Brian Lenihan Jnr (Dublin West, Fianna Fail)

It is necessary to take what is in essence an emergency measure to address the position arising from last week's judgment. The effect of the Bill before the House is to restate in primary statute, and with the minimum of necessary changes, the contents of the Aliens Order 1946 as it was presumed to be in effect up to the day of the High Court judgment. In order for this legislation to be effective in removing doubt as to the conditions on non-nationals' stay in the State and to ensure proper entry controls, it is essential that it be enacted with the minimum of delay.

The Bill covers the following areas of immigration law: The obligations on non-nationals to present themselves on arrival in the State to an immigration officer for leave to land; the power to and circumstances in which an immigration may refuse leave to land to a non-national; the power to attach conditions as to duration of stay and engagement in business, profession or employment to a permission to enter the State; the legal status of non-nationals present in the State depending on whether they have a current permission; the obligation on non-nationals to comply with registration requirements while in the State; the obligation on hotels and other accommodation providers to keep a register of all non-nationals staying on their premises; the obligation on every person landing in the State to have a valid passport or other equivalent documentation; the obligation for non-nationals in the State to have a valid passport or equivalent documentation and a registration certificate where they are registered under the Act; the power of arrest for offences under the Act; the power to designate classes of persons who require a visa or transit visa; and the power to set fees for registration certificates.

With the exception of the last element, every one of these elements has been part of Irish immigration law up to the present. The technique adopted in preparing the Bill has been to take what was thought up to the judgment to be the law as set out in the Aliens Orders and as effected by section 2 of the Immigration Act 1999, as if it were in a primary statute and to put it into the form of this Bill. Some elements have to be drawn from other sources in order to make the Bill an item of valid legislation. Some elements drawn from the Aliens Act 1935, but mainly from more modern statutes, are included in the measure. The opportunity is being taken to either modernise or delete altogether some of the more obviously anachronistic elements of the law as expressed in the 1946 order. Senators will be pleased to note the decision on the reference to disability at section 4(3)(c). Clearly, the manner in which Irish society viewed the concept of disability in 1946 was a far cry from how it is now viewed. It is proper that this modern view should be taken into account in preparing new legislation. I am pleased to advise Senators at this stage that a Government amendment has been prepared which will remove the reference to disability, which reference in any event does not capture the intention of the provision.

The intention of that provision is more appropriately found in the revised wording of the amendment. The Bill also avoids the use of the term "alien", which over the years has acquired science fiction connotations. Instead the neutral term "non-national" is adopted, as used and employed in the more recent immigration legislation of 1999 and 2003.

I do not propose to speak in detail on the content of the Bill, which is largely self-explanatory. There is one provision which I consider worthy of special mention. Section 5 sets forth in clear and simple terms the distinction between mere presence in the State and lawful presence in the State. Although we have had non-nationals in the State and have had statutes governing their presence in the State since its foundation, this is the first statutory expression of that distinction. I need not remind Senators that the Ireland of today is a far different place from the Ireland of 1946 when the Aliens Order was adopted. In recent cases the courts have been clear in their expression of the lawfulness of a non-national's presence in the State where that presence is in accordance with the terms of a permission given by or on behalf of the Minister, and this is what subsection (1) of the relevant section now states in statute law. The courts have been equally trenchant in their expressions of the obverse, namely that a non-national who is in the State otherwise than in accordance with the terms of a permission given by or on behalf of the Minister is for all purposes unlawfully in the State. This is stated in subsection (2).

The exceptions to these clear and forthright provisions are those non-nationals who are present in the State on foot of a right, as distinct from being here as a matter of privilege. They fall primarily into two categories. The first of these is covered at subsection (3), namely those who on foot of Ireland's international obligations under the Geneva Convention relating to the status of refugees have an entitlement to be in the State, either because their claims to be refugees are being examined or because they are refugees or the close relatives of refugees recognised as such by the State. The other main category comprises the nationals of other member states of the European Union or the European Economic Area who have treaty rights of free movement throughout the territories of the member states. Their rights are protected generally under this Bill by section 2(2).

I accept that what is before the House is an emergency measure. What is being restated in this Bill is what was thought to be the law up to the decision of the High Court last week. That was the law upon which the members of the Garda Síochána and others relied to ensure that proper immigration controls were maintained in the State. The Bill is not an attempt to meet the undertaking given in An Agreed Programme for Government to bring forward comprehensive legislation in the area of immigration and residence. That Bill is in the course of development to the extent that legislative priorities permit. The intention is that it will replace all of the legislation in this area with a comprehensive code. This code will provide a solid legislative framework within which the Government's executive functions in the development and implementation of fair and sensible immigration policies can be exercised in a manner which meets the needs of Irish society and respects the rights of individuals.

This Bill is not that measure, rather it is an emergency response to a situation that has arisen out of an unexpected High Court judgment. The responsibility of Government is to ensure that we as a community can continue to operate immigration controls in protection of the interests of society and of the individuals, whether Irish or non-national, who make up that society. That is the responsibility of the Legislature. I appreciate the various grounds and discretionary powers conferred on immigration officers will be discussed and debated in this House this morning. That an immigration officer has a particular power to refuse entry on a particular ground does not mean that ground is always exercised. Powers have to be provided in legislation of this character for the protection of the State and its people as a whole. It is the responsibility of the Government and the Legislature to make all efforts necessary to maintain and restore proper immigration controls and I therefore commend the Bill to the House.