Brian Lenihan Jnr (Dublin West, Fianna Fail)

I thank the many Deputies who made contributions to this debate on what is, by any measure, a most important Bill. I also thank Deputies for their attendance for the discussion.

I note Deputy Naughten expressed a critical support for the Bill, which I welcome. I look forward to working with Deputy Naughten and other Deputies on the Bill as it proceeds through Committee Stage. I am always open to persuasion on Committee Stage of legislation and if an amendment is well-reasoned, merited and required, I will consider it.

The contributions and criticisms during the debate dealt with a wide range of issues, most of which directly related to the issues raised by the subject matter of this legislation. I cannot hope to address all those points in my reply this afternoon but I will endeavour to deal with as many as time permits.

One of the first and most fundamental questions raised during the debate was why immigration and asylum are combined in one Bill. The Bill covers both the issues of the protection of the asylum seeker and also the more general question of how to secure residence in the State if there is no entitlement to be in the State.

All migrants or intending migrants, even those claiming asylum, have in common a desire to come to Ireland and remain for a period. That is determined by the State. These people arrive at the same ports of entry and interact with the same immigration officers. They may seek to enter through the regular migration channel or they make a protection claim. A protection claim may be made later by a person who originally arrived as a residential visitor.

The persons concerned will be dealt with in the manner applicable to the nature of their claim. At the end of the process, the two streams converge with one of two outcomes. Either the people gain status and are issued with a residence permission by the same officials or they fail and are liable for removal by the same officials and in the same manner. There is considerable logic in dealing with all of this in a coherent and integrated way, based not least on considerations of efficiency and effectiveness.

Many Deputies complained that the Bill does not set out the rights of foreign nationals granted permission to be present in the State. There was a considerable misconception in the debate in this regard because a foreign national does not have rights to reside in the State. Irish citizens have rights to reside in the State and EU nationals have considerable rights regarding residency in this State. Persons who are not citizens of Ireland or EU nationals do not have a right of residence in the State. Some of the contributions were vitiated by a failure to understand that basic concept.

Deputies complained we have not given any indication of what rights are in mind. This is a complex area and the matter turns on the nature of the permission granted to the person. It is the case that foreign nationals lawfully in the State will be able to enjoy certain privileges. The presence of foreign nationals in the State does not flow from the exercise of any right they have to reside in the State. Rather, it is on foot of a permission to enter and reside which is granted by the Minister and is subject to conditions that the Minister considers should be imposed on that presence.

Deputy O'Rourke put it far more eloquently than I can a few moments ago when she indicated that not everyone in the world can come to Ireland. I have been trying to formulate that proposition in legal phraseology.

It is important to note that one of the big innovations in this legislation, which was welcomed on all sides of the House, was the introduction of section 36, which establishes a status of long-term resident. The long-term resident will be a migrant who comes to Ireland and acquires certain rights in the State. It is important, given the volume of migration which has taken place, that we create such a status.

Most other categories of foreign national are here not because they have a right, but because the State has chosen to give them permission to be here. This permission attaches conditions of the State's choosing regarding access to the labour market and State-funded benefits, among other matters. When we speak of the rights of foreign nationals, we must distinguish between those categories of persons and the others who have rights arising from international law, such as refugees, or in the case of long-term residents from the provisions of this Bill.

For example, the Bill treats a foreign national who has been granted a long-term residence permission and his or her family as if he or she is an Irish citizen in many respects. The only action such a person will not be allowed to take is vote in a general election, which is a matter of constitutional right and reserved to citizenship.

If he or she is a qualified long-term resident, the person and his or her family will be in almost the same position as a long-term resident, apart from a certain limitation on access to certain publicly-funded services. If he or she is the holder of a renewable residence permission, the conditions of that permission will, as provided for in section 127, set out the nature of rights attaching to that permission, for example, whether he or she can bring family members to Ireland and the extent to which he or she can access publicly-funded services, etc.

If he or she is the holder of an entry permission or a non-renewable residence permission, the likelihood is that he or she has applied to come to the State for a limited period only. This could be for a holiday visit, to study or to engage in seasonal employment. In these circumstances, his or her intended stay is limited and the permission will set out a limited eligibility for benefits and the like.

There is no right and there can be no expectation of family reunification for such a migrant, nor can there be the same expectation of access to State-funded services, as a long-term resident would have, for example, and is entitled to as of right under this proposed legislation.

The purpose of the Bill is to provide mechanisms to allow the Government manage migration to the State in a coherent fashion. The Bill provides clarity on how a foreign national's presence in the State is lawful or unlawful. That is as it should be. The Bill sets out the requirements which must be satisfied where foreign nationals want to visit the State, whether for a long or short term stay. That is also as it should be.

The Bill provides mechanisms for review of negative decisions in applications for visa. It provides for review mechanisms to ensure fair procedures where permissions are not renewed or are revoked. The Bill also sets out a more streamlined process for the determination of protection applications.

Apart from setting out the benefits associated with protection declarations and those associated with long-term and qualified long-term residence, the Bill does not set out the benefits associated with other less permanent forms of permission to be present in the State. That is left to domestic legislation and practice to determine. Any entitlements which may exist in the health, education or social welfare system are set out in the relevant domestic legislation governing those systems. Similarly, access to the labour market is governed by employment law.

While present in the State, foreign nationals enjoy many of the constitutional freedoms available to Irish citizens. They also enjoy the protections afforded by our equality laws, for example, and if they are working lawfully they are entitled to be treated fairly under employment laws. The Bill does not need to set out such matters again as there is ample legislation in the Statute Book dealing with them already.

I stress the need to balance rights and responsibilities. Persons who play by the rules have nothing to fear from this legislation; on the contrary, it enhances their status and allows the Government to provide greater transparency in the system. The majority of our migrants fall into this lawful category.

There were 155,000 lawful migrants registered with the GNIB from outside the European economic area, a very substantial number. Our problem in the past has been that a wholly disproportionate amount of time and money has been spent dealing with people who have no right to be in the State but who seek to frustrate the State at every turn in removing them.

I am glad to hear some Deputies mention that persons who are not lawfully here should leave the State. Deputies have been lobbied by various voluntary organisations outside the Government who do very good work in championing the rights of those who seek to migrate here, and their contribution in the debate is very welcome. That is a particular perspective on the issue. As a Minister, however, I must take a wider one.

I refer the House to the comment of the Supreme Court in the decision on Bode v The Minister for Justice, Equality and Law Reform and Others, handed down on 20 December last. This is the latest authoritative guide from the Supreme Court on the responsibilities of the Government in this area. Deputy Rabbitte outlined many judicial decisions in his contribution but I did not hear a particular reference to this decision which is now the most fundamental one relating to the law of migration in the State.

The judgment sets out the responsibilities of the State as executive functions vested in the Government to operate immigration controls in the interest of the common good. Ms Justice Denham pointed out:

In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State.

In enacting this Bill we are casting into legislative form what the Supreme Court has described as the essential feature of our system. The court in that decision upheld the power of the Minister to make schemes which would deal with particular aspects and categories of migrant and expressly affirmed it in the Bode case.

Deputy Naughten made a case for the introduction of a bridging visa system to deal with those who have fallen through the net, through no fault of their own. He gave as an example the case of the undocumented worker who comes here lawfully but for one reason or another was abused in respect of employment law and finds him or herself in legal limbo. Under the Bill such persons will be unlawfully present in the State once their residents' permission has expired. We need to distinguish between foreign nationals who, as Deputy Naughten rightly says, find themselves in that position through no fault of their own and those who, having been refused a renewal of their residents' permissions, deliberately refuse to comply with their obligation to leave the State.

I am bringing proposals to the Government on this matter to ensure that certain undocumented workers who find themselves in this position, through no fault of their own, form a distinct category and can be accommodated. This can be done, as it was in the case of the Irish-born children through an appropriate scheme under the executive power of the State. One of the advantages of permitting us to proceed by way of scheme to define exact categories is that it allows us to proceed by way of trial and error in a matter of this type. The Supreme Court has upheld the power of the Minister to make schemes of that character.

I am, however, less disposed to look favourably on the case of a foreign national who knowingly remained in the State after the expiration of his or her permission. This would condone illegality not only on the part of the foreign national but also on the part of the employer who would be in breach of our employment laws by continuing to employ such a person. Under present arrangements there is scope for exploitation of migrants. My colleague, the Minister for Enterprise, Trade and Employment, has brought forward new legislation in this area and a new National Employment Rights Agency has been established with the remit of tackling exploitation in the workplace. Concealing or perpetuating the employment of an illegal employee does a disservice not just to that employee who is by definition being exploited but also the interests of workers generally. I take Deputy Naughten's point, which the Irish Congress of Trade Unions has also made, that there is a specific category of undocumented worker for whom we must provide on foot of this legislation and by way of scheme.

I share the views expressed by many Deputies on all sides of the House on the great opportunity we have, as a country of net inward migration, to take on the challenge of integration. The programme for Government took account of its significance by establishing the office of a Minister for State with responsibility for integration. The programme also sets out measures to be taken in respect of integration.

Deputy Rabbitte and others claimed that access to justice will be restricted for those who are unlawfully present in the State and who, notwithstanding that unlawful presence, fail to remove themselves as required under section 4 of the Bill. This line of argument ignores the processes under the Bill whereby persons will arrive at being unlawfully present in the State. In general a foreign national cannot arrive in the State and be unlawfully present here without doing so knowingly. The typical example is a person who stays on after his or her entry or residence permit has expired.

The other typical case arises when a holder of a permission is notified of a proposed revocation and makes representations to, but fails to convince the Minister. In the special case where a person claims protection based on the fear of persecution or related issues there is a thorough process in which the claimant participates in the investigation of the claim. In all these cases the foreign national's presence in the State remains lawful until the process has reached a final decision. If that decision is negative it will be for the person to remove himself or herself. In effect there will be no surprise circumstances in which a foreign national will become unlawfully present in the State.

This legislation will not effect all the processes involving access to the courts, which those who are removed from the State avail of extensively. Access to the courts includes the Article 40 process for ascertaining the validity of a detention as well as injunctive relief which may be sought to delay a removal. That persons in those circumstances avail of those processes and that the Garda does not interfere with them is evidenced by the charter flights to Nigeria and other destinations that leave only half full. The other half of the intended passengers are in the High Court obtaining injunctions to stop their removal, although they have already been through exhaustive processes. The greater simplicity and clarity introduced in this legislation will ensure that there will be fewer grounds for invoking the jurisdiction of the High Court to set aside the removal of a particular person from the State.

Deputy Rabbitte said that my officers and the Attorney General ignored a celebrated extradition decision in 1964, in The State (Quinn) v Ryan involving Irish citizens, and that it has had no effect on modern police practice. That point is without substance. There has been a revolution in thinking in the courts and police practice since 1964. This legislation is not being implemented in the spirit of the practice that the Supreme Court condemned then.

The Bill will abolish the position whereby, even though a foreign national is by any measure unlawfully present in the State, he or she may not be removed until the elaborate process leading to a deportation order has been gone through. That process may take longer than the visit originally approved. The law is clumsy and all but unworkable. By making the changes proposed in this Bill we are ensuring that there are sensible, proportionate and fair processes for ensuring that persons will know what their status is in the State and that they will not be taken by surprise by a change in that status from lawful to unlawful presence. If a person is unlawfully in the State after those processes it makes absolute sense that he or she should be obliged to remove him or herself from the State. Once that sensible and logical legal position is in place it is of no use unless there is a practical means of ensuring that it is observed by removing those who choose to flout it by their continued unlawful presence.

See this speech in context