Brian Lenihan Jnr (Dublin West, Fianna Fail)

I will not be examining that before Committee Stage. I will do nothing in this Bill to undermine the rights of the Government or the Irish people. I will be extremely careful in introducing appeals procedures that ensure that the interests of the Government and the people are carefully safeguarded and that we are not left in the position we were left in under the refugee regime with an appeals procedure based on statute which broke down over a number of years. This matter requires very careful consideration.

I will deal with the provisions of the Bill. Part 1 deals with preliminary matters and contains a number of standard provisions dealing with matters such as commencement, expenses and interpretation. One of the terms defined in the interpretation section is "foreign national". It is used in the Bill generally to mean a person who is not Irish, not an EU national, not a national of a member state of the European Economic Area that includes Norway, Iceland and Liechtenstein and not a Swiss national. The term "foreign national" will be used in my contribution in the same sense as it is used in the Bill.

I remind Deputies that nationals of EU states are entitled to exercise treaty rights of free movement into and out of Ireland, and that EEA and Swiss nationals have analogous rights by virtue of agreements entered into by those states with the EU and its member states. The Bill does nothing to impinge on those rights, which are governed by other legislation.

Fundamental to this legislation is a distinction that will now be drawn between lawful and unlawful presence in the State. Part 2 of the Bill sets out general provisions dealing with lawful and unlawful presence in the State and with the restricted entitlement to State services of foreign nationals unlawfully present in the State. This Part lays down core principles that guide the remaining provisions of the Bill. One of those principles is that a foreign national will be lawfully present in the State only if he or she has a current valid permission to be in the State. There will be no lack of clarity. In the absence of a permission to enter or be present in the State, a foreign national's presence in the State will be unlawful. Consequences flow from such unlawful presence.

The principal consequence, and a major innovation, is that a foreign national who is unlawfully in the State will, under section 4 of the Bill, be under an obligation to leave. A failure to leave may result in removal of the foreign national from the State, if necessary against his or her will and if necessary with arrest and detention for that purpose. Under current law, a foreign national who is unlawfully in the State, notwithstanding that unlawfulness and irrespective of the circumstances in which that unlawfulness arose, cannot be removed until the lengthy process under section 3 of the Immigration Act 1999 is undertaken, leading to the making of a deportation order.

The second major consequence of unlawful presence in the State is contained in section 6, which provides that a foreign national unlawfully present in the State will not be entitled to enter into employment, engage in other economic activity or, as a general rule, avail of any State-funded benefits or services. There are a number of exceptions to this general rule in respect of certain essential services, including medical services and other emergency provisions that may be prescribed by the Minister. The essence of this provision, however, is that foreign nationals here illegally should receive no encouragement from the State to remain here unlawfully. The remedy for illegal presence will be to remove oneself from the jurisdiction.

There are those who will argue, and indeed have argued, that this is a hard-line approach and will operate somehow unfairly to foreign nationals who are unlawfully present. I assure them that will not be the case under this Bill. In general, a foreign national cannot be unlawfully present except in one of two ways. The first is to put oneself knowingly in that position by either evading immigration controls altogether or staying on after the entry or residence permit has expired. The second way is by going through a fair process leading to the revocation or non-renewal of residence permission.

See this speech in context