Terence Flanagan (Dublin North East, Fine Gael)

Measures must be put in place to prevent abuses of certain rights under immigration legislation. Such mechanisms are in place in the Irish Naturalisation and Immigration Service in respect of applications for residency in Ireland based on marriage to an EU or Irish citizen. Legislative rights and protective measures can operate side by side without the unnecessarily intrusive measure of direct involvement by the Minister for Justice, Equality and Law Reform in the institution of marriage.

We should operate in line with Article 41.1 of the Constitution, which states that immediate family members of Irish citizens should have a right in primary legislation to reside in Ireland with their families. We should keep in mind the spirit of the Constitution, which still holds the key to building a new Ireland. I take this opportunity to thank the staff of Crosscare and the Immigrant Council of Ireland for their good work in this matter, often in difficult circumstances.

There are other omissions from the Bill that I wish to highlight. The Bill fails to set out in primary legislation clear rules regarding the rights and obligations of migrants seeking to come to Ireland. As a result, the rules setting out the basis for migrants to enter and remain in the State, the conditions on which such permission will be granted and what entitlements migrants may or may not have while in the State will be left to secondary legislation.

The Bill, like the previous draft published by the former Government, makes no statutory provision for family reunification. It fails to deal directly with the rights of students, their partners, their children, researchers, the self-employed, non-economically active migrants and the undocumented. The legislation has no real meaning when it comes to defining who can reside in Ireland, for how long and on what basis. Clearly spelling out migrants' entitlements and obligations in primary legislation will help prevent the difficulties they and those charged with administering and enforcing immigration legislation face. Some of these problems revolve around the delays in obtaining decisions and inconsistencies in decision-making. Given the problems encountered under the current system, such as lengthy delays in decision-making and inconsistent decision making that leads to challenges, it is crucial that the Government should honour its commitment in the programme for Government to introduce a visibly independent appeals process for immigration decisions. An independent appeals mechanism would provide transparency in the decision-making process and could be more cost effective than the current system.

Migrants' rights to family life should be spelled out clearly in primary law. There is a lack of clarity regarding which family members may be admitted to the State, the conditions under which family reunification may be granted and the length of time it takes to process applications. It is not good enough that Ireland is the only EU member state that does not have national rules regarding family reunification enshrined in primary legislation.

The repeal of section 3 of the Immigration Act 1999 without an equivalent replacement in the Bill is of grave concern as it may lead to the summary deportation of vulnerable migrants who have become unlawfully resident in the State through no fault of their own. There must be an avenue to deal with and provide for persons in exceptional circumstances. The Bill provides no flexibility to deal with persons whose residence permits are non-renewable and it allows for a regime of creeping charges at every stage of the immigration process. There are charges for visas, entry and registration. The fees should correlate to the cost of administration only and not be used as a double taxation of migrants lawfully coming to Ireland. There is no reason a visitor or worker, for example, should pay a different fee on entry to the State.

The Bill empowers the Minister to require visa applications to be accompanied by a bond or deposit. The circumstances warranting the requirement of a bond or deposit should be spelled out in primary legislation to ensure these requirements are proportional and to prevent any discrimination or inconsistency in their imposition.

The provisions contained in section 124 fall short of Ireland's obligations under the Council of Europe Convention on Actions to Combat Human Trafficking, which entered into force on 1 February. The convention applies to all forms of trafficking in human beings, whether national or transnational, and would certainly apply to all victims of trafficking regardless of their nationalities. It is of concern that the recovery period of 45 days provided in subsection 124(1) in conjunction with subsection 124(3) is not long enough. Victims of trafficking will often be highly traumatised and may not recover sufficiently within 45 days to make an informed decision about whether to participate in an investigation or prosecution. Overall, the Bill leaves victims of trafficking in a situation of passivity by not allowing them or those acting on their behalf to make applications for recovery and-or protection residence permits.

The Bill deals with general immigration and asylum protection issues in the same legislation, a major fault. This is likely to perpetuate confusion about the status of foreign nationals in Ireland. Ireland needs a workable, fair and forward-looking system and the Bill before the House does not meet the obligation to provide it.

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