Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)

I am pleased to have the opportunity to address the Immigration, Residence and Protection Bill. The one point on which everyone in this House can agree is the necessity for a comprehensive reform of Ireland's outdated and inadequate asylum and immigration legislation. An opportunity had presented itself at last to address the shortcomings and failures of the current system and to develop legislation that would lead to a progressive, fair, transparent and efficient system that would meet the standards of international best practice and comply with international human rights obligations.

I was disappointed but, sadly, not surprised to read what has been put before Members. It does not measure up to anything I have just outlined. It is a rehashing and reheating of the same regressive, inadequate and poorly written law that has been kicking around since the Government announced its intentions for this Bill several years ago. In all that time and with all of the so-called consultations and detailed submissions that were conscientiously presented and studiously ignored, sadly, the Government still has not accomplished its stated aim of setting out "in a clear and integrated approach the whole process for foreign nationals coming to the State, staying here and, when necessary, being required to leave". This Bill as presented offers no clarity, no integrated approach and certainly does nothing to address the problems in the current so-called process. It has the potential to make things worse and may place Ireland in breach of its obligations under international refugee and human rights law.

With this Bill, the Minister has chosen to follow the well-worn path of his predecessor in promoting a culture of disbelief, in which every asylum seeker is first of all suspected of being a fraud and a liar, intent on abusing the system and in which, despite the assurances of the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, to the contrary, the implication is that migrants are coming here to take advantage of the State and its benefits and to gain residency through fraudulent means. The Minister, like his predecessor, would have Members believe the world is full of people who are simply waiting for an opportunity to come to Ireland and are eager for us to relax our vigilance. The reality is far removed from that proposition.

The intent of the Bill, as has been clearly stated, is to tighten up the system. It does so, but at what cost? It risks the serious erosion of migrants' rights and fundamental principles of access to justice, while failing to address some of the most serious flaws in the system, such as unacceptable administrative backlogs, inconsistent decision-making and lack of clarity on the rights, entitlements and obligations of migrants in Ireland. It also fails to address some of the most serious issues in respect of immigration, such as family reunification and protection for victims of trafficking and separated children.

There are numerous flaws and areas of concern in this legislation and I will touch on some of them. Of general concern is the trend throughout the Bill of vesting in the Minister for Justice, Equality and Law Reform overly broad discretionary power, giving discretionary powers to civil servants, gardaí and administrators with limited guidance, and relying on future so-called policy statements and-or promises made by the Minister to address the already well identified gaps in this legislation. We do not know what will happen in this regard, even if the Government, including the Minister, is of good intent. Sadly, there is little evidence to comfort me or anyone else who shares my concerns that that would be the case. To offer a fool's pardon, what will happen to those promises or commitments if the Government or the Minister changes?

The Bill fails to set out clear rules regarding the rights and obligations of migrants seeking to come to Ireland. Instead, it sets out procedural rules that the Minister will have the power to define further pursuant to section 127, leaving the detail to secondary legislation or administrative decisions. The Bill fails to give guidelines or clarity on the criteria or issues to be considered by immigration officers in making decisions on behalf of the Minister. It does not deal directly with the rights of students, their partners and-or children, the rights of researchers, the self-employed, non-economically active migrants or the undocumented. All of these, we are told, are to be covered by as yet unpublished and apparently still to be determined immigration regulations.

Many of the provisions in this Bill do not appear to be well thought out and the various scenarios or consequences do not appear to be considered properly. We are, therefore, being asked to vote on legislation that is clearly incomplete and unclear without knowing the full consequences or what rules will apply. This is a lot to ask.

The most serious of omissions is the whole subject of family reunification. Members spoke about family reunification in the Irish context, in terms of the Irish experience globally. Let us understand that this applies to others who have come to stay on our shores. The serious omission in this area, which impacts heavily on the human and constitutional rights of migrants and their family members, is, according to the European Commission, one of the most significant types of migration to the European Union and internationally. We in Ireland know this as well as any other nationality globally.

If this omission is not addressed, Ireland will be the only member of the European Union not to have primary legislation covering this issue. It had been promised that provisions for family reunification would be included in the Bill, but the only reference is to the right of refugees and those granted subsidiary protection to apply for family reunification. Even at that, the definition of "family" is very restrictive in that it does not allow minor refugees to apply for their siblings, it does not recognise unmarried partners or address the rights of reunified family members in the event of death or marriage breakdown. What happens then?

Although the previous Government decided to opt out of the EU directive on the right to family reunification, Ireland should be guided by international best practice and should respect the fundamental importance of family life to all of society. Those who come to live, work and pay taxes in Ireland deserve to have something as basic as normal family life. By not providing for family reunion, we are creating isolation and unnecessary suffering and setting up barriers to integration. This must be addressed in primary legislation.

This Bill does not provide adequate protections for victims of trafficking, despite a commitment by Government to address the needs of victims in the Immigration, Residence and Protection Bill. Most significantly, people who are trafficked in from the European Union will not benefit in any way as this Bill applies only to citizens from outside the European economic area. Large numbers of people trafficked come from within the EU, particularly eastern Europe.

The provisions in this Bill basically provide for a victim witness protection programme and barely meet the minimum standards of international law, as provided for under the Council of Europe Convention on Actions against Trafficking in Human Beings, which states explicitly that protection and assistance must not be conditional on co-operation. Trafficked persons who do not wish to testify as witnesses, who cannot provide useful information or who are not required as witnesses should be afforded the same protection and assistance as victim witnesses. Incredibly, the provision allowing for temporary residence to be revoked once "any investigation or prosecution arising in relation to the trafficking has been finalised or terminated" should be removed. What kind of incentive is there for a victim to provide evidence that could lead to a successful prosecution if he or she knows that the end result would be the termination of his or her own residency permission? Let us be real about this.

There is a need for specific provisions relating to the protection of trafficked children and specific entitlements for those who are granted temporary residency, including the provision of a renewable residency permit. There should also be a specific provision that victims of trafficking will be given due consideration in any application subsequently for asylum, immigration or residency. Once again, this section of the Bill falls far short of what is needed.

Absent from the Bill also are new provisions to improve protection for separated children, another vulnerable group that has been ignored. Both the Irish Refugee Council in its submissions and the Special Rapporteur on Child Protection pointed out shortcomings in the current system and made very concrete recommendations. Measures should be put in place to address the issues of age assessment and improve identification, registration, family tracing, guardianship, best interests determination, treatment and care to bring Ireland into line with its obligations under the Convention on the Rights of the Child.

While these are all important issues and must be dealt with in this Bill, there are other issues of grave concern that will have a serious impact on the administration of a just and fair system. These are issues that bring us dangerously close to breaches of the Constitution and of international human rights obligations, not to mention setting dangerous trends. While the Government complains about the costs associated with court actions, through these proposed measures it is potentially setting itself up for court challenges, with further costs and further delays.

Section 4(8), which introduces summary deportation, a significant new power, may be in breach of fair and just procedures, a right that is recognised under the Constitution, and may also be in violation of the right to private and family life under Article 8 of the European Convention on Human Rights and Articles 6 and 13 of the same convention. This provision may result in vulnerable people who have become undocumented — make no mistake about it, this is happening — through no fault of their own and who have been unable to regularise their situation within the required time limit, being deported, even when their case involves special circumstances, for example, a victim of domestic violence who has been dependent on his or her spouse and whose partner holds possession of the family's documents or a migrant worker in an exploitative situation. We have been addressing these matters in this House only this week.

This may also result in migrants being unable to avail of voluntary return programmes, meaning that taxpayers will have to pay unnecessarily for people being removed forcibly from the State. Currently, the Bill provides no flexibility to deal with or provide for persons in exceptional circumstances and that is absolutely necessary.

With the emphasis on the effectiveness and efficiency of removals with the least expense, there is a total lack of provision for safeguards and appeal mechanisms. This is a totally unacceptable position to curtail the rights of individuals who may be in need of protection and to enforce their removal prior to the exhaustion of review or appeal mechanisms.

Equally disturbing is that increased powers of detention have been added. There is now provision in the Bill to detain persons at every stage of the so-called protection process. A person seeking protection could be detained from point of arrival to point of removal. This is a dangerous return to the practice of internment. Persons seeking protection — which is the right of everyone and not an illegal activity — should not be treated as criminals. There is no acceptable reason for someone to be imprisoned. UNHCR guidelines specifically restrict detention to exceptional circumstances and for minimal periods. This internment of protection applicants may be in breach of the European Convention of Human Rights, ECHR, and the International Covenant on Civil and Political Rights. Not surprisingly, the Bill does not contain any safeguards against arbitrary arrest, which may also be contrary to the ECHR, which provides that persons must be informed of the reason for their detention promptly and in a language they understand.

Another questionable violation of individuals' rights is the limitation of the right to marry. Requiring "foreign nationals" to have the permission of the Minister for Justice, Equality and Law Reform to marry, even if one partner is an Irish or EU citizen, ignores existing international human rights obligations, which are applicable in Ireland regardless of domestic legislation. Additionally, asylum seekers or people on a non-renewable residence permit, which has not been clearly defined, will not be permitted to marry. This is once again using what I can only describe as a sledgehammer, or more like a jackhammer, to crack a nut. While there are known cases of so-called fraudulent marriages or marriages of convenience, this is a completely over-the-top response to what is a highly personal and individual decision in every person's life. There are and could be far more equitable and intelligent ways of determining the validity of any claim for the benefits of marriage.

While the Minister has the discretion to waive this requirement, that is problematic in itself. This discretionary power could infringe the equality clause in Article 40.1° of the Constitution. The Bill gives the Minister general discretion not to apply the requirement to whomever he chooses, but does not provide clear principles governing the exercise of this discretion. Does the Minister really want this? I am incredulous if he does. While the exercise of ministerial discretion is generally welcome in that it gives flexibility to the system, the broad powers being conferred in this Bill leave too much room for potential abuse — I would have thought the man was much too busy at any rate.

The proposed restrictions on access to justice provide another serious problem with this Bill. Failure to provide for an independent appeals mechanism for immigration decisions, which had been promised in the programme for Government — there are those promises again — denies migrants the opportunity to challenge decisions which will have a profound effect on their lives. If the Government is so concerned about the number of cases being taken to the High Court, and is proposing to restrict access to the courts for that reason, then the answer is to have a transparent, independent and accountable system of review. While a simplified and single application process is to be welcomed, it can only work if it is fair. Clearly, the current system is not fair. The fact that many applications have been denied at first instance, only to be granted on appeal, surely indicates there is something wrong with the way the system operates. We are all aware of the scandal around the Refugee Appeals Tribunal. How many more of the cases that were denied on appeal by a particular individual might have been granted if heard by someone else? A number of cases that have gone for judicial review have been settled out of court, a certain indication that at some level there is acknowledgement that the system is not working properly. The proposed legislation will serve only to retain the weaknesses and problems of the current system; the Protection Review Tribunal is simply the Refugee Appeals Tribunal under another name. This is not progress.

I want also to highlight the provisions relating to the principle of non-refoulement, the prohibition on returning asylum seekers to a country where they are likely to face persecution or torture. This is a cornerstone of international human rights law. It recognises that not everyone facing such a danger will meet the convention definition of a "refugee" and guarantees his or her protection nonetheless. It is incumbent on states that are parties to the convention, as we are, to ensure that no one who arrives here seeking protection is refouled. This obligation needs to be taken seriously. We must remember this is literally a matter of life or death for these people. It is not an area on which the State should be cutting corners, or honouring in the breach. Human lives are at stake and I cannot stress that enough. However, a number of this Bill's provisions undermine our ability to live up to that responsibility.

Time is against me and I need to conclude. I appeal to the Minister, his Cabinet colleagues and those with junior ministerial responsibility to rethink their approach to the immigration and asylum issues. I use the word "issues" because they are two different procedures and should be treated differently. There is much to the argument that they should not even be covered in the same legislation. The procedures in the Bill for long-term residency appear not to distinguish between migrant workers and persons granted humanitarian leave or subsidiary protection. A more flexible approach should be taken with regard to the latter, in consideration of the circumstances that brought them here. Let us all be clear about the fact that they did not come by choice.

Immigration has brought much that is good to this country — that must be said repeatedly because there are many ears and minds that are closed to that fact — and it will continue to do so. Let us not forget our own experiences and hardships, to which I referred, in trying to seek a better life, and the massive numbers of Irish who were immigrants all over the world. Some were fleeing from conflict and some were fleeing from poverty and hunger or just seeking a better life. They were no different from any of those whose cases present on our shores each and every week. Therefore, the least we can do for them is to give to them what we have sought for our own, namely, a fair chance.

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