Citizenship Revocation – An Opportunity for Change in Ireland

Introduction

Section 19 of the Irish Nationality and Citizenship Act 1956 (hereinafter referred to as the 1956 Act) grants to the Minister the ability to revoke an individual’s certificate of naturalisation, thereby revoking their citizenship. The Minister may, under this section, revoke a certificate of naturalisation for a number of reasons under sections 19 (a)-(e). In the context of this article, the most significant of these is the power to revoke citizenship for failing in one’s duty of fidelity to the State.^[1] This article will discuss the general effect of section 19, and consider how the provision may be improved upon. Part I will briefly outline the current position of Irish law regarding citizenship revocation. Part II will analyse how this position can, at times, contribute to issues of discrimination and statelessness. Finally, part III will outline potential improvements that could be made to the section.

An analysis of section 19 is particularly relevant at present, as the Irish government’s deprivation powers have recently been delimited by the Irish Supreme Court in Damache v Minister for Justice, which held that ‘the process by which citizenship may be lost must observe minimum procedural standards’.^[2] In a later ruling, the Court held that sections 19(2) and (3) specifically were unconstitutional on the grounds that they did not provide adequate procedural safeguards, but the process of revocation in and of itself was not deemed unconstitutional.^[3] Consequently, the Minister’s powers of revocation cannot be exercised until a new administrative scheme supported by statute has been put in place,^[4] effectively suspending the government’s ability to revoke citizenship in the interim. Thus, the time would appear ripe to reconsider how section 19 should look going forward.

Part I: The Irish Position

Naturalisation is discretionary, as per section 15(1) of the 1956 Act, as is the process of revocation. Although the Minister must supply reasons in both situations in order to protect against arbitrariness,^[5] there is little restriction as to what the content of those reasons can be within the categories outlined in section 19. The legislature and Minister’s power in this area was recently confirmed in Damache,^[6] in which the Supreme Court held that, although the Minister is bound by the principle of fair procedures, ‘it is not for this Court to advise…how to proceed to remedy the invalidity in the process of revocation’. An understanding of revocation as a policy decision, subject to broad discretion, can lead to a variety of situations in which non-national citizens’ rights are precariously positioned.

Citizenship for non-nationals is often contingent on factors wholly outside of their control. This was confirmed in the case of UM v Minister for Foreign Affairs and Trade.^[7] The applicant’s citizenship was, in this case, nullified when his father’s refugee status was revoked, despite having lived in Ireland his entire life. Evidently, the legal position of a child of non-national parents is ‘entirely dependent on the actions of their parents’.^[8] This, it is argued, is just one example of how the citizenship of naturalised citizens and their families in Ireland is reliant on various external factors, and is not as secure as that of a citizen by birth or descent, due to the risk of revocation.

Part II: Discrimination and Statelessness

Discrimination

As noted in a report by the Equality Authority (now the Irish Human Rights and Equality Commission), the executive has the right to control immigration in the interests of the common good.^[9] Thus, it could be argued that the State’s position regarding revocation is, while potentially unfavourable to naturalised citizens, a policy choice that the legislature and executive are legally entitled to make. However, from an international law perspective, although the right to govern immigration flows from the sovereign power of the State,^[10] the above report contends that ‘sovereignty is a more relativised concept today’.^[11] Similarly, as per the UN Human Rights Council Resolution 32/5, deprivation of nationality is understood to be arbitrary and therefore unlawful when it is done on the basis of, amongst other things, ‘national or social origin’,^[12] with any deprivation powers exercised on these grounds prohibited under international law.^[13] Thus, Ireland’s international law obligations require it to balance its sovereign powers of revocation with principles of non-discrimination.

Therefore, it is argued that, notwithstanding the broad discretion afforded to the State in this area, the primary issue with section 19 derives from the fact that contingent citizenship can cause discrimination. The power to revoke the citizenship of naturalised citizens is directly discriminatory in that it is a law which only applies to certain categories of citizens. Although the exempting of mono-nationals from revocation can be rationalised as a means of avoiding statelessness, this leads to the (often inadvertent) targeting of individuals with dual nationality. These people are usually of foreign descent, and so such policies can indirectly have an ethnically discriminatory effect.^[14]

Citizenship has been described by Arendt as ‘the right to have rights’,^[15] and Dunne J notes in Damache that ‘the loss of citizenship, entailing as it does the loss of protection of the full range of constitutional rights…is a matter of grave significance to the individual concerned’.^[16] Thus, the revocation of citizenship is a very serious consequence for actions that, if taken by a citizen by birth, would not result in their citizenship being revoked. This means that there is an inherent inequality in the treatment of naturalised citizens and mono-nationals. If, for example, a naturalised citizen fails in their duty of fidelity to the State, their citizenship may be revoked. If a mono-national acts in a similar fashion, they will be tried via the domestic criminal justice system. This difference in treatment creates a difference in ‘punishment’, and is contended to amount to a form of inequality. Further, Bauböck argues that, if the provision of security is to be understood as a core function of the State, the State has a duty to prosecute offending individuals, as opposed to simply removing them from the jurisdiction.^[17] Even if one disagrees that this is a core State function, it remains unclear why the domestic criminal justice system is an appropriate means by which to prosecute mono-nationals, but is inappropriate for naturalised citizens.

As a counter to the above, some would argue that, since it is discriminatory to revoke the citizenship of dual nationals alone, the power should be expanded to apply to all citizens, as has occurred in the UK.^[18] However, debates regarding an expansion of revocation powers to include mono-nationals in the UK at the time highlighted that such a measure simply creates a new form of discrimination against British citizens as opposed to removing an old one.^[19] Further, revoking the citizenship of mono-nationals likely fails to keep Ireland abreast of its international legal obligation to avoid statelessness. Thus, it is argued that extending the power of revocation to more categories of citizens should not be the mode through which the Irish government pursues anti-discrimination measures.

Statelessness

The requirement to avoid rendering an individual stateless is an international obligation under customary international law,^[20] and is also a treaty obligation under Article 8 of the 1961 Convention on the Reduction of Statelessness (hereinafter referred to as the 1961 Convention).^[21] However, Ireland has made reservations to the Convention regarding its revocation powers, committing only to take statelessness into consideration when revoking citizenship.^[22] It has also not incorporated the Convention into domestic legislation directly.

The only mention of statelessness in the 1956 Act is contained in section 16(g), which stipulates that the Minister may, in their absolute discretion, grant an application for naturalisation where the applicant is a stateless person. However, there is no definition of a ‘stateless person’ within Irish law. To the extent that statelessness is considered in cases of revocation, the Statelessness Index Report points out that this is done on an ad hoc basis, with little guidelines as to what the Minister must consider in making such a determination.^[23] The Report also highlights that there are no specific safeguards against statelessness in Ireland, particularly given that the burden of proof for establishing statelessness in the first place is unclear.^[24] Therefore, this article argues that, although certain safeguards are in place, little substantial protections exist for individuals at risk of statelessness within the 1956 Act. This is an important gap in the law, given that statelessness can cause issues ranging from lack of voting eligibility to the inability to access education.^[25]

Part II: Recommendations

As per Article 8(3) of the 1961 Convention, Ireland retains the right to deprive a naturalised citizen of their citizenship and render them potentially stateless where they have failed in their duty of fidelity to the State via section 19(1)(b) of the 1956 Act. This is despite the overarching obligation which the 1961 Convention imposes, to avoid rendering individuals stateless. In order to better comply with this obligation, this article recommends that section 19 be altered to mention statelessness, and to mandate that the Minister consider statelessness in all cases to ensure that it is avoided where statelessness is proven.

Furthermore, the 1956 Act should also create a definition of statelessness, as recommended by the Statelessness Index.^[26] Any such definition could be based upon the definition provided in Article 1 of the 1954 Convention Relating to the Status of Statelessness Persons,^[27] which Ireland has ratified. In order to facilitate the consideration of statelessness within section 19, a broader dedicated procedure by which statelessness can be proven within Ireland ought to be put in place, a practice which has also been recommended by the Statelessness Index.^[28] The exact contours of such a process are beyond the scope of this article, but it is nonetheless suggested that current barriers to proving statelessness make it difficult for Ireland to remain abreast of its Convention obligations, and therefore create unfairness and confusion within s 19.

For situations that come under section 19(1)(b), it is recommended that the legislation assume the efficacy of the criminal justice system and avoid the use of citizenship revocation as ‘punishment’. An example of a country that has made such an amendment is Canada. In 2017, the Canadian government amended the Strengthening of Citizenship Act so that the power of revocation on grounds of security was repealed, and any citizenship that had been previously revoked under the Act in this manner was restored.^[29] It is submitted that this type of approach to section 19 could address the potentially discriminatory impact of the section without weakening the State’s approach to the commission of serious crimes, such as infidelity to the State.

In order to balance the ability to revoke citizenship with the requirements of due process and non-discrimination, the 1956 Act could create a rebuttable presumption in favour of retention of citizenship in cases of infidelity to the State. Such a presumption could only be rebutted where the national justice system would not be capable of securing the interests of the common good. In practice, it is unlikely that such a presumption would be rebutted other than in truly exceptional circumstances, which would restrict the use of revocation powers and thereby avoid its discriminatory effects.

Conclusion

In order for citizenship to be more than a ‘thin and procedural form’,^[30] the Minister’s ability to revoke the citizenship of naturalised citizens under section 19 is a power that ought to be used sparingly. As seen in the UK, such powers can potentially create significant inequality. The risks to individuals in terms of discrimination and statelessness are arguably too great to justify the expansion of revocation powers. However, the Canadian example highlights the fact that such powers can be restricted in a manner which retains the State’s right to control immigration and also avoids the use of revocation in place of the criminal justice system. The recent Damache decision has created a unique opportunity to amend section 19, firstly by expanding it in a way that increases protection against statelessness, and secondly by restricting it so that it cannot be utilised in a manner that discriminates unduly against naturalised citizens.

[1] Irish Nationality and Citizenship Act 1956, s 19(1)(b).

[2] [2020] IESC 63 [115].

[3] Damache v Minister for Justice [2021] IESC 6 [29].

[4] ibid [36].

[5] Mallak v Minister for Justice [2012].

[6] Damache (n 2).

[7] [2020] IECA 154.

[8] ibid [99].

[9] The Equality Authority, Embedding Equality in Immigration Policy (2006) 22.

[10] Osheku v Ireland [2008] 3 IR 795, 823.

[11] Embedding Equality in Immigration Policy (n 9) 23.

[12] UN Human Rights Council, ‘Human Rights and the Arbitrary Deprivation of Nationality’ (2016) UN Doc A/HRC/RES/32/5 paras 2, 4.

[13] ISI and GLOBALCIT, ‘Instrumentalising Citizenship in the Fight Against Terrorism’ (2022) https://files.institutesi.org/Instrumentalising_Citizenship_Global_Trends_Report.pdf accessed 24 April 2022, 35 (ISI Report).

[14] ibid.

[15] Hannah Arendt, The Origins of Totalitarianism (Meridian 1962) 296.

[16] Damache (n 2) [27].

[17] Rainer Bauböck & Vesco Paskalev, 'Cutting Genuine Links: A Normative Analysis of Citizenship Deprivation' (2015) 30 Geo Immigr LJ 47, 71.

[18] British Nationality Act 1981, s 40 (UK).

[19] HL Deb 9 October 2002, vol 639 (Lord Goodhart).

[20] Explanatory Report to the European Convention on Nationality (1997) ETS 166 para 33.

[21] 989 UNTS 175.

[22] United Nations Conference on the Elimination or Reduction of Future Statelessness (1959) Addendum to Comments by Governments on the Revised Draft Convention A/CONF.9/5/Add.3 para 19.

[23] European Network on Statelessness (ENS), ‘Statelessness Index, Country Briefing: Ireland’ (2021) 2 https://index.statelessness.eu/sites/default/files/ENS%20Ireland%20Country%20Briefing%202021%20.pdf accessed 25 April 2022.

[24] ibid.

[25] Indira Goris, Julia Harrington and Sebastian Kohn, ‘Statelessness: What it is and Why it Matters’ (2009) 32 Forced Migration Review 4.

[26] ENS, Statelessness Index Survey 2020: Ireland (2020) 6 https://index.statelessness.eu/sites/default/files/ENS_Statelessness_Index_Survey-Ireland-2020.pdf accessed 28 April 2022.

[27] 360 UNTS 117.

[28] Statelessness Index Survey 2020: Ireland (n 23) 6.

[29] An Act to amend the Citizenship Act and to make Consequential Amendments to another Act, SC 2017 c 14 (Canada).

[30] Christian Joppke, ‘The Inevitable Lightening of Citizenship’ (2010) 51(1) European Journal of Sociology 9, 10.