Today's Irish Times poll shows there is widespread confusion about the citizenship referendum. Carol Coulter, Legal Affairs Correspondent, explains the background to the poll
On June 11th the electorate will be asked to approve a proposal amending the Constitution to remove the automatic entitlement to Irish citizenship of every child born in Ireland. It will then be open to the Government to regulate Irish citizenship according to legislation.
The Government has published a draft Irish Nationality and Citizenship Bill, which provides for the acquisition of citizenship by the children of non-citizens if one parent has lived for three out of the previous four years in Ireland. However, this need not be the final form of the Bill put to the Oireachtas, and any Act passed can be further amended if the Constitution is changed. The Government is adamant that the proposed change is necessary.
There has been growing concern in Government circles in recent years about the constitutional entitlement to Irish citizenship for all children born on the island of Ireland. The concern coincided with the growth of migration into Ireland.
The entitlement has existed without controversy, enshrined in legislation, since the foundation of the State. It was the Good Friday agreement, and the new Article 2 that was part of it, that made the entitlement a part of the Constitution, and therefore beyond amendment by the Oireachtas.
The right to citizenship based on geographical accident of birth, rather than blood, comes from the common law tradition, which has its roots in feudal England. A form of it survives in all common law countries.
The pressure of immigration caused it to be modified in some of them. For example, in the 1980s both the UK and Australia introduced a requirement that the children of non-national parents must live in these countries for 10 years before acquiring citizenship. However, the US and Canada have resisted attempts to change it.
The other tradition in citizenship is that based on blood, where descent from the existing inhabitants of the state is a necessary condition for acquiring citizenship. This spread from the French Civil Code of 1804 to many other European countries, and is the dominant tradition in the EU.
However, most states now combine elements of both. In Ireland, citizenship by blood is offered to the descendants of Irish emigrants, down to the third generation, even if their parents never set foot in Ireland. In many member-states of the EU, citizenship is offered to the children of foreign-born migrant workers after a number of years' residence in the state.
Ireland's economic success in the 1990s made it an attractive destination for migrants. Issues relating to immigration that had previously not been discussed here came on to the political agenda. Among these were the implications of our citizenship laws.
A number of people who came as asylum-seekers had children while waiting for their status to be decided, and obtained residency in Ireland on the basis of their parentage of Irish citizens. The Government challenged this right in the courts, and last year obtained a judgment in the Supreme Court that there was no such automatic right to residency for the parents.
However, as the Minister for Justice has acknowledged, this has not reduced the number of foreign women giving birth in Ireland.
When he launched the Government proposal for amending the Constitution, he spoke of "citizenship tourism" on the part of large numbers of such women, though he was later challenged on the extent of the problem.
More recently the Government has put forward another argument in favour of amending the citizenship Article in the Constitution.
This is the preliminary judgment in the Chen case, where the advocate general of the European Court of Justice found that a Chinese woman was entitled to live in the UK, or any other EU state, as the mother of an Irish citizen child born in Belfast.
There is some disagreement about the implications of this decision, if confirmed by the court later in the year. Freedom of movement among EU member-states is conditional on the person moving not being a burden on the host state, and Ms Chen had ample resources. Others who sought to follow her example might not be so lucky. However, Government sources maintain that discrimination between rich and poor would not be sustainable.
Government ministers have stressed that the Chen case shows that Ireland's citizenship laws now provide a "back door" for obtaining residency in the EU (except in Ireland, where the Supreme Court judgment still applies) for those otherwise not entitled to it. They insist that a constitutional amendment is necessary to close this door, and prevent our citizenship regime undermining the integrity of the EU's borders.
The arguments against the referendum are likely to be two-fold. The first argument is that we are changing the philosophical, ethical and constitutional basis of our citizenship regime without a full discussion of all the implications.
Critics of the proposals point out that there has been no Green Paper, no discussion with bodies such as the Human Rights Commission, the All-Party Oireachtas Committee on the Constitution or the Northern Irish parties with whom the Good Friday agreement was negotiated. They argue that there is no need for a rush to change, that if change is necessary it should be carefully thought through and fully debated. Other critics are opposed to the principle of the proposed change. They argue that it will create a basis for discrimination between two categories of children born in Ireland, and that it will lead to constitutional uncertainty.
Fine Gael, while sharing the misgiving of many critics on the timing of the vote, is calling for support for the amendment. The Labour Party, the Green Party, Sinn Féin and a number of non-governmental organisations, are opposing it.