Wednesday, 6 October 2010
Immigration, Residence and Protection Bill 2010: Second Stage
I move: "That the Bill be now read a Second Time."
This new Bill represents a further development and enhancement of the provisions contained in the Immigration, Residence and Protection Bill 2008 and takes account of concerns and amendments put forward during the debates on that Bill. Deputies will recall that the Committee Stage debate was particularly detailed and lasted almost 33 hours over 13 sitting days. Prior to the commencement of that debate, the Joint Committee on Justice, Equality, Defence and Women's Rights considered 57 written submissions on the Bill and invited selected groups to attend before the committee to explore issues that could impact on the Bill.
There was an extensive debate on the 2008 Bill. Arising from the detailed consideration of the Bill by the House, in excess of 200 substantive or non-technical Government amendments were prepared for Report Stage. I accepted the considerable number of amendments which were tabled by the Opposition. I agreed during Committee Stage to reconsider some of the amendments. We tabled our own amendments along the lines of the amendments suggested by the Opposition. In addition, we tabled additional amendments on Committee Stage and we undertook to prepare further amendments for Report Stage. I was concerned that the nature and number of the amendments might be considered burdensome for the House to deal with on Report Stage. In other words, we were going to deal with amendments of previous amendments that had been tabled. I decided to discuss the matter of how to proceed with Opposition spokespersons on justice. Based on those initial discussions I obtained Government approval to publish a new Bill inclusive of the amendments rather than continue with the 2008 Bill. It was decided with the Opposition's consent that we would proceed to withdraw the Bill which had been substantially amended and was due to be further amended on Report Stage and that we would incorporate as many of the amendments as possible that were made on Committee Stage in the new Bill. I express my appreciation to the Opposition spokespersons for the consensus reached on the matter. This is a better way to proceed. It is clearer and easier for all of us who will deal with the Bill on Committee and Report Stages.
It is generally accepted that the current body of immigration law no longer provides Government with the tools it needs for the job of managing modern migration. The Bill provides, for the first time, a comprehensive framework on which there can be a wide range of immigration policies designed to suit different people in different circumstances, as the need arises. It pulls together all of the State's immigration and refugee legislation with some important changes and expands on it enormously. In doing so, it provides a single point of reference for immigration and protection legislation and will support a variety of detailed immigration policies relating to different circumstances and categories of migrant and visitor. While catering for the changing needs of Irish society, it will ensure that people are treated fairly and reasonably and will provide greater certainty on the procedural aspects of the immigration process. This will, I believe, facilitate the delivery of a more efficient immigration service.
The Bill effects a radical restructuring of the State's asylum determination processes. It has been apparent for some time that the principal question that most protection claimants want answered is not "Will you recognise me as a refugee?" but "Can I stay?". That question is currently answered in a multi-stage process whereby the first aspect examined, by the independent Refugee Applications Commissioner, is whether the applicant is a refugee. Most negative determinations of that aspect are appealed to the independent Refugee Appeals Tribunal. Following a negative determination on appeal, there is a lengthy process whereby the Minister must determine whether the person is eligible for subsidiary protection and if there are other reasons why the person should be let stay. This sequential process is cumbersome, ineffective and inefficient and causes inevitable delays in the final decision; and delay itself can affect what the final decision is to be.
The Bill introduces a single procedure wherein the protection applicant will be required to set out all of the grounds, including protection grounds under the Geneva Convention and the EU asylum qualification directive on which he or she wishes to remain in the State. Those grounds will be investigated by the Minister and the outcome of the investigation could be that the person is either allowed to remain in the State on refugee grounds or subsidiary protection grounds and is granted a protection declaration or is not granted protection but allowed to remain in the State on other discretionary grounds and is granted a residence permit on that basis, or is not allowed to remain in the State and is thus required to leave or be removed.
The introduction of the single procedure will bring the State into line with processes in many other European states. Under the Bill, the functions currently carried out by the Office of the Refugee Applications Commissioner will be subsumed into the Irish Naturalisation and Immigration Service, INIS, the administrative agency of my Department. The present statutory provisions for UNHCR to have access to information about cases and to be present if it wishes at individual interviews are restated, and it is my intention to continue the co-operation that has existed with UNHCR, in particular in regard to that body's signal contribution so far to training of staff in the refugee decision-making process. The UNHCR has stated at many meetings with me that it wishes to see the expeditious passage of this Bill.
The Refugee Appeals Tribunal will be replaced by the protection review tribunal, which will be statutorily independent and will deal with appeals against a refusal to grant refugee status or subsidiary protection under the EU qualification directive. This is an expanded remit for the appeals body and it underpins the State's commitment to those in need of protection. Other differences provided for in the Bill include provisions to increase consistency of decision-making and the possibility of full-time members of the tribunal.
The new approach to protection applications will result in a more streamlined and efficient process which will ensure that a protection applicant receives a quick and comprehensive answer to the whole question, "Can I stay?". In this fashion, it ensures that the State's obligations under the Geneva convention on refugees and other international instruments designed to offer protection from persecution and other dangers will continue to be fully respected and enshrined in law while reducing the scope for abuses of the arrangements.
It is a fundamental principle of our immigration law that a foreign national has no right, as such, to enter or be in Ireland. There is considerable jurisprudential authority which makes clear that the State has not only the power - a power exercised mainly by the Minister for Justice and Law Reform - to manage the entry into, presence in and removal from the State of non-nationals, but also has a duty to do so in protection of the interests of Irish society and the integrity of the State's immigration processes. The Supreme Court has continuously affirmed and adopted the well-known passage outlining the role of the State in the control of foreign nationals as described by Mr. Justice Gannon in Osheku v. Ireland, where he stated:
[T]hat it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.
In the Bode case in 2007, Ms Justice Denham reaffirmed the position as outlined in the Osheku case and added that:
While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals - as a gift, in effect.
It is interesting that the Supreme Court described as a "gift" the giving of benefits of residence. This ties in generally with the proposition that, under this Bill, a foreign national may be granted a "permission" to enter or to reside in the State. The granting of such permission is a matter of sovereignty, here as in other jurisdictions.
While the fundamental principle is that a foreign national has no right to enter or be in the State, the reality is that we are members of the international community and subscribe to certain values and principles. First, Ireland as a member of the European Union fully respects the treaty rights of EU citizens who wish to come here to participate in the Irish economy and society. We do not speak of permitting or allowing them to come or be here; we facilitate their presence here because it is their right. Second, Ireland is a party to the Geneva convention on the status of refugees and its related protocol. We have thereby committed ourselves, and continue to do so, as a reflection of the State's commitment to human rights on the international level, to allow refugees to remain in the State. As part of this obligation, we admit to the State, on a provisional and temporary basis, people who would in normal circumstances be refused permission to enter but who assert that they have need of the protection afforded by the refugee convention. Third, it is also a well-established principle that the longer a foreign national resides lawfully in the State, there can be some entitlement to be allowed to continue to do so provided there is no failure to comply with the requirements of immigration law and the person has not engaged in criminal activity.
The Bill sets out a legislative framework for the management of inward migration to Ireland. It lays down a number of important principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa, for entry to the State, for residence in the State and for being required, when necessary, to leave. It is a comprehensive framework that encompasses principles outlined by the Supreme Court; fully respects the State's obligations under the Geneva convention on refugees; transposes into our domestic law a number of EU instruments; contains measures to streamline our current immigration and protection processes and to combat illegal immigration and other abuses of our immigration processes, such as marriages of convenience; and will operate in tandem with the State's recognition of the rights of EU nationals. The Bill prescribes the conditions under which foreign nationals should be allowed to enter the State, for what purpose and for how long, and when and in what circumstances they must leave.
It follows from what I have said that the primary purpose of having or developing immigration policies is, as it must be, to serve the interests of the State. In the operation of their immigration policies, all states exercise choices - that is a feature of the sovereign power of states. The guiding principle underlying Irish immigration policy choices is the protection of the interests of Irish society and the making of those choices is a function of the Government, exercised through the Minister for Justice and Law Reform of the day. In essence, therefore, the Bill will provide the framework within which immigration policy choices will be made, spelling out the processes involved in making and implementing those choices, and ensuring that any negative choices, once made, are followed through and enforced. A good deal of the policy of the Bill will be fleshed out in regulations but those regulations will be based on the principles and policies contained in the Bill.
Before indicating to the House what the Bill generally contains by way of those principles and policies, I want to outline to the House how the Bill addresses some of the issues that were raised during debate on the 2008 Bill. The question has arisen as to whether there should be a reference to what has been termed the "best interest of the child" in the context of all decisions being made under the Bill. This proposition was included in a Committee Stage amendment tabled by Deputy Rabbitte and I undertook to consult the Attorney General on the matter. On the basis of those consultations, I am satisfied that the Bill already, where necessary, caters for the special position of children.
In all instances where an immigration officer or a member of the Garda Síochána has concerns about a foreign national under the age of 18 years, whether or not accompanied, the Health Service Executive is to be notified and the child automatically becomes a person to whom the Child Care Acts 1991 to 2007 apply. Section 3(2)(b) of the Child Care Act 1991 is explicit about how the HSE is to treat the welfare of every child who is not receiving adequate care and protection - it is required to regard the welfare of the child as the first and paramount consideration. This formulation is modelled on section 3 of the Guardianship of Infants Act 1964, as amended, which sets out how a court dealing with matters affecting the guardianship, custody or property of a child is to regard the child's welfare. The formulation is restated at section 24 of the Child Care Act 1991 for court proceedings under that Act.
The advice available to me is that an amendment of the Bill along the lines that have been suggested would create a risk that the child could be used effectively as a means to secure the presence in the State of an accompanying adult, notwithstanding that the child would not ordinarily be allowed to enter or be present in the State. I believe this potential outcome is undesirable, detrimental to the best interests of the child and could indirectly encourage and facilitate child trafficking. Upon being granted an entry or residence permission, the person will be aware of the conditions attaching to that permission, including its expiry date. If he or she remains in the State beyond that date, his or her presence will be unlawful. Unlawful presence in the State is an arrestable offence.
The Bill's extensive notice provisions and review processes are designed to cater for the different types of decision that arise at various stages of the immigration process. Foreign nationals affected by decisions giving rise to such reviews have the option to seek judicial review of those decisions by the courts where they consider there has been a procedural irregularity. The intention is to strike a fair balance between facilitating the persons concerned in putting their affairs in order in advance of leaving the State or being removed while at the same time providing for efficient operation of the State's immigration laws.
The removal provisions are also a careful balance between the need for a firm and fair system of removal and the avoidance of outright abuses. The use of the term "summary deportation" is inappropriate and fails to acknowledge the actual provisions of the Bill which have been designed to provide fair procedures at each stage of the immigration process.
The Immigrant Council of Ireland has argued that the Bill should specify who can come to Ireland, for how long, under what conditions and with what rights. It argues that failure to do so will give rise to an immigration system that does not spell out clear rules and result in inconsistencies and delays. It is difficult to understand why those who criticise the current processes for just such inconsistencies and delays should advocate the development of an inflexible and unresponsive system as a replacement. There is an inherent contradiction in proposing a one size fits all statute seeking to cover every eventuality while expecting the resulting processes to be flexible enough to meet the differing circumstances of persons who appear before our immigration authorities for consideration. The recently launched strategy Investing in Global Relationships, aimed at increasing international student numbers in higher education and in English language schools by 2015, is an example of where flexible and responsive immigration processes will be required.
A good deal of the policy of the Bill will be fleshed out in regulations. Other countries such as the UK, Australia and Canada also make extensive use of subsidiary legislation for putting their policies into effect.
Important measures in the Bill contribute to the protection of victims of trafficking. Victims will have more time to recover in the State from their ordeals. The recovery and reflection period is extended from 45 days to 60 days, as agreed on Committee Stage of the previous Bill. There is a regulation-making power whereby the Minister can grant a longer recovery and reflection period or, if the case requires, a renewable residence permission to victims under 18 years of age.
The Bill's measures represent just one strand of the overall strategy the Government is adopting to address the awful situation of human trafficking. The Criminal Law (Human Trafficking) Act 2008, which came into law in June of that year, provides the legislative framework for the prosecution of traffickers of human beings for purposes of their sexual exploitation, labour exploitation or removal of their organs. The National Action Plan to Prevent and Combat Trafficking of Human Beings in Ireland 2009-2012, published in June 2009, seeks to develop a holistic approach to the treatment of suspected victims and potential victims. It sets out the services required and how they can be accessed by persons identified as suspected victims of trafficking. The interdepartmental high level group, the anti-human trafficking unit established in my Department in February 2008, the Garda Síochána and various Departments and Government agencies have already begun implementing many of the measures outlined in this plan and the work carried out to date will be expanded upon and developed during its lifetime. On Monday of last week, I met my Northern and Scottish counterparts. One of the major issues we discussed was human trafficking through Scotland into Northern Ireland and the Republic. We had a common cause in preventing that trafficking as much as possible. The Civil Law (Miscellaneous Provisions) Bill 2010, which is before the House, provides for amendments to the Civil Legal Aid Act 1995 to permit the Legal Aid Board to provide legal advice in respect of criminal matters to alleged victims of trafficking offences.
I turn briefly to the provisions of the Bill. I will not dwell unduly on these since Deputies will already be familiar with most of them, given what was effectively 33 hours of Committee Stage debate on the contents of this Bill. However, I will point out new provisions for the information of Deputies.
Part 2 lays down the core principles that guide the Bill. One of these principles is that a foreign national will be lawfully present in the State only if he or she has a current valid entry or residence permission to be in the State. If a person is unlawfully in the State, he or she will thereupon be under an immediate and continuing obligation to leave. As with the previous text, the Bill ensures access to certain essential services, including medical services and other emergency provisions that may be prescribed. At the suggestion of Deputies, I have sought to provide more clarity in the text on this matter.
Part 3 sets out a new statutory process for making and determining visa applications. A visa is not the same as a residence permission; it is a permission to arrive at a frontier in order to apply for permission to enter the State. The visa process offers to immigration authorities the opportunity to pre-clear an intending visitor or migrant. A person to whom a visa has been issued can be reasonably confident of being allowed to enter the State on arrival.
Part 4 sets out what is to happen when a foreign national arrives at the frontiers of the State and other aspects of frontier operations, including carrier liability for ensuring that passengers have a passport and, where necessary, a visa. There is a key change to this Part whereby a person who is refused entry to the State on health grounds, but who is so infectious as to preclude both return on a passenger vehicle and permission to be at large in the State, can be detained under section 38 of the Health Act 1947 until such time as he or she is certified not to be a probable source of infection.
Part 5 sets out a framework whereby the grant of residence permission will be the basis for lawful residence in the State. It contains detailed processes for renewal, non-renewal and revocation of residence permissions. A key change is the extent to which the Bill imposes greater notice requirements on the Minister and provides for additional review processes.
The long-term residence provisions have been modified to provide more clarity as to long-term residence generally. For example, there is now an application process for a long-term residence permission and the residence requirements contained in the standard eligibility requirements are being amended to require the applicant to have been continuously resident in the State for a period of 12 months immediately before the date of the application.
Part 6 deals with the process for removing a person who is unlawfully in the State. Key changes in this Part include greater clarity as to when a foreign national can be arrested for the purposes of removal and when there can be the possibility to impose residence and reporting requirements on a foreign national instead of that person being arrested and detained. There is also a requirement for the giving of notices.
A fundamental safeguard in the removal process is the rule against refoulement, that is, not to return a person to a place where he or she could be harmed. This overarching principle ensures that any decision to remove a person from the State is in compliance with the State's international human rights obligations.
Part 7 retains most of the provisions from the 2008 Bill, but I will outline some of the new key provisions. First, the provision allowing for detention of a protection applicant pending the issue of a protection application entry permit has been removed. Instead, the Bill allows for a requirement to be imposed on the protection applicant to remain in a specified place pending the issue of that permit. Second, the Part provides for the implementation of Articles 25 and 26 of the asylum procedures directive, which enable certain protection applications to be determined to be inadmissible. Third, there is further elaboration of the process whereby a person who has been granted a protection declaration can exercise the right to family re-unification in the State. Fourth, there are some new terms of office for the chairperson and members of the protection review tribunal and modified arrangements applicable to the advisory committee. Fifth, the text better reflects the safe country of origin and safe third country provisions of the asylum procedures directive. Last, the Bill allows for the making of regulations that might be needed to implement a safe third country agreement and those that might be necessary for the purposes of the Dublin II regulation.
Part 8 includes key changes that provide a comprehensive framework for information, including biometric, to be collected and processed for immigration purposes. These provisions have been carefully developed in consultation with the Attorney General to ensure they are fully in compliance with the requirements of data protection legislation and relevant jurisprudence. Part 8 also makes clear the circumstances in which judicial reviews must be initiated within 14 days of a decision having been made. Provision is also made to prevent the misuse of the judicial process by a foreign national, or his or her legal representative, solely for the purposes of frustrating removal from the State of the foreign national. The provision is based on Order 99 Rule 7 of the rules of the superior courts which already allows the court discretion, in circumstances of misconduct or default by a solicitor, to require that solicitor to repay to his client any costs which the client may have been ordered to pay to any other person. I am satisfied there is a need for such a provision in the legislation and, accordingly, it is retained in the Bill.
Deputies will be aware that early in 2009 I circulated the draft text of my proposals on marriages of convenience which aim to tackle those who circumvent the immigration controls of the State and try to reduce marriage to a commodity to be traded and exploited. The proposals also aim to protect the vulnerable who may be duped or coerced into entering into such arrangements.
It will now be possible to make regulations providing for more favourable treatment of those who are under the age of 18 years. The provisions in the Bill will also allow the Minister to give directions in respect of any matter relating to the entry into or presence in the State of a particular foreign national or class of foreign national. I again draw attention to the absolute prohibition on refoulement in the Bill. I am satisfied that these provisions provide a sufficient guarantee that a victim of trafficking will be treated in a manner sympathetic to his or her individual circumstances. In addition, Part 8 contains provisions relating to the provision of bonds, deposits and guarantees in certain circumstances, including a provision whereby a company can be a guarantor.
In regard to the annual statistical report on immigration matters, the reporting by my Department of statistics on the number of visas and permissions that are processed during the previous calendar year and the number of protection applicants will now be a requirement under the Bill. This issue was raised as being necessary by Deputies on all sides of the House.
Part 9 is directed at preventing entry into the State or any other member state from outside the EU by persons who are not entitled to entry and is also aimed at those who facilitate such entry. Part 9 has two main functions. First, it provides for the implementation in domestic law of the following three international instruments concerning people smuggling: the EU Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence; the EU framework decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence; and the UN protocol against the smuggling of migrants by Iand, sea and air, supplementing the UN Convention against Transnational Organised Crime.
Part 9 addresses difficulties experienced in the operation of the Illegal Immigrants Trafficking Act 2000. I refer to the requirement in section 2 of that Act that for a prosecution to be successful the prosecutor must show that smuggling was undertaken "for gain". Evidence to satisfy this requirement is very hard to come by. If, for example, money is paid to the smuggler, the payment will almost certainly be in cash and impossible to trace. The payment will in almost all cases be made outside the jurisdiction, and probably outside the EU. In addition, victims will often be too frightened to co-operate with the prosecution. The net result is that the prosecutor is faced with a threshold which is virtually impossible to meet. Such a situation hinders the fight against people-smuggling and prevents us from playing our full part internationally. It is, in effect, counter to public policy and the public interest.
Cases can arise where smuggling may be the only way of protecting persons who are in danger. I am providing, therefore, a defence in circumstances where the smuggling was for the purposes of protecting the person, provided this was carried out by an employee of a recognised organisation and is without charge. I propose also that the defence be restricted in this way because to do otherwise could encourage well-meaning but ill-informed individuals to undertake adventures that could require them to seek the assistance of organised smuggling gangs. Smuggling is a dangerous activity that can expose those involved to serious harm. We must discourage efforts that expose persons, be it the well-intentioned smuggler or the smuggled person, to such harm. Organisations of the type envisaged - it will be for the court in each case to adjudicate on the bona fidesof the organisation - will have the means to ensure the protection of those at risk. As the provisions of Part 9 will represent all of the law on smuggling of persons, the Bill provides for the repeal of the Act of 2000. Part 10 contains important transitional provisions that develop considerably on those in the 2008 Bill.
This Bill represents the most comprehensive piece of immigration legislation since the foundation of the State. It will provide the capacity not only to devise but to implement immigration policies that complement policies across all areas of Government. It will provide the tools that will enable our immigration system to be responsive to the current needs of the State and also to the challenges, both economic and social, that may arise in the future. It has been devised and developed to put in place procedures and processes that incorporate fairness at every stage. At the same time, it includes effective measures to combat abuse of those procedures and processes. I believe that, when enacted, it will underpin a comprehensive transformation of our immigration and protection systems and will provide consistency and predictability in regard to decision-making in individual cases.
I thank Members on both sides of the House and the Opposition spokespersons for agreeing, in effect, to withdraw the original Bill of 2008 which had been substantially amended on Committee Stage, both from Opposition prompting and from an examination of the situation, as well as from the law as it developed during the passage of the Bill. The Bill has undergone very substantial discussion in the Oireachtas on both Second and Committee Stages, with more than 30 hours of discussion on Committee Stage over 13 sitting days.
It is our intention to try to pass this Bill as quickly as possible because there is consensus. People will say it does not go far enough but we believe it strikes a balance, given the discussion on Committee Stage. The Bill must receive consideration as it goes through the Oireachtas but what we have introduced today is a comprehensive one-stop shop whereby both practitioners and people involved in the immigration system will be able to see, in one document, the exact legal position. Therefore, I commend the Bill to the House.
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.
For longer than a decade the need a landmark statute to govern migration into the State has been generally acknowledged. Few people disagreed with a Minister for State in a previous Fianna Fáil-Progressive Democrats Government, Liz O'Donnell, when she described her own Government's policy on asylum as a shambles, yet all these years later we still have not managed to put a rational, comprehensive consistent immigration Act in place. The Bill is the third incarnation of such legislation in more than eight years. Against that background the Labour Party is not minded to obstruct the early passage of this Bill. We intend on this occasion to focus on a small number of important issues in respect of which we will endeavour to change the Minister's mind.
In our consideration of the Immigration, Residence and Protection Bill 2008, Deputy Naughten and I devoted many hours to hearing from interested non-governmental and civil society organisations. Perhaps it is a defect of our committee system that it is only Opposition spokespersons who entertain such submissions. The relevant Minister is not present at these meetings. In this instance, the organisations at the coalface devoted a great deal of painstaking effort to an analysis of the 2008 Bill and made not only criticisms, but also recommendations for improvement. Other than the infrequent prospect of a direct meeting with a Minister's officials, the opportunity for interested parties to argue the detail and rationale for their cases is not afforded to them.
The Immigration, Residence and Protection Bill 2010 is a reheat of the similarly titled Bill published in January 2008. After some 18 sessions in committee, the Minister for Justice and Law Reform felt that the 2008 Bill warranted such extensive amendment that it would be more appropriate to publish a new Bill. The Opposition spokespersons agreed, since so much had been covered in committee and so many new amendments were anticipated that processing of the old Bill would be administratively confusing. Unfortunately, that has meant some additional weeks of delay. The Minister in his customary conciliatory and co-operative manner has suggested that the Bill has been delayed because there were so many Opposition amendments.
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.