Michael D Higgins (Galway West, Labour)

I welcome the opportunity of contributing to the debate. Many years ago as a young academic I initiated courses on the sociology of migration. In Manchester, I had an opportunity to examine not just migration from Ireland, but African migration on the Continent of Africa and out of Africa.

The Deputy who has just spoken mentioned this area and it is important to try to abstract values from our own historic experience. I speak of values that would be drawn from the circumstances of major outward migration from Ireland pre-famine, which hardly touched the west of Ireland. It was based on a type of skilled migration to parts of the United States, mostly from the northern part of Ireland and the Border counties, and then the great waves of post-famine migration. There are articles that describe the experience of Ireland responding to the post-famine migration. There are very good works by people like Dr. Frances Finnegan and others.

Effectively, people from Donegal and elsewhere, who had seasonal roots established in Britain, suddenly found those rivulets were becoming wide rivers. There were tens of thousands of Irish, many of whom would have aspired to go on to the United States but who completely failed, and in Liverpool, Coventry and elsewhere they were pushed from one poor law union to another. In Frances Finnegan's work, Poverty and Prejudice, there is a description of the death of Teddy McAndrew. The book is in the Library and I recommend that people read it. It involves a family looked after by the Quakers pushed from one poor law union to another and from one institution to another.

I often remember that when I visit people who are in direct provision in Galway, people from Africa who have now been waiting up to five years for a decision in their case and who live on just over €19 a week. They are prohibited from working. Their children, if they have any, are denied many rights that are available to other children.

I recall also the great period following the declaration of the Republic in 1948 and the commission on emigration. In the 1950s, no less than 45,000 people left Ireland each year. Between 1955 and 1960 alone, 250,000 people left Ireland. They differed in various characteristics. The 1980s emigration referred to earlier, and I do not intend to extend this aspect, was different in character. It was more of a circulatory migration, that is, people had the capacity through skill and income to look forward to coming back to the country and perhaps leaving again. Circular migration is a form of migration that has been ignored in the literature. It is the dominant kind of migration in many countries. I say that because there is a great disjunction between the values that one might have expected to come out of such experience and what we are putting into practice. I have travelled to the United States twice in the past five years to make a good case for people who cannot come home to attend funerals. We heard of the tragic case in County Galway recently where a young man died of pneumonia rather than being discovered as an out of status person.

When we examine it, does it make sense to keep people four and five years in this non-process without the right to work or enter society or get a decision while living on €19 a week? It is a scandal. People may differ from me in terms of what I have said, but I wrote to the Minister for Justice, Equality and Law Reform. I put down questions to him, asking him to consider introducing a scheme like the one introduced in The Netherlands. That scheme, which involved people who had arrived before 2001, effectively wiped out the backlog and created a system under which one could set up a new scheme. It was based on a fundamental principle that we would accept in the sociology of law that a decision delayed unreasonably long is a right denied.

The general amnesty in The Netherlands involved any person who had submitted a first application for asylum before 1 April 2001, a person who lived in The Netherlands continuously since 1 April 2001 or a person who had stated in writing that they would unconditionally withdraw any other application. The scheme was introduced and it is working.

I was intrigued by the answer I received regarding this attempt to clear the ground to allow us start again with a system that addressed the separate issues affecting the refugee and economic migrant. The reply I received stated that this would be sending the wrong signals. I do not have the time in this 20 minute slot to deconstruct what this means. The message it sent was that the purpose of action and inaction was to function as a vague deterrent. With a great sense of depression and anger, I calculate that my constituency office spends 35% of its time dealing with cases involving ridiculous correspondence. The correspondence refers to my views being referred to the appropriate section, which will be writing to me in due course. I am supposed to send the meaningless correspondence I receive onto other people.

With others, I welcome legislation in a difficult area. However, as Deputy Rabbitte points out, if we are to have a policy, the Oireachtas must undertake the responsibility and obligations of that policy. One moves on to the role of the Executive to administer it. It is not the function of the Oireachtas to anticipate every detail. It is the responsibility of the Oireachtas to take its constitutional responsibility seriously and it does not do so by handing over the responsibility that should reside in the Oireachtas to what is described as ministerial discretion in the name of flexibility. The Minister stated:

I am aware of calls to deal with immigration entirely in primarily legislation. That cannot be done. We need flexibility to deal with immigration and it is the right and duty of the Government to make policy in the national interest in this area. That policy can be given effect through secondary legislation on foot of this Bill and also on foot of administrative schemes.

I profoundly disagree. This is a basis for voting against the legislation even on Second Stage because we will find that we cannot get accountability and transparency on secondary legislation and administrative schemes when the Bill has passed Second Stage. It is important that principles are set out in primary legislation. These principles arise in a number of fundamental areas. Discussion on the attempt to establish distance between the international law and obligation and domestic arrangements has been singularly missing from the debate. There are fundamental rights regarding the child that should be recognised. We are signatories to, and have ratified, the fundamental rights of the child. I refer to attitudes towards the family and marriage.

Section 123 refers to the Minister giving permission to an Irish citizen to marry a non-EU person. A distinguished international lawyer who worked in my office and dealt with me on the issue of Afghan refugees was engaged to be married to a citizen of Sudan. She will be reluctant to seek permission from the Irish Minister for Justice, Equality and Law Reform to get married. This is invasive nonsense. If one wished to deal with what is described as marriages of convenience, there are several other ways of doing it. The Minister resists primary legislation and the Oireachtas performing its function, yet takes these crazy powers into a half-administrative function.

I have a more fundamental difference. The existing administrative system is a disaster with regard to, for example, renewing stamps. Is it reasonable to have the GNIB office in Galway open for two hours every morning? Is it reasonable to have people queuing up at 5 a.m. and, if they have a single mistake in a document, they must return the next day between 8 a.m. and 9 a.m? This is wrong — an administrative nightmare and an administrative insult to those who use it. It is unsatisfactory in every respect to those who have represented our constituents, in my case for nearly 30 years. I say this with anger. Some people told me how they arrived at 5.30 a.m., lost their place in the queue and the opportunity was gone at 9 a.m. There is no garda after just a couple of hours. The GNIB office is located not at the Garda station in Mill Street, but at an industrial estate on the outskirts of the city, to which there is no bus service. One can make them walk up there and then treat them like dirt. That is what is happening.

I am dealing with a case that has been referred to the Government. The family has left direct provision and is staying in accommodation elsewhere. The children have been cut off from benefit on the basis that they did not do what they were told. One must deal with this issue, which has arisen since 2004, where the Irish diaspora went all over the world and had children. We do not treat all children equally. We have cut off those who are not EU citizens from certain types of child benefit. Is there not a case for universality of child benefit?

I visited the Marino Institute and spoke to a young man who was getting ready for the leaving certificate. He prepared for the exam in the only space he had, on top of a bed in an adult hostel. He could look forward to receiving his leaving certificate results and, on reaching 18 years of age, to being deported. Several people I met on that occasion were among the hundreds of children who went missing, unaccompanied minors who were transferred to the HSE and now nobody knows where they are.

The idea that one can drag all these matters together and deal with them with secondary legislation and administrative best practice does not convince me. As a legislator, I want the fundamental principles decided where they should be decided, where the process can be accountable, in the Oireachtas.

I anticipate much difficulty on Committee Stage because many of the measures discussed by Deputies are not referred to directly in the text of the Bill. We may have difficulty in discussing them.

A number of issues are incredible. It is time to mention the unmentionable. What about the appeals officer, Mr. Nicholson, who decided 900 to 1,000 cases and was so inspired by rectitude, good law and administrative excellence that he did not give a favourable decision in a single case? The fact of that, and its implications for those in the judicial process, was not conceded and was hidden. It was only when it was extracted through the courts that the facts of that outrageous behaviour was discovered. It is now supposed to be something that happened yesterday. That he is now gone does not satisfy the question. I am not saying that everyone was like him but attention was drawn to his existence and it was not dealt with in the administrative system. I have no faith in an administrative system that behaves like this. I do not speak with just passion on all of these areas, I speak with information garnered from my office and elsewhere as I deal with these cases every day.

It is important to set out clear immigration rules in primary legislation. Mrs. Justice Denham's injunction, quoted by Deputy Rabbitte earlier, is quite clear in that regard. Let us decide, state the responsibility and then let those who administer the system administer it. It is wrong of us to put our omissions on to immigrants as a burden. I reject the notion that in the name of flexibility one can leave many significant areas imprecise. I say this on the basis that the existing practice is not acceptable.

I find it distressing in terms of applications for refugee status that there is no reference so far today to one of the difficulties that regularly arises, appropriate translation. I dealt with African migration in my work 40 years ago. There are differences in dialect in Africa. Many of the people who went through the appeals process suggested there was a serious deficiency in regard to information that had been translated. A heavy burden is placed on applicants in terms of the information sought, for example, whether they can name the church in which they took refuge or give the name of the street into which they turned, which in many cases they could not.

In one case the appeals tribunal informed an applicant that peace had been restored in Sierra Leone. One can ask whether that referred to the capital or to the regions. This is the difficulty with the system. I have some sympathy for the refugee service as these are matters that cannot be dealt with by way of appeal to the courts. In the case of judicial procedures, the examination is on the process but it is not on the fact, nor is it on the merit of the story or the context of the original application. That is a deficiency and these are issues we should address in primary legislation.

I spent my life listening to lectures from people about the Irish family. It is very interesting to note the contradiction between that and family reunification and the incredible obstacles we have put in the way of same. People should be concerned about summary deportations. I have already spoken about the business of getting permission from the Minister for Justice, Equality and Law Reform to get married to a non-European Union citizen. We need not delay on this matter as it is derisory.

One of the issues sought by the members of the all-party visit to the United States in the Kennedy-McCain days to make the case for the out-of-status there was that whatever agreement was made regarding the right to work and relieving the position of these people, it should lead to some form of permanent residency and even acknowledged citizenship. Do we honestly believe that people will not see the contradiction in what we are trying to do? We were right to look for that but it is right also to grant it to the people who are here. We will, if we get to it. I hope other speakers will take up this issue.

I welcome some provisions of the Bill such as the addressing of the issue of illegal trafficking. Let us remember it is dealing with adults and ask whether it makes enough allowance in terms of length of time. I believe not. It is also silent on the issue of the children who are involved as possible victims. The idea that one can detain while one decides inflexibly what one is willing to allow is to my mind simply not acceptable on the grounds of jurisprudence.

See this speech in context