Wednesday, 6 October 2010
Immigration, Residence and Protection Bill 2010: Second Stage
Alan Shatter (Dublin South, Fine Gael)
Briefly, I pay tribute to some of the groups and organisations which work with immigrants and which, over the years of the three different Bills, have provided assistance to Members of this House in their consideration of what was published. In particular, I refer to the Immigrant Council of Ireland, the Irish Refugee Council and the Migrant Rights Centre. I also wish to note those absent, in the context of making submissions on this Bill. The Human Rights Commission made substantial observations on the 2008 Bill. From inquiries made it is unfortunate that due to the cutbacks inflicted on that body, it has apparently been unable to make detailed submissions to Members of this House and to the public on its views of the Bill as it is now reconstructed. That is a detrimental development.
This is the Government's third attempt in four years to enact comprehensive legislation for the management of inward migration to Ireland. While the Bill is an improvement on its two predecessors, it is a fundamentally flawed piece of legislation. Radical restructuring and major amendments are required to make this Bill fit for purpose and to provide for the coherent and comprehensive legislation necessary to achieve the Government's aim of establishing a fair, transparent and comprehensive immigration structure and policy, based on readily identifiable rules and regulations.
Legislation such as this requires essential balance. The right of the State to determine the rules applicable to the residence in the State of non-EU nationals and the right and obligation of Government to protect the interests of citizens in this State and the common good is, of course, centre stage. However, the conduct of the State, of Government and its institutions, must also respect human rights and this State's international obligations to protect the fundamental rights guaranteed to persons under the European Convention on the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women, and the International Convention on the Rights of the Child.
Although this Bill purports to take on board some of this State's obligations under international conventions, it fails to adequately address the human rights of immigrants and their families and the rights of Irish citizens to a full family life in circumstances in which their spouse is neither a citizen of this State or any other EU state.
The Bill delegates excessive power to the Minister for Justice and Law Reform. Under it, the Minister has broad discretionary powers to make orders and regulations to hammer out the nuts and bolts of the system of immigration control. In too many parts, despite its extraordinary length, the Bill is a mere skeleton lacking legislative flesh and fails to provide the essential legal certainty required in this very important area of our law. It fails to clearly specify who can enter the State, the rules applicable to determine how long they can stay, the circumstances in which they can be joined by family members and what rights and entitlements attach to migrants when lawfully present in Ireland. The broad indeterminate and discretionary provisions contained in the Bill will continue to preserve the risk of individuals being unjustly treated as a consequence of arbitrary decisions. While undoubtedly the legislation should provide for some flexibility and not be a straitjacket, in its current form it is too imprecise and confers an excessive and unnecessarily broad discretionary power on the Minister.
The Minister is essentially delegating to himself such broad powers to make regulations under the Bill as to be effectively establishing himself as an alternative, independent and individual Dáil Chamber. The Bill is designed by the Minister to essentially establish "Oireachtas Ahern", based on the illusion that the Minister will be a permanent lifelong incumbent of his Department. This Bill starkly illustrates that the current Government and the Minister for Justice and Law Reform perceive the Houses of the Oireachtas not as legislative assemblies, but as bodies created to confer excessive powers on individual Ministers.
Many of the existing and acknowledged problems with this State's immigration system - lengthy delays in making decisions and processing applications, inconsistent decision-making, lack of clarity and over-reliance on the courts - will continue to exist if the Bill is not significantly amended. What the Bill lacks and should have contained are clear and specific rules, detailed in legislation, together with the establishment of an independent appeals tribunal to deal with all immigration related issues. There are many examples of the imprecision endemic in the Bill. I take but one example: section 31, based on section 493 of the Immigration Act 2004, states the grounds on which an immigration officer can refuse entry to the State. The officer can refuse entry, for example, if he or she is satisfied that the person's entry into the State would be a risk to "national security, public security or public order, or be contrary to public policy". Just consider the phrase "public policy" for a moment. Policy making is the art of governing wisely. The phrase refers vaguely to matters of basic concern to the whole of society, but we need to define it more specifically if it is to have a relevance to our immigration legislation.
What specific overriding public interest gives it content? Unless we define the concept of public policy, it will operate as an arbitrary variable notion, dependent on subjective attitudes. My point is that left undefined this concept, and indeed others, will become the thin skin of ministerial discretion, varying in colour, substance and effect, depending on the subjective outlook of the Minister, who, acting like an additional parliament defines them. Vague powers offend several important rule of law values. First, they fail to give fair notice to persons who stand to be adversely affected by those powers of what the proper grounds are for their valid exercise. Second, if arbitrary and discriminatory enforcement is to be prevented, powers must be hedged by explicit standards for those who apply them. A vague power impermissibly delegates basic policy matters to the Minister and immigration officials for resolution on an ad hoc and subjective basis with the inherent dangers of arbitrary and discriminatory application.
The general or abstract concepts of national security, public security, public order and public policy are, of course, familiar concepts in the context of immigration legislation in other states as well as Ireland. These should be defined in the plain text of the Bill to clarify the ambit of the powers that immigration officers or the Minister have with reference to these grounds. It is vital that the Bill ensures that anyone subject to an adverse immigration or residence decision has the right to appeal against the decision. A grieved person should have a right of access to a wholly independent appeals system, to challenge the merits of the decision made against him or her. There is a belief, based on credible evidence, that the current system has, at times, been contaminated by bias and maladministration. Due process requires Government to provide a fair process, essentially adequate notice, a hearing, reasons and an impartial decision maker. It is so essential to fairness that for decades judges have referred to due process as an essential component of natural and constitutional justice. The establishment of an independent appeals tribunal to deal with immigration related decisions is the only way to ensure access to fair procedures and effective remedies for migrants and their family members.
The programme for Government contained a commitment to establish a visibly independent appeals tribunal. The former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, during the Committee Stage debate on the 2008 Bill, said he was committed to the establishment of such an appeals tribunal, initially on an administrative basis. The rationale for establishing such tribunals is supported by the UN Human Rights Committee, which in 2008 stated that Ireland should introduce an independent appeals procedure to review all immigration related decisions. This Bill should have done so. Despite all the talk, it makes no provision for any such tribunal to be established.
Our immigration laws and policies should fully recognise the realities and needs of family life, and the rights of families. The family's right of its members to live together is protected by international human rights law and while our Supreme Court has sometimes taken a varied and sometimes inconsistent approach to family rights, this Bill should properly reflect Ireland's international obligations in this area and the right to family unity and reunification. Our current law lacks clear rules and decisions in this area. It can be arbitrary, unjust, unfair and lacking in basic humanity and understanding. Decisions on applications for family reunification are made and will continue to be made under the Bill on the basis of ministerial discretion. In practice, so-called ministerial discretion is exercised largely on the Minister's behalf by a large number of departmental officials. Anomalies and inconsistencies in decisions are common, as are delays and what too frequently appear to be discriminatory practices, and arbitrary inexplicable conclusions. With the exception of those declared to be refugees, the rights of Irish nationals and non-EU citizens to family reunification have not been adequately spelt out in the Bill. The Bill should address this issue in detailed substantive legislation and not reserve much of what is required to the whim of a ministerial statutory instrument and to untrammelled ministerial discretion.
There is understandable concern over unacceptable instances not only of individuals, but also of groups conspiring to undermine our existing immigration legislation, by persons entering into sham marriages or marriages of convenience - the Minister has made reference to this. For example, with regard to an application for residency in Ireland based on EU treaty rights, in the first six months of 2010, a surprisingly disproportionate number of Pakistani nationals sought residence on the basis of their marriage to Latvian spouses. Some 253 Pakistani nationals sought EU residency rights in the State, and 95 of those did so based on marriage to Latvian nationals. It cannot, of course be said, that all such marriages where sham, or marriages of convenience, but serious questions arise as to the likelihood of so many Pakistanis meeting and marrying in Ireland this number of Latvian citizens. It has not been known in the past that such a special relationship existed between the two nationalities. However, the Government's understandable concern to properly address this issue has, unfortunately, contaminated its overall approach in the Bill to the issue not only of family reunification, but also with regard to citizens of this State legally and genuinely married to non-EU citizens.
Too many Irish citizens engaged in a full family and properly intimate marriage relationship, experience difficulties in having a non-Irish non-EU spouse granted residency rights in this State in circumstances in which no difficulty should arise. Essentially, because Irish citizens do not have a statutory right to be joined by family members who are non-EU citizens in Ireland, they can experience what can properly be described as reverse discrimination in comparison to the rights that apply to other EU citizens under the EU Freedom of Movement Directive 2004. While this anomaly also exists in some other EU states, its impact is reduced by domestic immigration rules which prescribe in detail the entitlement to family reunification and which are not dependent on the exercise of individual discretion by the Minister, or a decision made by an official in his Department. This area needs to be much better addressed in the Bill.
For those who come here, family life is not always a bed of roses. In circumstances in which a husband is the primary person to whom a work visa has been granted and his wife is an accompanying dependent spouse, incidents of domestic violence may be complicated by our rules and regulations for women in need of protection who can no longer reside with their husbands. The Minister should give serious consideration to granting an independent resident status to migrant women who are victims of domestic violence and who can no longer live with their husbands but who, if they leave home, are currently denied the right to either work or claim social welfare. This issue is not adequately addressed in the Bill.
The Bill, while an improvement on its predecessor, fails to provide the additional protections necessary for women who are the victims of trafficking for the purpose of sexual exploitation and to facilitate the Garda to the greatest possible extent in bringing to justice those responsible for this 21st-century form of servitude. The existing provisions in the Bill - while, again, an improvement on those in the 2008 Bill - need to be substantially strengthened, and in this area, as in other areas already referenced by me, Fine Gael will be proposing substantial amendments to the Bill's provisions.
In many European Union countries, a lawful migrant who has settled and worked in an EU state for a specified period of time is entitled to apply for and obtain permanent residency status, and it is possible to obtain such status without having to seek citizenship in the EU state. At present, the principal mechanism available to any migrant who has lawfully resided in the State for more than five years and wishes to obtain permanent residence is the making of an application for citizenship. There are currently 21,500 applications for citizenship - or naturalisation, as it is referred to - awaiting decision in the citizenship division of the Department of Justice and Law Reform. This is an extraordinary number in the context of the size of the State. In reply to a parliamentary question yesterday, the Minister acknowledged that approximately 5,000, or 23%, of these applications have been awaiting decision for more than two years. The remaining 16,500, or 77%, have been awaiting decision for less than two years, but a substantial proportion of these have been awaiting decision for between 18 months and two years.
Many of those awaiting a decision on citizenship are obliged while waiting to apply to INIS, which is a different section of the Department, for the renewal of their residence visas. Long-term residence should not for the majority require the making of a citizenship application. The Minister should have created in this Bill a statutory right to permanent residence for migrants who have lawfully resided in Ireland for five years or more. This practice is common in other EU member states. The Government has skulked away from opting into Council Directive 2003/109/EC, which concerns the status of third-country nationals who are long-term residents. The Government has only to invoke the elementary dictates of decent, civilised politics to accept the measures embodied in the directive, including a permanent immigration status with clearly defined rights and obligations.
We should welcome the fact that persons who have lawfully resided in the State for more than five years, who are employed here and whose families are settled here wish to become part of the State by seeking a grant of citizenship. It is an extraordinary discourtesy to them that two, three or four years can pass before their citizenship applications are determined, while they are left in a state of limbo, deprived of any meaningful information on the reason for the delay. Indeed, the inability to obtain meaningful information about individuals seeking citizenship extends to Members of this House, who are given standard letters of response when representations are made in order to find out a basic and simple piece of information, namely by what date a decision is expected. The system is so poorly administered that even that type of inquiry rarely results in an intelligent and informative response.
The eligibility criteria for long-term residence set out in the Bill specify a requirement that applicants demonstrate "reasonable efforts to socially integrate". This criterion is legal quicksand. What tests and evidence will officials use to determine whether a person has incorporated him- or herself into the community and become socially integrated? Will they go out and interview their friends and neighbours? What conduct will be approved or disapproved? Will they check whether the applicant goes for a drink in his local pub? This vague criterion is a charter for arbitrary, discriminatory and invidious exercises of administrative discretion. It is so vague that it will be impossible to articulate firm standards to review its use. This flawed provision yet again illustrates the difficulties with the uncertain language contained in the Bill and the perils of not establishing a truly independent and transparent appeals system.
The Bill also requires that in order to be granted long-term residence, individuals must be "of good character". This is not a new requirement, but it is a broad, undefined concept which can result in arbitrary decision making. It is currently applicable to any individual seeking a five-year residence permit and, on the surface, does not seem unreasonable. However, there is a need to spell out in greater detail what is meant by this term. In my experience, many decent, honest and hard-working individuals from non-EU countries who are lawfully resident and working in the State are denied five-year residence permits for very minor infractions or for one incident of poor judgment that had no detrimental impact of any description on third parties and which would not in most other EU states create a barrier to continuing long-term residence. There is a need for greater clarity and more specific definition to be applied to the concept of good character.
The delays in determining citizenship applications and the gross inefficiency of the administrative structure for which the Minister is responsible are indefensible. Nothing contained in the Bill will address this issue. There is a need for a general rule that in the determination of applications for citizenship, save in exceptional circumstances, the decision-making process will never exceed six months. The same timeframe should apply to the determination of applications for long-term residence.
While the granting of Irish citizenship is a privilege of the State and careful decisions are required in the pubic interest, the secretive and discretionary nature of the process has understandably given rise to substantial concern that many of those who should experience no difficulty in being conferred with citizenship are having their applications unfairly refused. In a recent survey by EUROSTAT, Ireland ranked second lowest among EU countries in terms of the number of migrants who are granted citizenship, at six per 1,000 foreign residents. There is an essential need to put in place a formal independent appeals system for those whose applications for citizenship are denied. The difficulty in this area yet again illustrates a major gap in the Bill.
During the Committee Stage debate on the 2008 Bill, the Minister said that about 60% of all judicial review applications taken to the High Court related to asylum or immigration decisions. As at 31 July 2010, more than 11,000 such cases seeking judicial review awaited hearing in the High Court. The estimated cost to the taxpayer of judicial reviews in 2007 was between €11 million and €12 million. In the UK, by way of contrast, the cost of an appeal to its Asylum and Immigration Tribunal in 2005-2006 was £760 sterling. This included all judicial costs, the price of accommodation, and the cost of providing an interpreter when required. On simple financial grounds there is an irrefutable case for the establishment of such an appeals tribunal in view of the substantial reduction in judicial review applications to the High Court that would result. It is inexplicable that the Minister has failed to make such provision in this Bill.
The Bill makes comprehensive provisions for the extending of protection to foreign nationals who seek refugee status or permission to remain in the State as persons eligible for subsidiary protection, or in respect of whom the Minister should otherwise exercise his discretion. The provisions in the Bill that facilitate the determination of all these issues in a single application are welcome, as is the general provision made for the creation of a protection review tribunal. Crucial to the operation of such a tribunal is the publication of its decisions, which would allow a general understanding of the manner in which the provisions contained in the Bill are applied to individual cases. This would also be a means of ensuring that fully reasoned, fair and consistent decisions are made and that appellants' individual circumstances and fears are truly considered and properly assessed.
There are still imperfections in the provisions contained in the Bill for dealing with applications made by asylum seekers and those otherwise seeking protection. It is important that measures contained in the Bill to tackle illegal immigration do not affect genuine asylum seekers seeking protection in this State and this issue will have to be given further consideration on Committee Stage. A cause of major concern relates to section 107 of the Bill, which facilitates the chairman of the new tribunal in exercising a power of veto over the publication of decisions made on appeal. The provisions in this section remain entirely unsatisfactory and inappropriate and require fundamental change on Committee Stage. Not only a protection applicant and his or her legal representative but the general public, including Members of this House, should have access to decisions delivered by the tribunal to understand the workings of the legislation, as should the media generally. There is no reason that publication of decisions could not reflect the principles applied to the publication of judgments by the High Court of family law proceedings in which the general background circumstances are disclosed together with the legal reasoning and decision made while the anonymity of individuals, where required, is preserved. Further concern in relation to the Bill surrounds the provisions contained in it which allow for the summary deportation of people by immigration officers. What the Minister had to say about this provision today is disingenuous. Currently, a person who has entered the State unlawfully can be removed on foot of a deportation order. A person in receipt of such an order is given 15 working days to make submissions explaining why he or she should not be deported. The repeal of section 3 of the Immigration Act 1999 without an equivalent replacement in this Bill may lead to the summary deportation of vulnerable migrants who may have become unlawfully resident in the State through no fault of their own. An example of such a person could be the dependent wife victim of domestic violence no longer resident with her husband and who through circumstances has had no choice but to obtain employment. Another example is that of the undocumented migrant who has been exploited by an employer and who could be prevented from taking the employer to court to claim unpaid wages and instead be put on an aeroplane and deported.
Such a provision undermines the Government's professed commitment to hold rogue employers to account and to ensure migrants who come to this State are not held in virtual servitude. The Bill should contain provisions to assist people in exceptional circumstances who should not be subject to summary deportation. Arguably, the summary deportation provisions as currently framed are in violation of the State's obligations under the International Covenant of Civil and Political Rights. This is an issue that should be further addressed on Committee Stage. Tens of thousands of undocumented Irish citizens have over the decades settled in the United States, obtained employment and remained undocumented illegal migrants for many years. Members of the Houses of the Oireachtas from all parties, including myself, and Ministers have regularly visited Washington to persuade legislators and a succession of American Presidents to provide an amnesty for the undocumented Irish on basic humanitarian grounds. We have been successful in this and over the years various Acts of Congress have addressed their circumstances. In the catastrophic economic circumstances in which this State currently finds itself, with in excess of 50,000 of our people emigrating this year, there is every likelihood that we will in the future have to revisit this issue in the United States. To avoid charges of hypocrisy and to give credibility to any such representations we may make in the future in Washington, should we not also show the same level of consideration and humanity to our undocumented immigrants as we expect be shown to the undocumented Irish in the United States? A public discussion is required on whether provision should be made in the Bill to address the circumstances of those undocumented migrants who have been resident in this State for an extended period of time and who took up residence here a substantial period of time prior to the publication of this Bill.
There is one other issue to which I wish to refer. Due to the Government's failure over the past decade to put in place a coherent structure and modern legislation to properly address and determine asylum applications, applications for subsidiary protection and, in the alternative, for the Minister to grant discretionary leave to remain in the State to those who seek protection, many thousands of people who are long standing residents in the State are required to remain dependent on the State, prohibited from obtaining work and too frequently pilloried for the expense their presence imposes on taxpayers. While there is no doubt that some have used the asylum process to circumvent the States rules and regulations in obtaining visas and permission to reside here, there is also no doubt that others are genuine victims of persecution, torture and oppression in their states of origin.
In some other European Union countries applications for protection are fully processed and dealt with in six months and where this does not occur and there are delays that are not the fault of the applicant, temporary permission is granted to facilitate an applicant becoming either self-employed or obtaining employment. According to the Minister's own statistics, it is costing taxpayers on average €770.28 per month to maintain a single applicant in direct provision. The introduction of such a regime could result in substantial savings to the State and would facilitate our harnessing the talents of many of those who have sought asylum here to the benefit of the State.
Most asylum seekers who come here are seeking a better life and have no wish to be dependent on the State. It is, of course, important that the asylum system is not used to circumvent generally our immigration laws but we have to recognise the State's failure to properly process asylum applications in circumstances whereby thousands of people have been here for many years. A good number could through self-employment not only properly support themselves, but have the capacity to create real jobs for others and, in doing so, clearly contribute to rebuilding our struggling domestic economy. I hope in this debate, serious consideration can be given to this issue, as well as to the detrimental and stultifying impact on individuals caught up in our grossly inefficient and maladministered asylum system of being required to lead a life of debilitating forced idleness.