Richard Bruton (Dublin North Central, Fine Gael)
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Question 249: To ask the Tánaiste and Minister for Justice, Equality and Law Reform the criteria he applied in deciding whether persons who are not Irish citizens are allowed to stay here following a criminal conviction and release from prison. [35586/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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By way of background, it should be noted that the effect of a deportation order when served on a person is that the person concerned is legally obliged to leave the State and to thereafter remain out of the State. Additionally, it should be borne in mind that while Section 3(2) of the Immigration Act, 1999 — the relevant legislation in this area — provides for a deportation order to be made in a variety of circumstances, in practical terms, deportation orders tend to be made based on the provisions of Section 3(2)(f) of the Act, that is, where the persons concerned have failed all stages of the asylum process and Section 3(2)(i) of the Act, that is, where the persons have otherwise become illegal in the State such as where they have overstayed a work permit or a study or holiday visa etc. It should also be borne in mind that all deportation orders, regardless of the specified headings they are made under, are equal in value, legally and operationally. For example, a person who would be liable to deportation on the grounds of a prison sentence might also be liable to be deported as an overstayer. The effect is the same.

Each case is considered on its individual merits having regard to the gravity of the offence committed as well as what, if any, other connection each individual has to the State. For example, if a non-EU national prisoner has a legal entitlement to be in the State, for example, as a recognised refugee or as a person who has availed of EU Treaty Rights through marriage to an Irish or an EU National, they would clearly be less likely to be deported. Where a person has been here for some time and their children have settled here it would be necessary to consider the impact that deportation would have on the family unit. Where no such legal entitlement to be in the State exists, and the offence committed was of a serious nature, there is every likelihood that the person in question would be deported at the time of their release from prison.

There is no provision in Irish law for the automatic deportation of a non-national person who has committed a criminal offence. Section 3(2) of the Immigration Act, 1999 sets out nine categories of persons in respect of whom the Minister can make a deportation order. Included are (i) persons who have served or are serving a term of imprisonment imposed on them by a Court in the State, (ii) persons whose deportations have been recommended by a Court in the State before which they have been indicted or charged with a crime or an offence and (iii) persons whose deportation would, in the opinion of the Minister, be conducive to the public good.