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Joanne Mancini1 and Graham Finlay “Citizenship Matters”

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Joanne Mancini1 and Graham Finlay “Citizenship Matters” JoAnne Mancini1 and Graham Finlay2 “Citizenship Matters”: Lessons from the Irish citizenship referendum” The Irish Citizenship Referendum of 2004 removed the last example of unrestricted birthright citizenship, or jus soli, from the list of European nations. Now similar pressures are building up in the United States of America, the most significant jus soli country in the rest of the world, where the principle of unrestricted birthright citizenship is enshrined in the 14th amendment. These pressures have similar parallels to the Irish case and push towards the same conclusions: lack of access to citizenship is strongly tied to the creation of ‘guest workers’ and the reduced status of such workers in terms of their employment rights strongly affects their ability to challenge exploitation in various forms. In both countries, immigration is being encouraged on a basis that leads to two groups of workers in the labour force: one group with citizenship, opportunities for political participation and rights, the other with restricted access to citizenship, fewer real opportunities for political participation and fewer rights either regarding their conditions of employment or in terms of their access to social welfare services. In this paper, we argue that since migration is inevitable, this trend against jus soli in a number of high income countries represents both unjust treatment of the migrant workers themselves and an attempt to increase competition for jobs through the deliberate alteration of the terms under which migrant workers are to compete. It is important to emphasise the inevitability of migration as a background to the issue of access to citizenship, particularly the movement of people from poor countries to wealthy ones, and its link with development. Robin Cohen has argued, persuasively, that development aid cannot reduce migration pressure. Reviewing studies of several sending countries, he notes that the amount of aid necessary to reduce the inequalities between countries to the point that the incentive to migrate is significantly diminished is vastly more than wealthy, receiving countries currently propose to provide and that, even if such aid were forthcoming, migratory pressures still might not be reduced.3 1 Department of Modern History, NUI Maynooth 2 School of Politics and International Relations, University College Dublin 3 Robin Cohen, ‘Trade, aid and migration’, in Migration and its Enemies. Aldershot: Ashgate, 2006. Accordingly, migration is a force that will have to be dealt with justly for the foreseeable future: both in terms of justice within the receiving country and between the receiving and the sending country. In terms of the latter, as is well known, remittances are a remarkably efficient transfer of wealth between rich and poor countries—‘nearly three times the world’s foreign aid budgets combined’.4 In this paper, we will focus on the issue of justice within the receiving country, but a fuller account would also incorporate the benefits of remittances and the relief of population pressure from the sending country. The exact long-term implications of the Irish Citizenship referendum are difficult to gauge, but two significant changes may be noted. First, the amendment to Article 9 removes the provision of citizenship to the Irish-born children of non-nationals from its protected place within the Constitution to the more uncertain sphere of legislation. Henceforth, sitting elected officials will determine not only the terms under which immigrants can become naturalized citizens—a process over which the Justice Minister has discretionary power—but also the conditions under which the children of foreigners are eligible for birthright citizenship.5 The Irish Nationality and Citizenship Bill, 2004 limits access to birthright citizenship for the children of non-nationals, restricting access to those children whose parents had resided legally in the state for three of the four years previous to the birth.6 The government also specified that time spent on student visas or in the asylum process would not count as residence, even retroactively. Thus, the resulting Act virtually guarantees that there will be a class of children, born in Ireland to legal residents, who have access to citizenship solely through the naturalisation process. Moreover, the removal of citizenship to the legislative realm also presents the possibility that future governments might propose more onerous barriers to birthright citizenship for those without a hereditary connection to the nation. Currently, naturalisation requires 5 years residency, even of minors born in Ireland, and “The Minister for Justice, Equality and Law Reform... has 4 ‘Western Union Empire Moves Migrant Cash Home’, New York Times, November 22, 2007, Accessed at: http://www.nytimes.com/2007/11/22/world/22western.html?_r=1&th&emc=th&oref=slogin 5 See Irish Nationality and Citizenship Act, 1956, Section 15, http://www.referendum.ie/archive/display.asp?ballotid=11. 6 See the explanatory notes of the proposed Bill at http://www.justice.ie/80256E010039E882/vWeb/flJUSQ65ADJS-en/$File/B402004.pdf and the text of the Act at: http://www.justice.ie/80256E010039E882/vWeb/flJUSQ68YFYB-en/$File/Act2004.pdf absolute discretion as to whether or not to grant naturalisation.”7 Legislation proposed on September 6, 2006 places a number of restrictions on immigrants including requiring them to carry residence permits issued by the Minister, in the form of Identification Cards with photos and biometric information. Although some of these restrictions are not directly related to the issues raised in this article, a notable clause provides the full complement of social services only to “long term residents”, identified as individuals who have resided in the state for five years, although the residence requirements may be shorter for “particularly sought-after migrants”.8 This places the bulk of legal residents, including those on work permits, in the same condition with relation to social services as the workers from EU accession countries who have, to some extent, replaced them. Second, the amendment to Article 9 represents a fundamental philosophical shift in Irish law from the principle of citizenship based on birth within the territory, to citizenship based on blood descent from the citizenry.9 Prior to the amendment, Irish law did employ jus sanguinis as a device for recognising the citizenship of persons born beyond its borders: due to its emigrant history, Ireland (unlike the United States) grants citizenship to the foreign-born grandchildren of citizens, and under certain circumstances even to subsequent generations.10 However, until 2004 Irish law had never used parentage as a basis for the civic exclusion of persons born inside its own borders. The passage of the referendum marks a sharp break from both this tradition and the universalism it entails. By imposing a barrier to citizenship that must be crossed only by persons who are not the descendants of citizens, as Oran Doyle argues, the new Article 9 gives Constitutional sanction to the granting of legal privilege on the basis of pedigree.11 By tying the future citizenry more firmly to the 7 See the information on naturalization from the government’s own website: http://www.citizensinformation.ie/categories/moving-country/irish- citizenship/becoming_an_irish_citizen_through_naturalisation 8 See “McDowell publishes draft Immigration legislation - initiates radical overhaul of immigration laws and processes” http://www.justice.ie/80256E01003A02CF/vWeb/pcJUSQ6TEJ7G-en 9 Gerard Hogan, “Citizenship and the Constitution: 1922 to Date,” 6. 10 In order to be eligible for citizenship beyond descent from an Irish grandparent, an applicant’s parent must have taken up Irish citizenship before the applicant’s birth: “The Irish citizenship of successive generations may be maintained in this way by each generation ensuring their registration in the Foreign Births Register before the birth of the next generation.” Oasis Information on Public Services, “Irish Citizenship Through Birth or Descent,” http://www.oasis.gov.ie/moving_country/migration_and_citizenship/irish_citizenship_through_birth_or _descent.html#id3109961. 11 As Doyle argues, this is elsewhere proscribed: the Supreme Court’s decision in An Blascaod Mór Teoranta v. Commissioners of Public Works prohibits discrimination on the basis of pedigree (Doyle citizenry at the time of the referendum, moreover, the amendment also works to limit temporal and ethnic change in the composition of “the Irish Nation.” There is a very important difference between unrestricted and restricted birthright citizenship. Migration theorists like Christian Joppke claim that there is a trend towards jus soli in European citizenship regimes, because Spain, the Netherlands and Belgium have added some jus soli component to their previous jus sanguinis (citizenship by descent) traditions, and Germany has, in 1999, admitted a right to citizenship for second generation immigrants at birth, provided one parent has been legally resident in Germany for eight years.12 Although Germany’s reforms are important, they are not reflective of a general European trend. Austria, which also has a large population of long-time alien residents, has not changed its citizenship law and has no jus soli component.13 Several southern European countries have restricted access to citizenship by raising the residence requirements for naturalisation for non- EU nationals, even, in the case of Italy, while simultaneously reducing
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