Michael McDowell (Dublin South East, Progressive Democrats)

There are some misunderstandings here. First, it is not the case that there are no criteria on which the decisions in question are made. For instance, section 3(6) of the Immigration Act 1999 and section 4(10) of the Immigration Act 2004 deal at great length with the criteria that must be taken into account in applications of this kind. Even when it comes to a decision on humanitarian leave to remain, I also have to deal with the Supreme Court and High Court jurisprudence in the area. Therefore, it is by no means the case that I can flip coins or say "I like that name" and make a decision on that basis. That is not how decisions are made in this area.

If I may say so respectfully, the fundamental misunderstanding underlying some of the comments that have just been made is that this is a judicial process. In most cases, it is not a judicial process as to whether somebody comes into Ireland and remains here. It is an executive power of a sovereign, independent State. It is for the Executive — the Government of the day under our constitutional scheme of things — to decide who does or who does not come into the State, who is allowed to remain in the State and on what terms. That is classic across the European Union. It is not the case that people have the right to be in Ireland as a matter of law, except in narrow circumstances. For example, EU citizens are entitled to live in Ireland in certain circumstances and for certain purposes.

Ireland is party to an international convention which entitles people to come here and seek asylum. Such appeals are dealt with as a matter of law under our refugee procedures. However, there is no right for a person simply to decide he or she wishes to come to Ireland because his or her situation represents a deserving case. There is no question of right in that matter. Otherwise, half the population of whichever country is suffering most from economic blight or famine could claim, as a matter of right, that a tribunal should determine their right to be in Ireland. This is a view of the world that underlies much comment and attitudinising in public debate. It is not the case, however.

The people of a country in which there is endemic famine have no right to be in Ireland to escape that famine. The Irish nation may decide to invite some of these people to the country, offer aid to them in their own country or provide some other assistance. There is no question, however, of a justiciable right to come to Ireland. That is why the final arbiter of a person's presence or non-presence in Ireland is the Executive arm of the State. The final personal arbiter as a corporation sole is the Minister for Justice, Equality and Law Reform. The notion of an appeal from the Minister to a person whose decisions are not accountable to the Houses of the Oireachtas and who second guesses the Executive is constitutionally erroneous. Such a situation would effectively confer a justiciable right on a person to come to Ireland, discount the Minister's view on his or her residency application and defer instead to three worthy people who may decide, in an unaccountable and independent way and on the basis of whatever criterion they choose, that such a person can live in Ireland. This is not a viable approach to the issue.

I indicated on Second Stage in this House that we must deal in a pragmatic and fair-minded fashion with the situation of the more than 10,000 people who were here before the decision in the L and O case. Prior to that, these people believed wrongly that they had some form of entitlement to remain in Ireland because of their Irish-born children. This erroneous assumption was based on incorrect advice from lawyers and was the basis upon which the State was operating prior to the L and O decision.

In addition, some 6,000 people have come to Ireland and begotten children since that decision. In total, therefore, we are dealing with some 16,000 cases. Anybody's guess is as good as mine in terms of the multiplier to apply, but one might well reckon that each birth involves two or three people on average. One can easily countenance that some 30,000 to 50,000 people would be comprehended by the principles we are discussing.

I make no apology for my vagueness in this matter. Based on anecdotal evidence, we are aware of many people who came to Ireland to give birth in a maternity hospital, before returning to their country of origin with the child's passport in their back pocket. Another situation I cannot verify because there are no related statistics and never will be is that of the many people living in the United Kingdom as illegal immigrants or short-stay residents who came to Ireland to have their children before returning to the UK. Such children have Irish birth certificates and are entitled to an Irish passport. There are also people who have come here and given birth but have had a spouse and three or four other children in the custody and care of a relative in the country of origin.

I cannot offer a precise figure in this matter, therefore, and I will not put out scare numbers. However, if one considers the 16,000 parents of Irish-born children and applies any common sense multiplier, one arrives at a figure of at least 30,000 and perhaps as many as 50,000. I do not intend to grant some type of statutory amnesty to these people, which would undoubtedly lead to a demand for the inclusion of family members, including brothers, sisters, aunts, uncles and so on. This is the way it goes in politics; such an amnesty would be deemed unsatisfactory if it included only a single parent of these Irish-born children. Such an approach would involve a significant number of people, depending on the extent to which the concept is developed.

I do not like to speak of individual cases but shall cite one well-know example, that of Mrs. Man Levette Chen. I understand she has never been to the Republic and the length of her residence in Northern Ireland is unknown. We do not know how many people are in her position. There is no moral or common sense prerogative to pass some Act that would entitle Mrs. Chen to live in Ireland with the child in question, along with any other children or a spouse who may be involved in the case. There is simply no basis to contend that, because of what has happened, a red line should be drawn across a page and everybody in Mrs. Chen's position should be allowed to live in Ireland.

Senator Norris has fairly recalled that we may be dealing with people of extremely bad character. There may be fathers whose input to the procreation of an Irish-born child was minimal. Perhaps we are talking of people who have never supported their Irish-born child and may be only partly aware that they are the parent of such a child. We may be dealing with traffickers of asylum seekers, or people who have brought women to Ireland for the purpose of prostitution. A significant range of people is involved and it is simply not right to contend that all of them should be entitled to reside in Ireland indefinitely because they are the parents of an Irish-born citizen. Such an approach does not add up.

If these cases are to be dealt with on an expedited basis, we cannot go on as we have done before. The files cannot continue to pile up and there must be some form of process. I will bring the criteria that will inform that process to Government in the near future. I am not in a position to express them today, except to say that there must be an element of disclosure. I will have to know that people claiming asylum are who they claim to be and that the name they give is not an invention. This is an issue that occurs frequently. The newspapers recently reported the case of an asylum applicant in the United Kingdom who came here under a false name and claiming a different nationality. His application was processed to a point before the truth was discovered and he was sent back to the UK. The authorities in that country now propose to deport him and he wishes to return to Ireland to make a case as to why I should deal with his application on a humanitarian basis. There must be some degree of common sense in the process.

If a scheme is brought forward in the near future to facilitate an expedited treatment of people who are entitled to remain in the State on a humanitarian basis by virtue of the lapse of time and their parenting of an Irish-born child, the criteria will be published at that time. In the last analysis, however, these are non-judicial matters. The non-national parents of children born in Ireland before 24 January 2003 shall be deemed to be at all times lawfully present in the State. That says Mrs. Chen is deemed at all times to have resided in Ireland, which is a novel proposition and would make her reason for litigating in the European Court of Justice and taking on the United Kingdom Government mystifying.

The third proposition is that the Minister shall make provision for the giving of permission for the non-national parents of Irish born children to remain in the State where such children were born in or prior to February 2003. That is something I intend to do but I do not need a statutory provision to enable me to do so. I am grateful to Senator Derek McDowell and others for raising this issue. I do not need a statute to enable me to make provision of some kind for those people.

The last proposal relates to the appeals committee. There is no question of my surrendering the Executive discretion in relation to immigration and residency matters to an unaccountable quasi-judicial body. That is not going to happen. If it were to happen the power of the Irish State to decide who comes into Ireland and who does not — whether Saddam Hussein does or does not come into Ireland — would be removed from the Government. That is a power for Government. It is not for three great and good people to decide so that this House cannot afterwards ask why they allowed Saddam Hussein to come and live in County Kerry. Only one institution makes that decision and that is the Executive of the State and it is accountable to the Oireachtas for the way in which it discharges those functions.

That is my position with regard to these amendments.