Tony Killeen (Clare, Fianna Fail)

Gabhaim buíochas leis an Teacht Barrett as ucht an ábhar seo a chur faoi bhráid na Dála agus deis a thabhairt dom freagra a thabhairt ar son an Aire Dlí agus Cirt agus Athchóirithe Dlí.

I am taking this matter on behalf of the Minister for Justice and Law Reform and I welcome the opportunity to deal with the issue of marriages of convenience contracted for the purposes of exploiting the terms of the directive on free movement and, in particular, the involvement of Latvian citizens. This is a matter which has received significant recent publicity but has long been a concern for the Minister and the immigration authorities and their colleagues involved in marriage registration.

Free movement is a fundamental right in the EU. Under EU free movement rules, once an EU citizen exercises his or her entitlement to move to and live in a member state other than that of which he or she is a national, he or she is entitled to be accompanied or joined by his or her non-EEA family members. Crucially, this includes persons whom such people subsequently marry, irrespective of their immigration status.

Prior to the Metock judgment in 2008, Ireland had in place a rule that granted EU treaty rights only to non-EEA family members with prior lawful residence in another EU member state. This provision, had it not been struck down, would have excluded virtually all of the types of cases currently being highlighted from benefiting under the directive.

The Minister is surprised by the contention that Ireland has been passive on this issue. This is not the message we are getting from the Latvian authorities. The latter have expressed their appreciation of the measures the State is taking and there has been considerable operational co-operation between the Garda National Immigration Bureau and its colleagues in the Latvian police force.

Far from being passive, no member state has been as active as Ireland on this matter at Justice and Home Affairs Council meetings. The Minister has personally raised the issue at the highest level at EU meetings on a number of occasions as far back as September 2008, within weeks of the judgment being handed down. He has raised his concerns at successive EU Presidency meetings of JHA Ministers in the intervening period. However, the Minister received little support at the time from his colleagues from other member states. The Department has had ongoing concerns since the Metock case precisely because it could see the huge potential for abuse of the directive and the extent to which the ruling effectively set aside immigration control in respect of family members of EU nationals. The Department's experience is that the directive is now regarded by non-EU and EEA persons seeking to circumvent immigration controls as an unrestricted means to regularise their immigration status in the wider EU.

While the European Commission has set out guidelines for dealing with the issue, the balance of advantage is very much with the applicant and the onus of proof lies with the member state. This is why Ireland and some other member states have called for an amendment to the directive to restore the pre-Metock position. Ireland remains strongly of the opinion that amendments to the directive are necessary and that the it should remain under continuing review at the Council of Ministers. We continue to seek the support of other member states, including those whose citizens are involved in suspect marriages. However, the difficulty of achieving such amendments must be acknowledged. The Department will continue to highlight this issue at every opportunity, including directly with the Commission when it visits Ireland later this year to assess our implementation of the directive.

Marriages of convenience are, of their nature, difficult to detect. Final determination as to the validity of marriage-based claims in this area can be made only after an in-depth examination of the particular circumstances of each individual case. The directive prohibits systematic checks.

On the domestic front, both the Department and An Garda Síochána have been taking steps to address this issue. I congratulate the Garda on the ongoing success of Operation Charity. This operation, which was launched by the Garda National Immigration Bureau in November 2009, has so far prevented 80 marriages of convenience from taking place through the issuing of objections to registrars to planned marriages which it is suspected may be marriages of convenience. The bureau has also made 16 arrests in this period for alleged offences including bigamy, the production of false documentation and illegal residence in Ireland. There is valuable ongoing co-operation between the bureau and the organised crime enforcement department of Latvia, which is the member state of origin of the majority of EU citizens involved in suspect marriages. There shortly will be a meeting under the auspices of Eurojust in The Hague between the Latvian state police and the Irish authorities to discuss information exchange and co-ordinating investigation activities relating to suspected marriages of convenience.

In the longer term, the Minister will seek to further address the issue through legislation. The Immigration, Residence and Protection Bill 2010, currently before the House, proposes, inter alia, to allow the Minister, in making his determination of any immigration matter, to disregard a particular marriage as a factor bearing on that determination where it is deemed the union is a marriage of convenience. The criminalisation of the contracting of marriages of convenience was considered in the context of the Bill but difficulties are presented by the strong constitutional protection for marriage in Ireland and the issue of enforcement.

The Minister particularly welcomes the updated guidelines for registrars for marriage notifications, which issued to all superintendent registrars in Ireland on 2 September. These new guidelines include stricter conditions on proof of identity which will require applicants for marriage to provide letters of authentication of birth certificates from their embassies. This requirement will, in most cases, bring the proposed marriage to the notice of the authorities of the member state of the EU citizen in question and afford them an opportunity to outline the risks involved. The Minister is of the view that this measure alone could have a significant impact on the number of suspect marriages. This is also the view of the Latvian Ministry of Foreign Affairs, with which the Irish authorities have been in contact through our embassy in Riga. As recently as last week, the Latvian Ministry thanked the relevant authorities here for the steps being taken to tackle this abuse and pledged their continuing co-operation with both the Minister's Department and the Garda to end the exploitation which is at the root of this matter. The Minister has also instructed his officials to examine afresh the processes in place in the Department for approval and assessment of these applications. Arising from that review, other steps may well need to be taken to tighten up the procedures.

There is no quick fix solution to this problem. A combination of actions, including prevention, ensuring that marriages of convenience are disregarded in immigration decisions and police co-operation, will be required. Ultimately, the Minister believes there is a need for legislative action at EU level.

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