage indicate that he or she wishes to be an Irish citizen? Second, in particular, if the person needs somebody of full age to make the declaration for him or her, what about families in Northern Ireland where the children want to be Irish citizens and the parents do not? Must the children wait until they are 18?

Mr. O'Donoghue: A person need not be of full age to obtain Irish citizenship. For example, if the parents were to make an application on his or her behalf for an Irish passport, that would mean that the child was an Irish citizen or they could decide to make a declaration and the descent rule would then apply. In this respect, it is important from the perspective of Senator Taylor-Quinn's questions that I would point out that in 1956, the year in which I was born and the year of the legislation on which we are speaking there was an inter-party Government.

Mrs. Taylor-Quinn: This has obviously impacted hugely on the Minister.

Mr. O'Donoghue: The next citizenship Act, about which Senator Taylor-Quinn is very concerned and about which she is exercising her mind, was in 1986. I congratulate the Senators on their conversion to Fianna Fáil's way of thinking.

Mrs. Taylor-Quinn: On a less fundamental issue, of course, than Articles 2 and 3.

Dr. Henry: Will this affect the Irish football team?

Mr. O'Donoghue: I sincerely hope that it will have a beneficial effect, both on the rugby team and the soccer team.

Mr. Ryan: The rugby team could do with it.

Mr. O'Donoghue: I think we should see some beneficial effects.

Question put and agreed to.

SECTION 4.

Mr. Ryan: I move amendment No. 3:

In page 5, line 22, to delete subsection (1).

This amendment is part of my continuing opposition to the whole thrust of what I regard as using a sledgehammer to crack a nut or, more appropriately, using a JCB to plant a cabbage. The subsection is entirely out of proportion to the issue. I have no problem with an amendment either to section 8 of the 1986 Act or to section 8 as amended by the insertion of section 3 of the 1986 Act. I have no problem with any attempt to tighten up those parts of the Bill. We could debate the precise conditions forever and it would be a worthwhile debate, but my problem is that currently an Irish person who marries abroad knows with certainty that their spouse can become an Irish citizen subject to certain simple conditions. They know that all they have to do is meet the conditions. We can argue forever about what those conditions should be.

I genuinely have some problems with the idea that if one is intent on making sure one's spouse becomes an Irish citizen, one has to check out whether they have a criminal record. The phrase "good character" is fine, in general, for applications for naturalisation. Spouses of Irish citizens are in a unique and different situation, however, and therefore we cannot attempt to transpose the conditions that are applicable to naturalisation generally. It would be helpful if we knew the scale of the problem, but to take away the certainty from every Irish citizen who marries a non-national and replace it ultimately with the Minister's absolute discretion is wrong. The simple way around this is that section 5(1) should read:

The Minister shall grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen if satisfied that the applicant-----

It should not read "may, in his or her absolute discretion", but "if satisfied that they meet the conditions". That would leave an Irish citizen who marries a non-national certain that the spouse could become an Irish citizen, subject to the conditions that are laid down in sub-paragraphs (a) to (i).

It would deal with the issue of abuse, although I am not necessarily agreeing with all these conditions. If the Minister wants a middle road, however, it is fair enough to tighten up the conditions because some of them may be too loose. Ireland is now an appealing place, for reasons of prosperity. An Irish passport generally generates goodwill everywhere. There is a case for tightening up the conditions, but the Minister has made no case for eliminating the certainty that already existed. The conditions can be changed, but there is no reason to eliminate the certainty. All the Minister needs to do is dispense with a phrase that was taken over from the provisions for naturalisation generally and inserted here, but which is unnecessary.

This is a very specific case and it is wrong to pretend that naturalisation or citizenship on grounds of marriage is in any way similar to naturalisation generally. This is a very different situation. We have certain rights in our Constitution concerning marriage and the sanctity of the family. To put the relationship between husband and wife, and the certainty that was there-----

Mrs. Taylor-Quinn: Under strain.

Mr. Ryan: -----in jeopardy is not justifiable. I do not want to start using the sort of language again that the Department of Justice, Equality and Law Reform brings out in me on a regular basis, but that is the solution to the Minister's problem. He can put in all the conditions he wants, but the test has to be separate from his absolute discretion.

Mrs. Taylor-Quinn: I agree with what Senator Ryan has said about this section. Increasingly, Irish people go abroad to work. Young people, many of whom are graduates, get jobs all over the world and then come back having married somebody from another country. That is occurring on an increasing basis. In addition, many Irish people work abroad with voluntary organisations, including APSO, Trócaire and Concern. They do wonderful work in the Third World and meet people from the host country or from other countries, who are engaged in similar voluntary work. They may end up getting married and do so in the knowledge that there are fairly straightforward rules and regulations governing the situation relating to their spouse. It is not commendable to change these rules at this point. There may be a need to tighten up the rules because problems have arisen in this regard and, up to a point, we can see the Minister's position. However, young Irish people are increasingly going abroad and coming back to reside here with a wealth of experience. Making things more difficult for them when they have got married and are coming back to live here can put a huge strain on married relationships and make life quite difficult. In view of the demands and financial pressures on people, especially when they are relocating from another country, this section represents an added and unnecessary pressure. The Minister should review his position on it.

Mr. O'Donoghue: I have already indicated to the House the difficulty which presents itself here. There is no question that there has been abuse of this provision whereby a person who is married for three years can automatically be entitled to citizenship of this State. There is no doubt about that abuse, details of which have been communicated to my Department by the Department of Foreign Affairs. I feel obliged to ensure that the abuse is dealt with. It is important that the State is protected and that the State's citizenship laws are respected at home and abroad. I cannot allow that kind of flagrant abuse to continue under any circumstances.

I do not think anybody would disagree with me when I say that even the condition which currently exists might militate against the person obtaining citizenship. For example, at the present time the person must be married to the other person for three years. There are circumstances where people's marriages break down within that period. It is not correct to say that the current situation is without any condition because the three year rule is there. The present system of post-nuptial citizenship is unsatisfactory for the reasons I have outlined because it permits non-nationals to declare themselves to be Irish citizens when certain conditions are fulfilled. It does not contain safeguards against abuse, and that is what I am trying to do. At the present time the marriage must be subsisting and both persons living together as husband and wife. If these conditions are fulfilled at the time of the post-nuptial citizenship declaration, the declaration is still valid even if they cease to be fulfilled immediately afterwards. This does happen, incidentally. In a recent case, the Irish partner approached my Department and asked that the post nuptial citizenship declaration not be accepted. However, if the declaration is validly made we have no option but to accept it.

It might be agreed that a major defect of post nuptial citizenship declarations at present is the absence of a good character condition. A person of bad character should not be granted Irish citizenship just because they happen to marry an Irish citizen. That is a fair assessment.

We need to exercise control over who is granted the privilege of citizenship. For this purpose, I respectfully submit to the House, the Minister must have discretion. Naturalisation cannot be automatic. However, as I have said all along, the Minister's discretion must be validly exercised.

As of now, no amendment has been tabled in this regard, other than what Senator Ryan stated in his contribution. I had hoped we would proceed with the Bill this afternoon but if Senator Ryan wants to table an amendment I will give him the opportunity to do so - it would be unfair of me to try to rush the Bill through the House without providing that opportunity. However, I must advise that I might not accede to such an amendment. I will certainly consider it-----

Mr. Ryan: Why am I not surprised?

Mr. O'Donoghue: If an amendment is tabled I will give it every consideration, but my initial reaction is not to agree to it. There are a number of reasons for that which I will not go into now. However, the issue of absolute discretion, for example, has been upheld by our courts. The constitutional position is quite clear and was confirmed in the recent very learned judgment in the Laurentiu case by the incoming Chief Justice. If he is of the view that the right of the Minister to discretion needs to be reinforced or re-emphasised, I do not believe Senator Ryan or anyone else will argue about its constitutionality. However, the Senator might argue clearly and logically that this discretion should not exist and I am willing to listen to that argument. If he wants to table an amendment, the Department of Justice, Equality and Law Reform will give it every possible consideration.

Mr. Ryan: What is the legal position of the spouse of an Irish citizen who would not otherwise have the right to reside here? Does the fact that such a person is married to an Irish citizen give him or her any right to reside here? If I married someone who was not entitled to live here - for example, someone who was not a resident of the EU or the European Economic Area - would the fact that she was married to an Irish citizen give her the right to reside here?

Mr. O'Donoghue: Yes.

Mr. Ryan: I heard the advice from the Minister's official, which was, "Effectively, yes". Therefore, anyone married to an Irish citizen can, effectively, reside here. The question then is about the conditions under which they get citizenship.

My problem is that the two situations are extremely different. In one case, a person is married to an Irish citizen and is, therefore, part of an Irish family and is, by definition, in most cases the mother or father of children who are Irish citizens if they were born here.

I have no problem dealing with abuse. The engineer in me rebels against the idea of solving an undefined problem. The intelligent approach to any problem is to quantify it first. I spend a month at the beginning of first year chemical engineering telling my students not to start solving a problem until they know what it is. The Minister says he does not know how big the problem is but he knows it is there.

I have a constitutional right to freedom of speech, as does every citizen of this State. There is no doubt that right is abused. However, the fact that a right is abused is not a reason to abolish it. That is the fundamental point. If this were carried through to other areas, the Minister would have an absolute discretion to decide who could exercise the right to freedom of speech because people abuse that right scandalously. The fact that a right is abused is no justification for abolishing. The right to trial by jury, the right to silence and the right to use an alibi are abused but there is no reason to abolish them. Similarly, the right to citizenship by marriage is abused. However, I do not believe it is abused on a very great scale and, even if it is, the entire resources of the Government of this State cannot, or have not bothered to, quantify it.

We could deal with the genuine issue, which is abuse by people outside the State for the most part, by the conditions the Minister has inserted. However, the Minister should not deal with it by the removal, not of the right of the person to be naturalised but of the right of an Irish citizen to have his or her spouse treated properly. That is what is being taken away. We are saying to Irish citizens who marry non-nationals that, even if they meet reasonable conditions, we will still not give them any right to citizenship, just because other non-citizens living in the State have no absolute right. That situation is entirely different. There is a reasonable presumption that people who have been in a subsisting marriage for three years are here for the long haul.

The fair balance to deal with the Minister's problem - which he cannot quantify but which I accept he believes is real - is to tighten the conditions that must be met but to make them objective conditions. In other words, while the Minister must be satisfied, reasons must be given if he is not satisfied. People can then either appeal that decision or meet the conditions in a second application.

The Minister is essentially saying he cannot be certain he has thought up every possible condition and, therefore, he wants to reserve this right. The Bill requires an applicant to be of full age, good character, married for three years, in a recognised marriage, living together as husband and wife, have at the time of the application one year's continuous residence, have during the four years immediately preceding that period a total of two years residence, intend in good faith to continue to reside here etc. Those are enough hoops to put someone who meets those conditions through.

While one in every thousand might still abuse the situation, Irish people's rights are important. An Irish citizen has a right to be certain that his or her spouse has the right to become a citizen. For example, if the spouse were refused citizenship and the Irish citizen died, a person with no children who had lived in this State for 20 years could lose the right to reside in this State because his or her spouse had died. Imagine that prospect for an Irish citizen. A person could be refused citizenship for reasons about which we do not know at the Minister's absolute discretion.

Irish citizens are entitled to certainty. We can debate the nuances of that certainty and the degree to which there must be a tightening up. That would be a useful and interesting debate, particularly, as I said, if we had some evidence of the scale of abuse. However, there is no room for negotiation on the removal of the certainty which Irish citizens used to have. That is the issue and the reason I put down my amendment.

Mr. O'Donoghue: There is no certainty about this matter because there is provision in our law in regard to the issue of people being married for three years and living with one another for three years. Marriages have broken down within a three year period. Let us be perfectly frank about it - that happens. Senator Ryan seeks to draw an analogy between absolute rights and constitutional rights on the one hand and, on the other, a right which has its basis in statute which can be removed by statute. He went on to argue passionately and eloquently about an amendment which he has not tabled.

a">Mr. Ryan: The Minister is an intelligent man and can deal with my verbiage without its being written down. He is a very capable man; he does not need it to be written down. There are colleagues of the Minister who might have a problem, but he does not. He is well able.

Mr. O'Donoghue: Thank you.

Mr. Ryan: He is a good lawyer too------

Mr. O'Donoghue: It is nice of the Senator to say so.

Mr. Ryan: ----- and he has argued on his feet in many court cases in his time, so he need not play that one with me. That is just an escape route.

Mr. O'Donogue: It is not.

Mr. Ryan: We can deal with this in an atmosphere of goodwill and we can resolve the

size="2" face="Arial, Helvetica">issue -----

Acting Chairman: The Minister without interruption.

Mr. Ryan: ----- or we can have a row.

Mr. O'Donoghue: I accept that but I say genuinely to Senator Ryan that if he wants to put down an amendment for me to consider, I will do so. That can be done on Report Stage. The opportunity is there for Senator Ryan to put down an amendment if he wishes. I understand the constraints of time and the pressures under which Senators operate and so on. I am prepared to discontinue today and to come back another day to consider Senator Ryan's amendment on Report Stage. It would be less than honest of me not to say to the Senator that my initial reaction would be not to accede to his request, but I will look at it if he wishes to put down an amendment.

The issue is that the termination, for example, of the post nuptial citizenship scheme will not adversely affect the situation of non-national spouses in terms of their joining their Irish spouses in this State. Any person who marries a foreign national is entitled to bring his or her spouse into this State. I do not seek to impose any restrictions on them. The person concerned is entitled to work, for example. There are no immigration limitations operating which would inhibit non-nationals, who are spouses of nationals, coming into this country. Present immigration arrangements recognise the special position of spouses of Irish nationals and, regardless of their nationality, they are not required to hold work permits before entering the employment market.

It is not a requirement that a non-national spouse must obtain Irish citizenship before coming here. If it were otherwise, it would be most unfair. I accept that. Senator Ryan said the engineer in him advocates not asking people to solve problems which are not stated or evolved. Was is Lord Longford who, when questioned about an unsolvable problem, said that he had the solution to the problem and that the solution to the problem was that there was no solution? Life does not, as Senator Ryan will be aware, conform to the very strict rules of chemical engineering. If it were otherwise, I would suggest to him the probability that Wordsworth would never have written Tintern Abbey and I doubt if Caligula would have made his horse a senator.

Mr. Ryan: It is only horses who are senators now but we will not say too much. The Minister is a very intelligent man.

Mr. O'Donoghue: That is a good start.

Mrs. Taylor-Quinn: Has Senator Ryan done an IQ test on the Minister?

Mr. Ryan: I would not rely on IQ tests to measure intelligence. The Minister is playing games. He is perfectly entitled to come in here, and we can argue the toss about all these conditions. I have my doubts about the question of good character - it is a peculiar one. However, he will not explain why he insists on reserving this absolute discretion to himself. Of what is the Department afraid? What has made the Department of Justice, Equality and Law Reform and the Minister determined to reserve for themselves an unqualified right to say they do not care if a person meets all the conditions, they will not get an Irish passport? That is what it says and it is what absolute discretion means. It means a person can meet all the conditions, and the Minister knows there are people living in this State who have met all the conditions under section 15 of the 1956 Act and who have been refused naturalisation at the Minister's absolute discretion.

If he can do so there, he can do so here. The trouble with doing it here is that it is not only the rights of a non-national which are in question but he is taking away the right to certainly of an Irish citizen. The Minister is a trained logician because I understand solicitors do some logic. I am not talking about certainty about what will happen in the future but about the certainty of knowing the conditions which have to be met. The conditions currently are that a person is legally married and remains married for three years. The fact that some marriages break up before three years is not what I am talking about. I am talking about the fact that two people who are married, one of whom is an Irish citizen, should know with absolute certainty that after three years the non-Irish spouse can make a declaration which makes him or her an Irish citizen. If the Minister wants to add additional conditions to that and to say that if he is satisfied those conditions are met, the person shall be entitled to be an Irish citizen, I would have no problem with that because that deals with his issue, which is abuse. He can then be satisfied that all those conditions are met. If he is satisfied that the person is not, for instance, intending in good faith to continue to reside in Ireland after naturalisation, he can say so and the courts can sort it out. However, he does not have to say so. He will not allow himself to be asked to say so. Instead, he is including absolute discretion. He has removed it from where the courts have accepted it is reasonable, which is where people who have no other connection with Irish people - they are not married to an Irish person and are applying strictly on the grounds that they are living here.

Of course, there are many reasons it might not be refused. This is a different situation. We are potentially talking about the father or mother of an Irish child or people who marry when they are older and who have no children. We are talking about the fact that they cannot be sure after meeting any set of conditions that they are guaranteed an Irish passport. That is not fair.

One can be certain that citizens of Bulgaria, Romania, Nigeria or Somalia married to Irish citizens who do not possess Irish passports and who travel home regularly to visit their families will encounter difficulties on each occasion they pass through immigration control in this country. It is more than likely that these people will be delayed and obliged to prove their identity. That is the nature of the system and it would be very difficult for citizens of those four countries who continue to carry a passport issued in any of them to re-enter Ireland having visited their families. These people are entitled to know the circumstances under which they can escape, if they wish to do so, from that invidious position. However, the Minister will not grant them that certainty. He is intent on imposing on them a series of extra conditions with which they must comply before they are allowed to apply. The Minister continues in his desire to retain the power of absolute discretion without being accountable to anyone but, as he indicated, according to the principles of natural justice. His understanding of natural justice is that he does not have to explain his decisions to anyone. That is a peculiar concept.

I suggest that the Minister address the issues raised by inclusion of the term "his or her absolute discretion", which is the only major point of disagreement between us. He indicated that I can table an amendment on Report Stage which will be taken in the near future. Given that the Leader of the House wanted to take all Stages today, I congratulate the Minister on calming him down. However, the Minister also indicated that he will probably not accept the amendment if I table it. Will the Minister inform the House why he feels obliged to retain his power of absolute discretion. With all the conditions to which I referred earlier fulfilled, why does he still believe there is a need for him to retain that power?

Mrs. Taylor-Quinn: Are we dealing with section 4 or section 5?

An Cathaoirleach: We are discussing section 4, amendment No. 3.

Mrs. Taylor-Quinn: I want to speak on the issue of absolute discretion.

An Cathaoirleach: On the section?

Mrs. Taylor-Quinn: No, the issue of absolute discretion arises on section 5 and I was wondering when I should make my contribution.

Mr. Ryan: Amendment No. 3 is directly related to section 5 which is being substituted for the section that is being deleted and it proposes said section should not be deleted. I do not know how they can be discussed separately.

Mr. O'Donoghue: We had a lengthy debate on this matter in respect of section 1 and it is appropriate that we should also discuss it in the context of section 4. I do not doubt that we will also discuss it when we reach section 5.

Mr. Ryan: We will certainly do so if progress is not made.

Mr. O'Donoghue: I understand the reasoning behind Senator Ryan's argument. Nonetheless, I wish to take this opportunity to tease out what he had to say. It was for that reason I asked him to table the amendment again on Report Stage in order that we could consider its merits and demerits to see whether his way of proceeding is preferable to mine.

As stated earlier, my instinct is to decline to accede to the Senator's request and I explained the constitutional position and that of the courts. Equally importantly I have outlined that in exercising his discretion the Minister for Justice, Equality and Law Reform of the day will obviously be obliged to adhere to fair procedures because natural justice must be dispensed. There is no way around that. The Minister must exercise his discretion in accordance with those rules and he must act constitutionally because, as is clear in Irish law, the High or Supreme Courts can inform him that he may not proceed if the route he proposes to take is unconstitutional.

The current position in America is that if I were to marry an American citizen I would not automatically obtain US citizenship and I would be obliged to fulfil the conditions which are laid down in that country. Even then, however, the Executive in the United States retains the discretion to decide whether I should be granted citizenship. It is true that by virtue of being married the path towards obtaining citizenship is considerably less difficult. We propose to follow the American model in this regard.

American immigration law has often been quoted in this House and elsewhere when discussing, for example, the issue of asylum seekers. However, we are not going to enter into that debate this evening.

Mr. Ryan: We will do so later.

Mr. O'Donoghue: Nonetheless, let it be said that the legislation, by means of the measures I am proposing in respect of non-national spouses, mirrors and reflects the position in the United States of America. I am not saying that everything the American Government does is correct. However, I am stating that I agree with it in this particular instance. The legislation before us reflects the position which obtains in many countries across the globe. It is not as if this is unique to Ireland, it is common practice in many jurisdictions.

I wish to pose a number of questions. When should the Minister be satisfied? Is the Minister's satisfaction a subjective or an objective matter? If it is felt that the Minister's being satisfied that certain events have taken place is a subjective viewpoint, could the argument not be made that he or she exercising his or her discretion is doing precisely the same thing, making a decision which is subjective? If that is the position, surely the argument can be turned on its head and it can be stated that we are discussing semantics. If, on the other hand, the argument were to be made that the Minister's being satisfied was an objective test, his or her satisfaction - even if the test was objective - would, of necessity, still contain a degree of subjectivity. If that is the position-----

Mr. Ryan: I do not want to remove all of the Minister's powers.

Mr. O'Donoghue: -----it would appear that the Minister is still exercising a discretion, albeit subject to the necessity that he bring on board the conditions.

If the Minister were not to consider the conditions and exercise his absolute discretion without doing so or if, for example, he was to exercise the discretion and have undue regard to the conditions, in my view he would be acting outside the laws of natural justice and fair procedures. If a Minister takes such a course of action, the courts are there to deal with such an eventuality.

The phrase "absolute discretion" has been considered by the courts which held that it is constitutional. The discretionary powers of the Executive in relation to immigration laws have been recognised by the courts as being valid in this respect. There is no easy solution to the problem but there is no doubt that such a problem exists. Senator Ryan might address his mathematical mind to this problem.

I have an obligation to the people of this country to ensure that their citizenship laws are not abused by people who are clearly doing so at present. It would be wrong of me to exclude entirely Senator Ryan's proposed amendment without giving it consideration. I ask him to submit his amendment in writing on Report Stage and I will consider it. I have told him my initial reaction to his amendment but it does merit my consideration.

Amendment, by leave, withdrawn.

Section 4 agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Ryan: I will use this opportunity to reply to what the Minister said. I picked the unhappy example of the right to free speech which is a constitutional right. He played a few games with that one. There are many other rights which are not constitutional rights. For instance, I have the legal right to consume alcohol. Prohibition would be constitutional in this State but it would be the wrong response to the abuse by some people of that right. I have the right to drive a car. Unfortunately, 450 people are killed every year due, in most cases, to an abuse of that right. Therefore, we regulate the way that right is exercised to try to minimise the damage that is done. We do not abolish that right. We not insist that people meet certain conditions to get a driving licence and, when they have met all the conditions, allow the Minister "absolute discretion". We accept that one of the downsides of any right is the possibility that some people will abuse it. We try to write the rules in such a way as to minimise the abuse. We do not abolish the right.

The Minister is strong on the United States. There is an enormous difference because if the US had the proportion of its population born on its territory and living outside its jurisdiction that we have there would be almost 100 million citizens living outside the US. There are probably a couple of million people who were born in Ireland living outside of this State. Therefore, the way the US regulates citizenship rights for spouses of its citizens is different from the way we, as a small country with a huge number of people who have Irish nationality living outside the State, regulate it. As the Minister will say - and I might as well anticipate him - it also means that it leaves us more open to abuse. Therefore, I have no problem provided we are clear that the spouse of an Irish citizen has a right to reside here. I have no problem with the residency qualification. I am not sure we need it but if the Minister wants it then I have no problem with it.

I always come back to the reason the Minister wants this section. The proposed section 15A(1) states that the Minister may grant an application for a certificate of naturalisation to the non-national spouse of an Irish citizen if satisfied that all the conditions are met. As I said, I am prepared to give him that, but he is saying that even if he is satisfied that all of those conditions are met he can still refuse it. Tell us why he must have that power. That is the nub of all of this. We can argue and fight about the detail at great length. Some of the details are ridiculous. After he is satisfied that all of these conditions are met why must he spoil it all by saying, "Even if you meet all the conditions I still will not let you"? That is not good law, nor is it a fair way to deal with Irish citizens. He is entitled to deal with the problem.

It would be better if we knew the scale of the problem. He believes there is a problem. My problem with his Department is it believes there are problems all around but no one else can see them. Nevertheless, they believe there is a problem and they want to tighten up the regulations. Let them tighten up the regulations but let us leave something of certainty behind because it has worked for most Irish people. It made life easier for people living outside the State. It was a degree of certainty. Why does he have to say that he cannot consider granting naturalisation certificates until he is satisfied that all the conditions have been met? There is a provision for making some exceptions later on but he must be satisfied they are met. He then wants to say, "Even if I am satisfied I can still say no". Why?

Mrs. Taylor-Quinn: The fundamental problem with section 5 is that the Minister will have "absolute discretion" in relation to naturalising someone even if they complete all of the conditions in the proposed section 15A(1)(a) to (i). There is something fundamentally wrong with that. In his earlier reply he referred to objective and subjective assessment and claimed that no matter what way he does it there will be objective and subjective elements to any judgment made. He also said that if a Minister made a decision and disregarded all of the conditions involved in this section he would view it as being contrary to natural justice. He said we would all view it as being contrary to natural justice. He further stated that the applicant would have the alternative to bring his case to the courts for adjudication. It is a ludicrous position that anyone who would make an application could be subjected to that type of rigorous scenario and have to go to the courts of the land to take on the Minister and all that pertains within his Department. It would be a difficult task for a non-national to take on the Minister and the Department to prove that natural justice was not applied.

Specific conditions are laid down and I will raise questions relating to them. For the Minister or anyone else to grant themselves absolute discretion is contrary to any type of natural justice. He is going down a serious route when providing that "in his or her absolute discretion" the Minister could refuse naturalisation after someone had complied with all the conditions laid down in this section.

I would like to know what person or departmental official will make a decision regarding those conditions laid down in this section. We know what "is of full age" refers to. Paragraph (b) provides that the applicant "is of good character". Who decides what good character is? What are the criteria that determine a good character? I would like to have the specific criteria used by the Department to define a good character put on record. Paragraph (c) states: "is married to that citizen for a period of not less than 3 years". Paragraph (d) states: "is in a marriage recognised under the laws of the State as subsisting".

Paragraph (e) reads: "and that citizen are living together as husband and wife and that citizen submits to the Minister an affidavit in the prescribed form to that effect". What will the Department expect in relation to the definition "and that citizen are living together as husband and wife...."? Let us get those details.

Let us suppose that an Irishman goes to Bahrain to work and marries a girl from there. He then returns to Ireland to work here for four or five months but finds himself out of a job. There is employment on offer in Bahrain so he decides to work there for six months. He returns here for six weeks. His wife is still here and he returns to Bahrain to work. This scenario goes on. It is not unusual. This is happening right across the board. People live here but work abroad and spend a long time apart. With regard to the definition of living together as husband and wife, let us get a clear clarification of that definition and what is expected by the Department. People will be excluded because of the way these matters will be defined.

Paragraph (i) states:

has made, either before a judge of the District Court in open court or in such manner as the Minister, for special reasons, allows, a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State.

What is a "nation"? As far as I am aware a nation is a group of people who share the same cultural experiences, language, music, song, religion and a variety of other matters. A nation can cross state borders. A state is a distinct geographic definition of an area of land governed by a government, a nation is a broad spectrum. The Irish nation spans the world because there are people who share the same cultural traditions and language in Australia, the US and elsewhere. The Bill will expect someone from China, for example, to express fidelity to the nation. We need clarification of what is meant by "fidelity to the nation". I do not know how someone from China or Japan could go to the District Court and swear fidelity to the nation. I understand how they could swear loyalty to the State but that is a different matter. We are asking the impossible in this paragraph and perhaps the Minister would clarify these points.

Dr. Henry: In the film "Green Card", Gerard Depardieu became involved in a fraudulent marriage to obtain US citizenship. I wish I had taken more notice of the film as it would have been useful for this debate to know the tricks he used. I would like to think that we would not introduce this section on the basis of anecdotal evidence as to the extent of the problem, but that is all we have been getting. Surely with the records in the courts and the Department of Foreign Affairs, the Minister's officials could discover just how extensive are the attempts to acquire citizenship by way of fraudulent marriages over a ten year period. I suggested the period from 1988 so that we exclude the 1987 episode in London. It would be worthwhile to know how many cases have been before the courts. The Department of Foreign Affairs should be asked about what its undercover agents discovered about the extent of this problem. This is a draconian measure which is being introduced with little evidence of what is involved.

Mr. Norris: I wish to make a few rambling comments. I was interested in Senator Taylor-Quinn's comments on what constitutes a "nation". This question is asked of Leopold Bloom in Ulysses. He says that a nation constitutes the same people living in the same place. Another character then says that he is a nation as he has been living in the same place for ten years. Bloom amends his definition by saying that a nation constitutes people living in different places. A different character, who is constantly on the move, then says that that covers him. This is a difficult grey area with the shifting boundaries suggested by Senator Taylor-Quinn.

There is also the issue of what constitutes a real marriage and a danger that we will start snooping and prying into people's relationships.

Dr. Henry: That is what happened in "Green Card".

Mr. Norris: I have not seen that film but there is an incitement to look into private areas of relationships in a way which is unacceptable. One must accept that marriages which are properly contracted are real marriages. However, throughout Europe there is a phenomenon whereby people contract marriages for the sake of acquiring passports. I would suggest that marriages be regarded as invalid if proof can be produced of the involvement of a monetary consideration. It is unacceptable that people sell themselves and I would be happy to prevent that happening. However, apart from this test, we should be very careful.

There are notable examples in which people married in order to obtain a passport on very moral grounds. For example, in 1938 the poet W. H. Auden married the daughter of the great German novelist Thomas Mann so that she would be able to escape from Germany. Auden was homosexual and did not have the slightest interest in this woman sexually, but it was a decent thing to do and it saved her life. I do not see why we should get rid of such arrangements.

Paragraph (d) refers to people being "in a marriage recognised under the laws of the State as subsisting". This is highly discriminatory against gay people because, as yet, there is no recognition of stable gay relationships in Ireland as there is in many European countries. This may be a step too far at the moment but it seems reasonable to consider the issue. I have not promoted gay marriages or that kind of thing because they are so easily pilloried. Instead, I have tried to look at circumstances where the non-recognition of relationships has a significant negative impact on citizens of this State.

I was heartened to receive support from all sides of the House when I drew to the attention of the Minister for Finance the anomalous situation of a couple who had been living together for 50 years in west Cork. The older partner put the house in the name of the younger partner because he was ill with Parkinson's disease. However, the younger fellow died of cancer and the original partner was stuck with a bill of £200,000 for the privilege of living in his own house. This is the kind of situation which results from the non-recognition of stable gay relationships. I have been in a relationship with a citizen of another country for the past 25 years, which is at least as good as some of my colleagues can maintain within marriage. It seems that consideration should be given to this situation.

I am concerned by the issue of absolute discretion. Senators Ryan, Henry and Taylor-Quinn are correct.

Mr. Ryan: We mentioned this issue in passing.

Mr. Norris: This comes back to the notion of:

I'll be judge I'll be Jury

said cunning old Fury

I'll try the whole case

and condemn you to death.

What are the safeguards? I was not in the House for the full debate so can the Minister reassure me that there are safeguards? For example, does the Minister have to give an applicant notification of the grounds for a refusal?

Mr. Ryan: No.

Mr. Norris: That is a serious matter. Is there an appeal? Presumably a case can be made to a court, I do not know. If there are no such safeguards then it is an absolute power. I doubt if the Minister or his advisers would consciously wish to abuse this power but one cannot predict for all circumstances. As legislators we are required to examine matters which may be problematic in the future and to try to exclude them from legislation.

There is also the issue dealt with in paragraph (e) which states: "... and that citizen are living together as husband and wife and that citizen submits to the Minister an affidavit in the prescribed form to that effect,". I dealt with a case where someone applied for citizenship on the grounds of marriage and quite intrusive comments were made. It was indicated to me in correspondence that this was not a real marriage.

An Cathaoirleach: On the Order of Business, the Leader of the House indicated he would review the situation in relation to the business of the House at 5.55 p.m. Will the Acting Leader clarify what the position is arising from that review?

Mr. J. Cregan: I propose that we resume Committee Stage after Private Members' Business until the conclusion of Committee Stage.

An Cathaoirleach: Is that agreed?

Mrs. Taylor-Quinn: It does not suit some of us.

Mr. O'Donoghue: Whatever political arguments we have in the House, I always like to try to facilitate Senators. If the main Opposition spokesperson is unable to be here, in those circumstances, while I am anxious to proceed with the legislation, I am willing to wait for another day. If she cannot be here, she cannot be here.

Mr. Norris: That is very generous.

Mrs. Taylor-Quinn: Normally I would not have a problem with it, but unusually I do.

An Cathaoirleach: Is that agreed? Agreed. Committee Stage will not resume until a future date.

Mr. Ryan: Will the Minister be here next week?

Mr. O'Donoghue: I will.

Mr. Norris: God might have other plans for the Minister - we hope not.

Progress reported; Committee to sit again.

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