Migrants and Child Citizens: Ireland and Greece
From the Guardian comes the news that George Papandreou’s newly elected Pasok (Socialist) government have begun to overhaul Greece’s much-criticised immigration policy (I blogged about the Greek connection to the Calais ‘Jungle’ affair here last month and you can read about Greece’s examination by UNCERD in August here). In particular, citizenship will be granted to the Greek-born children of migrants who have legally settled in Greece. At present, the State does not provide such children either with a birth certificate or with a long-term residence permit. Since December, some such children have been able to apply for long-term residence. Prior to that change in the law, they were obliged to apply for a permit – on the same terms as a new migrant – upon reaching the age of 18. The Guardian reports:
“Absurd is too light a word to describe the lot of these kids,” said Petros Papaconstantinou, a prominent anti-racism spokesman. “Even if born in Greece, even if they attend Greek schools and speak only Greek, which invariably is the case, on paper they don’t exist at all.”
Without official documentation the children were often subject to abuse, arrest and deportation at the age of 18, he said. “There are children whose parents are from Africa, Asia and countries like Albania who are enrolled at schools across Greece but who have no papers whatsoever. In Europe this is unique.”
The Greek developments raise the spectre of the the family rights wing of Ireland’s immigration regime, the flagship initiative of which became the Twenty-Seventh Amendment to the Irish Constitution – famous enough at this point, even to be considered in Seyla Benhabib and Judith Resnik’s new book.
The Amendment, which was approved by referendum in June 2004, by 80% of the electorate on a 60% turnout introduced the new Article 9.2.1, which provides that:
‘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.’
Article 9 essentially revokes the longstanding automatic right to citizenship by territorial birth (jus soli) by qualifying Article 2 . In consequence of the Amendment and the legislation flowing from it – the Irish Nationality and Citizenship Act 2004 – children born in Ireland to non-Irish parents after January 1 2005 can acquire citizenship by naturalisation or by descent if at least one parent has been legally resident in Ireland for 3 out of the 4 years immediately preceding the child’s birth. Time spent as an asylum seeker, a student or an illegal immigrant does not count towards the three year period. Children born in Ireland to Irish parents, by contrast, acquire citizenship automatically upon birth and by descent. The legislation produces differences in treatment on the basis of blood relationships – especially since individuals not born on the island of Ireland who have an Irish parent or grandparent may claim citizenship by descent – and on the basis of age.
The Referendum has been characterised variously (and simultaneously) as a racist exercise in policing a fragile Irish ‘whiteness‘, as a more complex negotiation of the boundaries of Irish national belonging which subordinates migrant integration to the state project of disciplining deviant populations – especially migrant mothers – and as an effort to deny a colonial past and demonstrate Ireland’s neo-colonial loyalty to a failing European immigration control regime.
In pursuit of these aims, from Fajujonu to the Citizenship Referendum, to the Immigration, Residence and Protection Bill, the government – with some short-lived resistance from the courts – has chipped away at some Irish children’s grip on the possibility of a stable, safe and legally secure family life in the country of their birth. The case law turns on the deportation from Ireland of the parents of children who were born in this country. This body of law is well set out by the Immigrant Council of Ireland in a submission to the Human Rights Committee, made prior to its examination of Ireland last year.
In Fajunjonu, the Supreme Court held that while non-citizen parents could not, themselves claim any constitutional right to remain in Ireland by virtue simply of having a child who was born here, they could assert a choice of residence on behalf of the citizen child – who did have such a right – in the child’s interests. It was not possible to deport such parents without ‘grave and substantial reasons’ based in the common good. Following Fajunjonu, parents were generally permitted to remain in Ireland on the basis of being the parent of an Irish child, but the government began to refuse residence applications as immigration to Ireland became more common and the number of such applications grew significantly.
In Lobe in 2003, the Supreme Court appeared to accept the government’s view of the situation to some extent – noting the importance of the integrity of the immigration and asylum system and the increasing demands upon that system compared to the those which prevailed when Fajujonu was decided some 14 years earlier. The government took its cue. It ceased granting residence permits on the basis of parenthood of an Irish born child and began deporting people who had no other basis for remaining in the state. The gruelling referendum campaign began and ended and the government introduced IBC/05 – the ‘Irish Born Child’ scheme as a means of regularising the presence in Ireland of those parents whose children had the fortune to be born in the state prior to January 1, 2005.
By sucessfully steering the citizenship referendum to its desired conclusion, the government had – leaving aside some lingering difficulty in the application of IBC/05 – trimmed what was left of the Fajujonu ‘parental proxy rights’ doctrine after Lobe. But it had not eliminated the obligation to take account of the European Convention and constitutional rights of affected parties before executing a deportation order. At present, under the Immigration Act 1999 as amended, a person ‘unlawfully present in the state’, upon being served with a deportation order, has 15 working days to make submissions as to why he should not be deported. Reasons can include family circumstances, duration of residence in the state or humanitarian considerations. In cases concerning the deportation of parents of Irish citizen children; namely Bode and later in Oguekwe and Dimbo (George Dimbo is pictured above) the Supreme Court has affirmed that account must be taken of family members’ rights at this stage. The 2008 Bill appears to enshrine a deliberate attempt to get around these – the last set of rights provisions binding the child and his family to the country of his birth. Recent cases in the High Court have highlighted how weak even these protections are: they set the Minister’s obligations at a very low level. Last week’s decision in Andrew Osunde‘s case and July’s decision in the case of a non-citizen Irish-born child A.A.I, suggest that it is enough that the Minister has expressly considered the applicable rights of family members as part of his response to submissions against deportation.Under the procedure proposed in the 2008 Bill, the 15 day notice provision is abolished; introducing summary deportation. The proposed legislation does not make provision for exceptional circumstances, and does not seem to require that the Minister demonstrate a substantial reason for the deportation, taking account, not only of the state’s interest in immigration control, but of the child’s constitutional and ECHR rights prior to any deportation. The Human Rights Committee has said that the summary deportation proposal is incompatible with Ireland’s obligations under the ICCPR.
What emerges very strongly from this succession of legal attacks on what have come to be known (in a phrase which underlines the precariousness of their relationship to the nation) as ‘Irish-born children’, and ‘non-nationals’ is the sense in which children are cast as mere conduits for the flow of purportedly undesirable culture and bodies into Ireland. These, to use an American term, are mere ‘anchor babies’. Their rights are supposedly instrumentalized by their parents to gain access to a hostile state, and are recycled by the state in an effort to exclude their parents. The children themselves, and their present and future position in Irish society, appear to be of minimal concern, as recent scandals in the education system in particular have demonstrated. To some extent, it is unfortunate that Fajunjonu which seemed to be the high point of a ‘hospitable’ Irish constitutional law, focused on the rights of the child as an Irish native as the basis for accommodation of the parent. A greater hospitality could have recognised residence rights in the parents as independent individuals – though it is perhaps wishful thinking that such jurisprudence would have proved more difficult to dismantle.
In keeping with this blog’s policy of giving the occasional swift dig at the new Programme for Government as the occasion arises, I should remind readers that the Green Party campaigned against the Referendum in 2004, arguing that ‘[t] he proposed changes will create second-class citizenship for Irish children. If the Amendment to the Constitution is passed and implementing legislation enacted, children born in Ireland will no longer be equal at birth.’ They have not attempted to address the Amendment – or any of its outgrowth- while in government.
We hope to discuss the relationship between Ireland’s immigration regime and the project of ‘national belonging’ in our Blog Carnival in mid-November. We have extended the deadline for expressions of interest. If you (or your organisation) are interested in contributing a post, leave your email address in the comments, sent us a tweet at http://www.twitter.com/humanrightsblog or post on our facebook wall at http://bit.ly/48fOnz