Immigration, Residence and Protection Bill 2010 Dáil Éireann Second Stage Speech by Mr Dermot Ahern TD, Minister for Justice and Law Reform 6 October 2010

CHECK AGAINST DELIVERY

A Cheann Comhairle

I move: that the Bill be read a second time.

Background

This new Bill represents a further development and enhancement of the provisions contained in the Immigration, Residence and Protection Bill 2008 and takes account of concerns and amendments put forward during the debates on that Bill. Deputies will recall that the Committee Stage debate was particularly detailed and lasted almost 33 hours over 13 sitting days. Prior to commencement of that debate, the Joint Committee on Justice, Equality, Defence and Women's Rights considered 57 written submissions in relation to the Bill and invited selected groups to attend before the Committee to explore issues that could impact on the Bill.

Arising from the detailed consideration of the Bill by the House, in excess of 200 substantive or non-technical Government amendments were prepared for Report Stage. I was concerned that the nature and number of the amendments might be considered burdensome for the House to deal with at Report Stage and, following a discussion with Opposition Justice spokespersons, I obtained Government approval to publish a new Bill inclusive of the amendments. I would like to express my appreciation to the Opposition spokespersons for the consensus reached in relation to the matter.

Bill replacing inadequate body of immigration law

It is, I believe, generally accepted that the current body of immigration law no longer provides Government with the tools it needs for the job of managing modern migration. The Bill provides, for the first time, a comprehensive framework on which there can be a wide variety of immigration policies designed to suit different people in different circumstances, as the need arises. It pulls together all of the State’s immigration and refugee legislation with some important changes and expands on it enormously. In doing so, it provides a single point of reference for immigration and protection legislation and will support a variety of detailed immigration policies relating to different circumstances and categories of migrant and visitor. While catering for the changing needs of the Irish economy, it will ensure that people are treated fairly and reasonably and will provide greater certainty in relation to the procedural aspects of the immigration process. This will, I believe, facilitate the delivery of a more efficient immigration service.

Structural changes to deal with protection claims

The Bill effects a radical re-structuring of the State’s asylum determination processes. It has been apparent for some time that the principal question that most protection claimants want answered is not "will you recognise me as a refugee?" but "can I stay?". That question is currently answered in a multi-stage process whereby the first aspect examined, by the independent Refugee Applications Commissioner, is whether the applicant is a refugee. Most negative determinations of that aspect are appealed to the independent Refugee Appeals Tribunal. Following a negative determination on appeal, there is a lengthy process whereby the Minister must determine whether the person is eligible for subsidiary protection and whether there are other reasons why the person should be let stay. This sequential process is cumbersome and inefficient and inevitably delays the final decision; and delay itself can affect what the final decision is to be.

The Bill introduces a single procedure wherein the protection applicant will be required to set out all of the grounds (including protection grounds under the Geneva Convention and the EU Council Directive 2004/83/EC laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection. OJ L 304 of 30.9.2004Asylum Qualification Directive) on which he or she wishes to remain in the State. Those grounds will be investigated by the Minister and the outcome of the investigation could be that the person is—

· allowed to remain in the State on refugee grounds or subsidiary protection grounds and is granted a protection declaration,

· not granted protection but allowed to remain in the State on other discretionary grounds and is granted a residence permit on that basis, or

· not allowed to remain in the State and is thus required to leave or be removed.

The introduction of the single procedure will bring the State into line with processes in many other EU States. Under the Bill, the functions currently carried out by the Office of the Refugee Applications Commissioner will be subsumed into the Irish Naturalisation and Immigration Service (INIS), the administrative agency of my Department. The present statutory provisions for UNHCR to have access to information about cases and to be present if it wishes at individual interviews are restated, and it is my intention to continue the co-operation that has existed with UNHCR, in particular in that body’s signal contribution so far to training of staff in refugee decision-making.

The Refugee Appeals Tribunal will be replaced by the Protection Review Tribunal, which will be statutorily independent and will deal with appeals against a refusal to grant refugee status or subsidiary protection under the EU Qualification Directive. This is an expanded remit for the appeals body and it underpins the State’s commitment to those in need of protection. Other differences provided for in the Bill include provisions to increase consistency of decision-making and the possibility of full-time members of the Tribunal.

The new approach to protection applications will result in a more streamlined and efficient process which will ensure that a protection applicant receives a quick and comprehensive answer to the whole question "can I stay". In this fashion it ensures that the State’s obligations under the Geneva Convention on Refugees and other international instruments designed to offer protection from persecution and other dangers will continue to be fully respected and enshrined in law, while reducing the scope for abuses of the arrangements.

Underlying principles of Bill

It is a fundamental principle of our immigration law, that a foreign national has no right, as such, to enter or be in Ireland. There is considerable jurisprudential authority which makes clear that the State has not only the power (a power exercised mainly by the Minister for Justice and Law Reform) to manage the entry into, presence in and removal from the State of non-nationals, but has a duty to do so in protection of the interests of Irish society and, indeed, the integrity of the State’s immigration processes. The Supreme Court has continuously affirmed and adopted the well-known passage outlining the role of the State in the control of foreign nationals as described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at 746 where he stated:

"... that it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution."

In the Bode Bode (A Minor) -v- Minister for Justice, Equality & Law Reform & Ors [2007] IESC 62 (20 December 2007) case in 2007, Denham J, having affirmed the position as outlined in Osheku, added that:

"While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals - as a gift, in effect."

It is interesting that the Supreme Court described as a "gift" the giving of benefits of residence. This ties in generally with the proposition that, under the Bill, a foreign national may be granted a "permission" to enter or to reside in the State. The granting of such permission is a matter of sovereignty, here as in other jurisdictions.

While the fundamental principle is that a foreign national has no right to enter or be in the State, the reality is that we are also members of an international community in which we subscribe to certain values and principles:

· firstly, Ireland as a member of the European Union fully respects the Treaty rights of EU citizens who wish to come here to participate in the Irish economy. We don’t speak of permitting or allowing them to come or be here; we facilitate their presence here because it is their right;

· secondly, Ireland is a party to the Geneva Convention on the Status of Refugees and its related Protocol. We have thereby committed ourselves, as a reflection of the State's commitment to human rights on the international level, to allow refugees to remain in the State. As part of this obligation, we admit to the State, on a provisional and temporary basis, people who would in normal circumstances be refused permission to enter but who assert that they have need of the protection afforded by the Refugee Convention;

· thirdly, it is also a well-established principle that, the longer a foreign national resides lawfully in the State, there can be some entitlement to be allowed to continue to do so provided there is no failure to comply with the requirements of immigration law and the person has not engaged in criminal activity.

Bill sets out a legislative framework

This Bill sets out a legislative framework for the management of inward migration to Ireland. It lays down a number of important principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa, for entry to the State, for residence in the State and for being required, when necessary, to leave.

It is a comprehensive framework that—

· encompasses principles outlined by the Supreme Court,

· fully respects the State's obligations under the Geneva Convention on Refugees,

· transposes into our domestic law a number of EU instruments,

· contains measures to streamline our current immigration and protection processes and to combat illegal immigration and other abuses of our immigration processes such as marriages of convenience, and

· will operate in tandem with the State's recognition of the rights of EU nationals.

The Bill prescribes the conditions—

· under which foreign nationals should be allowed to enter the State;

· for what purpose and for how long; and

· when and in what circumstances they must leave.

Immigration policies to serve Ireland’s interests

It follows from what I have said so far that the primary purpose of having or developing immigration policies is, as it must be, to serve the interests of the State.

In the operation of their immigration policies, all states exercise choices: that is a feature of the sovereign power of states. The guiding principle underlying Irish immigration policy choices is the protection of the interests of Irish society, and the making of those choices is a function of the Government, exercised through the Minister for Justice and Law Reform of the day.

In essence, therefore, the Bill will provide the framework within which immigration policy choices will be made, spelling out the processes involved in making and implementing those choices, and ensuring that any negative choices, once made, are followed through and enforced. A good deal of the policy of the Bill will be fleshed out in regulations but those regulations will be based on the principles and policies contained in the Bill.

Issues raised in debates on the 2008 Bill

Before indicating to the House what the Bill contains generally by way of those principles and policies, I want now to tell you how the Bill addresses some issues that were raised in debates on the 2008 Bill.

Inclusion of "best interest of child" in Bill

The question has arisen as to whether there should be a reference to the "best interest of the child" in the context of all decisions being made under the Bill. This proposition was included in a Committee Stage amendment tabled by Deputy Rabbitte and I undertook to consult the Attorney General on the matter. On the basis of those consultations, I am satisfied that the Bill already, where necessary, caters for the special position of children.

In all instances where an immigration officer or a member of an Garda Síochána has concerns about a foreign national under the age of 18 years, whether or not accompanied, the Health Service Executive (HSE) is to be notified and the child automatically becomes a person to whom the Child Care Acts 1991 to 2007 apply. Section 3(2)(b) of the Child Care Act 1991 is explicit about how the HSE is to treat the welfare of every child who is not receiving adequate care and protection – it is required to regard the welfare of the child as the first and paramount consideration.

This formulation is modelled on section 3 of the Guardianship of Infants Act 1964, as amended, which sets out how a court dealing with matters affecting the guardianship, custody or property of a child is to regard the child’s welfare. And the formulation is restated at section 24 of the Child Care Act 1991 for court proceedings under that Act.

The advice available to me is that an amendment of the Bill on the lines of what has been suggested would create a risk that the child could be used effectively as a means to secure the presence in the State of an accompanying adult notwithstanding that that adult would not ordinarily be allowed to enter or be present in the State. I believe that this potential outcome is undesirable, detrimental to the best interests of the child and could indirectly encourage and facilitate child trafficking.

Removal of foreign nationals

I want to dispel the myth that the Bill provides for "summary deportation" of foreign nationals.

The Bill makes clear that removal of a foreign national from the State will only arise where the national concerned, being unlawfully present in the State, has demonstrably failed to comply with obligations concerning his or her presence in the State. This will arise

· by either entering in such a way as to avoid the immigration processes (and thus never putting himself or herself in the way of obtaining an entry or residence permission), or

· having been given a permission, by remaining in the State after it expires or is revoked.

Upon being granted an entry or residence permission, the person will be aware of the conditions attaching to that permission including its expiry date and, if he or she remains in the State beyond that expiry date, his or her presence will be unlawful. Unlawful presence in the State is an arrestable offence.

There are extensive notice provisions and review processes in the Bill that are designed to cater for the different types of decisions that arise at various stages of the immigration process. Foreign nationals affected by any decisions giving rise to such reviews have the option to seek judicial review of those decisions by the courts where they consider that there has been a procedural irregularity. The intention is to strike a fair balance between facilitating the persons concerned in putting their affairs in order in advance of leaving the State or being removed while, at the same time, providing for efficient operation of the State's immigration laws.

The removal provisions in the Bill are also a careful balance between the need for a firm and fair system of removal and the avoidance of outright abuses. In my opinion, the use of the term "summary deportation" is inappropriate and fails to acknowledge the actual provisions of the Bill which have been designed to provide fair procedures at each stage of the immigration process.

The specifics of Irish immigration policy

The Immigrant Council has argued that the Bill should specify who can come to Ireland, for how long, under what conditions and with what rights. It argues that failure to do so will give rise to an immigration system that doesn’t spell out clear rules and will result in inconsistencies and delays.

It is difficult to understand why those who criticise the current processes for just such inconsistencies and delays should advocate the development of an inflexible and unresponsive system as a replacement. There is an inherent contradiction in proposing a "one size fits all" statute seeking to cover every eventuality and, at the same time, expecting the resulting processes to be flexible enough to meet the differing circumstances of persons who come before our immigration authorities for consideration. The recently launched "Investing in Global Relationships"strategy, aimed at increasing international student numbers in higher education and in English language schools by 2015, is an example of where flexible and responsive immigration processes will be required.

I have already stated that a good deal of the policy of the Bill will be fleshed out in regulations. Other countries, such as the UK Australia and Canada, also make extensive use of subsidiary legislation for putting their policies into effect.

Protection for victims of trafficking

There are important measures in the Bill to contribute to the protection of victims of trafficking. Victims will have more time to recover in the State from their ordeal. The recovery and reflection period is extended from 45 to 60 days and there is a regulation-making power whereby the Minister can grant a longer recovery and reflection period or, as the case requires, a renewable residence permission to victims who are under 18 years of age.

The measures in the Bill represent just one strand of the overall strategy that the Government is adopting to address the issue of human trafficking. The Criminal Law (Human Trafficking) Act 2008 provides the legislative framework for the prosecution of traffickers of human beings for purposes of their sexual exploitation, labour exploitation or removal of their organs. The National Action Plan to Prevent and Combat Trafficking in Human Beings, published in June 2009, seeks to develop a holistic approach to the treatment of suspected victims and potential victims. It sets out the services required and how they can be accessed by persons identified as suspected victims of trafficking. The Interdepartmental High Level Group, the Anti-Human Trafficking Unit established in my Department in February 2008, the Garda Síochána and various Government Departments and Agencies have already begun implementing many of the measures outlined in this Plan and the work carried out to date will be expanded upon and developed during the lifetime of this Plan.

In addition, the Civil Law (Miscellaneous Provisions) Bill 2010, that is before the House, provides for amendments to the Civil Legal Aid Act 1995 to permit the Legal Aid Board to provide legal advice in relation to criminal matters to alleged victims of trafficking offences.

Main provisions of Bill

And so, a Cheann Comhairle, I turn briefly to the provisions of the Bill. I will not dwell unduly on those since Deputies will already be familiar with most of them, but I will point to the detail of the new provisions for the information of Deputies.

Part 2 of the Bill lays down core principles that guide Bill. One of these principles is that a foreign national will be lawfully present in the State only if he or she has a current valid entry or residence permission to be in the State. If a person is unlawfully in the State, then he or she will thereupon be under an immediate and continuing obligation to leave.

As with the previous text, the Bill ensures access to certain essential services, including medical services and other emergency provisions that may be prescribed. I have, at the suggestion of Deputies, sought to provide more clarity in the text on this matter.

Part 3: Visas

Part 3 sets out a new statutory process for making and determining visa applications. A visa is not the same as a residence permission; it is a permission to arrive at a frontier in order to apply for permission to enter the State. The visa process offers to immigration authorities the opportunity to pre-clear an intending visitor or migrant, and a person to whom a visa has been issued can be reasonably confident of being allowed to enter the State on arrival.

Part 4: Entry into the State

Part 4 sets out what is to happen when a foreign national arrives at the frontiers of the State and other aspects of frontier operations (including carrier liability for ensuring that passengers have a passport and, where necessary, a visa).

There is a key change to this Part whereby a person who is refused entry to the State on health grounds, but who is so infectious as to preclude both return on a passenger vehicle and permission to be at large in the State, can be detained under section 38 of the Health Act 1947 until such time as he or she is certified not to be a probable source of infection.

Part 5: Residence

Part 5 sets out a framework whereby the grant of residence permission will be the basis for lawful residence in the State. It contains detailed processes for renewal, non-renewal and revocation of residence permissions. A key change is the extent to which the Bill imposes greater notice requirements on the Minister and provides for additional review processes.

The long-term residence provisions have been modified to provide more clarity as to long-term residence generally. For example, there is now an application process for a long-term residence permission and the residence requirements contained in the standard eligibility requirements are being amended to require the applicant to have been continuously resident in the State for a period of 12 months immediately before the date of the application.

Part 6: Removal

Part 6 deals with the process of removing a person who is unlawfully in the State and key changes to this Part include greater clarity as to when a foreign national can be arrested for the purposes of removal and when there can be the possibility to impose residence and reporting requirements on a foreign national instead of that person being arrested and detained. There is also a requirement for the giving of notices.

A fundamental safeguard in the removal process is the rule against refoulement (i.e. not to return a person to a place where he or she could be harmed). This overarching principle ensures that any decision to remove a person from the State is in compliance with the State's international human rights obligations.

Part 7: Protection

Part 7 retains most of the provisions from the 2008 Bill but some of the new key provisions include the following:

· the provision allowing for detention of a protection applicant pending the issue of a protection application entry permit has been removed. Instead, the Bill allows for a requirement to be imposed on the protection applicant to remain in a specified place pending the issue of that permit;

· included is implementation of Articles 25 and 26 of the Asylum Procedures Directive Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for granting and withdrawing refugee status O.J. No. L326, 13.12.2005, p. 13 which enable certain protection applications to be determined to be inadmissible;

· there is further elaboration of the process whereby a person who has been granted a protection declaration can exercise the right to family re-unification in the State;

· there are some new terms of office for the chairperson and members of the Protection Review Tribunal and modified arrangements applicable to the Advisory Committee;

· the safe country of origin and safe third country provisions of the Asylum Procedures Directive are better reflected; and

· the Bill allows for the making of regulations that might be needed to implement a safe third country agreement and those that might be necessary for the purposes of the Dublin II Regulation Council Regulation (EC) No. 343/2003.

 

Part 8: General

Information exchange

Part 8 also has key changes which provide a comprehensive framework for information, including biometric information, to be collected and processed for immigration purposes. The provisions have been carefully developed in consultation with the Attorney General to ensure that they are fully in compliance with the requirements of data protection legislation and relevant jurisprudence.

Judicial review

Part 8 also makes clear the circumstances in which judicial reviews must be initiated within 14 days of a decision having been made. I should add that provision is made also to prevent the misuse of the judicial process by a foreign national, or his or her legal representative, solely for the purposes of frustrating removal from the State of the foreign national. The provision is based on Order 99 Rule 7 of the Rules of the Superior Courts which already allows the court discretion, in circumstances of misconduct or default by a solicitor, to require that solicitor to repay to his client any costs which the client may have been ordered to pay to any other person. I am satisfied that there is a need for this provision and, accordingly, it is being retained in the Bill.

Marriages of convenience

Deputies will be aware that, early in 2009, I circulated the draft text of my proposals on marriages of convenience. They aim to tackle those who circumvent the immigration controls of the State and who try to reduce marriage to a commodity to be traded or exploited. They also aim to protect the vulnerable who may be duped or coerced into entering into such arrangements.

Victims of trafficking

It will now be possible to make regulations providing for more favourable treatment of those who are under the age of 18 years. The provisions in the Bill will also allow the Minister to give directions in respect of any matter relating to the entry into or presence in the State of a particular foreign national or class of foreign national. I would again also draw attention to the absolute prohibition on refoulement that is in the Bill. I am satisfied that these provisions provide a sufficient guarantee that a victim of trafficking will be treated in a manner sympathetic to his or her individual circumstances.

Provision of bonds, deposits and guarantees

Part 8, as well, contains provisions relating to the provision of bonds, deposits and guarantees in certain circumstances, including a provision whereby a company can be a guarantor.

Annual statistical report on immigration matters

The reporting by my Department of statistics on the number of visas and permissions that are processed during the previous calendar year and the number of protection applicants will now be a requirement under the Bill.

Part 9: Smuggling of persons 

Part 9 is directed at preventing entry into the State or any other Member State from outside the EU by persons who are not entitled to entry and it is also aimed at those who facilitate such entry.

Part 9 has two main functions. First, it provides for the implementation in domestic law of the following three international instruments concerning people smuggling:

· the EU Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence;

· the EU Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence; and

· the UN Protocol against the smuggling of migrants by land, sea and air supplementing the UN Convention against Transnational Organised Crime.

Secondly, Part 9 addresses difficulties experienced in the operation of the Illegal Immigrants (Trafficking) Act 2000. I am referring to the requirement in section 2 of that Act that, for a prosecution to be successful, the prosecutor must show that the smuggling was undertaken 'for gain'. Evidence to satisfy this requirement is very hard to come by. If, for example, money is paid to the smuggler, the payment will almost certainly be in cash and impossible to trace. The payment will in almost all cases be made outside the jurisdiction, and probably outside the EU. In addition, victims will often be too frightened to co-operate with the prosecution. The net result is that the prosecutor is faced with a threshold that is virtually impossible to meet. Such a situation hinders the fight against people-smuggling and prevents us from playing our full part internationally. It is, in effect, counter to public policy and the public interest.

Cases can arise where smuggling may be the only way of protecting persons who are in danger. I am providing, therefore, a defence where the smuggling was for the purposes of protecting the person and provided that it was carried out by an employee of a recognised organisation and is without charge.

I am proposing that the defence be restricted in this way because to do otherwise could encourage well-meaning but ill-informed individuals to undertake adventures that could require them to seek the assistance of organised smuggling gangs. Smuggling is a dangerous activity that can expose those involved to serious harm. We must discourage efforts that expose persons, be it the well-intentioned smuggler or the smuggled person, to such harm. Organisations of the type envisaged - and it will be for the court in each case to adjudicate on the bona fides of the organisation - will have the means to ensure the protection of those at risk.

As the provisions of Part 9 will represent all of the law on smuggling of persons, the Bill provides for the repeal of the Act of 2000.

Part 10: Transitional, etc., provisions

Part 10 contains important transitional provisions that develop considerably on those in the 2008 Bill.

A Cheann Comhairle, the Bill represents the most comprehensive piece of immigration legislation since the foundation of the State. It will provide the capacity not only to devise but to implement immigration policies that complement policies across all areas of Government. It will provide the tools that will enable our immigration system to be responsive to the current needs of the State and also to the challenges, both economic and social, that may arise in the future. It has been devised and developed to put in place procedures and processes that incorporate fairness at every stage. At the same time, it includes effective measures to combat abuse of those procedures and processes.

I believe that, when enacted, it will underpin a comprehensive transformation of our immigration and protection systems and will provide consistency and predictability in relation to decision-making in individual cases. I commend the Bill to the House.