Dermot Ahern (Louth, Fianna Fail)

I thank all Deputies for their contributions to the debate. The issue has been discussed at length in the context of the 2008 Bill. I thank Deputies on all sides, especially Opposition spokespersons, for facilitating the withdrawal of the 2008 Bill and the introduction of an amended Bill. I accept the compliments they have made to the effect that this Bill is better than the original. That is the purpose of a Committee Stage. We had one of the longest Committee Stage debates on record, 33 hours and 13 sitting days. Deputy Rabbitte outlined that there were 18 different sessions. It is important that we move on swiftly with the Bill because it is necessary from the country's point of view and for those genuine people who come to this country looking for asylum, refugee status and visas.

Some Deputies have commented that the Bill does not set out the rights of foreign nationals who are granted permission to enter or be present in the State. However, they have not given any indication of what rights they have in mind. It is, of course, the case that the presence of foreign nationals in the State does not, except in certain circumstances, flow from the exercise of any rightto be present in or 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 - for example, conditions regarding access to the labour market and State-funded benefits, among other matters.

There are some important exceptions to this general rule. I have, for instance, spoken in my opening contribution of the rights which the State has committed itself to giving to refugees. I am conscious of the fact that this country has a significant refugee resettlement programme. When I go to the European table and see what other more prosperous, larger countries provide, I realise we are one of the best in the class in respect to the resettlement of programme refugees. Therefore, when we speak of the rights of foreign nationals, we must distinguish between those categories of foreign nationals who might be present in the State at any given time. The Bill attempts to make that distinction. It 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 obviously a matter of constitutional right and reserved to citizenship.

If he or she is the holder of a renewable residence permission, the conditions of that permission will, as provided for in section 141, 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. 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 no expectation of family reunification for such a migrant, nor can there be such an expectation of access to State-funded services, as a long-term resident would have, for example, and is entitled to as of right under the proposed legislation.

The purpose of the Bill is to provide mechanisms to allow the Government to manage migration to the State in a coherent fashion. The Bill provides clarity in regard to whether a foreign national's presence in the State is lawful or unlawful, and 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 period, and that too is as it should be. The Bill provides mechanisms for review of negative decisions in regard to applications for visas, and, again, that is as it should be. The Bill 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.

Aside from setting out the benefits associated with a protection declaration given to persons granted protection in the State and those associated with 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. Rather, as I mentioned previously, a good deal of the policy of the Bill will be fleshed out in regulations.

That is not to say, of course, that foreign nationals are without any rights while present in the State. On the contrary, any entitlements under, for example, our health system, education system 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 enjoyed by Irish citizens; they also enjoy the protections afforded, for example, by our equality laws. If they are working lawfully, they are entitled to be treated fairly under the laws governing employment. This Bill does not need to set out those matters again - they are already on the Statute Book.

I stress there is a need to balance rights and responsibilities. Persons who play by the rules, and the majority of our migrants fall into this category, 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.

A number of Deputies, including Deputies Shatter and Rabbitte, have commented that the Bill does not set out family reunification rights in regard to foreign nationals. Dealing with family reunification for all migrants in primary legislation has a number of difficulties. Family reunification will not apply equally to all types of migration, nor should it. Other countries seek to exercise discretion over which migrants they wish to attract. Ireland is no different in this regard. Experience shows that the largest ongoing source of migration is from family members. It does not make sense to attempt to deal with such a large proportion of our likely future migration in a way that denies the State the capacity to adjust its systems as it needs to do. Such an approach would be inconsistent with what is done in regard to primary migrants who will be governed by regulations and schemes precisely for the reason that the system needs to retain the flexibility it has to manage their cases. There are many people in our system who obtained some form of status here, not necessarily in accordance with any intention of the State that they should be here. It does not follow that the State should now look at bringing in families as a further reward for that behaviour.

I would remind Deputies that, just as a foreign national cannot assert any right to be allowed to reside in the State, that being a matter which is subject to a permission, his or her family members cannot assert any right to be allowed to join him or her in the State, that also being a matter which is subject to a permission. At EU level, the family reunification directive requires member states to grant family reunification to a foreign national who has permission to reside in the member state and who has a reasonable prospect of obtaining permanent residence. The directive allows member states to require foreign nationals to have resided in the member state for up to two years before allowing his or her family members to join him or her. I do not accept the proposition that a foreign national has a right to migrate to Ireland against the wishes of the Irish Government and people simply because he or she has a family member residing here. It should also be remembered that family reunification can also take place in the home country of the foreign national. The special position with regard to refugees acknowledges that this would not be possible in these cases.

Our policy on family reunification cannot be one that accepts across the board that any person with immigration status in Ireland would be joined by family members irrespective of the capacity of that person to support them or of any consideration of whether having that family in Ireland is desirable for the State. We cannot have a situation where migration to Ireland by an individual leads irrevocably to movement of a larger number of family members. It is highly debatable, for example, as to whether the State should undertake the cost of educating a substantial family on the strength of the migration of a single individual. Again, this has been adjudicated in the courts many times.

It would be possible to believe from some of the public contributions in this area that the State does not permit family reunification under current laws. This is not the case. The problem is one of lack of transparency, which I accept. As I have said, the position of the most vulnerable group of migrants - refugees - is already provided for. Family members of EU nationals exercising the rights of free movement are also covered in secondary legislation. Spouses and children of Irish citizens are generally permitted to reside in the State also.

We then look at employment permit holders. Green card employment permit holders are granted immediate family reunification for the nuclear family. Our proposals for family members of long-term residence at section 46 are reasonable. At the other end of the scale are students who are not eligible to have their families with them. Student permissions are a limited permission in recognition of the ease of access they have to the State, and most students coming to Ireland would not qualify on any other basis.

Let me indicate, however, what my intentions are in this area. I intend to develop a combination of administrative schemes and regulations to cater for some of the more pressing areas. I will deal with the family reunification of the spouses and dependent children of Irish citizens. I also intend to provide in regulations for the reunification practices currently set out for work permit holders and the high skilled green card employment permit holders. Ultimately, I intend setting out for each immigration status in Ireland on a sliding scale the family reunification possibilities that flow from that permission.

Again, I want to stress that the Bill does not provide for summary deportation of foreign nationals. As I mentioned in my opening contribution, under the Bill, a foreign national will usually become unlawfully present in the State by his or her own conscious act, either by entering in such a way as to avoid the immigration process, or, having been given a permission, by remaining in the State after it expires or is revoked. In essence, therefore, what is described as "summary deportation" is, in fact, a requirement to leave after having deliberately overstayed a permission or having being refused permission to stay, having gone through a fair process. It is unfortunate this is not being recognised in public statements.

The proposition that the Bill allows a foreign national who is unlawfully present in the State to be picked up on the street by an immigration officer and removed from the State without any form of notice, without any opportunity to seek a review or to have an opportunity to make representations, and without any consideration of whether the removal would amount to refoulement is, quite frankly, untenable. Detailed processes for non-renewal and revocation of residence permissions are contained therein.

The Bill contains extensive notice requirements and review processes for the different types of decision that arise at various stages of the immigration process. The Bill places an immediate and continuing obligation on a foreign national who is unlawfully present in the State to leave. Failure to do so is an offence and the person committing it can be arrested and detained for the purposes of being removed from the State. In so far as the removal of foreign nationals from the State is concerned, section 59 requires the immigration officer to be satisfied that the foreign national is unlawfully present in the State before initiating the removal process. Therefore, some investigation must take place to establish the fact of unlawful presence. Following on from this investigation, sections 60 to 62, inclusive, which provide for the arrest and detention for the purpose of removal as well as alternatives to arrest and detention, will normally be triggered.

The use of the term "summary deportation" is inappropriate and fails to acknowledge the actual provisions in the Bill that have been designed to provide fair procedures at each stage of the immigration process. It is axiomatic that any functioning immigration system must contain provisions for removal from the State of foreign nationals who either should not or should no longer be present in the State.

Sections 6(5), 59(1) and 60(1) lay down some general principles relating to the removal of foreign nationals unlawfully present in the State. Section 6(5) provides that a foreign national who does not comply with the obligation under subsection (4) may be removed from the State in accordance with the provisions of the Act. The obligation under subsection (4) consists of an immediate and continuing obligation to leave the State. By virtue of section 6(3), unlawful presence is an arrestable offence. Deputies will notice that section 6(5) does not state the foreign national will be summarily deported or immediately removed. Rather, it provides that he or she will be removed in accordance with the provisions of the Act.

Part 6 was the subject of extensive legal advice from the Attorney General and I am satisfied it is compliant with the constitutional and European Court of Human Rights, ECHR, standards. Removal cannot occur unless the immigration officer or the member of the Garda Síochána is satisfied that the foreign national is unlawfully in the State. It is worth noting there are rules and regulations governing the treatment of persons arrested and detained for immigration reasons. Included in these rules and regulations is the right to consult a solicitor.

The Bill contains ample provisions to ensure that the arrangements for the removal will be in compliance with constitutional and ECHR requirements. Paramount in this regard is the overarching prohibition on refoulement in section 58. It is no coincidence that this is the first section in Part 6 dealing with the removal.

Some Deputies have called for an independent review of immigration matters. I draw attention to the extensive review processes built into the Bill for the different types of decision that arise at various stages in the process. For example, section 21 deals with visa review applications and section 53 contains review mechanisms for the non-renewal of residence permissions and a revocation of an entry or residence permission. Sections 51 and 52 contain processes for making representations as to why permissions should not be revoked. Section 111 sets out the processes for the revocation of a protection declaration. Foreign nationals affected by any of these decisions giving rise to such reviews have the option to seek judicial reviews of those decisions by the courts where they consider there has been a procedural irregularity.

In the debate on the 2008 Bill, I indicated that these provisions laid the foundation for the fulfilment during the lifetime of this Government of a commitment in the agreed programme for Government to ensure a visibly independent appeals process in immigration matters. The Bill makes significant progress in this regard. To verify this, Deputies should compare this Bill to the existing legislation. I have also indicated my intention to appoint on an administrative basis initially following the commencement of the Bill a person to act as chief review officer, with the function of ensuring consistency and a high level of decision making among those dealt with under the Bill for visa reviews. We discussed this matter on Committee Stage.

See this speech in context