Michael McDowell (Dublin South East, Progressive Democrats)

I know Senator Cummins did not really mean that. He has tabled the amendment for the purpose of provoking a debate and will not stand over the exact wording of it. It casts too broad a net. The effect of amendment No. 2 would be to allow anybody anywhere who before 2003 fathered a child born in Ireland to be deemed at all times to be lawfully present in Ireland and be able to come here and go at will. That is not maintainable as a strict legal proposition and could produce chaos.

If the Bill is passed and we introduce a common sense generous and pragmatic solution, it will involve a new process. As is normal, the terms of such a process will be found on websites and in written form. I take the point that it would be a good idea to also have a simple booklet. It will require something akin to filling out a form and will require truthfulness in the whole transaction. If people are to tell me lies for a second time about their family circumstances, etc., I will not be interested. If someone really wants to rely on the humanitarian right to remain and on a moral entitlement to remain, he or she will need to come clean on his or her family circumstances as to who are his or her children, spouse, parent of the child accompanying him or her, etc.

It will not necessarily be the case that a single mother, who has a child in Ireland aged two and who turns out to be a married woman with a husband and five other children elsewhere in the world, will be allowed to have them all join her in Ireland. While I do not say this might not happen in some cases, it will not be a case of throwing open the doors and letting everybody who satisfies the mere Irish-born child criterion to do whatever they like and have the whole family come and live in Ireland. That is not a practicable or common sense way of dealing with the issue.

Whatever we put in place will be common sense, reasonable and allow genuine cases to be fairly dealt with. However, by the same token, Members here are making the argument that more transparency is needed. Transparency is a two-way process. It would involve considerable breach of privilege if one person knew exactly how somebody else was treated, as such matters would come into the public domain. If we try to reduce everything to a set of rules and criteria, which allow somebody in advance to determine he or she would qualify with the ministerial discretion more or less pre-empted by the factual matrix surrounding that application, I believe injustice will be done.

For example, if an Islamic woman were to argue on a humanitarian basis that she would be the victim of an honour killing if she were to return to her native country, in the privacy of her individual case I might be convinced and allow her to stay in Ireland. I could choose not to return her to Jordan, Saudi Arabia or wherever she came from because of the circumstances shown to me. However, if I were to publish on a website a list of the types of people who can get into Ireland more or less as of right, including those with a fear of an honour killing, how could I deal with a plane-load of people claiming such circumstances?

For example, people from the Republic of India could claim to have a romantic engagement or to have made an attempt to marry outside their caste resulting in a threat to their lives if they returned to their native country. In such individual cases in the privacy of my Department, officials would need to examine each case, come to a conclusion and make a recommendation to me. It would be a very different matter for us to make it known to all in India that someone from the lower castes involved romantically outside that caste could come to Ireland and be allowed stay. We must be reasonable.

Senator Norris raised the issue of female genital mutilation. If I were to publish on a website the proposition that anybody coming to Ireland with a well founded fear of female genital mutilation being forced on her or her child by actors in her local community, I would need to confront the reality that in places such as the Republic of Mali an enormous proportion of the women, for reasons I do not understand, have been subject to this barbarous process. This does not mean that half of the population of Mali can come here and then bring their husbands on the basis that they want family reunification. It just does not follow. I cannot start operating a system on the basis that anybody who comes to Ireland with one from a published list of stories to tell will get in. If I were to do so I would make a mockery of the asylum process.

Within that process the humanitarian grounds for leave to remain are a residual discretionary fail-safe mechanism for those who fail to establish that they are as a matter of international law entitled to refugee recognition. However, if I advertised a particular scheme, it would become effectively quasi-judicial, as it would become imposed on me by the courts in every case. If I were to publish the basis on which my discretion operated in cases, effectively people would come to Ireland in the knowledge that at the end of the process they would make the case of being subject to an honour killing. However, such a person would arrive as a refugee, go through all the processes, lose them and finally go to the Minister claiming his or her case was the same as that of another particular individual and in those circumstances the Minister must grant leave to remain.

The same would apply to the proposed appellate body. If it were to consider one case as identical to the next on the basis of transparent published criteria, the same problems would arise. I recently spoke of people engaged in the politics of comparative compassion and that everyone wants to be on the side of right. We need truthfulness and especially common sense in the way we deal with these issues. Whatever proposal I come up with for dealing with those who are in Ireland on the basis that they were the parents of an Irish-born child must be one which, in the ultimate, is based on discretion while at the same time sorts out people reasonably fairly and distinguishes between those who are genuinely deserving of a generous approach and those who are not.

It will undoubtedly put it up to some people to decide whether to stay in Ireland with an Irish-born child or return to their country of origin with the Irish-born child on the basis of having a large family there. Having the whole family repatriated to Ireland is not the only outcome arising from this circumstance. Such a person's case might not be identical with someone who has come to here on foot of a work visa and after a while is allowed to bring the rest of the family to live in Ireland. Differences may exist and distinctions may be drawn.

While I know Senator Cummins is pressing me to put more flesh on the bones I am discussing, for which I do not blame him in any sense, the nature of Cabinet government is that I go to my colleagues before I start announcing schemes and policies.