Seán Haughey (Dublin North Central, Fianna Fail)

I am taking this matter on behalf of my colleague, the Minister for Justice and Law Reform, Deputy Dermot Ahern. He welcomes the opportunity to outline the measures in place to deal effectively with foreign nationals who have criminal records coming to Ireland.

In terms of the law, the Immigration Act 2004 permits the immigration authorities to refuse entry to the State. This includes the entry of "[A] non-national where the non-national has been convicted (whether in the State or elsewhere) of an offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe penalty". The Act also provides that a person can be refused entry on the grounds that "[T]he non-national's entry into, or presence in, the State could pose a threat to national security or be contrary to public policy".

Overall, more than 25,000 non-nationals have been refused permission since the Act came into force, although the majority of refusals would be for immigration related reasons rather than criminality. Similarly, in the case of persons who require a visa before they can enter Ireland, it is open to the authorities here to refuse such a visa to persons who may have previous criminal convictions. Similar actions may arise where the person has a negative immigration history.

No country can tackle this issue on its own and governments are increasingly dependent upon each other for assistance in identifying those who may pose a threat. The Garda and immigration authorities have close links with other services in the European Union and beyond. Ireland is an active participant in Europol and Interpol and a network of formal and informal contacts has been established for the exchange of information and other data to support the policing activities in the State, including border policing.

Another key element in combating the movement of criminals across our borders is enhanced border management. In view of the common travel area, Ireland and the United Kingdom have long co-operated in such matters. Both countries are developing electronic border management systems which will operate at the external borders of the common travel area. The Irish border information system will operate on the basis of advance passenger information and will allow for persons travelling to Ireland to be screened against Garda, immigration and other watch lists in advance of their arrival. Work on this project has been advancing despite the very tight fiscal environment in which we find ourselves.

In terms of EU nationals there are some additional factors to be considered. Freedom of movement is a long established right of all European citizens and the powers I outlined are somewhat constrained when it comes to a national of another member state of the European Union or other beneficiaries of freedom of movement. Directive 2004/38/EC sets out the conditions for European Union citizens and their family members, including those who are not European citizens, for entry into and residence in the territory of another member state. The provisions of the directive have been transposed into Irish law. Article 5 of the directive, in particular, permits European Union citizens to enter the territory of another member state with the minimum of formality.

Freedom of movement may be restricted on public policy, public security and public health grounds and member states are free, as such, to determine the particular requirements of public policy and public security for their own territory. Restrictive measures must be taken only on a case-by-case basis where the personal conduct of the individual concerned represents a genuine, present and serious threat affecting one of the fundamental interests of society in the host member state.

It is important to stress that member states are prohibited from taking such actions solely on the basis of a criminal history. A previous criminal conviction can be taken into account but only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct which constitutes a present and serious threat to public policy in the host member state.

Once the authorities have established that the individual concerned represents a sufficient threat to warrant restrictive measures, they must carry out a proportionality assessment. The kinds of factors which they may take into account in such an assessment include the degree of social danger, the nature of the offending activities, their frequency, damage caused and the time elapsed since the behaviour in question.

Border control is about providing the appropriate balance between, on the one hand, facilitating the millions of visitors essential to the economic and social life of the country and, on the other, preventing from entering those who might seek to commit criminal acts or abuse the laws of the State. It is a question of managing risk rather than eliminating it completely. The Minister is satisfied we have an appropriate balance at the current time but the Garda and immigration authorities remain ever vigilant to the threats of cross-border criminals and illegal immigration. Where new responses are required, they will be forthcoming. If the Senator is concerned about any specific cases the Minister would be grateful if he were to bring these to his attention.