It is unjust to seek to remove citizenship from children of non-nationals born here, writes William Binchy.
The proposal to remove the citizenship status from children born in Ireland whose parents have recently come here is a bad one. It seeks to give effect to a deterrent social policy by targeting those who are completely innocent. That is not a just strategy.
Let us look more closely at what denial of citizenship involves. Our Constitution protects a range of fundamental human rights, but in a number of instances expresses that protection by reference to citizenship.
Thus, Article 40.1 provides that "all citizens shall, as human persons, be held equal before the law". Under Article 40.3.1º , the State guarantees "in its laws to respect, and, in so far as practicable, by its laws to defend and vindicate the personal rights of the citizen".
And, under Article 40.3.2º, the State undertakes, "in particular, by its laws \ protect as best it may from unjust attack and, in the case of injustice done, vindicate the life person, good name and property rights of every citizen".
Under Article 40.4.1º, "no citizen shall be deprived of his personal liberty save in accordance with law". Under Article 40.5, "the dwelling of every citizen is inviolable . . ." Freedom of expression is recognised by Article 40.6.1.1º as a "right of the citizens". Similarly freedom of assembly and of association are expressed by Article 40.6.1.ii and iii, respectively, as rights of "the citizens".
Interestingly the rights of the family and of education recognised by Articles 41 and 42 and the right to private property recognised by Article 43 are not expressed by reference to citizenship.
Nor is the protection to religious freedom, under Article 44 so expressed, though, under a provision deleted in 1972, the State recognised the special position of the Catholic Church "as the guardian of the Faith professed by the great majority of the citizens".
Scholars have debated whether some underlying philosophical premises can explain the selective limitation of protection of certain fundamental rights to those who are citizens.
Whatever the true explanation, the fact remains that several crucial rights are expressed to attach to citizens. What is the effect of this limitation?
The answer is surprisingly unclear. Courts have taken differing views.
Some judges have considered that non-citizenship is irrelevant to claiming protection under the fundamental rights provisions.
Other judges have regarded non-citizenship as being fatal to a claim for protection under the relevant fundamental rights provision of the Constitution.
No one would say that the present position is clear: indeed, the claim of non-citizens to protection under constitutional provisions not expressed by reference to citizens is equally murky.
What the proposed constitutional amendment involves is to cast a shadow over the protection afforded by the Constitution to the rights of children born in Ireland of foreign parents who have lived in Ireland for a certain period of time. No one can say with any certainty how extensive a subtraction from the present constitutional protection will result.
That very uncertainty is in itself a potent argument against embarking on this project.
It has been noted that, even in regard to those Articles of the Constitution where the scope of protection is not defined by reference to citizenship, serious uncertainties attach to their efficacy in regard to non-citizens.
Some judges, relying on the universalist human rights philosophy associated with natural law theory, have held that citizenship is not a prerequisite for claiming protection under these Articles, notably those in relation to the family; other judges have considered citizenship to be a pivotal factor.
Translating these theoretical debates into practical reality, the result of the removal of citizenship from certain children born in Ireland is to make it far more difficult for them to involve the protection afforded to the family under Articles 41 and 42.
It will be recalled that in the Osayande decision in 2003, the Supreme Court seriously weakened the protection to parents of Irish citizens from deportation afforded by its earlier decision in Fajujonu.
If citizenship is removed from children in equivalent cases in the future, their entitlement to resist their own deportation on the basis of Articles 41 and 42 may well be completely removed.
None of these concerns has yet been addressed by the Government in making its case for the amendment of the Constitution.
William Binchy is Regius Professor of Laws at Trinity College Dublin and a member of the Human Rights Commission.