Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

Tá sé tábhachtach go bhfuil an Bille seo os ár gcomhair. An fhadhb is mó atá agam leis an mBille ná go bhfuil roinnt de na fadhbanna ceannann céanna a chuir moill ar an Bhille go dtí seo fós sa Bhille. Gach uair a d'athfhoilsigh Aire an Bille, bhain sé roinnt de na rudaí a bhí ag déanamh tinnis domsa agus do dhaoine eile as an mBille, ach fós, tá a lán fadhbanna agam agus ag Páirtí Shinn Féin leis an méid atá fágtha sa Bhille leagtha os ár gcomhair. Déanfaidh mé iarracht roinnt de na fadhbanna sin a leagadh amach inniu ach déileáilfaidh mé leo go díreach ar Chéim an Choiste trí leasuithe agus a leithéid a mholadh. Tá súil agam go mbeidh muid in ann éisteacht ceart a fháíl ón Aire ar Chéím an Choiste agus go mbeidh sé sásta athruithe a dhéanamh ionas go mbeidh Bille os ár gcomhair lena mbeidh muid ar fad sásta agus a bheidh mar eiseamláir do thíortha eile san Eoraip ó thaobh déileáil le cheist an imirce, buaine agus cosaint daoine atá lonnaithe in Éirinn de, daoine nach saoránaigh Éireannacha iad ach gur mhaith leo bheith ina saoránaigh.

This Bill is the third incarnation of the Immigration, Residence and Protection Bill and each time it has been published, the Minister has removed approximately 5% of the objectionable provisions, but kept the rest of the Bill more or less intact. I am not the only person who finds some of the Bill's provisions objectionable. Quite a number of organisations and many Deputies have highlighted its objectionable provisions. Once again, there are a number of serious flaws in the Bill. At the rate we are going, it will be 19 years before we get an Immigration Bill we could welcome. This is not that Bill.

I regret I cannot support this Bill in its current form because we have dealt with a number of the issues. However, the Minister does not seem to understand the serious problems the current Bill could pose for Ireland with regard to its international obligations. The Bill retains what I regard as three of the most serious flaws of its predecessors. The first is a provision for a summary deportation in section 59. In his opening remarks, the Minister said it was not summary deportation. I thought for a second that I was hearing things and that perhaps my grasp of English was flawed considering I learned Irish first and English second. The definition of "summary" in the Chambers dictionary states, "It is something that is done or performed quickly and without the usual attention to details or formalities". That is specifically what the Minister wants to achieve through section 59. Summary deportation will be performed quickly and without the usual attention to details or formalities. The section allows for a foreign national to be removed from the State on the basis of a garda's opinion - his or her perception that the foreign national is unlawfully present. It is clear that there is potential for significant mistakes in that opinion. There cannot even be a guarantee that only foreign nationals will be affected in this circumstance.

In November 2008, it was reported that a man of Chinese origin was arrested and detained for several hours on suspicion of being illegally present in Ireland. The Garda refused to accept his protestations that he was a naturalised citizen, which he was. This section has the potential to raise such cases continually unless it is altered substantially. If this legislation had been in effect at the time, the man could have been on an airplane back to China. The consequences could have been more serious if he was a refugee or asylum seeker and had been deported to his country of origin where he might have faced persecution or death. The Bill contains a rule opposing refoulement but the low burden of proof on the garda wishing to deport somebody does not inspire confidence that the rule will be strictly complied with.

Section 59 also does away with the current provision whereby the Minister must notify a person whom he proposes to deport and the person has 15 working days to make a case that he or she should be allowed to remain. The Minister has argued that people who get this notice simply disappear. This may well be a problem but it cannot be an excuse for the Government to commit human rights violations and it seems clear that this is what this section does. In its commentary on the 2008 Bill, the UN human rights committee declared this measure to be incompatible with the International Covenant on Civil and Political Rights, ICCPR. Our own Supreme Court has ruled that the power to deport must be exercised in a manner consistent with the constitutional and European convention rights of the people affected. That is clearly not possible where someone can be deported on the basis of one person's opinion, with no opportunity to challenge that decision. There is, thus, a possibility that this provision could be struck down by the courts, leaving the State with no way to deport people who do not have a right to be here. That is the danger if the Minister proceeds with the section, as drafted. That is clearly not his intention but it could easily happen if this section is passed unamended.

Section 59 is also of concern because of the ease with which people might find themselves unlawfully present. The Migrant Rights Centre has stated that it deals with huge numbers of people who became "illegal" through no fault of their own when their employer failed to renew their permits on time. I have dealt with a number of people who have ended up in those circumstances. Workers also have been subjected to such great exploitation that they felt they had no choice but to leave their jobs and many of them simply could not get new work permits because of the hurdles involved in the process. The Minister for Enterprise, Trade and Innovation could do much more to address this situation but he has continually refused to allow workers change jobs within their categories without getting a new permit. I urge him to change that policy immediately. The work permit should be granted to the worker rather than the employer. The removal of the current procedure, which allows people facing deportation to apply for permission to remain, leaves a worrying gap in the law. It is not clear how migrants who are, or who have become, undocumented will be able to seek to regularise their status. It is likely to encourage them to disappear, since there will be no other option open to them.

The second serious flaw in the Bill is the vast ministerial discretion it allows. The legislation was supposed to clarify and to nail down once and for all the issues in order that it would be clear to everyone where they stood. One of the biggest problems with our current immigration system is its arbitrary and ad hoc nature and the provision of ministerial discretion, which leaves people in the system confused about their rights and entitlements and subjects them to wildly inconsistent decisions with insufficient means of recourse. This Bill does little to change that; it simply gives statutory approval to maintain an arbitrary system. A glaring omission is the "visibly independent appeals process" promised in the 2007 programme for Government. That promise was noticeably absent from the renewed programme for Government and perhaps a Green Party member could participate in the debate to explain why the party caved in on this provision.

An independent appeals tribunal would help us to meet our obligations under the ICCPR. It also has the potential to save significant money for the taxpayer. Given what we are going through, I presumed the Minister had contacted the Minister for Finance to tell him he could save him a fortune. Instead, he seems to be willing to spend a fortune in the High Court and the only people who will benefit in those circumstances are solicitors and barristers. During the Committee Stage debate on the 2008 Bill, the Minister said that immigration and asylum cases amounted to 60% of all judicial reviews taken to the High Court and that the cost of such reviews was between €11 million and €12 million in 2007. By contrast, according to the Immigrant Council of Ireland, the total cost to the British taxpayer for each appeal to the asylum and immigration tribunal in the UK was £762. We are constantly told of the need for cuts to address the crisis in the public finances, yet the Government refuses to entertain a measure that could save us significant amounts in the long term. We should introduce an independent appeals tribunal on the basis of fair procedure and not on the basis of savings.

Section 139 deals with the victims of trafficking and suffers from a similar flaw. Victims are not allowed to apply for recognition under this section, nor have they any means to challenge a decision to refuse them recognition. More generally, this section continues the approach the Government has taken of tying protection for trafficking victims to their willingness to assist the Garda Síochána in prosecutions. I have argued this point with the Minister on a number of occasions when the issue of trafficking has arisen. This approach violates the Council of Europe Convention on Trafficking, which the Government ratified only a few months ago. Victim protection should be aimed at addressing a person's needs and not based on his or her willingness or, indeed, ability to co-operate in a criminal investigation. It is to be welcomed if a victim can help in any way and such assistance should be encouraged but it should not be the only reason a victim is given the protection of the State as this should be provided automatically in the case of trafficking.

In the time remaining I will deal with some of the issues which are less critical but nonetheless contribute to the deeply flawed nature of this Bill. One issue is the absence of any provision for permanent residency. The most that is on offer is permission to remain for five years. This can be renewed but why should it have to be renewed? Provisions are already in existence to revoke residency status, which I understand are rarely used. A person should be given permanent permission to remain. It is difficult to believe that the small number of people whose renewal would not be approved justifies forcing everyone to apply for permission to remain on a rolling five-year basis. There is no need for such a requirement which only causes stress and inconvenience to applicants and needless bureaucracy for the State. This would be another cost-saving measure for the State.

The absence of clear measures in the area of family reunification is something the Government has been consistently criticised for, both inside and outside this House. It bears repeating that we are the only EU member state without primary legislation on the subject. It is also worth noting that not only migrants but Irish citizens are disadvantaged by this gap in the law. Refugees and EU citizens from elsewhere in the EU are the only categories of persons with family rights. We have all heard the allegations that immigrants receive favourable treatment in comparison to Irish people. Most of the time this is completely false but in this area it is partially true. Most people would agree that Irish citizens should have at least the same entitlement as other EU citizens to the companionship of their family members in this State. Migrants who are contributing to our society should also have those rights.

The Bill establishes a single-application procedure for asylum, subsidiary protection and leave to remain. On the whole this is welcome as we all recognise that the current three-step procedure needlessly prolongs the application process. It is unfortunate, however, that a person must make a single application for all three applications. A person may be well aware that he or she does not meet the convention definition of a refugee but may believe he or she has a case for subsidiary protection or humanitarian leave and will just need the system to deal with that application rather than as an application under three determinations. A person should be able to specify if he or she does not wish to be considered for refugee status. There is no point dumping someone into the asylum system when he or she knows the application could be more quickly dealt with under the other headings.

Section 33 deals with carrier liability. The previous Minister expressed surprise that I would object to those provisions. His surprise proves he has never read the submissions by the UNHCR and the various NGOs because they all raised the same objection. The Bill provides no defence for an airline to say it allowed a person to board because it genuinely believed he or she was in danger of persecution. There can be no question but that the introduction of carrier liability laws across the developed world has made it more difficult for people with a genuine need for protection to get it. It has also been a boon to the human smuggling and trafficking industry since it has made it far more difficult to cross borders safely and legally, leaving people who want or need to migrate no option but to pay large sums to criminal organisations to get the documents they need.

I have a number of issues which I will raise on Committee Stage if the Bill reaches that Stage. Impím ar an Aire glacadh leis na leasuithe a chuirfidh mé faoi bhráid an choiste nó ar Chéim na Tuarascála. Glacaim agus glactar leis go bhfuil gá le leasú d'ár gcóras imirceach, ach caithfear sin a dhéanamh i mbealach cothrom, bunreachtúil oscailte agus, dar ndóigh, i mbealach a chloíonn lenár ndualgaisí faoi dlithe idirnáisiúnta chearta daonna. Is féidir airgead a shábhailt má déantar na leasuithe seo, ach sa deireadh thiar thall is cearta daonna atáá phlé anseo agus sin an fáth gur cóir go mbeadh an Bille chomh beacht agus is féidir a bheith ionas gur féidir leis seasamh mar eiseamláir don chuid eile den Eoraip agus don domhain.

This Bill, despite minor improvements over its predecessors, remains deeply and profoundly flawed. We are all in agreement over the need to reform our immigration system but we must reform it in a way that is fair, transparent, constitutional and consistent with our obligations under international human rights law. I urge the Minister to accept the amendments. If I have an indication that the Minister will take on board the key concerns I have raised in this short contribution, I will not oppose the Bill.

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