David Norris (Independent)

I was giving a hypothetical example. This is a serious issue. As far as I am aware, virtually the entire section is an amendment. Is that not correct? If, as I believe, the section is an amendment to the Bill, I am entitled to refer to it as an amendment.

This is by no means the first time the Department of Social and Family Affairs has acted in this manner. It is disgraceful and undermines completely the democratic process of the State. One of the Minister's predecessors, the current Tánaiste, Deputy Mary Coughlan, had a decision from the Equality Tribunal which indicated a clear case of discrimination. Instead of acting to amend the legislation to address the discrimination, the former Minister amended the legislation by redefining the word "spouse" to swindle people out of the rights which an agency of the Government determined citizens were entitled to.

This is exactly what has happened in this case and it is spectacularly mean minded. What it means is that people who have applied for asylum or protection and are still in the process cannot meet the habitual residence condition. They will, therefore, be disbarred from access to even fairly minimal provision of social welfare payments. This measure will penalise children, people of pensionable age and people caring for sick children as well as causing divisions. For example, people who have been here with their families for a number of years and are still stuck in the asylum process - it is a disgrace to this country that these decisions should take so long and justice should be so delayed - will find that they will not be able to afford to allow their children to take part in school trips, outings and so forth. As a person who was involved in education and was a very good Minister for Education and Science, the Minister will not wish this to be the case.

As Senator Prendergast stated, a number of cases were taken. Asylum seekers and their representatives in the free legal aid centres, FLAC, were successful in every single case. The Minister is now reversing the decision of a properly established organ of the State.

The Department claimed that a decision by the Supreme Court in 2003 in the case of Goncescu & Others v. Minister for Justice, Equality and Law Reform, [2003] IEHC, meant that no one in the asylum, protection or leave to remain process could be regarded as resident in the State. As a result, such persons could not satisfy the habitual residence condition. The Department's argument was not accepted by the court because it represented a hardening of attitude.

Previously, the Department's deciding officers had relied upon the five factors or criteria set out in the Social Welfare and Pensions Act 2007 and drawn from a decision of the European Court of Justice in the case of Robin Swaddling v. Adjudication Officer, C-90/97. The five criteria are the length and continuity of residence in the State or in any other particular country, the length and purpose of any absence from the State, the nature and pattern of the person's employment, the person's main centre of interest and the future intentions of the person concerned as they appear from all the circumstances.

It is clear that the decisions arrived at as a result of the process by FLAC make the Minister's position undemocratic and unsustainable. I ask her to reverse her decision in this matter on the grounds that it undermines the democratic process, flies in the face of a series of decisions, defies the European Convention on Human Rights, undermines the asylum process, discriminates against children and is a reproach to all those on the Government side. I will conclude on those words while reserving the right to return to the matter.