Legislation to allow the revocation of Irish citizenship has been passed by both Houses of the Oireachtas.
On Wednesday, the Seanad passed a Dáil amendment to the 1956 Irish Nationality and Citizenship Act, which, according to Justice Minister Helen McEntee, “restores the power of the Minister for Justice to revoke certificates of naturalisation.”
The Court, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024 will amend the Irish Nationality and Citizenship Act 1956 to restore the Irish government’s power to revoke certificates of naturalisation. It comes more than three years after the previous process was struck down by the Supreme Court in 2020.
In the Damache case, Ms Justice Elizabeth Dunne ruled that the process set out in the Act did not meet the “high standards of natural justice” and was repugnant to the Constitution. However, the government has faced criticism for addressing the issue in the legislative amendment which was first published just eight days ago, and has now secured approval by both the Dáil and the Seanad.
The Irish Human Rights and Equality Commission (IHREC) have hit out at the passing of the legislation, saying that litigation appears “inevitable” following Seanad approval.
The ICCL had written to the Minister for Justice and Senators in recent days regarding the proposed naturalised citizenship amendment, urging them to allow time for pre-legislative scrutiny to take place.
The amendment, which is part of the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill, was accepted by the Seanad by a margin of 21 votes to nine, with the legislation now proceeding to the President.
Senators Victor Boyhan, Tom Clonan, Alice-Mary Higgins, Annie Hoey, Michael McDowell, Rebecca Moynihan, Lynn Ruane, Marie Sherlock, and Mark Wall all voted against the amendment.
The circumstances in which certificates can be revoked will include where a person poses a security risk to the State or where citizenship was obtained through fraudulent means.
The Bill has come under scrutiny from a number of Irish Senators, including Independent Senator and former Attorney General, Michael McDowell, who said the legislation had been “rushed through.”
“This legislation is being rushed through. It is wrong in principle to bring a Bill to Dáil Éireann to deal with adding new judges, tinkering with the firearms Act and so on and to then throw into it an entirely new provision on the revocation of citizenship,” Senator McDowell said.
“It is wrong in principle to attempt to do that. Whatever urgency there is in dealing with the Damache case, that urgency has existed since the decision was given and it could have been dealt with separately.
“The second thing is the provisions of the Bill are highly suspect from the point of view that the committee being established is not sufficiently independent and demonstrated to be independent of the Minister. The idea that the Minister of the day – and I have been Minister – can just choose four people and a retired judge and pop them into a room to deal with this is not what we should be doing on a matter of this importance.
“It should not be totally reserved for the courts and there should be circumstances in which the revocation of citizenship can take place in a different way. Citizenship fraudulently obtained should be immediately liable to be reversed. I do not think anybody would have a problem with that proposition but I do not think this is right at all. There is not even a guarantee of legal aid for a person who will have their citizenship investigated.”
‘I AM DEEPLY WORRIED’
Senator McDowell said that the phrase “fidelity to the State” was an “odd abstraction” from Article 9 of the Constitution, which refers to “Fidelity to the nation and loyalty to the State.”
“It is a vague charge to make against anybody that they have demonstrated a lack of fidelity to the State. I am deeply worried about that,” he continued.
“The statelessness issue is the least of my worries because if somebody has obtained citizenship by fraudulent means, that cannot really say they would be stateless without the fruits of their fraud. That is not a significant issue. Thousands of people have obtained a certificate of naturalisation.
“To tell them that they have a question mark over their citizenship by virtue of a criterion such as lack of fidelity to the State, and that a Minister could convene a committee to uphold or revoke his or her decision, seems a very strange law to bring in.
“If this was not being rushed through, I do not think anybody would have said this was the best way to deal with it. Although there is judicial review available to everyone, the time limit provided for is that when the committee decides the citizenship has been revoked, the person has two or three days in which to get out of the country or challenge it. That is pretty horrific because the citizenship stands revoked.”
Senator McDowell concluded: “I like to be constructive and supportive of a Department of which I was once Minister but this Bill is being railroaded through, having been mutated beyond recognition when going through the Dáil. It asks us to make far-reaching constitutional decisions about the future and status of people who have been naturalised in circumstances where we should not be asked to do that. Therefore, I have to oppose the Bill.”
The passage of the Bill by both Houses of the Oireachtas, meanwhile. was welcomed Minister McEntee and Minister for State with responsibility for International Law, Law Reform and Youth Justice, James Browne TD.
Referring specifically to the Bill’s revocation amendment, Minister McEntee said: “This power is used sparingly and has been used less than 10 times in total from 1956 to date. The revocation of Irish citizenship is only undertaken in the most serious of circumstances, including on grounds of fraud, deception and national security.”
Responding to Senator McDowell on Wednesday in the Seanad, the Minister for Justice said that it was “clear” that “this is not a new law, that, de facto, will suddenly create a two-tier system or different system. This is a law that has existed since 1956. It is already there and has been used sparingly. As we have heard, it has been used eight times. It is not thrown about willy-nilly.”
“It was challenged and we know the Damache outcome. It was clear from that decision that the Supreme Court did not challenge the availability of this law to a Minister, nor did it challenge the criteria or reasons for a person’s citizenship being revoked.
“It said we needed to put in place greater safeguards for the individuals at the heart of it. It set out clearly there was no issue with the process but was about making sure there are more safeguards in place for the individuals in question. That is exactly what is being done here,” she said.
Senator Tom Clonan, meanwhile, argued against the Bill, saying that it would create a two-tier citizenship.
“In regard to the first group of amendments, this is an oppressive and wholly inappropriate instrument. It does not just give rise to the risk of creating two categories of Irish citizenship, it de facto creates a two-tier Irish citizenship, and in doing so devalues the whole concept and value of Irish citizenship in the first place,” the Independent politician said.
Senator Clonan said that concerns around the Bill focused specifically on the proposed procedure for revocation, particularly the appeals procedure and the idea of there being an ad hoc committee deciding on a case-by-case basis whether a person’s citizenship should be revoked.
“There is also the question of matters relating to national security,” he told the House.
“It creates a two-tier citizenship where naturalised citizens have diminished rights as compared with those of citizens by birth,” he added.
Director of the ICCL Deirdre Malone said: “The Commission believes that this bill, as enacted, would empower ministers to use revocation of naturalised citizenship in inappropriate or disproportionate circumstances.
“Furthermore, it contains procedural and substantive provisions that, in our view, are unlikely to withstand judicial scrutiny when tested against the high standards envisaged by the Supreme Court in earlier litigation.
“When this bill enters into force, further litigation of this nature is, in our view, inevitable. Legislation of this nature does not engender confidence in our system of revocation — particularly for our fellow citizens who are Irish by naturalisation.”