This section shall not apply to persons born before the date of the enactment of this section

This was intended to replace the existing constitutional clause (Article 2) governing citizenship, which stated at that time that that it was both the entitlement and birthright of ‘every person born in the island of Ireland . . . to be part of the Irish Nation and to be citizens of Ireland.’¹ Once passed by both houses of the Oireachtas, the government, which at that time was a coali-tion made up of Fianna Fáil (FF) and the Progressive Democrats (PD), announced that the proposal would be put to the people of Ireland in a referendum to be held in conjunction with European and local elections on 11 June that same year. A huge debate

ensued over the meaning of Irish citizenship, belonging and the place of migrants in the Irish political community.

This chapter looks at discussions surrounding the 2004 Irish Citizenship Referendum in order to consider the Citizenship Debate in more detail. The 2004 Irish Citizenship Referendum has been described as ‘the most significant event in the politics of immigration in the Republic of Ireland’.² I consider how discus-sions about citizenship were narrowly focused around a series of options which can be linked back to state sovereign politi-cal imagination: a particularist appeal to state sovereignty and a universalist appeal to post-state and trans-state sovereignty.

Drawing subsequently in this chapter on the work of cutting-edge theorists within the field of critical citizenship studies such as Ayelet Shachar and Sandro Mezzadra, I consider the importance and possibility of recognising and confronting how both the problem and the solution to citizenship have come to be located in a modern sovereign statist dualistic framework.³

The Particular Exclusivist Model: An Appeal to Sovereign Statehood

The argument in favour of inserting a qualification into Article 9 of the Irish Constitution was articulated in several key docu-ments issued by the Department of Justice, Equality and Law Reform in March and April of 2004.⁴ These highlight the Irish government’s belief in its sovereign duty to regulate entry into, as well as residence within, the state, but specifically identify two main factors impeding this. In a piece written by the Minister for Justice, Equality and Law Reform (henceforth ‘the Minister for Justice’) these factors are identified as first, the ‘apparently strong legal claim on the part of non-national parents of a child born [in Ireland] to remain in the State, based on the Fajujonu case’; and second, the entitlement, inserted in 1998 under Article 2 of the Constitution, of all those born in Ireland to become Irish citizens.⁵ I outline both of these issues in detail below.

The government argued that the Fajujonu ruling had largely been dealt with through the Supreme Court in 2003 in the Lobe and Osayande case. However, the Minister for Justice put forward that automatic entitlement to birthright citizenship in Ireland

– which elsewhere the government argued was ‘unique in the European Union, and unusual world-wide’⁶ – could only be dealt with through a referendum.⁷

The Fajujonu ruling

The first issue which the government identified in 2004 as imped-ing its ability to regulate entry into and residence within Ireland was the 1990 Fajujonu ruling. The 1990 Fajujonu case referred to a Supreme Court ruling involving two migrants (one of Moroccan nationality and one of Nigerian nationality) who were the parents of Irish citizen children and who successfully sought for the right to remain in Ireland on this basis.⁸ Prior to Fajujonu there had been several cases in the 1980s involving migrant males seeking to remain in Ireland on the basis of having Irish citizen children, yet these had all failed.⁹ Under Fajujonu, however, the Supreme Court found that the length of time which the parents had been living in Ireland was considerable (nine years) as was the extent to which the family were integrated into Irish society as a result of this. The Supreme Court therefore ruled that the parents did have a strong case to remain in Ireland to provide ‘company, care and parentage’ to their citizen child within the state on the basis of a child’s entitlement to company and protection of their family as set out in Articles 41 and 42 of the 1937 Constitution.¹⁰

Subsequent to the Fajujonu ruling, a precedent was set which allowed Irish citizen children to invoke their right to the care and company of their migrant parents in the Republic of Ireland regardless of the status of those parents. According to the gov-ernment’s own figures, between 1999 and 2003 approximately 10,000 non-EEA nationals were granted the right to remain in Ireland on the basis of being the parents of an Irish citizen child.¹¹ In 2003, however, a landmark ruling undermined this precedent which became known as the Lobe and Osayande ruling.

Lobe and Osayande involved the case of a Czech Roma family (the Lobes) and a Nigerian family (the Osayandes) seeking a right to residence in Ireland to provide ‘company, care and parentage’

for their Irish-born child similar to that sought in the Fajujonu case.¹² This was rejected for a series of reasons which the Supreme Court eventually upheld: these included what was perceived to

be the relatively short period of time during which the families had been living in Ireland (nine months for the Lobes and seven months for the Osayandes) and the fact that several members of both families had applied for asylum in the UK before moving to Ireland and were therefore in breach of the Dublin Convention.¹³

The Supreme Court judges also specifically stressed the fact that there had been a sizeable increase in asylum applications in Ireland during the previous decade (from 424 in 1992 to 10,934 in 2000, and to 11,503 as of January 2003).¹⁴ Given that many asylum seekers could be shown to have eventually applied for leave to remain on the basis of the parentage of an Irish citizen child or sibling, what was implied was that this process was working to circumvent the asylum system.¹⁵ As a result, in the Lobe and Osayande case it was ruled for the first time since 1990 that a migrant parent’s right to remain in Ireland to bring up their child needed to be weighed against the additional importance of the integrity of the asylum process and the state’s need to control entry into, as well as residence within, the state.¹⁶ Subsequently, on 17 July 2003 the government announced that requests for leave to remain in the state on the basis of having an Irish-born child would no longer warrant a separate process to other migra-tion claims.¹⁷ The government did not give figures at the time but it was subsequently estimated that approximately 10,000 applica-tions made before January 2003 for leave to remain on the basis of an Irish-born child or sibling remained outstanding.¹⁸

Article 2 of Bunreacht na hÉireann

Having begun to deal with this first issue (the Fajujonu ruling), the Irish government argued in 2004 that there was another issue which was impeding its ability to control entry into and residence within the state. This was the existing wording of Article 2 of Bunreacht na hÉireann. Article 2 of the Constitution was a result of negotiations made under the Good Friday Peace Agreement between the Irish and British governments in the late 1990s.

It was agreed during these peace negotiations that the existing territorial claim by the Republic to the whole of the island of Ireland (the previous Article 2) would be replaced with a consti-tutional entitlement to all those living on the island to become

Irish citizens, should they wish to do so.¹⁹ Under the Good Friday Agreement, the existing Article 2 was replaced with the following:

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.²⁰

According to the Irish government, this right to Irish citizenship at birth had previously only been provided for in Irish law (Irish Nationality and Citizenship Act 1956 and 1986). It argued that the Oireachtas had always previously retained the power to leg-islate (and therefore to control) the exact conditions necessary for the acquisition of citizenship on the island. When citizen-ship at birth was eventually enshrined constitutionally under the Good Friday Agreement, the Oireachtas’ power to legislate in this matter was removed.

In outlining its proposals for a citizenship referendum in 2004, the government therefore argued that the need for the referendum on citizenship was based on a requirement to restore power to the Oireachtas which had been removed under the Good Friday Agreement, a power

which is in line with the general statement at Article 9.1.2 of the Constitution, [and which] has not been available since the incorpora-tion of the present wording of Article 2 by the Nineteenth Amendment of the Constitution Act, effective from 2 December 1999.²¹

As an explanation for why the constitutional entitlement to citi-zenship at birth needed to be changed specifically at that point, the government pointed to how much the immigration situation on the island of Ireland had changed since 1998, when the Good Friday Agreement was negotiated. Ireland had previously always been a country of net emigration, but it had become a country of net immigration in the twenty-first century. This phenomenon was due to large numbers of Irish citizens who had gone abroad

in the previous decades (mostly the 1980s and 1990s) returning to Ireland, as well as, eventually, equally large numbers of people coming to live in Ireland for the first time.²² However, only the latter group was the focus of concern in discussions surrounding the 2004 Irish Citizenship Referendum.

There had been a sustained increase in the numbers of persons born outside the island of Ireland taking up residence over the pre-vious decade.²³ The argument made by the government was that the automatic constitutional entitlement to citizenship at birth in Ireland was permitting children of persons who did not have sufficient connection with Ireland (referred to as ‘non-nationals’) to acquire significant rights which they might otherwise not be entitled to simply by virtue of being born in Ireland. This, accord-ing to the government, was an abuse of the system and needed to be rectified via referendum so as to remove the universality of this entitlement from the Constitution.

The government argued that despite the change in policy since the Lobe and Osayande ruling, which effectively abolished the

‘Irish-born child route’ as a means for parents to gain residency and remain in Ireland regardless of status, the constitutional right to citizenship at birth agreed to under the Good Friday Agreement was proving to be an enduring incentive (described as

‘a loophole’) for non-national parents to give birth in Ireland. The government insisted that the proposed referendum was necessary to remove this incentive. It argued in favour of and drafted pre-liminary legislation which proposed that citizenship at birth for those whose parents were not Irish citizens nor entitled to become so should be conditional in the future on the parents in question being resident (not including as students or as asylum seekers) in Ireland for a total of three years out of the four prior to the child’s birth.²⁴

As proof of the abuse to which it referred, the government pointed first to a high proportion of asylum seekers arriving pregnant in Ireland in the preceding few years.²⁵ It also pointed to a general increase since 1998 of births to non-nationals in the state and, in recent years, to the specific experience at certain Dublin maternity hospitals of ‘a disproportionate number’ of non-national women presenting unannounced in both late pregnancy

and the early stages of labour, only to leave the country soon after giving birth.²⁶ The government insisted that the masters (medical directors) of the three main maternity hospitals in Dublin had come to it indicating serious concerns about how this practice was both endangering the lives of pregnant women and present-ing a great strain on the existpresent-ing maternity services.²⁷ Describing this phenomenon as ‘citizenship tourism’, the government put forward the argument that ‘the inescapable conclusion is that non-national parents, whether based in Ireland or not, quite rea-sonably perceive an advantage by giving birth in Ireland to a child who thereby becomes an Irish, and thus an EU, citizen.’²⁸

The rationale behind the proposed citizenship referendum was accordingly presented as a ‘simple’ and ‘sensible’ effort to deal with this issue by both parties in government.²⁹ Both coalition parties insisted above all on the need to preserve the ‘integrity’ of Irish citizenship arguing that regardless of the actual numbers, the practice itself of ‘conferring Irish citizenship on the future chil-dren of these estranged Irish-born citizens . . . is an unacceptable abuse of our citizenship laws and it undermines the . . . value of what it means to be an Irish citizen’.³⁰ The Tánaiste argued at the time that the simple fact of the matter was that ‘our constitutional provisions are being used in a way we did not intend’.³¹ The current situation, she argued, was ‘not [one] in which citizenship is sufficiently valued and honoured’.³² The largest party in gov-ernment (FF) subsequently launched its campaign for a Yes vote in the citizenship referendum with posters which read ‘Vote Yes to Common Sense Citizenship’. The leader of FF, who was also Taoiseach, put it thus:

The constitutional referendum on citizenship has a single and straight-forward purpose. There is a loophole in our citizenship law that is open to abuse. Voting Yes will close that loophole. Ireland is the only EU country that allows an unrestricted right to citizenship at birth.

The Governments [sic] proposals are to change that.³³

Elsewhere, the Tánaiste insisted that a Yes vote on 11 June would merely bring Irish citizenship legislation in line with other European countries by ‘end[ing] the situation where people who

have no connection with Ireland, and may continue to have no connection with Ireland, can acquire citizenship for their children’.³⁴

In existing analysis of the 2004 Citizenship Referendum the pro-referendum stance articulated by the Irish government is understood as a particular bounded model of citizenship; this is a model which emphasises the importance of shared national characteristics and active participation in a given community, as outlined in Chapter 1.

The Universal Inclusivist Citizenship Model: An Appeal to Post-statist or Trans-statist Citizenship

The proclamation of 1916 promised to ‘cherish all of the children of the nation equally’. . . yet this has been rendered effectively valueless by the Citizenship Referendum and subsequent legislation. The Irish state was able to strip some of its most vulnerable children of citizen-ship with the support of 80 per cent of the population. This reality is at the very core of the racism that we confront in 21st century Ireland.³⁵

The argument against the removal of the constitutional entitle-ment to birthright citizenship in Ireland in 2004 was articu-lated by most of the main opposition parties in conjunction with various sections of Irish civil society. The largest opposition party at the time (Fine Gael) objected to the timing of the referendum but did not oppose the basis of the referendum proposal itself.³⁶ Those who did object to the substance of the proposal included, but were not limited to, the Green Party, the Labour Party, Sinn Féin, the Socialist Party, the Irish Council for Civil Liberties, the Children’s Rights Alliance (CRA), Integrating Ireland, the Irish Human Rights Commission and the National Consultative Committee on Racism and Interculturalism.

In the first instance, these bodies pointed out that the term itself ‘non-national’ was highly misleading as it lumped together a range of categories of persons who could be living in the state for a variety of reasons, most of which involved a long-term commitment to living and working there.³⁷ They also challenged

the statistical evidence presented, as well as the ‘fact’ of a direct correlation between the constitutional entitlement to birthright citizenship and the arrival of pregnant women in late stages of pregnancy or early stages of labour at Dublin maternity hospi-tals.³⁸ One of the main arguments made at the time was that the government could provide no satisfactory breakdown for the overall numbers of births to non-nationals in order to confirm that they were in fact ‘disproportionate’.³⁹

A damning report by the Children’s Rights Alliance (CRA) exploring the government’s argument found, on the contrary, that these numbers were in keeping with increasing volumes of inward migration to Ireland over the previous decade and the simple fact that a large percentage of migrant women were of childbearing age. This report also significantly points out – looking specifically at one Dublin maternity hospital, the Coombe, but implying that the statistics are consistent across the other Dublin maternity hospitals – that it was not only non-Irish citizens that had a ten-dency to arrive unannounced or in the late stages of pregnancy.

It indicates rather that many Irish citizens also did this during the same period.⁴⁰

Overall, the lack of disaggregated statistics was criticised. The report by the CRA pointed out, for example, that even where it did exist, the statistical data gathered to date in 2004 on births to non-Irish nationals in Dublin’s maternity hospitals was not very useful, for the term ‘non-national’ included women with British and/or other EU citizenship as well as those from outside the EEA.

It therefore did not distinguish between those for whom citizen-ship would not be a major pull factor as against those for whom it might be,⁴¹ arguing that because the gap between national and EU citizenship rights was narrowing, Irish citizenship would not be a pull factor for EU nationals. This report pointed out that those who were non-EEA citizens needed to be further differentiated in terms of whether they were tourists, persons with refugee status (who therefore have Irish citizenship), or persons who had been granted a work visa or a work authorisation permit in order to fill a gap in the labour market. It noted that ‘women in each category will have different reasons for their presence in Ireland at the time of giving birth’ but pointed out that this was not acknowledged

in existing statistics as maternity hospitals simply did not collect what is referred to as ‘comprehensive data’ relating to the resi-dency status of mothers.⁴²

In addition to definitional and statistical issues, the idea that the referendum proposal itself was a ‘simple technical’ adjust-ment which would restore power to the Oireachtas to legislate on citizenship where this had been removed with the insertion of the amended Article 2 under the Good Friday Agreement was refuted.

Instead what was argued was that jus soli (birthright citizen-ship) had formed the fundamental basis of Irish citizenship since

Instead what was argued was that jus soli (birthright citizen-ship) had formed the fundamental basis of Irish citizenship since