SHOULD CHILDREN BORN in Ireland to foreign parents be deported? That is the question raised by the case of nine-year old Eric Zhi Ying Xue, who faces deportation to China, along with his mother.
The issue of the rights of children born in Ireland to remain here with non-national family members is not a new one and has troubled the courts for many years in different contexts.
Back in 1998, the Irish people voted overwhelmingly to amend Articles 2 and 3 of the Constitution. The amended Article 2, the purpose of which was to guarantee the right of those born in Northern Ireland to be part of the Irish nation, elevated to constitutional status the right of every person born in Ireland to be an Irish citizen, and was reflected in citizenship legislation passed by the Oireachtas.
The amendment occurred at a time when significant numbers of children were being born in the State to non-nationals. By law, those children were Irish citizens. Citizens cannot be deported and, in an effort to remain in Ireland, some of those parents claimed they had a right to reside here based on their parentage of an Irish citizen child.
This issue made its way to the Supreme Court, which decided in the case of L. and O. v. Minister for Justice in 2003 that the government could deport those parents. At that time, almost 12,000 applications for residence based on the parentage of Irish citizen children were outstanding.
In the aftermath of the decision, the government took two steps.
First, out of concern that the constitutional entitlement to citizenship was encouraging illegal immigration, it held a referendum in 2004, passed by 79% of voters, which removed it from the Constitution. It also introduced what became known as the Irish Born Child Scheme 2005, which was in force for a short period of time and led to residence being granted to over 90% of non-national parents of citizen children.
Children born in Ireland to non-national parents after the 2004 referendum, however, are generally not entitled to Irish citizenship and may therefore be deported from the State with their parents. It is sometimes incorrectly said that such children are stateless, which overlooks the fact that many countries around the world, including China, confer their citizenship on the children of their nationals, meaning that, in the event of their deportation, such children should not be at any disadvantage there as against their native-born compatriots.
In Ireland, deportation is a complex process and involves considering the State’s right to control immigration and the rights of the proposed deportee.
Before making a deportation order, the Minister for Justice must notify the person concerned of his intention to do so and allow representations to be made to him on the matter.
Human rights considerations are important: the Minister cannot deport a person to a country where his or her life or freedom would be threatened on what are known as “refugee convention” grounds, such as political opinion, or where he or she would be subjected to the death penalty, torture or inhuman or degrading treatment.
Because non-nationals are, on account of their lack of citizenship, inherently liable to deportation if the circumstances warrant it, there is no “cut-off” point at which the deportation of a non-national child is prohibited.
In 2015, in the case of PO v. Minister for Justice, the Supreme Court upheld the legality of the proposed deportation of a mother and her eight year old child, who had been born in Ireland.
Whether or not such a deportation should proceed in any given case is, as the court indicated, a matter for the Minister for Justice’s discretion. Relevant questions include whether or not such a child can adapt to life in his country of nationality, and the courts in Ireland and the European Court in Strasbourg have generally taken the view that children of that age can do so.
The current controversy over the case of Eric Zhi Ying Xue has led to calls from some quarters for a change in Ireland’s citizenship laws, with Labour leader Brendan Howlin TD stating that his party would bring forward legislation to ensure that children born in the State can become Irish citizens after a period of time and remain here.
Many non-nationals who are in the State have children here and such a move would undoubtedly protect those children from deportation.
However, the Supreme Court’s decision in L and O means that the deportation of their parents would still be legal, so such an amendment might not count for much in practice.
On the other hand, if such parents were granted residence as a matter of course on the basis that their children had become citizens, it is possible that such a change in the law could become a vehicle for abuse, with non-nationals who have no legal status in Ireland, or whose status is precarious, because, for instance, they are in the asylum / protection system here, seeking exploit it to gain residence here to which they would otherwise not be entitled.
It is important, therefore, to ensure that any proposed amendment to current laws be carefully thought through in order to prevent abuse, and that when seeking to enhance the rights of Irish-born children, care be taken not to throw the baby out with the bath water.
Anthony Moore is a barrister who has acted in the immigration area for over a decade in the courts in Ireland and abroad.
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