by Áine Doyle.
Áine Doyle is a recent LLB graduate from Trinity College Dublin. In this article, she considers the power of the State to revoke an Irish citizen’s citizenship. Given a recent Supreme Court decision finding elements of the relevant legislation unconstitutional, she considers how the legislation could be amended going forward in order to avoid potential issues of statelessness and discrimination.
This article will discuss Section 19 of the Irish Nationality and Citizenship Act 1956 as amended (hereinafter referred to as the 1956 Act). Section 19 gives the Minister the ability to revoke the citizenship of naturalised persons for reasons of fraud, infidelity to the State, war or where an individual, by any voluntary act other than marriage, acquires another citizenship. Naturalisation is the process by which an individual can become a citizen of another country. However, an issue that can arise from the revocation of citizenship is that of statelessness. A stateless person is defined in Article 1 of the 1961 Convention Relating to the Status of Stateless Persons as ‘a person who is not considered as a national by any State under the operation of its law’.
This article will discuss section 19 generally, and consider how Ireland’s citizenship revocation provisions could be improved upon. Part I will assess the current position of Irish law regarding revocation, and analyse how this position can lead to discrimination and statelessness. Part II will then outline potential improvements that could be made to the section.
An analysis of section 19 is particularly relevant today as the Irish government’s deprivation powers have essentially been paused due to the Supreme Court ruling in Damache v Minister for Justice that ‘the process by which citizenship may be lost must observe minimum procedural standards’.[1] In a later ruling, while the process of revocation itself was not deemed unconstitutional, sections 19(2) and 19(3) specifically were held to be unconstitutional on the grounds that they did not provide adequate procedural safeguards.[2] Thus, the Minister’s powers of revocation may not be utilised until a new system has been put in place. Therefore, the time would appear ripe to reconsider how section 19 should look going forward.
Part I: Irish Law
Section 19 allows for the revocation of naturalised citizenship. Naturalisation is discretionary, as per section 15(1) of the 1956 Act, as is the process of revocation. Although the Minister must supply reasons in both situations in order to protect against arbitrariness,[3] there is little restriction as to what the content of those reasons can be within the categories outlined in section 19. The Minister’s power in this area was recently confirmed in Damache,[4] in which the Supreme Court held that, although the Minister is bound by the principle of fair procedures, the process of revocation is a matter squarely for the Minister, not the judiciary. An understanding of revocation as a policy decision subject to broad discretion can lead to a variety of situations in which non-national citizens’ rights are precariously positioned.
Discrimination
The executive has the right to control immigration in the interests of the common good, as is pointed out by Hogan.[5] Thus, it could be argued that the State’s position regarding revocation is, while potentially unfavourable to naturalised citizens, a policy choice that is decidedly intra vires for the legislature and executive.. However, although the right to govern immigration flows from the sovereign power of the State,[6] the Equality Authority (now the Irish Human Rights and Equality Commission) has argued that ‘sovereignty is a more relativised concept today’,[7] with total control over immigration to the detriment of the upholding of concepts such as equality not generally considered a necessary component of sovereignty.
Therefore, this article argues that, notwithstanding the broad discretion afforded to the State in this area, the primary issue with section 19 stems from the fact that contingent citizenship can cause discrimination. As per the UN Human Rights Council Resolution 32/5, deprivation of nationality is understood to be arbitrary and therefore unlawful when citizenship is considered on the basis of, amongst other things, ‘national or social origin’,[8] with any deprivation powers exercised on these grounds prohibited under international law.[9] The power to revoke the citizenship of naturalised citizens is directly discriminatory in that it is a law which only applies to certain categories of citizens. Although the exempting of mono-nationals from revocation can be rationalised as a means of avoiding statelessness, this leads to the (often inadvertent) targeting of individuals with dual nationality. In Ireland, there was no published information regarding instances of revocation until 2018.[10] Since then, the Minister has exercised the revocation procedure in a number of cases. However, following the Damache ruling, a final determination in such cases has been suspended. Therefore, there is very little information available as to who has been impacted by the revocation procedure to date. However, dual nationals are generally more likely to be recent immigrants, with the most recent census data showing that 63.4 percent of dual nationals were born abroad.[11] Thus, the legislation was invariably more likely to impact recent immigrants, as opposed to mono-nationals who had been born in Ireland.
Citizenship has been described by Arendt as ‘the right to have rights’,[12] and Gibney describes citizenship as the sine qua non of a variety of basic rights.[13] Thus, the revocation of citizenship can be significantly detrimental to an individual, and is a very serious consequence for actions that, if taken by a citizen by birth, would not result in revocation. This legal stance promotes the ‘othering’ of naturalised citizens, and Otukoya notes that it leads to a situation in which, as a naturalised citizen, ‘one may very well become Irish, but one will never truly be Irish’.[14]
Statelessness
Rendering a person stateless involves a two-step process. First, the State must denaturalise the citizen, and then deport them due to the illegal nature of their residence. This type of denaturalisation and subsequent denationalisation has a discriminatory history, as it was a tactic utilised, for example, in Nazi Germany in order to expel the Jewish population.[15] Thus, tension can exist between the requirement to refrain from rendering individuals stateless and the requirement of non-discrimination, given that the two issues have close historical links. As Jaghai points out, states that opt to enforce revocation on naturalised citizens alone can comply with the international norm of preventing statelessness, as naturalised citizens are often dual nationals, but risk violating the principle of non-discrimination.[16]
Ireland is generally bound by the requirement to avoid rendering an individual stateless is an international obligation under customary international law,[17] and this is also a treaty obligation under Article 8 of the 1961 Convention on the Reduction of Statelessness.[18] However, Ireland has made reservations to the Convention regarding revocation powers, committing only to take statelessness into consideration when revoking citizenship.[19] It has also not incorporated the Convention into domestic legislation directly. The only mention of statelessness in the 1956 Act is contained in section 16(g), which stipulates that the Minister may, in their absolute discretion, grant an application for naturalisation where the applicant is a stateless person. However, there is no definition of a ‘stateless person’ within Irish law. To the extent that statelessness is considered in cases of revocation, the Statelessness Index Report points out that this is done on an ad hoc basis, with little guidelines as to what the Minister must consider in making such a determination.[20] The Report also highlights that there are no specific safeguards against statelessness, particularly given that the burden of proof for establishing statelessness in the first place is unclear.[21] Therefore, this article argues that, although certain safeguards are in place, little substantial protections exist for individuals at risk of statelessness, particularly in terms of a revocation decision. Given that statelessness can cause issues ranging from lack of voting eligibility to the inability to access education, this represents a major omission in the law.[22]
Part II: Recommendations
Since revocation can lead to statelessness, it is argued that section 19 should be altered to specifically mention statelessness. Ireland, as per Article 8(3) of the 1961 Convention, retains the right to deprive a naturalised citizen of their citizenship and render them potentially stateless where they have failed in their duty of fidelity to the State. This provision has been implemented through section 19(1)(b) of the 1956 Act. Despite this, there remains an overarching international obligation to avoid statelessness under Art. 8 of the 1961 Convention. Therefore, in order to comply with this, this article recommends that section 19 be altered to mention statelessness. Under the 1956 Act currently, the Minister considers the issue of statelessness on an ad hoc basis. It is submitted that, instead, section 19 ought to mandate that the Minister consider statelessness in all cases in order to ensure that it is avoided.
Alongside changes to section 19 specifically, the 1956 Act should create a definition of statelessness, as recommended as part of a joint submission to the UN Human Rights Council (HRC) made by the Immigrant Council of Ireland, the European Network on Statelessness and the Institution on Statelessness and Inclusion.[23] Any such definition could be based upon the definition provided in Article 1 of the 1954 Convention Relating to the Status of Statelessness Persons[24] which Ireland has ratified. Ireland should follow the recommendations of the joint submission to the UN HRC and implement a dedicated procedure which reviews statelessness within section 19.[25] The exact contours of such a process are beyond the scope of this article, but it is nonetheless suggested that current barriers to proving statelessness make it difficult for Ireland to remain abreast of its Convention obligations, and therefore create unfairness and confusion within section 19.
Further, to combat discrimination, it is argued that the use of the revocation power should be curtailed as far as practicable. For example, debates in the UK regarding the expansion of citizenship revocation to mono-nationals as a means to avoid discrimination between citizens highlighted the fact that, arguably, such a measure simply creates a new form of discrimination as opposed to removing an old one.[26] It is also worth noting that the revocation of the citizenship of citizens by birth who are mono-nationals is likely to be a breach of the international obligation to prevent statelessness under the 1961 Convention. Thus, it is argued that extending the ability to revoke citizenship to more categories of citizens should not be the mode through which the Irish government pursues anti-discrimination measures.
In order to curtail the practice of revocation, the Minister should, as aforementioned, resist revoking citizenship where it would lead to statelessness. Regarding situations under section 19(1)(b), it is recommended that the legislation assume the efficacy of the criminal justice system and use it instead of citizenship deprivation as ‘punishment’. Van Wass and Jaghai have argued that the stripping of citizenship in order to deter crimes against national security is ineffective, as the authors argue that governments are instead simply ‘exporting a security threat to the international community’.[27] The current ability to revoke the citizenship of naturalised persons on the grounds of infidelity to the State could in theory lead to a situation in which a terrorist act committed by two individuals could lead to one being tried through the domestic criminal justice system and the citizenship of the other being revoked. It is submitted that this is, particularly in a criminal context, a type of inequality of treatment that is difficult to justify on grounds of national security – measures that are suitable for mono-nationals ought to be deemed similarly suitable for dual nationals without a requirement for the added ‘punishment’ of citizenship loss. The Canadian government made such a change to their laws in 2017,[28] with former Prime Minister Justin Trudeau stating that ‘you devalue the citizenship of every Canadian when you…make it conditional for anyone’,[29] and it is submitted that Ireland has the opportunity to adopt a similar approach.
In order to address this issue, the legislation could be amended to create a rebuttable presumption in favour of retention of citizenship in cases of infidelity to the State. Such a presumption should only be rebuttable where the national justice system would not be capable of securing the interests of the common good. In practice, it is submitted to be unlikely that such a presumption would be rebuttable other than in truly exceptional circumstances, which would restrict the use of revocation powers and thereby avoid its discriminatory effects.
Conclusion
In order for citizenship to be more than a ‘thin and procedural form’,[30] the Minister’s ability to revoke the citizenship of naturalised citizens under section 19 is a power that ought to be used sparingly. This article has argued that the risks to individuals in terms of discrimination and statelessness are too great to justify the expansion of the Minister’s powers of revocation. The recent Damache decision has created a unique opportunity to amend section 19 by adapting it in a way that both increases protection against statelessness and also restricts it so that it cannot be utilised in a manner that discriminates unduly against naturalised citizens. This can be done through increased reliance on the criminal justice system in cases of infidelity to the state, and by restricting this type of revocation to apply only where the domestic criminal justice system would be incapable of protecting national security.
[1] Damache v Minister for Justice [2020] IESC 63 [115].
[2] Damache v Minister for Justice [2021] IESC 6 [29].
[3] Mallak v Minister for Justice [2012].
[4] Damache (n 1).
[5] Gerard Hogan, Gerry Whyte, David Kenny and Rachael Walsh, Kelly: The Irish Constitution (Bloomsbury Professional 2018) [3.3.19].
[6] Osheku v Ireland [2008] 3 IR 795, 823.
[7] Equality Authority, ‘Embedding Equality in Immigration Policy’ (2006) 23.
[8] UN Human Rights Council, ‘Human Rights and the Arbitrary Deprivation of Nationality’ (2016) UN Doc A/HRC/RES/32/5 paras 2, 4.
[9] ISI and GLOBALCIT, ‘Instrumentalising Citizenship in the Fight Against Terrorism’ (2022) https://files.institutesi.org/Instrumentalising_Citizenship_Global_Trends_Report.pdf accessed 24 April 2022, 35 (ISI Report).
[10] European Network on Statelessness, ‘Statelessness Index, Country Briefing: Ireland’ (2022) 31
https://index.statelessness.eu/sites/default/files/ENS_Statelessness_Index_Survey-Ireland-2022.pdf accessed 27 March 2023.
[11] Central Statistics Office, ‘Census of Population 2016 – Profile 7 Migration and Diversity’ https://www.cso.ie/en/releasesandpublications/ep/p-cp7md/p7md/p7dn/#:~:text=Persons%20may%20identify%20as%20having,per%20cent%20were%20born%20abroad accessed 27 March 2023.
[12] Hannah Arendt, The Origins of Totalitarianism (Meridian 1962) 296.
[13] Matthew J Gibney, ‘Should Citizenship be Conditional? The Ethics of Denationalisation’ (2013) 75(3) The Journal of Politics 646, 651.
[14] Bashir Otukoya, ‘Bheith Éireannach (Becoming Irish): Privilege or Right’ (2016) 27 Irish Studies in International Affairs 57, 70.
[15] Audrey Macklin, ‘A Brief History of the Brief History of Citizenship Revocation in Canada’ (2021) 44 Man LJ 434, 437.
[16] Sangita Jaghai, ‘Citizenship Deprivation, (Non) Discrimination and Statelessness: A Case Study of the Netherlands’ (2017) Statelessness Working Paper Series No 2017/07, 13 https://files.institutesi.org/WP2017_07.pdf accessed 25 April 2022.
[17] Explanatory Report to the European Convention on Nationality (1997) ETS 166 para 33.
[18] 989 UNTS 175.
[19] United Nations Conference on the Elimination or Reduction of Future Statelessness (1959) Addendum to Comments by Governments on the Revised Draft Convention A/CONF.9/5/Add.3 para 19.
[20] European Network on Statelessness (ENS), ‘Statelessness Index, Country Briefing: Ireland’ (2021) 2 https://index.statelessness.eu/sites/default/files/ENS%20Ireland%20Country%20Briefing%202021%20.pdf accessed 25 April 2022.
[21] ibid.
[22] Indira Goris, Julia Harrington and Sebastian Kohn, ‘Statelessness: What it is and Why it Matters’ (2009) 32 Forced Migration Review 4.
[23] Immigrant Council of Ireland, European Network on Statelessness and Institute on Statelessness and Inclusion, ‘Ireland: Universal Periodic Review’ (39th Session, 25 March 2021) 13 https://www.statelessness.eu/sites/default/files/2021-03/ENS-UPR_39_Submission_Ireland.pdf accessed 27 March 2023.
[24] 360 UNTS 117.
[25] ‘Ireland: Universal Periodic Review’ (n 25) 13.
[26] HL Deb 9 October 2002, vol 639 (Lord Goodhart).
[27] Laura van Wass and Sanita Jaghai, ‘All Citizens are Created Equal, but Some are More Equal than Others’ (2018) 65 Netherlands International Law Review 413, 425.
[28] An Act to amend the Citizenship Act and to make Consequential Amendments to another Act, SC 2017 c 14 (Canada).
[29] Vice News, ‘“A Canadian is a Canadian”: Liberal Leader Says Terrorists Should Keep Their Citizenship’ (28 September 2015) https://www.vice.com/en/article/7xaxby/a-canadian-is-a-canadian-liberal-leader-says-terrorists-should-keep-their-citizenship accessed 27 March 2023.
[30] Christian Joppke, ‘The Inevitable Lightening of Citizenship’ (2010) 51(1) European Journal of Sociology 9, 10.
Sutherland Symposium 