Opinion: there needs to be a much more significant debate about the rights of children born and being raised in Ireland without legal status

By Liam ThorntonUCD

In June 2004, the Irish people overwhelmingly voted for a change in the constitution. The 27th Amendment of the Constitution inserted a constitutional provision that provides as follows in Article 9.2:

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 impact of the citizenship referendum continues to be felt by people living in Ireland today. We've seen politicians and others using citizenship to stoke up the fires of racism and hatred for attempted political gain. At a time of such extravagance (for some), that many could be so selfish and exclusionary was probably not all that surprising.

From RTÉ Radio One's News At One, RTÉ Southern Editor, Paschal Sheehy reports from Killarney where 3,000 people receive Irish citizenship at an event

Yet citizenship referendum or no citizenship referendum, people still came to Ireland. Some had permission to be here, others did not. We need a more grown up conversation on migration and about what government can really do. A recent Sunday Times/Behaviour and Attitudes poll showed that just over 70 percent of persons wish to re-establish constitutional birth right citizenship.

I urge caution about the campaign to #repealthe27th.There is no need to subject people to the vitriol and hate that would bubble to the surface during a referendum. Whether our current citizenship laws should be changed is a matter that can be determined by the Oireachtas. Unlike campaigns on marriage equality and access to abortion, there is no block on the Oireachtas adopting a more rights based and embracing citizenship legal regime.

Recent high-profile campaigns, where the state proposes to deport children who have lived in Ireland for all or most of their lives, highlight a deeply problematic aspect to our treatment of those who are Irish, but for in law. This, it is clear, is due in no small part due to the decision of the Irish people in 2004 to revoke constitutional jus soli citizenship.

From RTÉ Radio One's Morning Ireland, Education Correspondent Emma O'Kelly reports on how the deportation of 14-year-old Nonso Muojeke halted following campaign

The student-led and student-won campaign to ensure that their friend Nonso Muojeke can remain in Offaly and Ireland where he belongs was heartening to see. It had all the makings of a David versus Goliath fight, the kids versus the State and the kids won.

News of nine year old Eric Zhi Ying Xue, born and living in Ireland all his life who was potentially facing deportation to China, has also framed current debates. Not only that, but we have the Minister for Health, Simon Harris publicly backing this community campaign to ensure Eric and his mother can stay in the country where they belong.

I find the fact that Nonso and Eric have to perform for the Irish public to be distasteful in the extreme. Their right to remain in the state should not have to come down to their (wonderful) communities rallying around them. It should not have to come down to jostling for media attention or stating how wonderful or exceptional they are.

There are probably thousands of children, some who might now be adults, who have stories to tell us about being born and being raised in Ireland without legal status

I am sure they are all this and more. But what about other children, from marginalised communities such as Roma - would the press be as interested in these stories, despite the same issues arising? I think not. It should be obvious to all and sundry and in particular those in the Department of Justice and Equality, that removing children who have lived in Ireland for all or most of their lives is unfathomable.

Not only is it unfathomable, but with changes in the composition of the Irish Supreme Court, we are seeing some ‘soft’ legal pressure coming upon the department to act humanely. In 2016, a Roma boy who was 10 and had grown up in Ireland was refused refugee status. This refusal, the Supreme Court, stated was correct in law. But then something significant in my view happened. Commenting within the remit of the factual matrix of this particular case, the Supreme Court's Judge Peter Charleton noted that could not a 10 year old, born and raised solely in Ireland, but without citizenship not say "Rugadh agus tógadh in Éireann mé"?

Given that there was no proposed deportation of the Roma boy in that case, the court could not make an order preventing the state from doing so. However, it was unlikely the Department of Justice did not heed the "advice" and "observations" of the Supreme Court.

From RTÉ Radio One's Marian Finucane show, a discussion on Irish citizenship with Jane Xavier, David Bacon and Karlin Lillington

Beyond expressing admiration for those supporting and advocating for Nonso and Eric, there needs to be a much more profound and significant engagement within Ireland about migration. We are in a global world and living in a global(ising) state. There are probably thousands of more children, some who might now be adults, who may have stories to tell us about being born and being raised in Ireland without legal status. As time goes on, due to so many inefficiencies that exist (or existed but still impact now) on Ireland’s migration systems, or by people seeking to stay in Ireland without authorisation, they will have lived here for a significant proportion of their lives.

Proposed changes to Ireland’s citizenship laws, spearheaded by Senator Ivana Bacik, are currently moving through the legislative process. This is a good start. Under Senator Bacik’s proposal, residency requirements for children born on the island of Ireland, who otherwise do not qualify for Irish citizenship, could potentially be reduced to three years. This proposal is most welcome, and may be the start of broader conversations on the rights of children not born in Ireland, not entitled to Irish citizenship, but who have lived a significant proportion of their young lives in this State.

From RTÉ Radio One's Today with Sean O'Rourke, Labour senator Ivana Bacik and John Leahy from political party Renua discuss the Labour Party bill on citizenship

Those children not born in Ireland, but who have been here for a significant  period of time, may have built friendships, relationships and their own communities. They may have not. They may slink in the shadows frightfully, or not so frightfully, awaiting the knock on the door from the immigration authorities.

The truth is that just 5,443 deportation orders have ever been effected of the 23,864 deportation orders signed and issued by various Ministers for Justice between 2000 and 2017. Sometimes, once a deportation order is issued, people will leave voluntarily. Sometimes, people may move to another country in the hope of setting down roots there. Sometimes, people remain.

READ: All change for asylum seekers?

The Dáil record is littered with TDs from all political parties and none, continuously asking the Minister for Justice whether a deportation order for "details supplied" can or will be revoked. Some of these people, according to the Dáil record, have been in Ireland since 2002. Rather than dealing with issues in an ad hoc manner, let’s have a discussion about how we need a rights based, transparent, compassionate and most importantly, humane systems to determine a person’s residency or citizenship rights in Ireland.

Dr Liam Thornton is an assistant professor in law at the UCD School of Law

The views expressed here are those of the author and do not represent or reflect the views of RTÉ