Birth citizenship & Ireland

(Delighted to welcome back alumna Siobhán Mullaly, who contributes this guest post)

The primacy given the protection of the family in Irish constitutional law has frequently been invoked as a marker of Ireland’s distinct national identity, most recently in debates on the ratification of the Lisbon Treaty and constitutional reform in the European Union. Despite the apparent strength of these protections, however, migrant families, including those with Irish citizen children, have found themselves repeatedly denied the core protections of private and family life, including the right to remain in the State. In a series of cases in the Irish courts (right), the limits of citizenship in securing the right to be ‘part of the Irish nation’ (Article 2 of the Constitution) have been revealed.
The rapid increase in inward migration to Ireland at the start of the new millennium (now sadly reversed), led to increasing controversy surrounding the right to citizenship by birth. As the numbers of families claiming residence rights on the basis of having Irish citizen children increased, political pressure to deny these claims grew. In 2003, the Supreme Court, in the L. and O. cases, dismissed an appeal from the third country national parents of Irish citizen children, who were challenging their pending deportation from the State. Distinguishing earlier case-law, the Court concluded that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. At the time, more than 11,500 applications for residence were pending from third country national parents, with Irish citizen children.
The Supreme Court judgment, however, did not stem the tide of inward migration. And so, just one year later, the L. and O. cases were followed by a divisive constitutional referendum, which led to the imposition of restrictions on the right to citizenship by birth. Questions remained, however, as to how to address the position of the many Irish citizen children who might now face ‘de facto’ deportation along with their third country national parents. In January ’05, the Government introduced the Irish Born Child (IBC ’05) scheme, to assess applications for residence from third country national parents of Irish citizen children, born prior to Jan ’05. The majority of the applications under the IBC ’05 scheme were granted. A small minority, however, led to refusals and to a series of cases challenging the scheme’s compliance with article 8 of the ECHR, with EU law and with Irish constitutional law.
In Bode v Minister for Justice Equality and Law Reform (2007), the Supreme Court controversially concluded that ECHR and constitutional rights claims did not have to be considered when assessing applications under the IBC’05 scheme, and would only arise in the context of deportation proceedings. The Court found that a decision to grant residency within Ireland on the basis of the IBC ‘05 Scheme was a mere ‘gift,’ extended by virtue of the benevolent and ‘generous’ exercise of executive power. The Supreme Court reversed the earlier findings of the High Court, where Justice Mary Finlay Geoghegan found that the failure to consider the citizen child’s personal rights and right to private life was a breach, both of the constitutional protection of personal rights and article 8 ECHR. Citing Sisojeva v Latvia (Eur. Ct. H. Rts. 2007) , she concluded that the right to private life gave rise to positive obligations on the part of the State to ensure the effective exercise of the child’s rights. The rights guaranteed by article 8, she said, must be ‘practical and effective.’ Given the tender age of the children in the test cases before the Court, she concluded that the State had a positive obligation to grant permission to the parent to remain in the State.
The relational understanding of rights implicit in Finlay Geoghan’s judgment did not, however, find support in the Supreme Court. Neither has it, until now, found support in subsequent case-law. An ‘insurmountable obstacles’ test continues to be relied upon by the Irish courts, to determine whether or not the parent of an Irish citizen can be lawfully deported. Currently there are several cases pending before the High Court involving deportation proceedings against third country nationals, who are parents of Irish citizen children. Two recent judgments are likely to have a significant impact on these proceedings:
► The first is ZH (Tanzania) v the Secretary of State for the Home Department, an 11 February 2011 judgment of the UK Supreme Court (left), in which Lady Brenda Hale, giving the lead judgment in the case, found that in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This, she said, ‘means that they must be considered first.’ Notably Lady Hale cited directly from Jacqueline Bhabha’s essay, 'The "Mere Fortuity of Birth"? Children, Mothers, Borders and the Meaning of Citizenship,’ to support her conclusion: ‘the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond.’ In contrast to the Irish courts, Lady Hale emphasised the intrinsic importance of citizenship, including the value of ‘growing up and being educated’ in one’s own country, and pointed to the increasing emphasis on the child’s best interests in the Strasbourg case law, including in Uner v Netherlands (2006), Maslov v Austria (2007), and da Silva, Hoogkamer v Netherlands (2006). She also noted that in the context of immigration, the requirements of the ECHR must be interpreted in harmony with the general principles of international law, including those set out in the UN Convention on the Rights of the Child.
► The second significant development is the Zambrano judgment handed down by the European Court of Justice (right) on March 8 of this year. The Zambrano judgment has direct and immediate implications for Ireland’s practice to date in allowing de facto deportations of citizen children. What is notable about the Zambrano judgment is the willingness of the ECJ to go beyond the protections of family life afforded by the Irish courts. The Zambrano judgment did not, in fact, engage with arguments concerning family life or family unity. The judgment of the Court, instead, focuses on the ‘cardinal value of citizenship’ – the right to live and remain in the State of which one is a national. As in the 2004 Zhu and Chen judgment, the ECJ recognizes the network of relationships into which a child is born, and the dependency and vulnerability of a child. Going substantially beyond the Irish courts, the ECJ in both Chen and Zambrano recognizes that a child’s state of dependency requires the presence of his or her parents, so as to ensure the effective enjoyment of the rights associated with citizenship of the Union, as protected by Article 20 of the Treaty on the Functioning of the European Union. Questions remain as to how dependency will be interpreted, and of course, what will be the ‘push back’ from Member States of the EU, many of whom, including Ireland were watching these proceedings closely.
Predictably, the Zambrano judgment has given rise to much commentary in Ireland. It is to be hoped, at least for now, that it will finally bring home to Irish courts, the significance and meaning of a child’s citizenship and attachment to the State.

Released In Paper---The War For Citizenship: The Conflicted Loyalties of Jews, Germans, Irish, Native Americans and Blacks

Civil War Citizens: Race, Ethnicity, and Identity in America's Bloodiest Conflict, Susannah Ural, Editor, Contributors: Stephen D. Engle, William McKee Evans, David T. Gleeson, Andrea Mehrländer, Joseph P. Reidy, Robert N. Rosen, and Susannah J. Ural, New York University Press, 256 pages, paperback, $23.00.

Aaron Sheehan‒Dean, author of Why Confederates Fought: Family and Nation in Civil War Virginia: “Civil War Citizens adds a new dimension to our understanding of the war by offering a window into the complex exchange between ethnic and national identity. The stories told here should have special resonance for our increasingly diverse society as it continues to debate the contours of citizenship and belonging. By showing how immigrants as well as native‒born Americans struggled over the meaning of democracy, freedom, and slavery, the essays also connect American history to the same debates going on around the world.”

Christian G. Samito, author of Becoming American Under Fire: Irish Americans, Africans Americans, and the Politics of Citizenship During the Civil War Era “In the Union and the Confederacy, in the armed forces and on the home front, the Civil War caused people of different races and ethnicities to interact in new ways. The well‒written, well‒researched essays in this important new book offer a fine‒grained narrative about the experiences of different ethnic groups during the Civil War. The essays also probe, in provocative ways, the intersection between military service and the call by different ethnic groups for fuller inclusion and citizenship. This book is not only a fascinating read, it makes a real contribution to the study of ethnic groups during the Civil War era.”

Peter S. Carmichael, author of The Last Generation: Young Virginians in Peace, War, and Reunion “The illuminating essays in Civil War Citizens capture the view from below, where immigrants and other non‒whites confronted an array of confusing loyalties, often in conflict, always changing, and never clear cut in their meaning. This superb collection reveals that their identity as outsiders did not prescribe a united or single course of action. Civil War Citizens is an eye‒opening book, for it shows how people who existed on the political periphery were forced to rework their self‒understandings as individuals and as a collective group while also being denied their place in the nation that they were fighting and dying for.”

NYU Press: "At its core, the Civil War was a conflict over the meaning of citizenship. Most famously, it became a struggle over whether or not to grant rights to a group that stood outside the pale of civil-society: African Americans. But other groups--namely Jews, Germans, the Irish, and Native Americans--also became part of this struggle to exercise rights stripped from them by legislation, court rulings, and the prejudices that defined the age."

"Grounded in extensive research by experts in their respective fields, Civil War Citizens is the first volume to collectively analyze the wartime experiences of those who lived outside the dominant white, Anglo-Saxon Protestant citizenry of nineteenth-century America. The essays examine the momentous decisions made by these communities in the face of war, their desire for full citizenship, the complex loyalties that shaped their actions, and the inspiring and heartbreaking results of their choices-- choices that still echo through the United States today."

CWL: Looks similar in topic to Margaret Creighton's wonderful Colors of Courage that presented new material on the civilians who experienced the Gettysburg Campaign. Finally Civil War Civilians is at an affordable price for libraries and enthusiasts and goes on the early summer reading list.

On September 17

On this day in ...
... 2010 (today), the United States marks Constitution Day and Citizenship Day. Congress has set aside this date -- on which the U.S. Constitution (right) was signed, in 1787, and sent to state legislatures for ratification -- for observances. Government agencies, schools, and other groups are urged to plan commemorative lectures and other events. This 'Grrl's favorite item in honor of the day: the Which Founder Are You? quiz at the website of the Philadelphia-based National Constitution Center. I'm James Madison (below; credit), described thusly: "Diligent, scholarly, and shy." And you?

(Prior September 17 posts are here, here, and here.)

On August 8

On this day in ...
... 1942, the same day that The New York Times published a report that President Franklin D. Roosevelt "continued study" of death-penalty recommendations made by a special military commission he had convened, the United States executed 6 would-be saboteurs by electrocution at a jail in the District of Columbia. They were among 8 men who'd traveled by submarine from their native Germany and landed months earlier on the U.S. coast. During a recess in their July trial, defense attorneys had sought relief from the U.S. Supreme Court, which refused in Ex parte Quirin (1942). Among those executed was one Herbert Hans Haupt, whom the Court presumed held U.S. citizenship -- a presumption that would become significant in the post-9/11 judgment in Hamdi v. Rumsfeld (2004). The Times further reported on this day that Haupt's parents were not notified of their son's death -- for the reason that the parents and 4 other Chicagoans were in jail on suspicion of having helped their son. Also of note: the Library of Congress photo at right, of the "[k]ey figures in the trial of the eight saboteurs," includes at least 2 who'd go on to play key roles at the postwar trials of accused war criminals. They are: No. 2, Francis Biddle, then Attorney General of the United States and and later the American Judge on the International Military Tribunal at Nuremberg; and No. 1, Myron C. Cramer, then a Major General in the Army JAG Corps and assistant prosecutor in this trial, and later the American Judge on the International Military Tribunal for the Far East, which adjudicated the Tokyo Trial.

(Prior August 8 posts are here, here, and here.)

Read On! 1939

What turns an expatriate neighbor to an enemy alien?
That's the question underlying 1939, a novel published in 1948.
The story centers on a proud Parisian, Madame Corinne Audal. Years ago she'd married protection, in the form of a French military officer. But she's fled the city to live atop a mountain with her lover, Ferdl Eder, an alpine man from Austria. Initially the Savoyard villagers tolerate the couple. But then war arrives. Ferdl's homeland has fallen under Nazi rule. France soon will fall. Her protection ebbs, and his bid to join the Allies goes terribly awry.
The author is Minnesota-born Kay Boyle (1902-1992). Herself an expat in France throughout the '20s and '30s, the oft-married Boyle (left) wrote often about Europe and the Nazis. Back in the United States during the postwar McCarthy era, she continued her political activism and found herself blacklisted by many magazines, even as her (3d) husband, an Austrian baron, was dismissed from a State Department post.
This is not among Boyle's best-known works. But it's wonderfully written. A sample passage:

So now you'll get out of here where you don't belong, Madame Audal; you'll take your thirty years and your painted mouth and your shameless eye back to where they came from; you, French, or just pretending to be French, but just as much a foreigner as he was because you took up with a foreigner like him; ...

1939's 152 pages provoke considerable thought about national, regional, and ethnic identity, about allegiances, about suspicion and security -- issues as compelling today as they were then.

On June 17

On this day in ...
... 1876, Harriet Scott (left) died in St. Louis nearly 2 decades after issuance of the U.S. Supreme Court judgment in Scott v. Sandford (1857), in which she and her co-plaintiff husband, Dred Scott, had lost their suit to avoid being returned to slavery. The Court held that no one descended from African ancestors held as slaves could be U.S. citizens; thus the Scotts were denied the privilege of litigation in U.S. courts. The Scotts had been freed months after the decision. He worked as a hotel porter till his death from tuberculosis in 1858; she was a laundrywoman. As posted at Legal History Blog, she's the subject of a 2009 biography, Mrs. Dred Scott, by Iowa Law Professor Lea VanderVelde (right).

(Prior June 17 posts are here, here, and here.)

On February 27

On this day in ...
... 1888, Lotte Lehmann (right) was born in Perleberg, a German city near Berlin. In her early 20s she made her opera début, as a page in a Hamburg production of Lohengrin. She would go on to perform as a soprano in many stage productions throughout Europe and in hundreds of recordings, winning renown for her work in Germany opera. (credit for photo from 1930s opera, courtesy of the Lotte Lehmann Foundation) She's credited with discovering, in 1936 in Salzburg, the Trapp Family Singers, who'd become world-famous via The Sound of Music. Two years later, just before Nazi Germany annexed Austria, Lehmann immigrated to the United States, where she continued her career, 1st as an opera singer and eventually an opera teacher. Honored here as an Immigrant of the Day, she became a naturalized U.S. citizen. In 1976 she died at age 88 in Santa Barbara, California, where a concert hall is named in her honor.


(Prior February 27 posts are here, here, and here)

New and Noteworthy---Irish Troops , Black Troops and American Citizenship

Becoming American Under Fire: Irish Americans, African Americans, and the Politics of Citizenship During the Civil War Era, Christian G. Samito, Cornell University Press, 312 pages, November 2009, $39.95.

In Becoming American under Fire, Christian G. Samito provides a rich account of how African American and Irish American soldiers influenced the modern vision of national citizenship that developed during the Civil War era. By bearing arms for the Union, African Americans and Irish Americans exhibited their loyalty to the United States and their capacity to act as citizens; they strengthened their American identity in the process. Members of both groups also helped to redefine the legal meaning and political practices of American citizenship.

For African American soldiers, proving manhood in combat was only one aspect to their quest for acceptance as citizens. As Samito reveals, by participating in courts-martial and protesting against unequal treatment, African Americans gained access to legal and political processes from which they had previously been excluded. The experience of African Americans in the military helped shape a postwar political movement that successfully called for rights and protections regardless of race. For Irish Americans, soldiering in the Civil War was part of a larger affirmation of republican government and it forged a bond between their American citizenship and their Irish nationalism. The wartime experiences of Irish Americans helped bring about recognition of their full citizenship through naturalization and also caused the United States to pressure Britain to abandon its centuries-old policy of refusing to recognize the naturalization of British subjects abroad.

As Samito makes clear, the experiences of African Americans and Irish Americans differed substantially—and at times both groups even found themselves violently opposed—but they had in common that they aspired to full citizenship and inclusion in the American polity. Both communities were key participants in the fight to expand the definition of citizenship that became enshrined in constitutional amendments and legislation that changed the nation.

Aaron Sheehan-Dean, author of Why Confederates Fought: Family and Nation in Civil War Virginia states "Christian G. Samito's new book offers a signal contribution to a crucial but understudied aspect of the Civil War--its effect on citizenship. By focusing on the aspirations of Irish and African Americans, Samito shows how the contingencies of war gave opportunities for people at all levels to revise this fundamental attribute. His narrative reveals how a new, more robust national citizenship eclipsed older versions built narrowly around state identity and racial attributes. Samito's story rightly emphasizes the dynamic nature of how Americans have defined and understood citizenship and, in the process, adds a crucial historical dimension to contemporary debates over identity, citizenship, and politics."

Christian G. Samito earned a law degree from Harvard Law School and a doctorate in American history from Boston College. He is the editor of Commanding Boston's Irish Ninth: The Civil War Letters of Colonel Patrick R. Guiney, Ninth Massachusetts Volunteer Infantry; “Fear Was Not in Him”: The Civil War Letters of Major General Francis C. Barlow, U.S.A.; and Changes in Law and Society During the Civil War and Reconstruction: A Legal History Documentary Reader. He edits a series about the legal history of the Civil War era, teaches at Boston College and Boston University School of Law, and practices law in Boston.

Text Source: Cornell University Press


Middle and Bottom Images: Irish Banner, Black Troops Poster,

On June 2

On this day in ...
... 1924 (85 years ago today), President Calvin Coolidge signed into law the Indian Citizenship Act, then posed with Osage men for the photo at right, taken on the White House lawn. (credit) Until that day Native Americans had been admitted to citizenship in the United States of America only by marriage to white men, through military service, or by a few other special means; they were not considered citizens by birth, nor permitted to citizenship through naturalization. The new statute provided:

'Be it enacted by the Senate and house of Representatives of the United States of America in Congress assembled, That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.'

... 2005, Melita Norwood died at age 93. The Londoner had led a life unnoticed until 1999, when it was discovered that she'd been a Soviet spy for more than 4 decades. Norwood (left) had joined the Communist party in 1936. (photo credit) The she started working a clerk and a secretary for a metallurgical firm that worked on Britain's nuclear program, "and was soon passing research data to the NKVD, the Soviet spy network and predecessor of the KGB." An octogenarian, widow, and great-grandmother by the time she was exposed, she said her only regret was being caught:

'I thought I’d got away with it.'

(Prior June 2 posts are here and here.)

On January 1

On this day in ...

... 1997, the 1994 International Tropical Timber Agreement entered into force as to "[e]ighteen producer countries and eighteen consumer countries." The agreement, which superseded a 1983 treaty, aimed at "conservation, management and sustainable development of the world's tropical forests, as well as technical cooperation activities and the promotion of market transparency and tropical timber trade." The 1994 pact in turn is being replaced by a 2006 agreement of the same name; the monitored body is the Japan-based International Tropical Timber Organization (logo above right).

... 1949 (60 years ago today), the British Nationality Act 1948 came into effect. It created the designation "Citizen of the United Kingdom and Colonies," which enabled certain citizens of Commonwealth countries to hold citizenship in their own countries and in the Commonwealth of Nations, the entity whose flag is at left.

Thank you, Miriam

As a child of the 1980s, I first heard the music of Miriam Makeba (left) after she performed with Paul Simon on his Graceland tour, but she became a household name when she appeared on the Cosby Show in 1991.

Her music is still a part of my daily life. "Pata Pata," Makeba's best-known hit (1967 video performance at the bottom of this post), happens to be a fabulous cha-cha. My dance partner and I have it in our favorite warm-up mix, and often argue about the song's interpretation. While it is a truly "fun" song, we disagree because she is actually listening to the music -- the playful, bouncing melody -- and I am listening to Makeba's struggle underlying it. I lose the argument every time, but Makeba's music truly expresses a myriad of emotions. As Nelson Mandela put it following Makeba's death last week:

Her haunting melodies gave voice to the pain of exile and dislocation which she felt for 31 long years. At the same time, her music inspired a powerful sense of hope in all of us.

While Makeba resisted being called an activist, she became a symbolic voice for the struggle against apartheid. Born in Johannesburg in 1932, Makeba began her singing career blending jazz and traditional South African music in the 1950s. In 1959, after starring in anti-apartheid documentary Come-back Africa, the regime revoked Makeba's citizenship. Thrust into exile, Makeba spent the following 31 years living between the United States, Guinea and Europe. Americans were comfortable with Makeba when her politics concerned South Africa. In 1963, during a period when her career flourished in the United States, Makeba testified without incident before the United Nations about the situation in her homeland, saying "the time had come for all mankind to act with firmness to stop those mad rulers from dragging the country into a horrifying disaster." But when Makeba married Stokely Carmichael, a black activist working with the leaders of the American civil rights movement, the American public turned their backs on her, despite Makeba's assertions that the relationship was not political. Her bookings were cancelled and her career ended in the United States -- until South Africa became a hot topic in the 1980s.

In a seeming dual exile, Makeba went to Guinea. She served as the country's UN Representative and won the Dag Hammarskjöld Peace Prize in 1986 for her work in this position. After another move, this time to Belgium, Makeba was finally able to return home to South Africa in 1990.

A citizen of the world, yet a citizen of nowhere, Makeba insisted:

I just told the world the truth. And if my truth then becomes political, I can't do anything about that.

This world, that punished her during most of her life for that truth, will always be indebted to her for it.

Write On! I•CON explores citizenship

(Write On! is an occasional item about notable calls for papers.) Editors of the International Journal of Constitutional Law -- which goes by the snappy acronym of I•CON -- are seeking papers for a symposium edition on citizenship.

The focus of the symposium will be the "evolving concept of citizenship in constitutional law"; that is, "the constitutional dimensions of citizenship," approached by "exploring contemporary similarities between and differences among nation-states." Papers should address at least 1 of these themes:

► the effects of international law on national citizenship;

► citizenship in ethnically divided societies; and

► the effect of international migration on citizenship.

To submit an entry, send a 500-word abstract; a cover sheet including your name, institutional affiliation, and contact information; and your c.v. to law.icon@nyu.edu. Authors of abstracts that are chosen will be notified in early January and asked to produce a manuscript of 10,000–15,000 words, including footnotes, by June 1, 2009. Much nearer in time is the abstract-submission deadline: next Tuesday, November 4, 2008.

Questions? E-mail I•CON Managing Editor Karen L. Barrett, karen.barrett@nyu.edu

.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

There is something terribly wrong with our immigration policies if it takes death on the battlefield in order to earn citizenship.

-- Cardinal Roger Mahony, Los Angeles, in 2003 letter to U.S. President George W. Bush, just quoted by Associated Press reporter Helen O'Neill

(hat tip to Academic Ink via ImmigrationProf Blog))