Ivana Bacik Children who are born in Ireland belong here

Labour Senator Ivana Bacik says the 2004 referendum has caused needless suffering and she’s asking the Government to back a new Bill addressing this issue.

AS 2020 DRAWS to a close, I am in awe of the sacrifice made by people living in this country to shield their family, friends, neighbours, healthcare workers, retail staff and others from the coronavirus.

In a global society that can feel increasingly atomised, years such as this show us that Ireland’s spirit of generosity remains strong. 

Unfortunately, the benevolent ethos that I know to be so strong in this country is not reflected by the State’s attitude to migrants and people from a migrant background.

Against the backdrop of the pandemic, headlines abound about increased waits for citizenship applications and visa extensions; hunger strikes in Direct Provision centres, organised by asylum-seekers desperate for their concerns about living conditions to be addressed; deportation orders for undocumented health workers who prioritised the wellbeing of Ireland, only to be rejected from it during a public health crisis. Our ‘céad míle fáilte’ comes with a caveat.

A thousand welcomes?

The truth is, Ireland’s citizenship laws are not as generous as they could be. This is manifest in our current policy regarding some children born here to migrant parents, resulting from the 2004 referendum to insert the 27th Amendment to the Constitution. 

For those who don’t know, the 27th Amendment removed the automatic constitutional right to citizenship for all people born in Ireland, leaving it up to the Oireachtas to legislate to regulate citizenship.

The xenophobic campaign that ensued was a shameful period in our history, with reports of Black African families being booed on polling day. So-called ‘maternity tourism’ gave cover for the calling of this referendum.

That is the phenomenon whereby women supposedly came to Ireland from across the globe in their droves to give birth and claim Irish citizenship. Evidently, voters found the story to be compelling.

Not a single constituency in the State rejected the referendum, which passed with a 79% Yes vote.

A misinformed electorate?

The Government of the day cited statistics from the Rotunda to prove the veracity of the claim that maternity tourism was overwhelming Irish maternity hospitals; they said that there had been a significant spike in the number of babies being born to non-national mothers. 

However, these statistics included babies born to a non-national mother and an Irish father. So too did they include babies born to migrant parents who were nationals of another European Union member-state and who, therefore, benefitted from EU citizenship and could remain regardless of whether they were a citizen of this country. Indeed, approximately 70 per cent of non-nationals living in Ireland in 2002 were from a European Union member state, according to the Census which preceded the referendum.

It was, therefore, the case that most children born to a non-national in Ireland would be either unaffected by the 27th Amendment or would be entitled by EU law to remain in Ireland regardless.

The reality was that this referendum would only ever affect a very small minority of children born here. However, for those affected, the referendum and subsequent legislation that passed which grants automatic citizenship based on blood ties with Ireland, rather than birthright, was and is profound. Now, two children born side by side in an Irish hospital are no longer to be cherished equally, as was envisaged by the authors of the Proclamation.

Opponents of the referendum campaign, including my own party, Labour, said that this referendum, which was triggered by a statistically insignificant and sensationalist claim would have dire consequences on the children for whom it would have an effect. 

The human cost

Indeed, these concerns have been borne out in the years since that campaign. Notoriously, in 2018, a deportation order was issued to “return” an Irish-born nine-year-old boy called Eric from his native Bray to China. Eric’s mother is Chinese and, therefore, despite never having been to China, it was considered by the Irish State to be his rightful home.

Serving this deportation order opened up the risk that Eric could become stateless – a scandalous but inevitable result of the laws we have. Ironically, under Chinese law, a person born in China to stateless parents or parents of uncertain nationality who have settled in the country receives automatic citizenship.

How unnerving that a country with a human rights record like China’s might be more progressive than Ireland on an issue such as this.

Luckily, Eric’s schoolmates and friends rallied around him and lobbied their local TD, then Minister for Health Simon Harris to revoke this deportation order. The story made national news and Eric was granted leave to remain.

Other, similar stories have made headlines and, in every case, the majority of voices advocate for these children to be allowed to stay. In practice, it is a small minority who would want to exclude a child from their community; in practice, society moves to protect children from deportation. Nevertheless, the possibility looms, due to our ungenerous laws.

Irish Nationality and Citizenship Bill

To address this situation which impacts families like Eric’s, in 2018, Labour introduced a bill. The Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018 proposes a modest change to amend the law to enable children who are born in Ireland and who have lived here for three years to be considered for naturalisation as an Irish citizen, irrespective of the status of their parents.

Crucially, this measure does not require a second referendum, as the 27th Amendment leaves it up to the Oireachtas to determine how citizenship should be regulated.

The bill was passed through the Second Stage in the Seanad by a majority of Senators, including Fianna Fáil and the Green Party, but not Fine Gael Senators. We are now bringing the Bill back before the Seanad in the first week of December and are calling on this new coalition Government to support it. 

Aside from the obvious moral arguments in favour of supporting our bill, to do so would be politically advantageous too. Polling conducted by Behaviour and Attitudes for the Sunday Times in 2018 found that 71 per cent of Irish voters believe that anyone born in Ireland should be entitled to citizenship. Clearly, the existing approach of the State is incongruent with the attitudes of the public.

Those who are affected are silenced by the precarity of their situation. There are people across the country today who live in fear that their child and could be deported should they come to the attention of the State, even if Ireland is the only place they know.

These children are our neighbours; they go to school with our own children; they have much to give to this country and much is owed to them. Afraid to raise their heads above the parapet, they need the support of us all in their bid for certainty and belonging.

Just as successive Irish Governments have stood and continue to stand for the rights of undocumented Irish migrants in the United States of America, the Irish Government of today should vote for Labour’s bill to protect the rights of undocumented children in Ireland. Children who are born here belong here.

Ivana Bacik is a Labour senator, Barrister and Reid Professor of Criminal Law, Criminology and Penology at Trinity College Dublin.

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