Brian Lenihan Jnr (Dublin West, Fianna Fail)

There are those who would argue, and have argued, that this is a hard-line approach and will operate unfairly in regard to foreign nationals who are unlawfully present. Last night, I assured the House this will not be the case under the Bill. In general, a foreign national will not be able to be unlawfully present in the State except in one of two ways. As I outlined yesterday, the first is to put oneself knowingly in this position, by either evading immigration controls altogether or by 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. In each case where there is a proposal to revoke, typically based on criminality or some other breach of the conditions of the permission, the Bill requires that the holder of the permission be notified of what is proposed and why and given an opportunity to make representations as to why that course should not be taken.

In the special case where a person has claimed protection based on the fear of persecution or related issues, there is also a thorough process in which the claimant participates in the investigation of the claim. In all of these cases, the foreign national's presence in the State remains lawful until that process has reached a final decision. Once the final decision is made after that process, and that decision is negative, it will be for the person to remove himself or herself. Looked at in that perspective, it is clear the Bill is a model of fairness and ensures respect for human rights, including the right to fair procedures, at every stage.

Section 53 sets out the rule against refoulement. This ensures no person will be sent back to a place where they would be in fear of persecution or at risk of serious harm, as those terms are defined in the relevant international instruments. That provision applies to all removals from the State under Part 7, not just those that arise at the end of the protection process.

Part 3 sets out, for the first time, a statutory basis for making and determining visa applications. The visa process offers to immigration authorities the opportunity to pre-clear an intending visitor or migrant. A foreign national to whom a visa has been issued can be reasonably confident of being allowed to enter the State on arrival.

The Bill sets out a basis for designating classes of foreign nationals as visa-exempt or, as the case may be, transit-visa-required. It also sets out the processes for applying for a visa, making decisions on such applications, revoking visas and seeking a review of a decision to refuse or to revoke a visa. The intention is that the processes will be consistent and transparent.

In the Irish context, as in that of our fellow EU member states, a visa is simply a permission to present oneself at the frontier seeking permission to enter. The term "visa" is used in common parlance to describe a foreign national's residence permission. However, in Irish law, the visa is specifically a certificate that the person has been through a pre-clearance process and the permission to enter or to be present in the State is a separate matter to which I will come in due course.

At present, the nationals of some countries are exempted from the requirement to have a visa before arrival at an Irish point of entry. The Bill will facilitate the possibility that, in the future, visa exemption will be available for nationals of those countries only for short-duration visits. Where a person from a "visa-free" country wishes to come to Ireland for work purposes, or even for a visit that is going to last more than three months, he or she will have to get pre-clearance by applying for a visa in advance. This will operate in ease of intending migrants from countries at present visa-free, as it will give them clarity and certainty in advance of their arrival in Ireland.

Of particular note is the provision in section 13 which envisages the possibility of a visa applicant having to arrange for a deposit, bond or guarantee, provided by a guarantor lawfully resident in the State, to accompany the visa application. This measure will help to ensure any conditions attached to the visa and subsequent permission to enter the State will be complied with. It will take some time to put in place the technical and administrative arrangements for this but it has considerable potential.

Sections 17 and 18 provide a process whereby a person aggrieved by a visa refusal or a visa revocation can have that decision reviewed. The review is to be carried out by a different officer, and where possible one of senior rank to the one who made the decision that is to be reviewed. Many decisions on visas are taken not just in the State, but outside in our embassies. This is one of several review processes built into the Bill for the different types of decisions that arise at various stages of the immigration process.

These provisions lay the foundation for the fulfilment, during the lifetime of the Government, of the commitment in the agreed programme for Government to ensure a visibly independent appeals process in immigration matters. What I have in mind is to appoint, on an administrative basis at first, a person to act as chief review officer with the function of ensuring consistency and a high quality of decision-making among those who deal under the Bill with visa reviews.

Part 4 deals with entry to the State. It substantially restates current law compiled from several existing Acts, mainly the 2003 and 2004 Acts. It deals with all aspects of frontier and arrival operations, setting out provisions regarding approved ports and what can be required by way of infrastructure to cater for immigration functions at them. Among the new features is a flexible provision for the consent of the Minister for arrivals at places that are not approved ports.

Also dealt with in this Part are the provisions relating to a carrier's responsibilities for passengers being brought to the State. The collection by carriers of advance passenger information is a feature of many immigration systems worldwide. In order to facilitate the introduction of such arrangements to Ireland at a future date, I will bring forward an amendment on Committee Stage to section 28 to allow for the making of regulations requiring information to be provided by carriers, before departure for the State, in respect of specified intended arrivals.

The provisions in section 25 set out the power of the Minister to permit or refuse entry to the State to a foreign national. That power may be exercised on the Minister's behalf by an immigration officer. The immigration officer's power to refuse may be exercised only in the circumstances delineated in section 27(1). Section 25 also makes it clear that a person who claims protection, or otherwise indicates a fear or persecution or a related fear, must be admitted to the State. The only exception to that rule is where the person is the subject of an exclusion order under section 117.

When a foreign national is permitted to enter the State, and does not already have a current permission, the person is given an entry permission, reflected in a stamp in the person's travel document. An entry permission will last a maximum of 90 days and will say whether the holder is eligible to apply during that time for a residence permission. Where the holder is not eligible to apply for a residence permission, the entry permit expires on the date shown on it and the person is expected to leave on or before that date. Typical uses for such entry permission would be short visits for holiday or family purposes or short courses of study.

The next phase in the immigration process is the granting of residence permission, dealt with in Part 5. This sets out a framework for the granting of residence permission as the basis for lawful residence in the State. The intention is that there will be a variety of classes of residence permissions to suit different categories of foreign nationals. Residence permissions will be subject to conditions as to the duration of the permit, whether it is renewable, whether the holder can access public funds or seek employment etc.

It is my intention that regulations drawn up under section 127, in consultation with the relevant Departments, will set out the various categories of permissions which will be issued and the conditions attaching to them. This will ensure a whole-of-government approach to attracting immigrants to the State and providing access to services for them.

A residence permit will show the immigration status of the holder, and thereby his or her entitlement to benefits, etc. Much has been made of the fact that residence permits will contain biometric information and will have to be produced by a foreign national on demand to an immigration officer or member of the Garda Síochána. Current law provides for the inclusion of biometric information in similar documentation. Existing immigration law requires a foreign national to produce identification when required to do so.

In essence, these requirements currently operate without fuss and with minimal inconvenience to all concerned. With advances in technology, there is a general trend in identity documents worldwide. For example, Irish passports issued since October 2006 incorporate biometric data as a matter of course. This provides a readily verifiable way of ensuring the document proffered by a person does actually relate to that person and reduces the risk of abuses of a person's identity. The proposed residence permit will be evidence of the lawful residence in the State of the holder. This will assist Departments, banks and other service-providers wherever the service in question depends on the status of the person in the State.

An important innovation in the Bill is the introduction of a statutory long-term resident status in section 36. This status will be available for those who have at least five years' satisfactory residence in the State. Periods as an asylum-seeker or short-term student will not be reckoned. It will bring with it access, for the foreign national and his or her dependants, to the employment market and State-funded services and benefits generally on a par with Irish citizens.

The benefits of this special status are an acknowledgement that, over time, those who migrate to Ireland contribute increasingly to society and the economy and have earned this status and the stability it brings. The section provides for standard eligibility requirements for qualifying for long-term residence status. These include in particular the requirement that the foreign national should have resided in the State for five out of the six years prior to the application for long-term residence, be of good character, tax compliant, can demonstrate a reasonable competence in the Irish or English language, has made reasonable efforts to integrate and has been supporting him or herself and any dependants without recourse to publicly-funded services.

Concerns have been raised on some of these requirements, in particular, the language and integration requirements. It is not unreasonable to expect a foreign national, who wishes to make Ireland his or her home for the long term, to be able to demonstrate a reasonable language competence and to have made efforts to integrate.

I point to the steps so far taken by the Government to facilitate integration, most notably the establishment of the Office of the Minister for Integration. This office has in development several initiatives to advance this most important Government commitment. The question of whether the language and integration requirements will apply to applications for naturalisation is under consideration in my Department as part of a more general review of the eligibility criteria for the acquisition of Irish citizenship.

Section 37 makes provision for a qualified long-term residence permission which will be available where the Minister determines that this would be desirable in order to attract particularly sought-after migrants. This permission will last for two years and will allow the foreign national and his or her dependants to access the employment market and certain State-funded services during that period. After the two-year period has expired, the foreign national will be able to apply for a long-term residence permission if he or she otherwise satisfies the standard eligibility requirements. This should be viewed in tandem with the Employment Permits Act 2006 and the use of green card-type employment permits, the holders of which will qualify for the accelerated process for obtaining long-term residence.

I see these provisions as the key to a new approach to immigration policy in Ireland. The new status will enable us to devise attractive arrangements, with this status at their core, for encouraging those with sought-after skills and qualifications to think of Ireland as a desirable destination for the long term, as a place where they and their families can settle and form a new life. Traditionally, the practicalities of migration to Ireland have been based on a legal system that caters for individuals staying temporarily for a year at a time and it is safe to say that much of the longer-term migration that we have experienced from outside the European Union has happened despite, rather than because of, the legislative arrangements in place. This innovation gives us the opportunity to rethink our policies in a strategic way, starting from the basis of what Ireland needs rather than the needs of individual employers or the hopes of individual migrants. In this way we can ensure that the broader needs of migrating families, rather than individuals, are considered and planned for. The aim will be to move towards a situation in which the question of family reunification is no longer an issue because our policies will be directed towards retaining the unity of families of migrants rather than dealing with migrants as individuals separated from their families.

There have been many calls for greater clarity on the policy and processes surrounding family reunification in the State. While family reunification for the purpose of joining certain categories of persons in the State is governed by legislative provision — for example, reunification for those granted refugee status or those exercising EU free movement rights — other administrative schemes have developed on an ad hoc basis having regard to our international obligations and the pattern of immigration to the State. It is time to review our current policies in the light of experience and social change in the past few years with a view to setting down a more comprehensive policy. That review, which is under way, is not without its difficulties. However, I am committed to progressing this work as a matter of priority.

Sections 39 to 45 set out the processes for non-renewal or, as the case may be, revocation of residence permissions. Those sections also set out the circumstances in which a review of a decision not to renew a permission can be sought or representations made against a proposal to revoke a permission. These are among the further provisions that I am prepared to consider in operation as we develop more experience with the independent administrative review mechanisms to which I referred earlier. This will be in the next phase of my plan to deliver on the commitment in An Agreed Programme for Government regarding an independent review.

The effect of a negative decision at the end of the processes in sections 39 to 45 will be that the foreign national in question will, from the date of the decision, be unlawfully in the State. It will then be up to that person to leave the State and the person runs the risk, if found in the State, of being removed and if necessary detained for the purpose of removal, as I have described. There will be no deportation order as such. Current deportation orders require the named persons to leave the State and remain outside the State thereafter. Under the provisions of this Bill, a person removed will be required to remain outside the State for a minimum period of six months. If, during the process leading to revocation of the permit, the view is taken that the person should be required to remain away for a longer period, the process will give the person notice of that intention and a non-return order can be made at the same time as the decision to revoke the permit. Non-return orders can be for any period, including indefinitely.

Section 47 restates the provisions of section 24 of the Refugee Act 1996 dealing with programme refugees. Section 48 provides for a scheme of temporary protection in accordance with the provisions of Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between EU member states in receiving such persons and bearing the consequences thereof. Section 49 provides for the issue of travel documents to protected persons and their family members. Section 50 sets out the circumstances under which permission to enter and reside in the State may be granted to family members of the holder of a protection declaration.

I have dealt with many of the important aspects of removal from the State, which is covered by Part 6. Removal will only arise where the foreign national concerned, being unlawfully present in the State, has failed to comply with his or her obligation under section 4 to leave. Much of this is a restatement of current law, aspects of which were given a constitutional clean bill of health in the Article 26 referral of the Illegal Immigrants (Trafficking) Bill in 2000. Among the innovations to which I draw attention is section 56, which provides for an alternative to detention for the purposes of removal, namely, a requirement to comply with a written direction given by an immigration officer or a member of the Garda Síochána, including a direction to reside or remain in a specified place.

Section 60, which is also new, provides that the Minister may require a foreign national removed from the State to pay the reasonable expenses incurred by virtue of his or her detention, removal and maintenance for the purposes of that removal. The purpose of this provision is to discourage those unlawfully present from hanging on until the State authorities move to enforce a removal. While there is no realistic expectation that costs would in many cases be recovered, the fact that removal from the State rather than voluntary exit incurs a debt which must be discharged before further entry to the State will be permitted may serve as a deterrent.

Part 7, which deals with protection, is mainly a restatement of the substance of the Refugee Act 1996 and the European Communities (Eligibility for Protection) Regulations 2006. However, there are some innovations to which I draw Deputies' attention. The most important of these is the introduction of a new single procedure to deal with all aspects of the desire of a protection applicant to remain in the State. The Bill transposes into national law the EU asylum procedures directive, Council Directive 2005/85/EC. While our procedures were already largely in compliance with the terms of that directive, the preparation of the Bill also provided an opportunity to reconsider, in view of our experience over the last decade, how best to deal with protection claims in the State. That experience shows that the principal desire of most protection claimants was not recognition as a refugee but permission to stay in the State. This is addressed by a multi-stage process in which the first question examined is whether the applicant is a refugee and only when that has been answered in the negative by the independent Refugee Applications Commissioner and, in most cases, again by the Refugee Appeals Tribunal is the question of eligibility for subsidiary protection addressed.

See this speech in context