The Naturalisation of Irish-Born Children of Migrants: Bidding Leave to Leave to Remain

The recently increased media focus on cases pertaining to the children of migrants born in Ireland,[1] along with the proposal of the Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018,[2] has accentuated concerns surrounding the proficiency of the Irish approach to regulating residency.

Under the current law effectuated by the 2004 referendum, Irish-born children of migrants do not have an automatic right to citizenship.[3] Consequently, they do not have an automatic right to reside in the State if their parents are refused residency. Their only prospect of obtaining legal residency in their country of birth is to resort to making a case to the Minister on why they should be entitled to remain on humanitarian grounds, utilising the ‘leave to remain’ option.[4]

A permission for leave to remain is one of three legal statuses sought by International Protection applicants in this State.[5] If the 2018 Bill is enacted, Irish-born children of migrants will be able to circumvent applying for leave to remain through applying for naturalisation instead, so long as they fulfill prerequisite criteria. This article shall identify the injustices that leave to remain imposes on children in these cases with particular focus on how parent-child relationships, case processing times, evidentiary requisites and compliance with international and constitutional obligations are affected. The adequacy of the amendments posed by the 2018 Bill in rectifying such issues will also be analysed.

Leave to remain is understood to be the most restrictive option of the threefold statuses encompassed in the law on International Protection.[6] It denies holders an automatic right to family reunification,[7] leaving them the sole option of applying at the discretion of the Minister.[8] By obtaining citizenship through naturalisation if the 2018 Bill comes to fruition, the child in question would still be denied an automatic right to family reunification as an Irish Citizen.[9] However, as the child would instantaneously become a citizen of the European Union,[10] a case could be furnished for their parents’ entitlement to residency pursuant to the Zambrano[11] judgment. Under this European Court of Justice ruling, art 20 of the TFEU was held to mean that Member States of the European Union are precluded from refusing to grant residency and from refusing to grant a work permit to the parent of the citizen child so long as that parent fulfills distinct criteria.[12] This revision would restore a greater degree of certainty for the child involved and avoid exposing them to the unnecessary stress of potentially having their parent(s) deported.[13]

Further, exascerbated by the largest migration crises to date,[14] the combined length of time spent waiting for a decision to be issued on the child’s parents’ International Protection application and the child’s subsequent leave to remain application can amount to ten years and longer. This results in years of childhood being marred with uncertainty and prolongs the vulnerability the child is exposed to. The 2018 Bill seeks to reduce the required length of time needed to apply for citizenship for such children. The current prerequisite of one year’s continuous residence in the State immediately before the date of application plus a total residence of four of the eight immediately preceding years would be amended so that the four year requirement is reduced two years,[15] accounting for the child’s young age and mitigating the lengthy waiting time. The 2018 Bill also poses to waive the requirement to spend these years on a ‘reckonable residence’.[16] In doing so, the child would be able to bypass a leave to remain application and apply for citizenship instead, curtailing the wait time even further. Taking the case of Eric Zhi Ying Xue as an example,^[17] this amendment would recognise that even though Eric Zhi Ying Xue was ultimately successful in obtaining a leave to remain status, the years of uncertainty and vulnerability that the process exposed him to was a failure on the part of the Irish government’s system of processing. The State ought to be held responsible for delays in the processing of International Protection cases and the consequences should not be foisted on an innocent child. This assumption of responsibility is what underpinned the introduction of the right to work last year for International Protection applicants who spend nine months or longer in the case processing system without being issued with a first instance decision.[18] This author asserts that the rationale behind cases of Irish-born children of migrants should follow suit.

Moreover, as part of an application for leave to remain, the applicant is required to produce any ‘humanitarian considerations’ which give reason to the Minister on why they should not be deported.[19] In order to be successful in practice, the applicant must show an exceptional level of connection and integration into the State. While this may have been an attainable standard to meet in the unique case of Eric Zhi Ying Xue, this author argues that it is not feasible nor is it fair to expect every relevant child to be able to obtain an extensive public outreach. Equally, the case of Eric Zhi Ying Xue manifested how having a Minister reside in the child’s area is a pertinent attributing factor to the success of a case, a coincidence which ought to have no bearing on granting a permission of residency.[20] If the 2018 Bill is passed, it will allow these children to avoid bearing such an onus by applying for naturalisation instead, which would be adjudged on more concrete material under the 2018 Bill’s amendments.[21]

In addition, it has become increasingly evident that this leave to remain system is at odds with both Irish and international legal developments that have evolved since the 2004 referendum. From the perspective of Irish law, while the 2004 referendum ensued changes for Irish-born children, the 2012 children’s referendum also subsequently introduced further changes. Ireland underwent a shift in its perspective of children’s rights by inter alia recognising children as individual rights holders.[22] By introducing an amendment which allows an Irish-born child to apply for naturalisation irrespective of the legality of their parent’s residency, the 2018 Bill is a concession to this modern legal principle. It prevents the injustice of making a child answerable to consequences stemmed from his/her parents’ actions.

On the international plane, the United Nations Committee on the Rights of the Child (CRC)’s 2016 concluding observations comprised of concerns about the absence of ‘clear and accessible formal procedures for conferring immigration status on persons in irregular migration situations.’[23] It was recommended that Ireland ‘take measures to ensure that children in irregular migration situations are provided with independent legal advice and timely clarifications on their migration status.’[24] As was aforementioned in this article, the leave to remain system is evidently lacking in clarity, formality and time-efficiency with a decision being made on a whim of Ministerial discretion over the course of many years.

Despite the 2018 Bill being instrumental in ameliorating the law surrounding residency for Irish-born children, it is arguably a mere step towards achieving justice for children in these cases and collineating Irish domestic law with it’s international obligations. The law is still outstanding further amendments on this issue. For example, had the 2018 Bill included a provision expressly requiring a child’s Convention rights and best interests to be considered in the process of granting or refusing naturalisation, even further harmonisation with both international and Irish Constitutional obligations could have been achieved.[25] The CRC have issued concerns on the absence of legislation for ensuring that the provisions of the Convention are respected in decision-making processes which involve children.[26] Nevertheless, if the 2018 Bill is passed a statutory basis for decisions regarding naturalisation in this area will provide a sounder alternative to ad-hoc leave to remain.

Furthermore, it is this author’s contention that actions taken by the Department of Justice regarding both naturalisation and leave to remain ought to be opened to investigation by the Ombudsman for Children.[27] This would ensure further protection and vindication for such children and offer compliance with the international obligation to treat all children in this jurisdiction equally and ensure the same services are provided to all.[28]

In conclusion, this author praises the development of the 2018 Bill as a necessary step in strengthening the law regulating residency of Irish-born children of migrants. If implemented, it would relieve the harshness of the current leave to remain system that such children are exposed to as a result of a referendum that was largely based on misconceptions.[29] It would be an advancement towards promoting a more inclusive social attitude and a sounder rule of law.

 

[1] Carl O’Brien ‘Primary School Campaigns to Prevent Deportation of Nine-Year-Old Pupil’ (The Irish Times, 17 October 2018) https://www.irishtimes.com/news/education/primary-school-campaigns-to-prevent-deportation-of-nine-year-old-pupil-1.3666695&gt accessed 31 January 2019; ‘Schoolboy and Family Granted Permission to Stay in Ireland Following Campaign’ (The Journal.ie , 10 October 2018) <https://www.thejournal.ie/nonso-muojeke-tullamore-4279234-Oct2018/> accessed 31 January 2019.

[2] Irish Nationality and Citizenship (Naturalisation of Minors Born in Ireland) Bill 2018 Dail Bill (2018) 124 <https://data.oireachtas.ie/ie/oireachtas/bill/2018/124/eng/initiated/b12418s.pdf> accessed 31 January 2019 (the 2018 Bill).

[3] Twenty-Seventh Amendment of the 1937 Constitution.

[4] International Protection Act 2015, s 49.

[5] The other two options are ‘refugee status’ or ‘subsidiary protection’. For more information on the requirements and benefits encompassed in these legal status’s, see John Stanley, Immigration and Citizenship Law (Round Hall 2017) ch 5.

[6] ibid.

[7] When s 56 of the International Protection Act 2015 was commenced, it amended the law to only allow an automatic right to family reunification to persons with refugee status or subsidiary protection.

[8] See Irish Naturalisation and Immigration Service, ‘Policy Document on Non-EEA Family Reunification’ Department of Justice and Equality (December 2013) <http://www.justice.ie/en/JELR/Family%20Reunification%20Policy%20Document.pdf/Files/Family%20Reunification%20Policy%20Document.pdf> accessed 31 January 2019.

[9] Stanly (n 5).

[10] Treaty of the Functioning of the European Union, art 20.

[11] Case C 34/09 Ruiz Zambrano v Office National de L’Emploi [2009] ECR I-01177.

[12] As set out in the judgment, the parent must be able to show that they are living in the State and that the child is dependent upon them or that they are actively involved in the child’s life in an emotional and financial capacity.

[13] Such fears of having one’s parents deported were evident even before the 2004 referendum. Prior to 2003, the default position of the Minister for Justice was to grant the parent(s) a leave to remain permission in these circumstances, only refusing where it was necessitated by the common good ie where the parent(s) committed a crime. However, with pressure from both L and O v Minister for Justice, Equality and Law Reform [2003] 1 IR 1 holding that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child and the development of insidious societal attitudes towards such migrants that pre-empted the 2004 referendum, the Minister adopted a more restrictive revision on his policy, ceasing to consider leave to remain applications based solely on parentage of an Irish born child individually. Even when the Irish-Born Child Scheme of 2005 or ‘IBC 05’ was introduced with a view to being a courtesy for the cases that were being processed during the time of the referendum, many applicants launched unsuccessful appeals, arguing that the scheme failed to consider their Convention and Constitutional rights in accordance with law despite the claim that it was one of the core objectives of the scheme.

[14] The amount of International Protection applications increased significantly in the early 2000s, causing a backlog of cases ever since. See Reception and Integration Agency, ‘Monthly Report October 2018’ Department of Justice and Equality (2018) http://www.ria.gov.ie/en/RIA/October%202018%20monthly.pdf/Files/October%202018%20monthly.pdf accessed 31 January 2019, 2.

[15] Irish Nationality and Citizenship Act 1956, s 15; 2018 Bill (n 2) s 2(1).

[16] 2018 Bill (n 2).

[17] O’Brien (n 1).

[18]Ireland opted into art 15 of the Council Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast).

[19] 1937 Constitution (n 3).

[20]Emma O’Kelly, ‘Harris “Assisting” Bray School to Halt Pupil's Deportation’ (RTE News, 18 October 2018) https://www.rte.ie/news/ireland/2018/1017/1004756-deportation/ accessed 31 January 2019.

[21] (n 2).

[22] 1937 Constitution, art42A.

[23] UN Committee on the Rights of the Child (CRC), ‘Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland’ (29 January 2016) CRC/C/IRL/CO/3-4 [67] <https://www.refworld.org/docid/56c17f574.html> accessed 1 February 2019.

[24] ibid [68].

[25] ibid [10]; 1937 Constitution, art 42A.

[26] ibid [10].

[27] ibid [19].

[28] ibid [66].

[29] Ivana Bacik criticises the referendum for lacking evidentiary necessity, asserting that it was largely based on widespread speculation of immigrants purposely giving birth in Ireland to take advantage of the birth-rights of the Irish citizen child. See Seanad Deb 21 November 2018, Speech 483.