REVEALED – the documents the state didn’t want you to see before the referendums

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Documents provided to Gript under FOI show that senior officials in the Department of Justice believed that amending Article 41 of the Constitution to include non-marital families, as proposed by the Government in a recent referendum, would undermine, or even outright destroy, the ability of the State to operate an effective immigration system.

One email seen by Gript shows senior officials in the Department being told that “The State has been able to maintain an immigration system so far precisely because Article 41 is applied to a small, tightly-defined group of people. The State will not be able to regulate immigration if this protection is applied any more widely.”

In one of the two referendums held in March of this year the Government attempted to expand the definition of family in Article 41 to include non-marital families which were based on “durable relationships.”

In June of 2023 the Department created, and distributed, a survey asking the divisions of the Department dealing most closely with immigration about the impact that the proposed constitutional amendments may have on their work, and if there were any “immigration units/legislation/schemes/case law” they believed “may be vulnerable if either or both of these referendums pass.”

The survey asked about specific proposed wording to amend Article 41; broadening Article 41 to include non-marital families more generally; and about the potential impact of a constitutional amendment requiring the state to support the provision of care by family members. The questions were described as “vague, wide-ranging and require a lot of work…unfortunately, however, this is also the case for the proposed constitutional amendments!”

The process of overseeing the completion of the survey by the various divisions was handled by a senior legal researcher from the Department’s Legal Services Support Unit. 

That researcher, in an email to senior officials in the Department, summarising the responses they had received, stated that:

“the summary of all legal issues so far is that the amendments as currently worded will massively restrict the State’s ability to regulate its immigration system. 

It is not an exaggeration to say that it will be extremely difficult, and perhaps impossible, to maintain a meaningful immigration system should the People accept these amendments.”

“The State has been able to maintain an immigration system so far precisely because Article 41 is applied to a small, tightly-defined group of people. The State will not be able to regulate immigration if this protection is applied any more widely.”

The researcher overseeing the survey also stated that “While I did not seek observations on non-legal issues, all units who have returned [the survey] so far have emphasised the extremely severe and extremely concerning effects of either/both of these amendments on their resources.” This was described as “noteworthy.”

In the survey responses seen by Gript multiple divisions of the Department highlighted significant and wide-reaching issues with any attempt to extend constitutional protection to non-marital families.

One response to the survey stated that “The IPO [International Protection Office] needs a clear definition of who is included in family – broadening the definition [of a family] to include siblings or nieces/nephews could lead to an increase in family reunification claims for those granted refugee status and overwhelm the system. We need a tight definition.”

A different response, coming from the Permission To Remain (PTR) unit of the Department, stated that amending Article 41 “could undermine our permission to remain considerations and by extension the international protection process”, and that expanding the relationships that could be considered to benefit from constitutional protection would create a situation which “arguably lowers the threshold for a granting of permission to remain.”

PTR went on to say that the proposed amendments could “undermine immigration control and the ability to control the entry of non-nationals.” This, they say. “could trigger [sic] influx of unaccompanied minors who are considered at risk and may be granted protection in light of this only to have a family member enter the State then to care for them.”

The Visa unit of the Department stated that changes to Article 41 would “probably” lead to “a large increase in Join Family visa applications” as the Department would have to “assess an extended family member making an application under the ‘Other Family Member’ category as favourably as a spouse/partner or a minor child of the sponsor.”

They state that extending Article 41 to include non-marital families would mean they would have to give such consideration to “adult siblings, cousins, nieces/nephews, adult children, parents/grandchildren.”

A separate response took the same view, noting that “The Seanad Civil Engagement Group in partnership with Oxfam tried to have the government extend the definition of family for refugees in a recent bill but the government denied it based on a money message. If the definition of family is expanded this could result in the outcome they required without need for other legislation.”

A common theme amongst the responses is that amending Article 41 would lead to substantial increases in the complexity and cost of dealing with immigration. The Visa unit noted that amending Article 41 “may also increase litigation” taken against the State and that “we will be left in a legal grey area for several years while waiting for legal precedents to be established which will create yet more delays and backlogs.”

The Visa unit was also of the view that the proposed changes would ”create massive, massive legal costs to the Department and to the State.”

Responding to the question of what existing legislation, schemes or case law relevant to the unit could be made vulnerable to legal challenge if the amendments passed the Visa unit stated, “Regarding case law, the number of judgements this would undermine or render irrelevant is too many to mention…Realistically, any instance where we have received a judgement on a Join Family application involving an extended family member would be potentially vulnerable [to legal action].”

The Visa unit was concerned that the care amendment would impact on their work, stating that “it is likely that we will see false claims of dependency appearing and causing subsequent court cases upon refusal. It may be difficult to refute the false claims, and non-biological family members may enter to reside to provide this proposed care and become a burden on the State.”

The Family Reunification Unit also voiced concerns about the care amendment, stating that “Application will also likely be made for minors who are adopted, wards and/or the subject of guardianships (whether formal, informal or customary in all cases. This final group have the potential to raise considerable concerns around child welfare and the prevention of trafficking.”

They added, “The extension of protection to non-marital families may also open the question of family reunification in cases of polygamy.”

The Border Management Unit stated that the care amendment would mean “It would be very difficult to decide on whether a Non-National should be granted entry to enable them to care for a person in the State at the border…it would be difficult or impossible for an Immigration Officer to assess the caring needs of the person in the State, the relationship of the Non-National and the Bona Fides of the asserted caring role.”

On the impact that extending constitutional protection to non-marital families might have on their work the Border Management Unit noted that “It could be very difficult for an immigration officer at the port of entry to decide if asserted family connections means that a person must be granted entry,” and that it may be “unreasonable or unrealistic to expect non-national family members to have the documentation to prove the relationship available at the point of entry, as opposed to the current relatively straightforward procedure where a marriage certificate suffices.”

The Border Management Unit also noted the risk of an increase in the number of judicial reviews against refusals.

Another comment states that broadening the definition of family rights “would of course have an huge impact especially in areas such as Permission to Remain considerations, Family reunification, temporary protection, etc.” Given the strength of the rights afforded by Article 41 this comment went on to say that “any change would have big implications.”

Whilst it’s not clear what version of the amendments were put forward for consideration in the survey, as this information was redacted, we do know, from previous FOIs acquired by Gript, that 6 variant wordings of the care amendment were considered, and that considerable consideration was given to ensuring that the wording chosen would place as few obligations upon the Government as possible. You can read more about that in this article.

This latest batch of documents shows one Principal Officer, discussing the amendment wording that was being considered, saying “All of this seeking to distinguish between ‘endeavour’, ‘strike’ etc. reminds me of my secondary school English teacher who, when presented with work that was below the usual standard of the student concerned, would ask the unanswerable question, ‘Was that your best effort?”

Regardless of the specific variant wording put forward in this survey many of the responses deal with the broader idea of amending Article 41 and, as such, would appear to be immediately applicable to the amendment put forward by the Government.

The results of the survey were, according to the documents seen by Gript, to be forwarded on to the Attorney General’s Office. It is unclear if Minister Helen McEntee was made aware of the apparently widespread concerns within her Department.

Gript initially applied for access to these documents in January of this year, but our initial FOI was refused. We received these documents following an appeal.