There comes a time, when deportation is simply unfathomable as the State machinery which is solely to blame for its inefficiency, its incompetency, wherein deportation cannot and should not be seen as an option for those who are now within our Irish family, regardless of their legal status.
We are all responsible, especially, but in no way exclusively, those of us who have a vote in the Oireachtas for law making, for law creation and for law implementation. Please let’s stop this habit, of which I was so guilty of for so long, of immediately proposing constitutional change as a solution to everything. Law making, creation and legal implementation is what we as voters need to insist our Parliamentarians engage with. Please stop leaving discussion and evaluation and proposals of law making to lawyers, we are awful at it, and can be too focused on constitutions and the role of the judiciary, rather than achieving legal change through the legislative process. *
Good people who have lived with us in Ireland for many years being forced to pontificate and genuflect towards the Irish public in order to be allowed remain in what is their home country. The rush of community, wider public and political support is something that is fantastic to see in such deeply troubling times around the globe. However, children, their parents/guardians, friends, teachers and community should not have to engage in campaigning and lobbying on these issues. Yet, every so often, this public pontification becomes deemed necessary. This is how it has worked in the past, but it should not be like this.
Right now, however, I am of the view that there is absolutely no requirement for a referendum to repeal the 27th Amendment. Unlike the necessity for the marriage equality referendum or the abortion referendum, there is no constitutional block on the Oireachtas to reviewing our citizenship and residency laws.
Why in the first place do kids who have lived in this country, kids who (in the words of a Supreme Court judge), “Rugadh agus tógadh in Éireann mé”?, have to beg for a formalisation of their residency status?
It is simply not good enough (even though it is enormously welcome) that we have to await upon the grace and favour of one Minister, or signalling from a Minister in another Department that the right thing will be done. And I am very glad the right thing will be done (and it will be).
Yet, these examples of the administrative ministerial reprieve and grant of residence, reflect a much broader issue with Irish migration law- the fact that there is so much discretion in the first place, often in the hands of the Justice Minister. Yet, that issue, which is really essential, I will leave for another post.
What is fascinating about current public campaigns, has been the degree to which conversations are just beginning to emerge on the 27th Amendment to the Irish Constitution, which was overwhelmingly passed in June 2004 (see Professor Mullally’s article here for full context).
The 27th Amendment of the Irish Constitution inserted a constitutional provision that provides as follows in Article 9.2 since 2004 (my emphasis):
1º Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.
2º This section shall not apply to persons born before the date of the enactment of this section.
The context and reasons for why the vote occurred, show clearly why such a limited doctrinal legalistic reading of our constitution must be avoided. I voted ‘No’ to what in my view was an explicitly racist amendment in 2004. The odious citizenship referendum, piloted and championed by the then dog-whistler in chief Michael McDowell (elected by NUI graduates as a senator in 2016), with the full support of Fianna Fail and the Progressive Democrats. As I have written elsewhere,
The referendum campaign took place in a sea of hostility, where the Irish state was seen as under an existential threat, with ‘illegal’ crossings via the birth canal viewed as an issue of significant public comment and decision.
The Irish Parliament can provide IN LAW today (or really within a few weeks if legislation is drafted to amend the relevant legislation):
- Provision for jus soli citizenship, wherein once a child is born in Ireland, that child is Irish;
- Provision for citizenship based on length of residence within Ireland, where there may be some irregularity with a child or adults migration status.
- Citizenship (or indeed residency) once certain conditions are met, as established by the Oireachtas.
I am not naïve enough to believe legislation will resolve everything, and there is most certainly a place for residual Ministerial discretion.
In any event, there comes a stage when the ‘go to’ response of constitutional amendment becomes tiresome. The only block on treating those amongst us without formalised regularised residency and citizenship status, is the inability of Irish citizens to elect parliamentarians who will legislate for this. Let’s please stop putting our faith (solely) in the constitution.
*By the way constitutions are really important, the judiciary are and can be really important, I in no way deny this. However, on this particular topic on discussions of repealing the 27th Amendment, there is a much better solution. Also, an aside, more for lawyers and legal educators and law students- in particular those of us who specialised in public law. We were rarely taught how to read Oireachtas legislation in detail. In many law schools in Ireland, you might have one class in your whole degree on the legislative process. So, it’s not fully our fault as to why we get accultured to thinking of law and legalism as constitutionalism, judges and case law- I can be very guilty of this myself, but am becoming better!