Joan Burton (Dublin West, Labour)

I begin by responding to some remarks of Deputy Peter Power which he attributed to my Labour Party colleague, Deputy Rabbitte. I have had an opportunity to discuss with Deputy Rabbitte his approach to this Bill. He used the judgments of the Supreme Court to remind this Chamber that the basic difference between the Government and the Labour Party on these issues relates to the question of whether legislation should set out national policy. In putting forth my party's view, Deputy Rabbitte quoted in detail the views of the Supreme Court, which held that the Dáil could not simply hand over to the Executive constitutional responsibilities to make law no matter how much the latter wished to assume that power. Deputy Power clearly wishes to grant that power to the Executive.

Under the Constitution, this House has responsibility for making law and the Executive has responsibility for implementing it. The Government undoubtedly has great power to influence the making of law, but it is the responsibility of this House to make it. In the judgment in the Laurentiu case in 1999, Mr. Justice Keane stated: "It cannot be too strongly emphasised that no issue arises in this case as to whether the sovereign power of the State to deport aliens is executive or legislative in its nature." This is exactly Deputy Power's point. Mr. Justice Keane goes on to state:

It is clearly a power of an executive nature since it can be exercised by the Executive even in the absence of legislation. But that is not to say that its exercise cannot be controlled by legislation and today is invariably so controlled: any other view would be inconsistent with the exclusive law-making power vested in the Oireachtas. The Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to be exercised: what they cannot do, in my judgment, is to assign their policy-making role to a specified body or person, such as a Minister.

I am not a lawyer, unlike Deputy Power. However, Mr. Justice Keane's statement represents the nub of the issue and it is a powerful argument. I understand Mrs. Justice Denham was also a party to that judgment. It is applicable to most democratic legislatures worldwide where it is the responsibility of the parliament to make the law. That is the point made by Deputy Rabbitte. Deputy Power ascribed something to Deputy Rabbitte that he did not say. This principle is what the Labour Party stands by in the sense of standing by the Republic. Deputy Power might accept that. The explanatory memorandum quotes extensively from various Supreme Court judgments.

Some of the proposals in this Bill are extraordinary. There are communities in this State besieged by crime, criminal gangs and anti-social behaviour. On many occasions, it seems impossible to have gardaí assigned to these areas to address such criminal activity. It is ironic, therefore, that the Minister for Justice, Equality and Law Reform proposes in this Bill that the officiating priest or minister, or even the guests, at the wedding of an Irish person to a non-EU national could be locked up for flouting immigration laws. This is not a serious legislative initiative. Rather, it is a reactionary proposal that panders to those who seek a quick-fix solution regardless of whether it has been properly thought through.

As Chairman of the Oireachtas Committee on Justice, Equality, Defence and Women's Rights, Deputy Peter Power presumably has some insight into the Minister's thinking. Will the Government reconsider this proposal? In working-class housing estates in parts of my constituency and that of Deputy Power, there are insufficient Garda resources to attend to serious crime. Under this Bill, gardaí will be asked to chase guests and priests at weddings. The Government should cop itself on. Most people will be outraged at this proposal and it must be reviewed.

Marrying an Irish national does not confer additional rights that would not have been otherwise gained through coming here to work as a single individual of non-EU nationality. In effect, this proposal assumes that a person from outside the EU and the European economic area, EEA, would marry an Irish national only for a passport. If this is the view of the Minister for Justice, Equality and Law Reform, he must explain the rationale for this assumption. Is there evidence that this is taking place and, if so, how often? There are legislative measures to deal with what the Minister is implying in this Bill are bogus marriages. If this is a significant problem, the Minister ought to address it honestly rather than adopting a sledge-hammer approach in this Bill.

We must take account of the lifestyles of many young people. It has become the norm, particularly for students, many of whom are from better-off families, to take a gap year to travel the world. They spend time in Australia, New Zealand, Canada and other countries in which young Irish people are permitted to live, work and possibly remain. It is inevitable that some of these young people will meet and fall in love while residing in these countries. They may not necessarily want to marry these partners but they often want to bring them home to Ireland for a period of time so they can meet their family and friends. Some such relationships lead to marriage and others may persist for many years without marriage being the outcome. However, it is virtually impossible for the foreign partner to gain access to the State unless he or she is able to come as a student or can secure employment here from abroad. We are talking about young Irish people who are going abroad and meeting foreign partners. Most of them are young, so they are not economically established. In many cases, their families are more than prepared to assist when they come back from a year's travel with a partner who is not from an EU member state. The Minister needs to think about this issue. He should take into account in this legislation the realities of life for many young Irish people. I am talking people about people of absolute integrity, rather than people who are trying to import foreigners into Ireland. When Irish people meet their partners while they are abroad, we should ensure that structured mechanisms, with clear terms and conditions, are in place to allow them to bring those partners into this country.

I empathise with Deputies who have mentioned during this debate that immigration matters now comprise up to 40% of their constituency caseloads. Such issues are raised all the time in my constituency of Dublin West, which has experienced massive immigration. When I was in South Africa some years ago visiting friends, the then Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney, who is now the Minister for Health and Children, was in the country with an enormous roadshow, which was also brought to places like Newfoundland. The Minister was trying to encourage skilled workers to immigrate into Ireland because they were needed here. Fianna Fáil and Fine Gael have sent strong signals, through FÁS and other bodies, that people from other countries are needed here. It is important we look after people from places like the Indian sub-continent, South Africa and Newfoundland when they immigrate into Ireland. Many married couples — they may be nurses or doctors — have come to Ireland from India. There has been a great deal of immigration from places like India and South Africa on foot of the requests which were made some years ago by the Government. Many people have moved here to work in the health service. However, problems can arise when a woman comes here and subsequently has children here with her partner from her own country. Her parents might get a short-term visa to be present when their grandchild is being born, but that visa might not be sufficient if the child is weak or sickly, or is born with a disability.

I have had to petition the Minister in many sad and difficult cases to see whether grandparents from countries like India and Pakistan can stay in Ireland for a reasonably lengthy period of time — six months or a year — to help with the care of their grandchild who is ill. Several heartbreaking cases are being considered by the Department of Justice, Equality and Law Reform at present. I expect the Department to be cautious and to look for validation of the evidence in each case. Nobody is asking for an open-door policy. Given that we asked these people to immigrate into Ireland to provide valuable skills in our health service, for example, we should show that we want them to stay here by looking favourably on applications for visitors' visas made by their parents — the grandparents of their children. Such visas are extremely difficult to obtain, however. I appreciate that the Minister is proposing to address some aspects of this issue in the legislation before the House. I suggested to the previous Minister, Michael McDowell, and privately to the current Minister, Deputy Brian Lenihan, that some kind of bond system be introduced, for example. If the parents of people who have moved to Ireland legitimately have genuine family reasons for staying here for a lengthy period of time, we should provide a system whereby that can happen. I ask the Minister to address this issue.

The Geneva Convention originally established that states have a duty to give shelter to those fleeing from a well-founded fear of persecution, for instance in a conflict situation. This is the legal rationale for the granting of political asylum under the Geneva Convention. We have a moral imperative to assist people who flee in fear of their lives to seek help and succour in another jurisdiction. I recognise that provisions have to be made to deal with manifestly unfounded applications for asylum. When, as Minister of State, I introduced the first Refugee Bill, I ensured that it included provisions to deal promptly and expeditiously with manifestly unfounded asylum applications. We need to avoid the tarring of all asylum seekers, including those who have legitimate cases, with the same brush of illegitimacy. It would be a travesty of justice and a dereliction of Ireland's duties under the Geneva Convention if it were assumed that all asylum seekers are "bogus" or "economic migrants". We need to strike a balance between managing migration flows and fulfilling our humanitarian duties under the Geneva Convention.

The concept of subsidiary protection has been developed by the European Union over recent years as a means of recognising that the asylum applications of refugees from areas of conflict need urgent attention. In theory, an application for subsidiary protection allows legitimate asylum seekers to bypass the often lengthy protection procedures under the Geneva Convention to get the help they need. The Government accepted the concept of subsidiary protection when it was required to do so under an EU directive and various Council decisions. While the introduction of subsidiary protection has been a good development on the part of the EU, I understand that nobody has been granted asylum through the subsidiary protection process since it was introduced. If the Minister is aware of cases which are currently being addressed within this mechanism, I would be interested to hear about it. When I was doing my research, I did not come across any declared cases in which subsidiary protection has been granted. In light of the ongoing conflict in Darfur, for example, is the Government committed to the concept of subsidiary protection in the first instance? Is it merely engaging in some humanitarian window-dressing? It will be shameful if the Government does not sign up to what the EU has agreed as a means of addressing certain problems within the modern world and the global economy. I am aware that provision for subsidiary protection is being made in this Bill. In light of the position the Government has taken on it up to now, however, it is not clear whether subsidiary protection will be used in practice.

I welcome this legislation in so far as it might bring clarity to our immigration system and lead to the applications of legitimate asylum seekers being processed as a matter of urgency. I travelled extensively around the world — I lived in Africa for some time — before I got involved in politics. I have difficulty with people who believe that the concept of asylum is bogus. I spent a great deal of time in post-conflict countries like Rwanda and Uganda. I met people in Africa who had been the victims of torture. I have met them in Ireland too. The Government has chosen to identify with people who are economic migrants. I acknowledge that there is a difficulty there. It should not dismiss all asylum seekers simply as economic migrants. There are many conflicts in the world. Some people who were treated horrendously during those conflicts have ended up in this country. They need the protection of the Geneva Convention. The Government should use the provision in the Geneva Convention for programme refugees. People who are wasting away in refugee camps throughout the world should be offered a place of safety in Ireland. That was done in the case of Bosnian refugees following the conflict in Yugoslavia and even earlier in the case of Vietnamese boat people. That is a useful way of seriously expressing Ireland's concern about genuine asylum seekers.

I support the development of biometric confirmation of identity. Although it is a tricky, evolving technical area, I support it in principle. The proposal to charge lawyers who take pro bono cases on behalf of asylum seekers on genuine points of law is foolish because existing court rules provide that lawyers taking frivolous or wasteful cases can be dealt with through them. The Minister should withdraw that provision. Many legal cases would not be appealed if the initial procedures were properly followed or if people were able to avail of proper advice. I hope the Minister will address the issue. If he does, I am confident he would avoid most of the appeal cases.

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