Wednesday, 6 October 2010
Immigration, Residence and Protection Bill 2010: Second Stage
Pat Rabbitte (Dublin South West, Labour)
All right. The truth, of course, is that the Minister's own reconstruction of the Bill is the principal cause of delay. There have been welcome improvements deriving from Committee Stage discussion on the previous Bill but some of the well-canvassed defects of the earlier legislation remain. I do not object to the delay if it means producing a better and fairer Bill, although that does not absolve the Government over the past dozen years for not dealing with this issue.
It is also difficult to settle on legislation when the ground keeps changing and it seems that the new Bill is not entirely uninfluenced by the new economic environment. I suppose it is an irony that when the authors of the original legislation set out to design an immigration Bill, inward migration was being swollen by the economic boom. So long has it taken us to enact the legislation that we are back in familiar territory again with outward migration. Few analysts would have forecast that the same bunch of Ministers could have transformed Ireland from a country that was scouring the world for labour to a country that has again started to export our own people. It is a shameful legacy that warrants those responsible crawling off into the night and maintaining a dignified silence.
Nobody disputes that there is a need to establish a legislative framework for the management of inward migration. The Minister will have up-to-date figures. We know that between 2002 and 2006, there was net inward migration of 191,331 persons. According to the 2006 census, there were 413,223 non-Irish nationals usually resident in the State, or 10% of the population. Of these, 271,974 or 66% are EU citizens, 6% are from the rest of Europe, 34,564 or 9% are African, 46,064 or 11% are Asian and 5% are from the Americas. Therefore it is apparent that the Aliens Act 1935 is no longer up to the challenge. Various ad hoc or interim measures since then are not adequate for purpose, so I hope we can enact this Bill before the Government collapses because of the objective need to do so.
When the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, introduced the 2008 Bill, I adverted to the remarks of the then Chief Justice, Mr Justice Keane, in the Osayande and Lobe cases:
Many would wish to see the development in Ireland of a tolerant and pluralist society, capable of accommodating immigrants from diverse ethnic and cultural backgrounds, because that is a desirable objective in itself, recognises the openness and generosity with which Irish emigrants in times past were received in other countries and, on a purely economic level, remedies serious shortages in the skilled and unskilled labour market. At the same time, the legislature and executive cannot be expected to disregard the problems which an increased volume of immigration inevitably creates, because of the strains it places on the infrastructure of social services and, human nature being what it is, the difficulty of integrating people from very different ethnic and cultural backgrounds into the fabric of society. The resolution of these complex political, social and economic issues which, it need hardly be said, are not in any sense unique to Ireland, is entirely a matter for the Oireachtas and the executive. The function of the courts is to ensure that the constitutional and legal rights of all the person affected by the legislation in question are protected and vindicated.
The Labour Party is comfortable with that perspective. If these complex issues are "entirely a matter for the Oireachtas and the Executive", this Bill will test how well we meet that challenge.
The new Bill does incorporate some improvements and I welcome that fact. Long-term residence will now be on a statutory basis, although the eligibility criteria may still be disputed. On the topical and important matter of human trafficking, the new Bill has extended the recovery and reflection period from 45 days to 60 days and perhaps longer for child victims of trafficking. I welcome that and the Minister acknowledged that it was discussed at some length on Committee Stage of the previous Bill. The marriage ban is gone although the Minister is empowered to disregard a particular marriage where he determines it to be a marriage of convenience. A person may not be disqualified for a residence permit where he has been convicted of an offence unless the offence committed would constitute an offence in Ireland.
There are other welcome changes and I do not propose to go through them all. However, the Minister will know that there remains concerns about the summary deportation provision. What the Minister said about this in his speech was somewhat disingenuous. Reading his paragraph devoted to the removal of foreign nationals, the only conclusion one can make is that of course it provides for summary deportation. Deputy Shatter has dealt at some length with that issue. It is probably the major issue that concerns an array of NGOs and other organisations working at the coalface. I received a letter today from a network of these organisations, which include Crosscare Migrant Project, the Immigrant Council of Ireland, the Migrants Rights Centre, the Irish Immigrant Support Centre, Doras Luimní, the Integration Centre, the Irish Refugee Council and others. They all highlight this particular provision for summary deportation.
The Immigrant Council of Ireland took legal advice on the matter and the council states:
Of particular concern are provisions allowing for the summary deportation of people who immigration officers are satisfied are unlawfully present in the State, which the Immigrant Council of Ireland believes breaches Ireland's international human rights obligations and could lead to real injustices being committed against Irish citizens and lawfully resident migrants. This view has been confirmed by the United Nations human rights committee's concluding observations on Ireland's compliance with the International Covenant on Civil and Political Rights. A major concern in this context is that the onus of proof regarding a person's nationality or immigration status is on the person concerned. The ICI is concerned that this would lead to ethnic profiling and could result in the wrongful deportation of lawfully resident migrants and Irish citizens where, for example, an incapacity or a mental illness prevents them from proving their entitlement to be in Ireland.
Currently, a migrant who receives a deportation notice is given 15 days to make submissions to the Minister as to why he or she should not be deported. The repeal of this procedure without an equivalent replacement in the Immigration, Residence and Protection Bill is of grave concern to the Immigrant Council of Ireland as it may lead to the summary deportation of vulnerable migrants who may have become unlawfully resident in the State through no fault of their own. The ICI raised this concern in consultations on previous versions of the Bill and in consultations on immigration reform as far back as 2004.
It is worth noting that a significant number of migrants become technically undocumented while waiting unconscionable periods of time for a decision to be made on residence applications. Without adequate safeguards and improvements in governmental administrative procedures, migrants in this position could be unjustly removed from the State.
The lack of clarity governing rights to family reunification is a further major issue which remains to be dealt with. Where regulations are to be made, we argued on Committee Stage for a broad outline of such regulations by the Minister before enacting the primary legislation. The Government commitment in the 2007 programme for Government to introduce a "visibly independent appeals process" is not honoured in this Bill.
Currently, there is frequent resort to the High Court for judicial review. I am advised that in 2009, almost 60% of all judicial review cases had to do with asylum and immigration applications. Some 749 immigration and asylum applications were received by the High Court in 2009. NGOs working in this area believe that the independent appeals mechanism promised by Government would greatly reduce congestion in the courts and would provide a less costly and more efficient system. The question that arises is whether we can simply broaden the remit of the protection review tribunal in order to deal with both protection and immigration.
In the UK, for example, as I understand it, appeals on all immigration and asylum decisions are dealt with by a wholly independent tribunal service. I understand that it recently reverted to a two-tier system. Appeals of decisions from the UK Border Agency are made to the asylum and immigration chamber of the first tier tribunal. Further appeals are made to the upper tier tribunal before reaching the Court of Appeal. Appeals are heard by immigration judges and practising lawyers who may be accompanied by non-legal members who are selected for their experience in the area.
The Minister will well know that several organisations with coalface experience are not just opposed to summary deportation as being unjust but that it constitutes a breach of Ireland's international human rights obligations. The Immigrant Council of Ireland, for example, has argued, and continues to argue, that particular sections of the Bill may be in conflict with recent judgments of the Supreme Court. It would appear that where an immigration officer is satisfied that a person is unlawfully in the State, that person may be summarily ejected without any regard to either constitutional or convention rights. It is, of course, the case that as the law now stands, a person may be the subject of a deportation order but only after notice and after the person concerned is given 15 working days to say why he or she contests the order.
This latest incarnation of the Bill fails to clear up the critical issue of family reunification, a matter that comprises a big proportion of Deputies' constituency workload as it relates to asylum and immigration cases. Again, we are asked to put our faith in promised regulations after this Bill is enacted so that with the exception of recognised refugees, migrants do not know where they stand.
There is again an irony that in a country that places such a high premium on the family, the Government cannot be explicit about the family reunification rights of legal residents or the conditions under which family reunification may be granted. Currently, it can take forever to even process an application, although the applicant may be an essential worker in the health service on a fixed-term contract.
The Irish Human Rights Commission has highlighted the fact that Ireland is out of step with the EU free movement directive. We have not had a submission from the Irish Human Rights Commission on this Bill. I heard Deputy Shatter advert to the fact that it is constrained because of recent decisions relating to financial provision. Within certain conditions, the Labour Party will seek to amend the Bill to address this central issue of the right to family reunification.
When responding, will the Minister outline the implications for the direct provision system following the enactment of the Bill? The current system whereby asylum seekers are detained in direct provision accommodation for unconscionably prolonged duration is simply indefensible. People who find themselves in this accommodation are not allowed to work or study. It is a dispiriting and demoralising experience as people are left to languish in such conditions for years. This gives rise to health and psychological problems. As one participant put it: "At least as a prisoner you know when you are getting out – not when you are an asylum seeker".
The direct provision system gives rise to particular difficulties for women. I take it the Minister has had it drawn to his attention that an organisation called AkiDwa has produced an authoritative report on the experiences of women seeking asylum in Ireland. It would make very uncomfortable reading for any Member of this House. One woman in direct provision summed up the thoughts of many women in these circumstances. She stated:
Men feel frustrated because they can't provide and they take it out on women. It means that women get abuse from inside the home and from outside. Men feel pressure, but women feel more.
It is in the small everyday experiences listed in the report that one finds the best insights. The report quotes someone as stating:
When you have a problem with someone, you don't have space to get away from the problem. Little things get blown out of proportion. It's like mental torture.
According to the report: "As of December 2009, there were 6,482 people living in direct provision accommodation awaiting decisions on their asylum, protection and leave to remain cases. Of this number, there were 1,859 women and 987 girls, with 50 per cent of all residents in direct provision being families. Over half of all residents have lived in centres for two years or more, and almost a third have lived in centres for three years or more."
The Minister has a great deal on his plate and he may not have had the opportunity to glance through this report. It seems from the methodology applied, and allowing for the capacity of human nature to exaggerate, that it is a sad commentary that we created this direct provision system which was designed to deal with the explosion in the numbers in the early days and the lack of familiarity with the processes here.