I do not know if the Minister for Justice, Equality and Law Reform intends to come to the House for this debate.
Immigration Bill 2004 [Seanad]: Second Stage (Resumed).
I will give the Deputy justice.
It is seldom that we see the Minister, Deputy McDowell, in the House. Given that he is so anxious that this Bill should be passed rapidly, perhaps the Minister will make a personal appearance to assist us with his presence and his views.
When the Labour Party was in Government, it was common practice for one to come to the House to find that a Minister of State was present. Deputy Costello is lucky because a Minister and a Minister of State are present.
There are two Ministers of State in the House. Do they add up to one Cabinet Minister?
I am a senior Cabinet Minister. The Deputy might have forgotten that I was promoted.
That is true, I apologise. The Minister for Justice, Equality and Law Reform was not present for Priority Questions last week, as the Chair is aware.
We are waiting for justice.
It is important that he should be here today.
He is coming.
The Minister wanted to pass all Stages of this Bill last Thursday, even though he did not plan to be here. He has said that he wants to get the legislation right, but how can he do that if he does not come to the House? Who will get it right for him?
He has chickened out.
I saw him eating an apple in the corridor some moments ago. I wonder if there is any chance that he will finish the apple in the Chamber while listening to Deputies' contributions. I do not think it is good enough that the Minister fails to attend the debate.
He will be here shortly.
He was here for less than an hour earlier today. He is trying to bulldoze through a Bill about which there is a great deal of concern among civil liberties organisations etc. I expect him to have the courtesy to come to the House to hear what we have to say about the Bill.
I have been in the House for over ten years and in that time it has been common practice for Ministers to stand in for other Ministers during debates. I remember when I came to the House, on many occasions during the rainbow coalition's period in office I found that those responsible, particularly Labour Party Ministers, were not present and had sent other people to the House to deputise. I do not understand the Deputy's umbrage. The Minister is present now.
I refused to proceed without the Minister's presence.
I am sorry about the delay. My son, who is in France, was talking to me on the telephone.
That is a good excuse.
That is not an excuse. I have no doubt it is true.
I am delighted to see the Minister present. As he knows, we are discussing an important Bill. He has explained that it is emergency legislation and he is determined to get it right. We would not have to be here had it not been for bad legislation from 1935 and a botched attempt to repair it in 1998. At this point all the signs indicate that we will botch it again and that we will rue the day the Department decided to railroad the Bill through both Houses without adequate time for debate.
We saw the debacle in the Seanad last Friday after the Minister could not have his way in the Dáil on Thursday and have all Stages passed. All Stages were completed in the morning and early afternoon of Friday in the Seanad, with the result that there was no time for amendments to be debated. Now there is a quantity of amendments from the Minister as well as one or two he selected from our earlier amendments. I see a few changes similar to the Labour Party amendments from the Seanad. The end result is that it is unlikely we will have adequate time. We will finish Second Stage today and then take all other Stages tomorrow.
This is a terrible waste of Dáil time. The normal procedure is for the Bill to be taken out of the Dáil and dealt with in select committee so that the Dáil may proceed with its business. Instead, we will deal with Committee Stage in the Chamber, although we could deal with other legislation, and then finalise all other Stages, all in a maximum of two and a half hours. It was said earlier that there will be more than 100 amendments in addition to the Minister's 20 amendments. I cannot see how we will get it right.
The Minister indicated in his earlier remarks that this is something we must get right and indicated further that many of us are wise after the event, suggesting that there was quite an amount of support for the 1999 legislation from the Opposition backbenches. There certainly was not. I was in the Seanad at the time and dealt with the Immigration Bill 1999. To refresh the Minister on the degree of opposition expressed at that time, I will quote some of my remarks. On 2 July 1999, on Second Stage, I said:
I am very opposed to [the Bill]. I am opposed to it because of its basic ethos. It is draconian legislation and is totally against non-nationals. There is an air of suspicion and penalisation about every aspect of the Bill and its entire tenor is unacceptable.
I went on to say:
With a Bill of this tenor, I am afraid we are not too big a step away from racism. I am very disappointed that the Department and the Minister for Justice, Equality and Law Reform should come forward with this inadequate measure with regard to what we would regard as fundamental human rights. We should be ashamed of ourselves given the millions of Irish people who have gone to the far ends of the earth and who were non-nationals and illegal aliens in many of the countries to which they went. So much for our traditions ... As we approach the millennium, we have come up with legislation which effectively enshrines hostility towards non-nationals coming from other jurisdictions for whatever reason. We will put them through hoops and place as many hurdles as possible before them.
I stated: "I am disappointed that the Bill is being forced through in the last two weeks of this session". There is a sense ofdéjà vu about this. I went on to say:
The guillotine was imposed in the Dáil yesterday and 75 amendments had to be guillotined because the Minister was not prepared to tease out or amend the legislation in a fundamental way. It is no way to deal with such a fundamental matter.
This echoes what has been said in recent days inside and outside the House. There is a perception that what is happening today is similar to what happened in 1999, and we know the dire results of that. Sections of the Bill were found to be unconstitutional, which has broader implications for a large body of legislation that has passed through the House. Much of that legislation will now need to be scrutinised to see whether orders and regulations made under it operate properly in the context of this constitutional decision.
In the short space of time available since the Bill was introduced, the human rights organisations and those concerned with non-nationals and immigrants have been extremely active. I congratulate them on the number and quality of documents that have been prepared. There has been a tremendous response. The fine joint document from the Immigrant Council of Ireland, the Irish Council for Civil Liberties, the Irish Refugee Council and the Migrant Rights Centre of Ireland states in its introduction:
The Immigration Bill 2004 is a draconian piece of legislation lacking in basic safeguards and divorced from the practical operation of the immigration system. It contains discriminatory and retrospective provisions in violation of international law, and if passed would in our view be detrimental to developing an effective, managed immigration policy in Ireland.
It goes on to state that the Bill is:
— clearly inspired by the 1935 Aliens Act — a virtual re-enactment of the UK's 1914 Aliens Act which replaced the First World War Aliens (Restrictions) Act, 1911, a legal instrument drawn up by Britain in a time of emergency to prevent German spies infiltrating the state — the Bill creates unaccountable and non-transparent decision-making structures.
The introduction also states:
We believe that the Bill is so fundamentally flawed that it should be withdrawn. As a bare minimum, this piece of legislation should only be passed with a review clause which requires the Oireachtas to re-consider the legislationin three months and ultimately to replacethis "emergency" Bill with an effective, comprehensive Bill addressing Immigration and Residency rights.
These quotes sum up the views of all the organisations that have made submissions to us. No doubt the Minister has received much of the documentation. These organisations include: the Irish Congress of Trade Unions, because labour and work permits are an important aspect of the Bill; Cairde, whose motto is "Challenges ethnic minority health inequalities"; the Kosovo Ireland Solidarity Group; Schizophrenia Ireland — one would not expect this group to protest about a Bill such as this, but it must, because of concerns about the aspects of disability and health; and the Irish Human Rights Commission. This is the statutory body, belatedly set up by the Oireachtas, which was envisaged under the Good Friday Agreement and whose Northern Ireland counterpart has long been in existence. It has only been up and running for the past few months with a premises and staff. However, it is a statutory body to monitor human rights in this country and which the Minister for Justice, Equality and Law Reform is expected to refer to and consult.
So far the Minister for Justice, Equality and Law Reform has shown a blatant disregard for the wishes of that organisation. He did the same during the passage of European Convention on Human Rights legislation when we sought to get a more robust incorporation of that convention in law before last summer. However, the Minister did not listen to the group. It was the same case with the immigration legislation that was put through the House before the summer recess.
The Human Rights Commission has again issued a statement to the media on the matter. Its chairman, Dr. Maurice Manning, a distinguished former Member of the Seanad, stated, "The commission regrets that the Government and the relevant Minister chose not to refer the Bill to the commission in advance of its publication." This is hardly proper procedure and certainly not the way to get the legislation right. The Human Rights Commission also stated:
We have not had the time to make detailed observations on the Bill as we would wish to do and which we are statutory empowered to do. It is our view that it is most undesirable that any legislative proposal with such significance for the promotion and protection of human rights should be processed so quickly and without the benefit of wider consultation.
No good is served when the Minister claims he will consult with the Human Rights Commission because by tonight, there will be only two hours left to debate the Bill tomorrow. This does not give much time for the Minister to consult with them. The consultation needs to be done in advance with proper notice to ensure the Bill is properly proofed with regard to civil and human rights.
This legislation has come under severe criticism for the lack of consultation and the timescale in which it is been put through the House. There has been criticism of the disdainful manner in which the Minister treated the Seanad and that no time limit has been put on this legislation. This legislation was to be rammed through the Dáil a week ago, yet the Minister is now introducing 20 more Government amendments. If none of these amendments could have been introduced from the Government side a week ago, one must ask what would have happened then.
The Minister, in referring to section 4 on disability and prescribed illness, asked rhetorically what should be done with a violent psychopath attempting to gain entry into the State. The Minister came up with the solution that the individual be put back on the aeroplane. To put a violent individual back on the aeroplane without medical care or attention is a mind-boggling approach. Surely, the Minister would not do something of that nature but ensure the person received proper treatment. However, this is what the Minister intends to do. The individual's nature does not matter. If they fall into that category, such people go back on the aeroplane, irrespective of how they could affect other passengers and that they need urgent treatment.
On looking again at section 10 of the Bill dealing with hotel registers, I noted it does not just deal with hotel registers. Section 10(5) applies to any premises whether furnished or unfurnished in which lodging or sleeping accommodation is provided for reward. I would like to see the Minister explain that to a bean an tí who does not have to be registered with Bord Fáilte to provide accommodation, unless she has more than four units of accommodation in a residence. Is the bean an tí or a landlord going to check hitchhikers from France to ensure they are not registered as non-nationals under the provisions of this section?
Under the new tax rule introduced by the Minister for Finance, somebody can have a lodger in his or her own home to earn a tax-free amount. How will that be dealt with in this legislation? How will these provisions apply and how will the distinction be made between European Union nationals and so-called non-nationals? There is the derogation for European Union nationals in this Bill. Why bring in such messy legislation in this fashion that is all over the place as to what constitutes nationals in the European Union context? This issue has been so badly addressed even though we are members of the European Union. This section of the Bill will not be effective.
During the sos, I was witness to the marriage of a young disabled lady. Marriages take place quickly now in registry offices. However, it made me reflect on section 4 of the original legislation and how many disabled people have additional difficulties imposed on them. There are many other difficulties that are part and parcel of their lives, as in the case of the young lady today who is also homeless. This legislation will impose further difficulties on individuals who are disabled. At least, the Minister has decided to amend section 4.
To lose a High Court argument once might be regarded as a misfortune. To lose the same argument again, six years later, looks like carelessness. However, that is what happened to the Government two weeks ago when yet another provision of the Aliens Act 1935 was struck down. The 1935 Act was a copy of emergency legislation introduced in Britain just before the First World War. It has long since been repealed and replaced in the United Kingdom, but astonishingly its dark and draconian provisions were considered by successive Irish Governments to be a more than adequate substitute for an open and transparent Irish immigration law.
Passed in Saorstát Éireann law, the Act predated the Constitution and the Irish Republic. Section 5(1) of the Act conferred power on the Minister to make Aliens Orders "in respect either of all aliens, aliens of a particular nationality or class, or any particular alien". This was to prohibit them from entering the State; prohibit them from leaving the State; impose restrictions and conditions in respect of entering or leaving the State; provide for their exclusion and/or deportation from the State; require them to reside or remain in particular places; prohibit them from residing, or remaining, in particular places; and require them to comply with provisions as to registration, change of abode, travel, employment, occupation and so on.
The Minister for Justice, Equality and Law Reform, effectively was empowered by the Oireachtas simply to make it up as he went along and change the rules whenever he wished. All this was under a Constitution, adopted two years after the Act in 1937, that stipulates that the sole and exclusive power of making laws for the State is vested in the Oireachtas and that no otherauthority has power to make laws for theState.
There is of course nothing unique about legislation conferring on a Minister a power to make orders. Secondary legislation is necessary to fill in matters of detail which are unsuitable for Acts of the Oireachtas. However, according to a 1980 Supreme Court judgment, the parent Act must contain clear declarations of policies and aims. The Oireachtas can then delegate to a Minister the setting up of machinery to carry out those policies and achieve those aims. In the absence of a statement of principles and policies in the parent Act, there is an unconstitutional delegation of the law-making power by the Oireachtas to a Minister.
As soon as the 1980 judgment was delivered, alarm bells should have rung in the Department of Justice as the Aliens Act 1935 could not survive legal and constitutional challenge. It conferred a power to make orders but without reference to any governing criteria. This amounted to an unconstitutional delegation of the legislative power of the State. In 1999, in Laurentiuv. the Minister for Justice, the High Court struck down the part of section 5(1) that dealt with the deportation and exclusion of aliens. The inevitable happened but it was only a matter of time.
The Government's response was to rush the Immigration Act 1999 through both Houses as an emergency measure. It recognised that if one part of section 5 conferring on the Minister a bare power to legislate was unconstitutional, then all the other parts of the section which did the same thing were equally vulnerable and, further, that all the orders made over the years under section 5 could be challenged.
However, it seems that the Government had learned nothing from Laurentiu. Instead of introducing those orders and powers as substantive sections of a new Bill which could be debated and amended in the Houses, the Minister decided on a blanket solution. Section 2(1) of the 1999 Bill provided that every order made under section 5 of the Aliens Act should have statutory effect "as if it were an Act of the Oireachtas". Deputy Howlin, then our spokesperson on justice, said, "The section is at odds with the principles enunciated by Mr. Justice Geoghegan, which are that the Minister maynot make primary law by way of statutoryinstrument." That sums it up. He went on tosay:
This is such an important issue that the will of the Oireachtas is required to be determined. The Minister should make clear his intentions and introduce as part of a statute the regulations he wishes to validate ... Where are the specifics the Minister purports to validate? Let us debate their merits and demerits.
In its judgment in the case of Leontjava and Chang on 22 January 2004 the High Court held that nothing in the Constitution authorised the Oireachtas to decide that secondary legislation should be treated in the legal order of the State "as if it were an Act of the Oireachtas". The only provisions which might be treated as a law, as defined by the Constitution, were laws made by the Oireachtas. The explanatory memorandum states that the provisions of the Aliens Order allowing a condition as to duration of stay to be attached to a permission to stay in the State wereultra vires section 5 of the 1935 Act.
The judgment confirms that there can be no legislative shortcuts in devising a legal framework to control immigration to this country. The reason this attempt failed in the 1999 Act, like its predecessor in 1935, was that it sought to bypass the normal parliamentary law-making process in favour of the Executive. The judgment of 22 January reasserts the primacy of the Oireachtas in the legislative process and it prohibits sleight of hand efforts to short-circuit that process and to ignore the constitutional mandate of Members of the Oireachtas
In August 2002 the Minister for Justice, Equality and Law Reform published a review of submissions on the public consultation on immigration policy, which he mentioned earlier. According to the review, proposed legislation would:
— contain a general statement of principles and policies to be observed in operating and developing the Irish immigration system. This is in line with the requirement, identified by the courts in the Laurentiu case, that an Act which gives a power to make subsidiary legislation should indicate the principles and policies which the subsidiary legislation must observe. What principles and policies should be contained in the legislation?
Those are the Minister's words. Today he told us he is working on this but 18 months later we are no closer to an answer. We do not know how long this temporary emergency legislation will be on the Statute Book. There is no sign of major immigration legislation.
The Labour Party and the rest of the Opposition oppose the Minister's decision to force all Stages of this new Immigration Bill through the Dáil in one day. We accept that amending legislation is required as a result of the decision of the High Court to strike down section 2 of the 1999 Act as unconstitutional, but the manner in which the Minister is doing so is totally unsatisfactory.
The Bill's contents are a restatement of what is in the Aliens Act with an attempt to proof it against constitutional attack, but it does not achieve that aim. The legislation is very unsatisfactory, as some sections do not seem to recognise the changes in our status as a country, the change from Saorstát Éireann to the Irish Republic, the fact that we have a Constitution in place and our status as equal members of the European Union. The Bill is cobbled together in an awkward attempt to address those changes but it does not succeed.
The lesson to be learned from this legislation is that we need to get this right. This is not a doomsday situation. It has taken two weeks to get this far and the Minister will have to go back to the Seanad, so why can we not have three weeks? That would give various organisations the time for consultation that they sought. We are trying as best we can to deal with the legislation but ultimately we are unlikely to be left with anything other than a new Act which is also vulnerable to constitutional attack.
Private Members' business dealt with the emigrant issue last week and we learned that there are approximately 1.2 million Irish people living abroad, some of them in dire conditions. Obviously they are treated as non-nationals in other parts of the world. We issued 47,000 work permits last year in Ireland and we are told that approximately 100,000 graduates will be required to come to Ireland in the next few years, yet at the same time this is the only kind of legislation we can produce to deal with the high numbers of non-nationals coming to Ireland. We should look at this issue in a more positive way and deal with it in a more humanitarian and democratic fashion. We should treat everyone who comes to Ireland as our neighbours and friends.
I wish to share my time with Deputies Finian McGrath, Twomey and Cuffe.
Is that agreed? Agreed.
I am speaking to this odious Bill under protest. It is not an immigration Bill but an anti-immigration Bill. It should not have come before the House at all, and certainly not in the dictatorial and chaotic manner the Government has used to present it.
Measaim gur d'aon ghnó go bhfuil an Rialtas ag déanamh deacair orainn ár ndualgas mar reachtóirí a chomhlíonadh. An dualgas atá orainn reachtaíocht a chíoradh agus cinnte a dhéanamh de go bhfuil na cosaintí cuí sa mBille. Inniu agus amárach ní bheidh muid ach ag tabhairt srachfhéachaint ar an mBille atáós ár chomhair, Bille atá impleachtaí móra náisiúnta ann agus atá impleachtaí ollmhór ó thaobh cearta daonra ann chomh maith.
Níl san breis ama beag a tugadh dúinn inniu ach measaim fhéin cleasaíocht poiblíochta. Tríd is tríd is masla an sórt seo diefir, an sórt seo brú orainn agus na heagrais eile a bhí spéis acu san Bille seo. Is masla é don daonlathas.
The findings of the High Court imply a need for temporary legislation to allow for responsible, managed migration pending the introduction of a comprehensive modern immigration law. The approach advocated by Sinn Féin is realistic, as the Government already plans to introduce an immigration and residency Bill at some pointthis year. However, we were also told this last year.
Contrary to the Minister's assertion that no one complained about this outdated law before now, since becoming a Member of the House, I and others have complained about it and called for comprehensive immigration law reform. Some of the provisions before the House form part of what we sought to have changed and reformed. We need a new law that upholds our international obligations to both refugees and migrants, recognises the enormously positive economic and social potential of immigration, allows for family reunification and provides complementary protection for those genuinely in need but do not fit the strict refugee definition in the convention.
We know what is needed. What was the Minister's response to the High Court decision? He hastily produced a bad and repressive law, using what I believe is a dictatorial process intended to silence dissent. He manipulated the situation by introducing new draconian measures such as the now notorious provision to exclude disabled people at section 4(3)(c), which has thankfully been changed, if only slightly, and the provision in section 9(4) which compels citizens to report any non-nationals living with them to the Garda, even if they are related. The penalty for non-compliance with this requirement is a fine or imprisonment. The Minister has opportunistically used the High Court decision to escalate his ongoing campaign against immigration. Operation Hyphen, when he had 50 legally resident non-nationals rounded up and arbitrarily arrested, symbolises the Minister's ongoing campaign.
Without doubt the Bill is fundamentally flawed. The Immigrant Council of Ireland, the Irish Refugee Council, the Migrant Rights Centre and the Irish Council for Civil Liberties released a joint statement saying that the Bill is open to abuse and likely to be used in an arbitrary and discriminatory way. They concluded that the Bill contains unconstitutional provisions, as well as provisions contrary to international human rights law and domestic anti-discrimination laws. They believe that a number of provisions are also in violation of the European Convention on Human Rights. The National Consultative Committee on Racism and Interculturalism has similar concerns, and has called on the Government to equality-proof all immigration and residency legislation to ensure that it is non-discriminatory, and to specifically include the principle of non-discrimination in this Bill's provisions.
Cáirde is concerned that the Bill is inconsistent with best practice in fighting global infectious disease and protecting public health. Moreover, it is in breach of the UN Declaration of Human Rights, the International Covenants on Civil and Political and Economic, Social and Cultural Rights and the UN Convention on the Elimination of All Forms of Discrimination Against Women, all of which outlaw discrimination on the grounds of health.
I share these concerns and add that the Bill also promotes a racist notion of citizenship and what it means to be Irish by creating a formal category of second-class citizen; the oxymoronic "non-nationals born in Ireland" referred to in sections 9(5)(b) and 12(4)(b). I am interested to know if this phrase is contrary to the definition of citizenship contained in the Constitution as altered by the Good Friday Agreement. I see the Minister nodding. I would love to see that tested in court.
Amnesty International argues that, since the 1946 Aliens Order was made before the adoption of a series of human rights instruments, its compliance with human rights standards cannot be taken for granted and that its importation into law requires rigorous parliamentary scrutiny which has not been allowed by the Government on this occasion.
The Human Rights Commission, which was not consulted, also outlined a number of concerns about provisions it found disturbing in their implications for human rights in the State. Most importantly, the commission recommended that the Bill be withdrawn to allow for proper consultation — the Minister can still do this — proper parliamentary scrutiny and detailed consideration of the human rights issues affecting this area of law. It is not acceptable that, despite the human rights implications of the Bill, the Minister did not consult the Human Rights Commission. In failing to do so and in his general approach to the Bill and immigration law and policy, the Minister acts contrary to the spirit of the Good Friday Agreement under which the Government promised to strengthen human rights protections in this jurisdiction.
There is no question but that the High Court judgment demands a response and we accept that, but it is misleading for the Minister to insist that he had no choice but to introduce the Bill in this form. This is not true. He had a choice and could have taken the more commendable road. He did not and has presented this legislation to us with little time provided to debate it.
In this Bill, as in much of the other legislation he has produced, the Minister has shown he is nothing more than a foot soldier for fortress Europe. He is unfit to guide the development process of the EU common migration and asylum policy which comes within his remit during the Presidency period. He is also unfit to frame Irish immigration and asylum policy. He increasingly proves that all the legal education and experience in the world cannot compensate for a basic failure to comprehend what justice really means.
The State does not need more flawed immigration legislation. It needs a positive, compassionate, anti-racist immigration law and policy, as befits a nation scarred by emigration, with an extensive diaspora, and whose people have reaped such significant benefit from the open immigration policies of other countries. It is high time to drop the disgusting hypocrisy that drives anti-immigration law in this State. Thousands of families in this country have relatives who are illegal immigrants in other countries. We do not stigmatise them as criminals nor call for their immediate arrest and deportation back to Ireland. The Minister for Foreign Affairs called for sympathetic treatment for them and the regularisation of their status.
Sinn Féin submitted more than 40 amendments to the Bill, which was an exercise in damage limitation. Ultimately, the Bill should have been withdrawn. Legislation that properly deals with the matter should be drafted and presented to the House in the near future.
Before I go into the detail of the legislation, it is important that we take a serious look at the issue of immigrants. I call for calmness, common sense and clarity in our discussion on this important topic.
Let us first look at ourselves as an emigrant nation. We should not shy away from our history. Let us also remember the many Irish people who had to emigrate in the past because of oppression, injustice and lack of economic rights. Such details should be uppermost in our minds as we debate the legislation before us.
Let us acknowledge that hundreds of thousands of Irish people were forced, through economic and cultural circumstances, to emigrate to Britain to earn a living from manual work, particularly in the 1950s and 1960s. We must also be conscious that this group is believed to have brought home approximately €3.5 billion between 1939 and 1969. This played a crucial role in sustaining families and communities in a time of dire poverty. Members will recall the "American parcel". We are shocked at the appalling conditions in which many of these now elderly Irish citizens in Britain are forced to live. We have a duty to assist them and the Government has a duty to act. We must face up to these issues when we are dealing with new immigrants to Ireland.
On 22 January 2004, the High Court found that there was no basis in the Aliens Act 1935 for the provision of the Aliens Order 1946, relating to the addition of a condition as to the duration of stay or permission to enter the State. The court found that another aspect of permission in the Aliens Order, relating to the power of an immigration officer or garda to ask non-nationals to produce identity documents, was invalid. It also found that the protection section 2 of the Immigration Act 1999 purported to give to the Aliens Order was itself unconstitutional.
In section 4(3), the Bill purports to govern the control of entry into the State, the duration and conditions of stay and obligations for non-nationals. However, it is seriously deficient in several important areas that would be found in immigration and residency legislation elsewhere. For example, the Bill fails to set out any provision governing family reunification for non-nationals. In addition, it does not set out provisions for persons in need of protection but who fall outside the refugee convention, procedures for non-nationals married to Irish citizens or long-term residents, international students, and bridging periods for non-nationals to re-establish themselves if they lose work permits, etc. Under section 4(5), Irish citizens will, for the first time, be criminalised for failing to comply with immigration provisions.
All immigration legislation should be based on respect for human rights and people, and founded on compassion and understanding. While I know it is not popular to say this, it is essential that all people entering this country are treated with equality, fairness and justice. This is not currently happening. Knee-jerk reactions and rushed legislation is not the way forward.
Racism is a thorny subject that we must face up to. Like sectarianism, racism has no place in any democratic society. I commend the many new workers that have come to this State. They are making a massive contribution to our economy and bring a new dimension to Irish life. Let us enjoy and celebrate difference. Let us not treat immigrants with suspicion, instead, let them get on with their lives and their work. After all, they need us and we need them. Kofi Annan, Secretary General of the UN has raised these points in recent weeks.
We must also support anti-racist workplaces. Ireland now has a multicultural society and our workplaces reflect this diversity. Migrant workers, now a permanent feature of the Irish workplace, bring economic, social and cultural benefits and our workplaces must adapt to reflect this diversity. Law now prohibits discrimination on the grounds of race or membership of the Traveller community. Anti-racist workplaces will reward us all. Work practice can easily take account of different needs of customers and employees, whatever their ethnic identity. People from different backgrounds may perceive and do things differently. This can be seen in diet, religion, dress, customs and practices.
While I welcome the Minister's climbdown on discriminating against people with disabilities, we need to go further. I welcome the comments made by the Human Rights Commission. I totally oppose this Bill.
The cliché"poor legislation makes bad law" has been the theme for many contributions. The Minister has highlighted the sense of urgency that has brought this Bill before the House. Many countries have tightened immigration legislation in recent decades as they long ago experienced the problems we are now facing. Nobody was interested in coming to Ireland prior to the Celtic tiger. The Aliens Act, with some minor amendments, is now almost 70 years old. This Bill has Orwellian tones to it, especially in that it expects citizens to report on non-nationals in this State.
The judgment of the High Court on 22 January has left a vacuum in our legislation. According to the Minister, there are, in effect, no immigration controls in this jurisdiction. This is unacceptable and we must ensure the Houses pass adequate legislation in this area. We have the right to control who comes to this country and we also have the right to deport people from here. The other issue is our treatment of non-nationals once we give them permission to live here. They should not be discriminated against once they have been allowed to stay in the country.
In some respects, the Government is not as bad as it may seem. For example, from 1 May, all citizens from the accession states will be given rights equal to those enjoyed by other EU citizens who reside here. This is not being extended by many other member states that are considered to have better immigration policies than Ireland.
Large numbers of asylum seekers and refugees came to the south-east in recent years. Prior to the arrival of these people, the incidence of hepatitis B was pretty rare and we now have more than 300 cases. I do not want to use this to scaremonger against refugees; rather I want to show how we can do positive things. We have successfully treated many of the asylum seekers suffering from hepatitis B. Furthermore, we have instigated a programme where children born to asylum seekers have been born free of hepatitis. We have broken a cycle going back hundreds of generations where those born with hepatitis B pass it to their children and then die young.
Positive things can be done if we take a positive attitude in how we look at immigration. While we must control the entry of people into this State, we must be careful not to introduce bad or harsh legislation. While this Bill will probably be passed, it should be passed with the proviso that this should be revisited in a couple of months to highlight the concerns that have been aired today.
We need a broader debate, not only on immigration legislation, but also on how a multicultural society is developing in Ireland. There has been much recent discussion about how our population is rapidly ageing. By 2030, this State will need more than 1 million immigrants to maintain economic productivity and look after our ageing population. It will be difficult to find 1 million people that comply with this legislation. We need to balance this legislation and must revisit it to take account of how our society is going to change in the future. I hope the Minister intends to look at this issue again.
I have seen asylum seekers and refugees benefit from coming to this country. We could promote the positives. It is important to keep a positive frame of mind rather than going backwards to an Orwellian and harsh regime where we try to keep these people out.
A famous statue in New York has a plaque at its base on which a poem, entitledThe New Colussus by Emma Lazarus is inscribed. It reads:
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!
If the Minister were to commission a plaque for the front of his Department or his front door I wonder what inscription would we find? Would the words at the base of the Statue of Liberty be parallel to the words the Minister might commission?
I am the first to admit there is a loophole in the legislation that requires to be fixed but we can do far better than this Bill. We are in effect using a sledgehammer to crack a rather small nut. Where is the Government's immigration policy? It is not enough to work out who to keep out. The Government should be concentrating from a humanist, social, environmental and economic perspective on who we should be attracting to the country. We only hear about those who will be kept out.
The Bill is a shoddy and flawed proposal. It allows immigration officers to discriminate against non-nationals who suffer from a prescribed disease or disability. This is a slap in the face to disability groups awaiting the publication of the disability Bill. It is also couched in a language that harkens back to Victorian times. It belongs to the type of legislation introduced at the time of the Famine and the poor house. We must face up to what is required in the 21st century. There are broad and sweeping clauses that could be used against many. If enacted, the legislation cold be used against persons in similar circumstances to Nelson Mandela. It could also be used against Travellers and gay rights advocates and almost any group that suffers discrimination in countries other than Ireland. I have no doubt that if the Minister put his mind to it, he could probably use any of the Ten Commandments as the basis for keeping somebody out of Ireland, for example, for not keeping the Sabbath day sacred, or committing adultery.
The non-governmental organisations have engaged in concerted lobbying of the Minister. I am grateful for the lobbying I have received from the civil liberties groups, migrant groups, Amnesty International, Cáirde and Schizophrenia Ireland. A multitude of bodies have grave and deep concerns about the Bill. We believe it should be withdrawn in its present form and that the Minister should, after a lapse of 90 days, introduce a carefully worked out proposal. It seems that the Bill was cobbled together from outdated and archaic legislation and orders that were suited to the 19th century.
I note the Minister will introduce amendments. The blanket ban against those suffering from mental illness or disability needs to be withdrawn. I am concerned that the reference to non-nationals born in Ireland may be a means for the Minster to pave the way for removing the right to citizenship for those born in Ireland. I am also concerned by the reference to those convicted of an offence in another country. The Minister should look again at the legislation to ensure it is disability proofed. The nine grounds for discrimination used by the Equality Authority are not included. Will the Minister ensure that he is not insulting the minority groups and NGOs?
Will the Minister also ensure that immigration officers shall receive anti-racism training? No doubt many have done so but I would like him to ensure that anyone dealing with a foreign national arriving in Ireland should have received such training. It is imperative that we do not repeat the mistakes of the past, many of which were made through ignorance rather than trying to erect barriers. We need a quantum jump in the amount of knowledge that is made available.
In the limited time available, members of my party have tabled varied and detailed amendments, as have the other parties. The Minister has put on record that he will consider them. To end on a positive note, will the Minister think again about the grave concerns about the Bill expressed by Opposition parties, civil liberties and human rights groups?
I wish to share my time with Deputy Andrews.
Is that agreed? Agreed.
Before discussing the detailed provisions of the Bill I will discuss the implications of the Leontjava and Chang decision, made on 22 January. The implications of this High Court decision are wide ranging and potentially serious in terms of the legislation which has been passed by the House. In brief, the decision was very clear that the Aliens Order 1946 wasultra vires, but the High Court also decided that legislation by reference to text or by statutory instrument is no longer constitutional, which has major implications for the way we do business in the House. Many Bills that come before us refer to text, international treaties or schedules in other Acts and so forth.
It is very important that we, as the Legislature, ascertain where we stand. It is vital that whatever about the substantive issue in the case, this issue alone needs to be appealed to a full sitting of the Supreme Court to get definition and certainty as to how we conduct our business. For that reason I ask the Minister to appeal this decision. The implications have to be looked at. Perhaps the Committee on Justice, Equality, Defence and Women's Rights, the Law Reform Commission or the All-Party Committee on the Constitution may also consider the constitutional implications. There is no doubt that an appeal will take a long time, detailed research will have to be carried out on the implications and detailed submissions will have to be made to a full sitting of the Supreme Court. All the judges will need to make detailed judgments on this critical issue for our country.
The question with which we are face is what to do in the meantime. Many people would implore us to do nothing and sit on our hands until we see what happens. The Government and the Dáil have to deal with the reality as it is presented, so let us examine that for a moment. The reality is that we now have very little legislative justification to refuse entry to anybody coming into this country, no matter how suspicious or unwelcome their motives may be, regardless of their past criminal record, and no matter what their intentions might be regarding terrorism. Without wanting to overstate the position, if Osama bin Laden presented himself at Dún Laoghaire or Rosslare harbours tomorrow, we would have very little legislative justification to refuse him entry.
He might be allowed in.
Like the time we sold passports to his cousins.
If Osama bin Laden applied to the High Court it would have very little option but to let him roam free here. However, people both inside and outside this House are saying that we should do nothing until we have a big national debate. This is an urgent and pressing issue with which the House and the Government have to deal. The suggestion that we should take a few months to reflect on our immigration policy is unsustainable and unreasonable. The vast majority of the Irish people would not support such a position.
There is no doubt that legislation is required urgently, so our discussions should be based simply on the nature and content of the Bill. In that regard, we need to look at the role and duty of the State to its own citizens, as well as its role and duty to non-EEA nationals entering this country. In the first instance we must examine the State's responsibility to its own citizens, which is paramount. The first duty of any sovereign country is to protect its citizens. Inherent in that duty is an obligation to know what non-citizens are in the country at any given time. That is both self-evident and reasonable. It is a fundamental expression of our democratic sovereignty that we should be able decide who comes into the country. That is why, when we signed up to various EU treaties in the past, the big debate was that we might be weakening our sovereignty by ceding our right and discretion to decide who will be allowed to enter the country. The State's rights and duty in this regard are recognised in international law and have been recognised by the Supreme Court in many decisions, including the Osheku case. In fact, there are reasonable grounds for arguing that legislation is not needed in this respect and that the Government, acting in an executive capacity, is entitled to regulate who enters and leaves the country. It is only right and proper, however, to have the necessary legislation in place. To fail to enact the Bill before us would be a total abdication of the House's responsibility.
We should examine our duties to non-nationals living here. I agree with the comments that have been made during the debate to the effect that our basic duty is to protect the fundamental human rights of non-nationals. We should be non-discriminatory in dealing with such people coming into the country. One of the concrete ways in which the Bill achieves that is through the use of a modern nomenclature. The word "alien" is arcane and conjures up images of celestial intervention, depending on what way the missions to Mars may go. We should get rid of such terms. It is reasonable for people coming into this country, however, to expect systems to deal with their arrival and departure, as well as requiring them to register, produce identification and prove that they have permission to be here.
It is unreasonable for people to argue that the country should not have a tight and highly regulated regime in this regard. Lest the contrary message emanates from this House, we must make it clear that the vast majority of non-nationals are here with our permission. They are living here legally and are making a welcome contribution. We have to develop an evolving policy, to which Deputy Cuffe referred, for a multicultural society. In that regard, I welcome the Minister's earlier comment that we can expect further legislation in this area. Failing to act now, however, would be to abdicate our responsibility as legislators.
To accept what the Opposition in the House, and the Bill's opponents outside it, have been saying, which is to do nothing——
That is not true.
To do nothing in the short or medium term——
Nobody is saying that.
——would put this country in an impossible position. I support the Bill.
I thank Deputy Peter Power for sharing his time. While I agree with almost everything he had to say, I would take issue with his reference to Osama bin Laden coming into Dún Laoghaire. I like to think that the officers of the Dún Laoghaire Harbour Company would be a bit more vigilant than to allow him through without at least some kind of inquisition.
Would that be a Spanish one?
I accept the Deputy's point, however, that they may not have that power.
Immigration is an area in which politics has distinguished itself. I recall that during the last general election campaign the immigration issue did not come to the fore, for the most part. That was due to an agreement or understanding between politicians on all sides, and was despite the fact that the issue was coming up on the doorsteps. It is to the credit of the body politic that the issue was not allowed to enter the electoral debate then and the same attitude appears to be prevailing in this debate.
It is said that a week is a long time in politics. We saw what happened in the Seanad last Friday when there was a great deal of emotion and complaints were made about the way in which the Government was proposing to introduce the legislation.
At the time my impression was that some of them were justified. I now understand better what is going on and why we have to do this. It is not unusual for emergency legislation to come before the House. For example, the Minister for Justice, Equality and Law Reform introduced an amendment to the Domestic Violence Act in short order because of a High Court judgment.
Looking to the future, specific Standing Orders are required to deal with the introduction of emergency legislation in order to obviate the problems that occurred last week in the Seanad. Such measures could create a short-notice system of introducing legislation, whether they are taken with the consent of the President, the Council of State or by some other formula.
Deputy Peter Power has outlined clearly and articulately why the Bill is necessary, so there is no point in me reiterating those points. However, I do have some general comments to make about the contents of the Bill. It is not an excuse to say that this legislation is simply a transposition of something that existed before now and that, therefore, we should not debate its contents and can ignore what it means. Just because it existed beforehand, does not make it right.
I refer first to some of the wording in the Bill. Section 3 states that a medical inspector or immigration officer can reasonably come to the conclusion that somebody is a non-national. In the Seanad, the Minister of State, Deputy Brian Lenihan, argued ably that this is not a form of racial profiling and that it is not possible for racial profiling to occur as a result of this.
I hope that in future legislation some effort will be made to create more appropriate language which will prevent even the possibility of racial profiling. We must remember that the European Union has millions of people with Caribbean origin who are British citizens, with north African origin who are French citizens and with Turkish origin who are German citizens. This Bill and the aliens order which came before it allow the detention and examination of such people on the basis of a reasonable view held by an immigration officer or a medical inspector. What qualifications does a medical inspector have to make such a reasonable inquiry. The words "detain" and "examine" are unnecessary in the long term. All these officers should be empowered to do is require the production of a passport or equivalent document from a person reasonably suspected of being a non-national at a point of entry. It is not beyond the powers of the draftsmen to come up with some wording which would settle some of the fears expressed over the past few days with regard to the Bill.
With regard to the use of the term "disability", I was initially concerned about the issues raised in the Seanad. However, I am satisfied that the First Schedule set out by the Minister deals with that question fairly well. It is sometimes invidious to make lists in legislation because there is always a possibility something will be left out. Once a list is made that danger exists. I do not know if it is possible to address that situation more comprehensively in the Bill being prepared for the long term. Most Members are honest enough to accept that this legislation was, in a way, prepared to try to close a loophole.
I accept we are dealing with the transposition of previous legislation with regard to the conviction issue. During my recent honeymoon I was able to take time to read the work of Paul Theroux, an old man in his late 50s — no deliberate offence to the Minister or anybody here in their 50s — who decided to travel from the north to the south of Africa. He wrote about all the countries he visited, including Uganda, Tanzania, Ethiopia, Mozambique etc. In almost every country visited he met many people who had been in jail for political offences of one sort or other. Having read the relevant part of the aliens order, it strikes me that far too many people would be unjustly examined, detained and prevented entry on the basis of convictions by a system of justice which bears no relation to ours or that of the European Union. While I accept that this is emergency stop-gap legislation, I hope this area will be properly addressed in due course and that we acknowledge that people entering the State should not be prevented from doing so on the basis of convictions in countries that do not have the same rigorous human rights record as Ireland.
The age of the Aliens Act 1935 is no bar to it being sound law. The Constitution, which dates back to 1937, is probably one of the oldest constitutions in western Europe and it has stood the test of time. There is no reason something which originated in the 1930s should not be equally valid today.
While I accept that we are dealing with emergency legislation and that it is intended to prepare proper legislation in due course, an appeal process would be appropriate. The short time allowed for a judicial review is unacceptable. It would be wrong not to provide an adequate remedy to anybody dissatisfied with the manner in which they have been refused entry or detained and examined. I hope these problems will be considered when the promised legislation is brought forward.
I do not wish to detain the House further. The manner in which this legislation was introduced is unfortunate but necessary. I commend the Department on bringing it forward so quickly and with so few problems in it. I commend the Bill to the House.
My experience is that rushed legislation is bad legislation. There is something fundamentally undemocratic about putting through legislation without adequate consultation, consideration and debate. I am not in favour of old style filibusters but parliamentary experience over the centuries shows that proper debate leads to proper legislation.
One of the downsides of rushed legislation is that it can often lead to litigation. In a way, this is what happened here. This legislation arises directly from a decision based on the Immigration Act 1999. The Minister in his desire to get new legislation on the Statute Book as quickly as possible seems to ignore the fact that legislation has to pass a further step, beyond the Dáil and the Seanad, in the Oireachtas process. It must pass the eye of the President. The Minister seems to take for granted that the President will not decide that a referendum under Article 26 of the Constitution might be necessary.
A further aspect of the present situation is a cause of concern. Another downside of the rushed approach is that it allows little or no time for public debate. The sense is conveyed to the public that the people need to be protected by rushed, emergency legislation. From what do they need protection? If we look at the name given to earlier legislation, the Aliens Act, we could ask if the Minister was protecting the people from aliens descending from UFOs or from Mars — now it is the other way around and man is heading for Mars. To be serious, the sense of the need to protect the people conveys a sense of unease and distrust and may contribute to the development of a racist approach.
Do we learn at all from the past? In a way we are debating another sticking plaster approach. The 1999 Laurentiu decision was followed by the Immigration Act 1999 which had a marvellous subsection stating that every order made before the passing of the Act, under section 5 of the Aliens Act 1935, would have statutory effect as if it were an Act of the Oireachtas. How lazy can one be with regard to putting through legislation? How much can one take for granted that Parliament will rubber stamp everything that has happened under earlier legislation as if it has gone through the Oireachtas? That was shot down by Ms Justice Finlay Geoghegan. I say "hurrah for her". She was absolutely right.
Ms Justice Finlay Geoghegan said that the relevant subsection of the 1999 Act was an unconstitutional legislative method of giving the effect of primary statutory authority to secondary legislation and, thus, did not operate to save the provisions concerned in the orders. That was great work. According to some comments, that particular provision passed through the legislative net. I ask what net that is. There is a need for parliamentarians to ensure that we put decent legislation on the Statute Book which will not have to be tested in court again. A couple of hours debate in the Seanad and a very short debate here does not constitute a proper legislative net. We must ask if the Government has learned any lessons or is it hoping it will be a case of being third time lucky, hitting the jackpot and being spared further legislative challenge. I doubt it very much.
I saw the legislation for the first time last night and I cannot say I am an expert. I must take on board the concerns expressed by people such as the members of the Human Rights Commission. They are very upset because there was a failure to provide proper notice or involve them in proper consultation. I remind the Minister that when we spent a great deal of time in the legislative trenches examining the European Convention on Human Rights Bill, we examined it in detail. We spent weeks looking at every provision. Ultimately, the Minister accepted an amendment which made it clear that the Human Rights Commission had to be given notice of proceedings under the Act. I was very glad he did so. In that spirit, it is wrong that the Human Rights Commission was not given notice and was not involved in consultation on this legislation.I acknowledge that time was short, but consultation would have been possible.
On the question of what is to be done, there is a case for legislation. I would like to see as much consultation as possible. The best way to proceed would have involved a minimalist approach, which is not what the Minister has adopted.
That is what I would have liked.
I cannot accept that. The approach should be minimalist and accompanied by a time limit. The Minister has indicated that he will introduce broad legislative provisions in this area, which is necessary. We are operating to a certain extent in a vacuum. Legislation should arise from Government policy, which begs the question of what that is. I do not know what Government policy is in this instance. If the policy is one of closing the door, that is one thing, though I do not believe that is the case. It seems to be anad hoc policy which the Government is making up as it goes along.
I will not tell the Government what its policy should be in the few minutes left to me. However, I read the speech on emigration and emigrants which the Minister for Foreign Affairs, Deputy Cowen, made last week. He spoke about the 1.2 million Irish citizens who are living abroad. There is a much larger number of persons of Irish decent. On St. Patrick's Day, that number is supposed to run to about 50 million. That is the background against which we must consider any approach we adopt. We must look at the dramatic changes which have taken place and accept that the pendulum has swung completely in the opposite direction. We must condition public opinion to realise that immigration has enormous benefits. We need immigration from an economic perspective.
We must re-examine our work permit system and establish whether we are dealing with the issue properly. We must ask if our system amounts to bonded labour in which people are tied to employers. There is a provision in the Bill before us which I question in that context. Someone coming here must produce a work permit but this document is issued to the employer rather than the employee. The employee will not have possession of it when he or she arrives here. The one-year duration of the permit is very wrong and promotes a great sense of insecurity. I am not sure we would have been very happy if our people who obtained American green cards were subject to the notion that they could be sent back after 12 months.
In an asylum and refugee system people want fairness, justice, due process and efficiency. I acknowledge the enormous pressures which were put on the Department. The flood was not expected and the Department was not ready and able to cope. Now, however, people want to know that people who come here genuinely or otherwise have their cases dealt with fairly, properly and, above all, quickly. There is a question in the context of work permits and our international obligations of whether we should consider a voluntary quota or figure per year as has been done in other countries. Are we wealthy enough to consider that?
I am concerned that there is a lack of safeguards in the Bill. Can an amendment be introduced to counteract that? There seems to be no provision for an appeals mechanism, which begs the question of whether the legislation can stand up under the fundamental rights provisions of our Constitution or the European Convention on Human Rights? The section which reduces the residency time limit from three months to one is a new provision. That is a radical and serious change. I raise the issue on the basis that the Minister put forward the Bill as a mere restatement of current law. Will the Department be able to deal with the change. I came across a case recently of an American who had a three-month residency permit towards the end of which he decided to stay longer. He wrote to the Department and subsequently phoned to find out how long it would take to grant his application. He was told it would take six months. What will we do if the residency time is reduced to one month? I suggest the Minister considers the practical effects of the provision in his own Department. It may give rise to chaos.
Under section 4, there is the creation of an offence in the case of a person coming into the country who fails to report to an immigration officer. This is a serious offence which involves an enormous fine, which the person probably will not have, or a jail sentence of up to 12 months. What happens if the immigration desk at an airport is unmanned as is often the case? An absolute penalty is created and there is no question ofmens rea. If a person fails to report, he or she is guilty. What happens if there is no one to report to? These are just some of the problems which suggest themselves on a cursory inspection of the Bill. I mentioned work permits. A person to whom the permit is not issued is expected to bring it to the immigration desk. If it is issued to the employer, how can the person coming in have it with him or her? It does not make sense.
A rather unusual provision is made regarding powers of arrest. Under the Bill, a person can be arrested without a warrant on suspicion. However, if a garda wishes to seize property, he or she must obtain a search warrant from the District Court. That merely indicates the contradiction between the rights of someone with property and individual freedoms.
I am not fully sure what the Minister has in mind with this obligation on people to report on any non-nationals who are staying with them. I have not had the opportunity to tease this out fully, but if a non-national friend of one of my daughters came to stay the night or weekend, would I be obligated to demand that she produce her papers? That is apparently what is in the legislation, and that needs to be teased out much more.
There is some understanding of the Minister's situation arising from the decision. Several options were open to him. There is an acceptance of the need for legislation. What should not happen is the reproduction of an Act based on regulations from a different era, merely changing the name. That was not the right approach. I accept the need to put legislation in place within a reasonable time. It should be minimalist, not making those changes, some of which I have described. It should be as a result of consultation with the interested parties and mediated, as far as possible, by the public. It is hugely important that it is part of a process that will lead to a Green Paper or White Paper on immigration generally and an informed debate so that before the end of this year full and comprehensive legislation covering the entire area can be put in place. That is the approach that I recommend. I am concerned about the approach being adopted by the Minister, while at the same time not shutting the door entirely to legislation. I accept the Minister's dilemma, but he has taken the wrong option in this case.
The Immigration Bill 2004 is an emergency response to a situation that has arisen out of an unexpected High Court judgment which left the legal system without proper immigration controls. The responsibility of Government is to ensure that Ireland can continue to have immigration controls to protect the interests of society and the individuals, whether Irish or non-national, who make up that society. This legislation is crucial to the protection of the State and its people. Every sovereign state in the world exercises on behalf of its people the right and obligation to control who enters its land. It is the responsibility of the Government to do everything necessary to preserve and restore proper immigration controls. We will not apologise for doing so. Some in this House will try to distort the facts and insinuate that the Bill is about repressing or inhibiting people's rights to enter this country, but that is not so. It is about protecting Irish society, which includes, of course, many non-Irish nationals who are genuinely in need of Irish refuge. In that instance, I commend the Bill to the House and congratulate the Minister on introducing the Bill.
I call a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
On a point of order, no Opposition speaker was here when Deputy O'Flynn sat down. That is the measure that we were told was jackbooted through the Dáil. When the situation arose, there was no Opposition speaker here.
The Minister is taking unfair advantage of those who wereen route to speak.
The past ten years have witnessed more changes in Irish society than the previous 50. For over 150 years, Ireland endured the haemorrhage of its population to all parts of the world to seek a new beginning. Now, however, almost 20,000 more people make their home in Ireland each year than emigrate from the country. A recent report prepared for the United Nations states that Europe will need 159 million immigrants from outside the continent within the next 25 years. That will be necessary if it is to maintain its present equilibrium between the numbers of those at work and retired. The United Nations has estimated that, without such immigration, the population of the European Union will fall by 30 million over the next 25 years because the birth rates are so low. By 2050, almost half the entire population of Europe will be above the retirement age. That is unsuitable.
Fine Gael believes that Ireland's asylum policy is in turmoil and the procedures are inadequate. In many cases, applicants for asylum are left waiting for two years before a decision is made on their applications. In 1998, only 77 of the 4,626 applicants were granted asylum. Of the 5,500 applications made in 1999, only seven had been granted by November of that year. The one-stop asylum application centre at Lower Mount Street is totally inadequate when it comes to coping with the numbers applying. A temporary scheme of work permits announced in July 1999 is too complex and unworkable. Only 53 permits of an eligible 2,000 had been granted by November 1999. The scheme requires urgent alteration. Many applicants applying for asylum are economic immigrants who are forced to apply because of Ireland's failure to devise a national immigration policy.
Fine Gael believes that a national immigration policy is necessary to fulfil our moral responsibility and legal obligations under international law, meet the estimated labour shortfall of 160,000 over the next seven years and realise our vision of a more open, inclusive and culturally diverse Ireland in the next century. The national immigration policy must be accompanied by an integration policy. All immigrants to Ireland, whether they intend to become citizens, are granted residency on humanitarian grounds or come as economic immigrants, should integrate as fully as possible into the Irish way of life and be actively encouraged and assisted to become part of the Irish nation.
The Government must develop a comprehensive range of education programmes suitable for immigrants of all ages. The Department of Education and Science should draw up a special curriculum for this purpose and certification should be provided for those who complete this. The preparation of this curriculum should require a more formal articulation than has hitherto been necessary of the core values and attributes upon which Irish society is based and it should be debated by the Oireachtas. The Department of Education and Science must also formulate modules for primary and post-primary schools to assist young Irish people to appreciate and understand the cultural diversity of non-nationals residing here.
Fine Gael believes that an active immigration policy cannot be implemented unless the Government tackles the growing chronic housing crisis. Fine Gael, therefore, urges the Government to adopt the policy proposal outlined in Affordable Housing for All. Fine Gael also believes the State has an obligation to ensure that communities with a high level of immigrant population are adequately supported by the State.
Fine Gael also proposes a twin system to deal population inflow. Category one, refugee-asylum services, would operate under the aegis of the Department of Justice, Equality and Law Reform and would process applications from asylum seekers in accordance with the Geneva Convention on Refugees 1951, the Protocol relating to the Status of Refugees 1967, the Refugee Act 1996, the Dublin Convention 1996 and the Immigration Act 1999.
Fine Gael proposes the establishment two additional one-stop-shop application centres at Rosslare and Shannon and the provision of accommodation at different locations throughout the country for applicants. It is a pity the rent allowance is being removed and the Minister proposes to accommodate refugees in centres. It is unfair in terms of their privacy and integration into the community. The rent allowance enabled them to have their own home subsidised by the State, but that will be removed and all asylum seekers will be accommodated in centres.
Five centres were developed by the Government at a cost of approximately €19 million, including Broc House which has cost the State in excess of €11 million in the past three years. It believed it could get a ministerial derogation for change of use but that did not happen.
It is in the Minister's constituency.
Is it? It is regrettable that Broc House, a centre which cost the State in excess of €11 million in taxpayers' money, has been lying idle for the best part of three years. It is costing €500,000 to maintain security at Broc House which is in the centre of Dublin and not far from the RTE studios. There is also a centre in Rosslare and Lynch's Hotel. The Devereaux Hotel was sold at a considerable loss. Five centres, which were bought by the Government at a cost of €19 million for the accommodation of asylum seekers, are now vacant or have been sold at a loss. I did not know Broc House was in the Minister's constituency.
The Minister could do something about it.
I call on the Minister to state how he can stand over expenditure of €12 million of taxpayers' money which is rising daily. Broc House, which is in his constituency and was bought to accommodate asylum seekers, is lying idle. The Minister thought he could use ministerial power to get planning permission, but there were local objections. That property is costing money at a time when people are sleeping rough in Dublin. People are sleeping in cardboard boxes in this city, yet there is accommodation which, if not suitable to accommodate asylum seekers, could be used to accommodate people who are sleeping rough. It is regrettable that the Minister has allowed this to happen and that people coming into this country are being treated like third-class citizens.
Fine Gael proposes that asylum seekers who are eligible for work permits should be specifically identified, education and skills audits should be undertaken and permission stamped on applicants' identification cards so that they can approach employees who would, therefore, not need to research eligibility.
I know from the Committee of Public Accounts of the level of dissatisfaction about the management of property acquired, that thereis now a move from direct provision of accommodation to indirect provision and that the support of the private sector is being sought to accommodate asylum seekers in large centres which would incorporate clinics and educational facilities. It was stated in correspondence that the reason for having all the services within the one centre was to ensure there was no chaos or bad management in respect of local post offices and services. It was a clear inference that asylum seekers were causing anarchy in the services. It is outrageous when we hear the Minister talk about accommodating asylum seekers that he has stood over the expenditure of €19 million of taxpayers' money on property which has not been used or approved or has been sold at a loss. The Minister is giving an open invitation to the private sector to secure change of use in respect of accommodation before he signs a tenancy on the provision of accommodation for asylum seekers. That is outrageous.
Category two, the immigration service, proposes that membership of the immigration service should be drawn from the Departments of Enterprise, Trade and Employment, Foreign Affairs, Justice, Equality and Law Reform, Education and Science, Health and Children, and Social, Community and Family Affairs, IBEC, ISME and the ICTU and a representative of non-governmental organisations. The functions of the service should be to develop and implement a cohesive immigration policy based on Ireland's capacity to absorb an annual predetermined number of non-EU nationals to meet the labour and skills needs of the economy; to consider applications for work visas from non-EU nationals provided such applications are made from outside the State; to process applications in accordance with the principles set down in the European Convention on the Legal Status of Migrant Workers and the UN Convention on the Protection of All Migrant Workers and their Families; to recruit staff, provide information and develop integration and support services; to provide information to agencies, employers, schools, NGOs, voluntary organisations and communities on the origins, cultures and needs of the immigrant population; and to provide advance information to would-be immigrants on the criteria for admission, thereby maximising the number of applicants likely to be successful while minimising the number likely to be unsuccessful. That is not done. We have anad hoc policy on immigrants and on granting visas. It is very badly managed.
The Minister is bringing in draconian legislation in light of the High Court case last week. The provision whereby information could be sought from individuals was thrown out by the High Court and it is has given the Minister an opportunity to bring in even further restrictions. It is regrettable that the Minister has sought to bring in far-reaching changes instead of a minor adjustment. People left this country to live throughout the world and it is a poor "thank you" to the Irish diaspora in America and the UK who have been catered for with green cards, work visas and so on.
The immigration service should also advise on the training, language and other needs of immigrants and provide applicants with information on work, conditions of work, housing, rights of family members to join them, education, social welfare, health services, taxation, and access to courts and the relevant authorities. That is not being done.
People who come to this country feel they are fourth rate citizens and could be turfed out overnight. I learned of the circumstances of a case of a person from Tubbercurry who was deported. When she came to Dublin, the Minister sent a taxi from Dublin to Tubbercurry to pick up her baggage and she was put on an aeroplane the following morning. Is that what the Minister who speaks of equality in services, a friendly nation, hospitality and so forth calls justice?
These kinds of cases send out an outrageous signal. The Bord Fáilte slogan, "Ireland of the Welcomes", does not apply to immigrants, asylum seekers and those seeking work visas. The difficulty in obtaining work visas, the provision tying recipients to their employer and the restrictions on employers the Minister has introduced are outrageous. He has increased fees, imposed a delay on the period of assessment and, in certain cases, the entitlement to a permit has been considerably curtailed. These are draconian measures.
The Fine Gael Party proposes that non-nationals who have been legally resident here for five years should be eligible to apply for citizenship. It would be desirable for those deemed eligible for citizenship to be able to demonstrate knowledge of the country and its history, culture, values and democratic principles. Economic migrants should be invited to fill an annual quota of approximately 10,000 non-EU workers to meet the labour requirements of the economy.
The Fine Gael Party proposals are contained in the Proper Policy Response to Immigration, a far-reaching document on which I compliment Deputy Deasy. I also congratulate the Deputy on the important amendments he has tabled for Committee Stage. The Minister's cynical attitude in more or less sniggering at the Opposition for raising issues which need to be debated is outrageous. It is also outrageous that he has guillotined a Bill introduced in response tolosing a case ten days ago in the HighCourt.
We must ensure the target of allocating 0.7% of gross domestic product to development aid by 2007 is realised and continue to persuade other European states of the necessity to do likewise. The enlargement process needs to be supported and adequate funding made available to applicant states to assist them in developing their economies.
Amendment No. 35 tabled by Deputy Deasy is important. The practice of issuing work permits to employers, which has long been criticised by the Fine Gael Party, amounts to a system of bonded labour in which the worker is tied to an employer. As has been borne out in a number of high profile cases, it leads to exploitation of workers. It is deeply flawed to suggest that a non-national should possess an employment permit when landing here given that only the employer may have such a document. One cannot expect more of non-national than that he or she should carry a copy of the permit.
We deserve a few more listeners on the other side of the House.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
This Bill does not simply close off the loopholes exposed by the High Court. While we were led to believe the Bill would simply place pre-existing procedures on a statutory footing, it goes much further. It is, therefore, disingenuous of the Minister to introduce it on the pretext that its purpose is simply to rectify legal difficulties. The Bill introduces a new concept into immigration law, which marks a new low in the Minister's well-trodden path of legislation by stealth.
The speed at which the Bill was drafted is impressive. Year on year, we listen to the Government promise much needed legislation which it fails to publish, yet it was able to produce this Bill within a week. The Bill is not short and includes more than 20 sections. It seems the urgency behind it lies not in its subject matter but in the fact that the Minister was Attorney General when the Immigration Act 1999 was passed——
That is not so. It was a year earlier.
——and it was his error which the Government is now rushing to patch up.
Will the speaker yield to me?
I was not Attorney General when that Bill was introduced.
I am repeating what the leader of my party said in the House this morning.
He has conceded that he was mistaken.
If the Minister was not Attorney General, he would have been an adviser on the matter.
The Minister should check his facts.
I was down in the Law Library earning a few shillings.
In the Minister's absence I referred to Broc House which is in his constituency. I ask him how he can justify a property, which is costing the taxpayers €12 million, lying idle instead of accommodating asylum seekers. The security costs run to €500,000. That is one of five properties that have cost the Irish taxpayers €19 million and for which the Minister is responsible.
I am not responsible. The case is before the courts.
The Accounting Officer appeared before the Committee of Public Accounts and stated the difficulties clearly.
It has nothing to do with me.
The Minister is responsible.
This is like the incineration issue.
Problems in the Department of Justice, Equality and Law Reform seem to be someone else's responsibility. The Minister is accountable for taxpayers' money.
The Deputy should ask the Minister about incineration.
I am disappointed at the Minister's disregard of €19 million of taxpayers' money that was spent on the provision of accommodation for asylum seekers and I ask him to account for it.
I welcome the opportunity to speak on this legislation. It is interesting that this legislation comes so soon after a Private Members' motion on the position of Irish immigrants in Britain. I spoke on that motion in the House last week and I quoted from Cobbett who said that in one month 15,640 Irish immigrants who had previously been harvesters arrived in London ragged and in a state of destitution. Frances Finnegan's book on poverty and prejudice documents this transition from pre-Famine migrants who laid down channels of emigration to Britain and how this became a flood at the time of the Famine. This was before the great emigrations to the United States. The reaction to them in Britain was as carriers of disease who were passed from the jurisdiction of one poor law institution to another, moved on so that the cost from one area could be passed on to another. This is burned in my mind as one reads of their experience. They were simply people from pre-Famine times who were seeking to pay the rent and pay debts to shopkeepers, to provide facilities for other people to build churches after the Famine, to provide facilities for emigration to the United States and elsewhere.
Our history is very much one of sending people to other countries in the absence of our capacity to provide the opportunities for employment. As late as 1957, 59,000 people left Ireland and at the end of the 1980s urban people in the main emigrated.
It is interesting to note the rhetoric used when discussing Irish illegals, as so called, in the United States. We refer to them in this House, usually, as out of status. Having had that experience, our language when referring to those who arrive in this country is curiously insistent on a kind of fortress mind which is that the State territory must be protected against these strangers arriving on our shores. It is fascinating how close we are to British thinking at different times.
The basic study of West Indian migrants arriving in London is calledDark Stranger. Much of this legislation is about identifying strangers who are not welcome here or whom we wish to exclude. I wish the House had been discussing fundamental legislation that drew distinctions between those who are refugees, economic migrants, those seeking to be bonded with their families, distinctions that it behoves us to address in this Legislature, rather than this rushed legislation.
I am not a lawyer but I am interested in law. I found it curious to read the judge's comment that his decision was based on a glitch. Speaking with respect from outside that profession I suggest judges are there to judge, reach conclusions and arrive at decisions, not to identify glitches. The Government is there to introduce legislation. Members of this House, Opposition and Government, are here to legislate with some degree of certainty. To come with rushed legislation on the basis of filling or transcending a glitch will, in turn, as so many speakers on this side of the House have said, create its own problems and certainly not satisfy many.
The two founding Acts of 1935 and 1946, which are at the root of this Bill, those which it seeks to amend, are not without their own particular context. The 1935 legislation created the capacity to deport. I often think ofMr. Graltonwho was deported from this country on the basis that he was a threat to the State because of allegedCommunist sympathies. He is the only Irish citizen deported under the old legislation. The immigration policy of the State is not a new question.
The Minister has his own view and I differ with him on some fundamental points. His view is fundamentally a conservative one, argued within a very narrow view of the Irish Constitution. This is a view on jurisprudence that has been encountered previously. In his speech to the House he states:
Some of the criticisms which have been voiced are based on the misapprehension of the relationship in law between a non-national and the State. The position recognised and confirmed by the courts is that, subject to two categories of exception to which I will refer later, a non-national has no right to be in our State and that permission to enter is in law a concession or privilege bestowed on the non-national by the State by virtue of its sovereign power. Control of non-nationals entering a state is a valuable and essential tool at the disposal of every sovereign state for the protection not only of its territory but of the people who lawfully live in that territory. This has long been universally recognised.
That is an extraordinarily strong statement and comes out of the politics of fear. It is capable of doing immense damage not through its own direct reference but through the misconstruction that would be made of it. He states that in the Irish context this position is supported not least in two key judgments of the High Court. There has been a movement in law which recognises there are fundamental rights which attach to the person and to the family in movement from one country to another.
It seems to me that the Minister's speech on this hastily drafted legislation represents a further indication of a distaste for international law as being somehow less than a narrow interpretation of the protections that lie within the Constitution. The Minister's introductory contribution included another extraordinary statement, which was somethingof a flourish on his part. He said that: "the Supreme Court has also held that immigration powers can be exercised by the Executive in the absence of legislation". Translated into layman's terms, this means that we can make it up as we go along.
When I attended a select committee meeting not long after I became a Member of the Oireachtas in the 1970s, I was told that Ireland's policy was in place to protect its people, more or less, from people coming here. I remember that I was very upset by this remark, which was made in the context of a Committee Stage discussion of a Bill. This remark was followed by a more astonishing statement, to the effect that if Ireland has a policy, it is to keep Ireland "white". It was very interesting.
Who said that?
It was said by an official almost 25 years ago. I can find the reference for the Minister. I will not fall into the trap of suggesting anything else in that regard, as it is not my business to do so. The Minister might find it easier then me to converse with the person in question.
An interesting point arises when one examines the controls that have been suggested. When one considers, in an abstract sense, those from whom we should be protected, it is interesting to note that nothing in this legislation will prohibit or delay to any substantial extent the entry into this country of the international financiers who float around the world and who have robbed thousands of people. Unless such people have served a year in jail, they will be perfectly free to arrive at Dublin Airport and use their bought passports to come in and out of the country as they wish. As I prepared this speech today, I thought of the numerous non-nationals — the new landlords to whom people love to tug their forelocks. As such people come and go, how many of them have ever been stopped and asked about their 90 days, or the length of time they spend in this country? Frankly, I do not think such people will be too much discomfited by fear.
On 4 January last,The Sunday Times reported on the interesting case of a fugitive Czech-born financier who exploits his Irish passport. Mr. Viktor Kozeny holds 8 million shares in IMS Maxims, formerly Irish Medical Systems and is thinking of running for the European Parliament on the basis of his Irish passport. Far be it for this House to impede his progress in and out of Dublin Airport.
The Minister's speech contained an appeal to practicality. Most people who made submissions attested to the courtesy and attempts at fairness at the point of immigration. I acknowledge that, but it is true that those who have made complaints come from minor ethnic groups. I do not think any of us would contest that. I would have thought, therefore, that it would have been practical to include in the legislation a declaration that the fundamental or substantial legislation which is promised in the Government's 2004 programme will deal with issues such as proper training, the procedures to be followed, the right of appeal and the various conditions to be laid down if a person is turned away. It would have been practical for the Minister to have made such a statement in his speech, but I missed it if it was there. A declaration of the planned content of the substantive legislation is essential, as one should not introduce a measure of this type without including such guarantees. I have outlined the evidence for my suggestion that one is moving away from human rights and international law and towards a narrow interpretation of protecting the territory, etc.
I have listened with care to the thoughtful speeches that have been made by Opposition Members. It is impossible to accept that the opinions of the Irish Human Rights Commission on legislation such as this were not sought. In light of the debate we have had, it would have been prudent to have sought the opinions of the members of the commission on the fundamental issues involved in the legislation, especially when one considers their backgrounds and the contributions they could have made.
I think the Minister was shocked by the reference I made to a comment made by an official in the 1970s. I will dig out the exact quote from my historical references when I have more time.
I would like to discuss section 10(5). This matter attracted my attention because it reminded me of the 1940s approach to sufferers of TB. Under legislation passed by this House at that time, landlords and landladies were compelled to record the fact that a person suffering from TB was staying at their accommodation. It was an offence for the sufferer of TB and the person offering accommodation not to keep a register to be kept open for inspection. I do not suggest that this legislative provision guided the thinking of the Minister, Deputy McDowell, but when I read section 10 of this Bill, I thought it was almost identical. According to section 10(3), when a non-national arrives in Ireland, "a register shall be produced by a keeper to a member of the Garda Síochána or an immigration officer if so requested by the member or officer". Section 10(4) states that "a person who contravenes subsection (1) or a provision of regulations under this section that is stated in the regulations to be a penal provision shall be guilty of an offence".
Has the Deputy ever noticed that happening in France?
No. I live in Ireland andmy aspirations are for a democratic republic here.
It is not a fascist state on that account.
I consider myself a European, although I have many friends who do not live in Ireland or elsewhere in Europe.
I would like to discuss some other aspects of this interesting Bill. I emphasise that I have concerns about the absence of any guarantee at the point of entry, the notion of entirely neglecting the Human Rights Commission, the establishment of procedures requiring notification, the inspection of registers and the notion that one cannot move from one house to another without notification. What kind of legislation is this if it is not draconian, introduced without consultation with those whom this House has facilitated by appointing them to independent bodies like the Human Rights Commission?
I would like to discuss some of the points made by a number of organisations, the first of which is important. I have not heard the Minister outline the particular parts of the Opposition's critique which will be included in the fundamental legislation which has been promised in the Government's 2004 programme. Such an explanation would have been useful but it was not offered. I will return to the point with which I began by stating that there is something especially miserable about legislation of this nature, when one considers it in terms of Ireland's own experience.
The Bill's suggestion in respect of persons with a disability is entirely daft, although I understand that it is to be amended. This legislation is such an act of genius that approximately 20 Government amendments to it have been brought forward, shortly after its gestation. I read the Minister's speech carefully so that I would be accurate and so that I would not attribute opinions to him which he does not hold. He suggested that the language of the Bill will be changed to take account of "more modern" usage.
An airport is a place of considerable stress. Many people suffer stress during and after flights. The suggestion that the response should not be one of medical care but of disposing of the problem — sweeping the problem away as quickly as possible — represents an extraordinary mindset. Where in this legislation is there a suggestion of any form of appeal or recourse for such a person?
The description of the manifestations of disability, to be amended by the Minister, includes agitation and all the symptoms usually attributed to the most abused category in medical practice — schizophrenia. It refers to a person exhibiting the manifestations of a psychotic condition. It is wonderful that those in the Department of Justice, Equality and Law Reform are now able to draw distinctions between a psychotic condition, a minor schizophrenic condition and agitation and stress. I congratulate them on their medical advances. Our hospital wards, especially in the area of mental illness, are full of stupid, imprecise and inaccurate diagnoses on the basis of indications such as this.
I found it interesting, on reading the Bill, to wonder who would arrive at these conclusions. Not a doctor or any consultant — just the person who happens to be the immigration officer. I wish these people well and I hope the Minister, when he comes to a more mature phase of deliberation, will make some provision for their training, even if I do not expect him to recognise the evolving principles of international law and the widely held principles of human rights law, which at one stage protected persons who were moving from one jurisdiction to another. It is interesting to note that at the moment, international gangsters and criminals will not be discommoded for half an hour by this legislation. Members of ethnic minorities and people who have fewer economic means than those who have been stealing in a corporate sense will suffer. One will be able to buy one's way——
I am sorry to interrupt, but the Deputy's time has expired.
I will finish in a moment. No internal or independent appeals mechanism is offered in this legislation. This is a matter of derision on the Government side, particularly for the Minister. There is no independent monitoring at the point of entry. Nothing is offered to upgrade the circumstances in which a person might seek an outside opinion or appeal. In addition, there will be a particular impact on those with lesser means than those who are international thieves. It will affect ethnic minorities and those who differ from the population of the country in which they are arriving.
I believe in an immigration policy and immigration legislation, but this kind of stuff, as I would call it, is unfortunately redolent of an ugly side of the Irish mind. I end where I began. We sent hundreds of thousands of people abroad, expecting a welcome, who themselves were often looked upon as the carriers of disease and threat. This legislation will result in our turning people away at points of entry simply because we are in fear of being overwhelmed. It is very sad. This kind of stuff will feed into the subterranean currents of racism, as people will no doubt discover over the next 12 months. I hope they will notdiscover it during the local and European elections. The loose language of the Bill, which lacks aim and about which even our own Human Rights Commission is concerned, is singularly unhelpful.
I wish to share my time with Deputy Kelly.
I welcome this important legislation. The Bill deals with a lacuna that has arisen because of the High Court judgment in the case of Leontjava and Chang. It was an appropriate decision for the court to make because of the separation of the powers of the Legislature, the Executive and the Judiciary. It is entitled to make such a decision and it is up to the Oireachtas to react. A statement has been made that a non-national has no right as such to come into the State. Permission to enter or to be in the jurisdiction is a privilege or concession bestowed on a non-national by the State. That is a statement of fact. There are two exceptions to this rule. If one is a citizen of an EU state one has free access to this country as Irish citizens do in all other EU states. A non-national may also apply for and obtain refugee status. That is fair enough.
Do we have or need immigration controls and an immigration policy? It is clear that we do. Otherwise there would be chaos, for which our citizens would not thank us. Is there a gaping hole in our immigration laws since the High Court decision of 22 January? There is, and both Houses of the Oireachtas have a clear, unequivocal duty to ensure that this is rectified quickly, efficiently and fairly.
Let us consider the history of inward migration. We referred to the Aliens Acts of 1936 and 1945 as having originated in an era totally different from this one. We hear people talking about the thousands of emigrants that left these shores. However, there were always controls. Eight members of my family emigrated. When they went to America in the 1950s and 1960s they were required to have health certificates and Garda certificates stating they had no criminal record. If they were guilty of any misdemeanour they were not allowed in. In Boston, New York and Chicago one had to sign on every week to ensure the state knew where one was. People say we hadcarte blanche but that is not true. In the 1950s and 1960s there was a clear indication from Australia and New Zealand that people from the UK and Ireland were wanted to come there and work. Schemes were set up under which one was taken out there virtually free and could work for two years. Those were different times — there was a different climate in those days.
We have always had immigration laws and controls, and rightly so, but we did not have a problem with immigration until the period 1994 to 1996, when there was an influx of migrants. I heard the Government being criticised by earlier speakers because Broc House has been left idle. I understand it is idle because there is a court injunction holding everything up — it has nothing to do with the Government. The matter issub judice. One hears criticism of the amount we are spending on creating facilities and places of accommodation for migrants, refugees and asylum seekers, but we are also being criticised for doing nothing. When the rainbow coalition left in 1997, the problem of immigration, which we had not encountered before, was emerging. The numbers entering the country built up from a few per month to about 1,200 people per month in 1999-2000. This was a big problem.
In the early days of the last Government it was obliged to put mechanisms in place. The rainbow coalition left no initiative, no financial plans, no structures, no system of appeal, no offices, no staff. Millions were spent by the last Government on providing a system under which queues were eliminated, proper appeals structures were put in place and people were treated humanely. They were given accommodation, despite some criticism. There was criticism that refugees and asylum seekers were accommodated in hotels and decent buildings when many of our own citizens were on housing lists. This situation should be recognised.
I was in Stockholm, with the then Deputy Monica Barnes, at a conference on migration into Europe, the situation in the USA and the balances that were introduced. In 2000, the EU member state with the largest problem ofper capita inward migration of refugees, asylum seekers and economic migrants was Belgium. Ireland came second in this table and was well ahead of even the United States.
When inward migration to Ireland increased, it caused logistical problems for the then Government. Despite this, it strove might and main to cope with the matter. The Exchequer responded by creating new offices created and quadrupling immigration personnel. Despite this, when I was a Senator, I heard a number of Members claiming that the Government was not doing enough. However, much has been achieved. If we were to go down the road of having no immigration laws as some people advocate, the system would break down.
If I am stopped by a garda while driving from my constituency to Dublin, I am obliged to have on me a driving licence with my photograph, to explain who I am and where I am going to and from. As a result of the recent High Court decision, a garda or an immigration official cannot stop an individual to ask him or her basic questions such as where he or she is staying, coming from, and so on, and to record the information. This is a serious issue.
There are Members and political parties who advocate an open door policy to all and sundry, refugees and asylum seekers. There is this notion that we must do so because we had outward migration for centuries. This, to a certain extent, is correct. However, if one looks at migration to Britain after the Second World War, the Irish were encouraged there to work on the railways and the roads. The same happened in America and Australia. The same happened here too when, three years ago, the Tánaiste and Minister for Enterprise and Employment, Deputy Harney, went to South Africa to encourage people to come to Ireland to fill the many vacancies. In Bantry Hospital, we are glad that we have several Filipino nurses. Most of the doctors there are coloured and are more than welcome because they do a great job. That is the type of migration we want to encourage.
An impression, however, has been created, maybe not intentionally by those "do-gooders" in this House and the Seanad, that Ireland is a céad míle fáilte, free and plenty place, irrespective of what one is. This message went out to the drugs and human traffickers. We have seen the consequences of this where people are now smuggled into both Great Britain and Ireland. The impression was that, once one reaches Ireland, one is home and dry, irrespective of motives. I do not say that to those who come to these shores seeking asylum, who have suffered torture and fled from situations in their own countries. When they have come here, we have tended to deal with them properly and humanely. They are also entitled to the full facilities of our legal systems and allowed to appeal any decisions. Many of them remain here.
Do the opponents of this Bill realise the terrible repercussions that will ensue if the loophole created by the High Court's decision is not closed quickly? It gives out the wrong signal. I do not advocate the guillotining of the Bill. There is a foundation of immigration law in this State, our policy is clear and successive Governments have supported it. Clearly the Bill is a responsible reaction to a High Court decision. It is a reaction that we must take in hand, sooner rather than later. It is important that a clear message goes out internationally that we have immigration laws and controls.
A Member asked what should be done with an individual who is ill and attempts to gain entry. It is a valid point. However, what if a dozen people arrive at Dublin Airport with bird 'flu or SARS which could infect thousands of Irish citizens? Do we tell them they are welcome to enter? What if a hundred people in west Kerry, Clare or Sligo are infected by this 'flu as a result and we cannot control it? That is an irresponsible approach. We need controls at a time when new viruses crop up throughout the world that our scientists and doctors cannot control.
I must conclude as I am sharing my time with Deputy Kelly.
No. The Deputy was just getting interesting.
In a nutshell, the Minister must be complimented in his approach to this topic. It is an important and urgent matter and he is going in the right direction towards resolving it. When the clear light of day dawns on those opposed to this measure, they will, on reflection, say we had no choice.
The Bill aims to address matters arising from the High Court judgment of 22 January 2004 in the case of Leontjava and Chang. The consequence of the judgment has been to cast serious doubt on the validity of all statutory provisions dealing with the control of entry to and stay in the State by non-nationals.
The maintenance of security and looking after the interests of all citizens is a serious matter which is a huge responsibility for the Minister for Justice, Equality and Law Reform. Somebody must take responsibility because it cannot be put on the long finger and forgotten. We need people to be responsible and the Minister has accepted his responsibility. We need people to take charge, to do things and take control, because we cannot have a situation where there is no control and people can come and go as they like. There have been many misconceptions about this Bill. It must be made clear that this is emergency legislation without which the issue of immigration law would be left in limbo. How often do we hear who is responsible and the call for people to take responsibility?
Permission to enter or to be in the jurisdiction is a privilege or concession bestowed on the non-national by the State. The primacy of the importance of the control of non-nationals entering the State has been universally recognised from earliest times. It is a valuable and essential tool at the disposal of every sovereign state. No matter where one travels, one will be asked for valid identification papers. In New York, if one wishes to buy a train ticket to go to Boston, one will be asked for a driving licence or passport which is a reasonable request. Most people are reasonable, sensible, law-abiding citizens who will accept that they must have valid papers. Due to the threat to world security, it cannot be tolerated that there are no controls.
The State's power to exercise immigration controls is not a repressive, punitive or draconian power. It is a duty which falls on the Government in the protection of Irish society, which includes the many non-nationals who live and work here, and in accordance with our legal system. The main provisions were contained for a long time in the Aliens Act 1935 and in the Aliens Orders made thereunder. The Immigration Act 1999, as well as framing the deportation process in the form of a primary statute, provides in section 2(1) that every order made before the passing of the Act under section 5 of the Aliens Act 1935 shall have statutory effect as if it were an Act of the Oireachtas. The Aliens Orders have been the foundation and charter of the operation of our immigration control system since their adoption many decades ago.
The recent High Court judgment related to the validity of the 1935 Act and the 1946 order and the court found there was no basis in the 1935 Act for the provision of the 1946 order which imposed a condition regarding the duration of stay on a non-national's permission to enter the State. The court found that another aspect of the 1946 order which related to the power of an immigration officer or a garda to ask non-nationals to produce identity documents was invalid and it also found that the protection the Oireachtas conferred through section 2 of the 1999 Act on the Aliens Orders was itself unconstitutional. When we travel we do not do so without the proper papers and documentation. I know of no-one who does not conform to such controls in the interests of the majority.
The practical effects of this judgment go to the heart of the immigration control function as exercised in the State in respect of non-European Economic Area nationals. It leaves every aspect of the operation of immigration controls thought to be addressed by the 1946 Aliens Order either without statutory basis or so open to challenge as to render the controls extremely difficult to operate.
The State has inherent powers in this area but they require perfection and clarification in some legislative detail. To date that legislative detail has been provided through the machinery of the Aliens Order which is now open to challenge. Aspects of the machinery in question include: the appointment of immigration officers; immigration controls on non-nationals entering or seeking to enter the State, including refusal of leave to land; permission to remain in the State, including conditions outlining whether the non-national is permitted to work and duration of stay; Garda registration of non-nationals; powers to check non-nationals for evidence that they are permitted to remain in the State; and the power to charge non-nationals for breaches of their permission to remain or for illegal presence in the State and to arrest and detain them for such offences.
There are also practical implications for the many non-nationals already in the State. Over 128,000 non-nationals were registered with the Garda in 2003 and the expectation of a non-national in compliance with immigration law, for example, is that when seeking a re-entry visa to return to the State after a trip back home, he or she can rely on valid documents to support his or her application. In addition, when seeking to become naturalised, he or she can show, with valid documents, that the statutory conditions for naturalisation are met. That can no longer be the case if the law is either invalid or has a cloud of invalidity hanging over it.
The inroads made into statutory provisions mean the effect of the decision of the High Court is a serious diminution of the powers available to the Executive to fulfil its obligations to its citizens to control the entry of non-nationals to the State. The Bill is an emergency measure and should be taken on those terms. We need to place an obligation on non-nationals to present themselves, on arrival in the State, to an immigration officer for leave to land and we need immigration officers to have the power in certain circumstances to refuse leave to land to a non-national.
The Bill is important and necessary and I commend the Minister for bringing the legislation to the House. We have been accused in the past of being slow to react but when we react swiftly we are also accused.
I propose to share my time with Deputies Boyle and McHugh, with each of us having approximately six and a half minutes.
Is that agreed? Agreed.
This afternoon the Minister spoke of the urgency with which he thinks this Bill needs to be passed. I agree with him that there is an urgent need for new immigration legislation, but the legislation which is needed urgently is that which will address cases such as the one I am about to describe. It is not the first time the Minister has heard of the case. The details will be familiar to him because I spoke personally to him about it before Christmas and on his invitation I subsequently wrote to him with a further appeal regarding the case.
The case concerns an 11 year old girl whose name, appropriately enough, is Precious. I will only use her Christian name. She is the older sister of two Irish children she has never met. Their parents have been legal residents of Ireland since 2001 but when they fled Nigeria they were forced to leave Precious behind in the care of her grandmother. Tragically the grandmother died 18 months ago and Precious has been living on her own since then as there are no other family members there to give her support. I will repeat that in case it was not clear: an 11 year old girl has been living on her own for 18 months, distanced from her parents and young brothers by the refusal of the Minister for Justice, Equality and Law Reform and his colleagues to give her the basic right of reunification with her mother and father.
Precious's parents filed for a family reunification visa in October 2002. It took the Department of Justice, Equality and Law Reform ten months to issue a decision and when it did, the decision was to deny this 11 year old girl a visa to come and live with her parents. An appeal was filed and last month this too was denied. The stated basis for the refusal was the Supreme Court decision last year which held that the parents of Irish citizen children no longer have an automatic right to residency in this State, but that decision said nothing about families such as Precious's. They have already been granted residency and they are appreciated and respected members of the community in my home town. I have a great regard for them which is shared by the community I represent. I regret having to say it but it seems the Government will do anything it can to keep as many people as it can out of this jurisdiction. It saw an opportunity and took it. An entire category of children are now to be denied the right to the care and company of their parents. It needs to be emphasised that these parents are already legally resident in this State.
I will dwell for a moment on this family's plight. I ask the Minister to please think about these parents and their 11 year old daughter. She is Precious by name and precious to her family, whose love for her is no less than the love of any of us for our children. Her parents are now placed in a terrible predicament. I have tried to analyse the repeated decisions in this case and can only come to the conclusion that the Minister's refusal in this instance amounts to a method of forced expulsion of the parents and their Irish-born children.
They are faced with a terrible dilemma. The Minister's repeated heartless refusal of this child's plea to join her parents, presents this family with a choice between two dangerous situations: the first is to stay in Ireland and leave their 11 year old child to fend for herself, with all the possible dangers to which she as a vulnerable young person would be exposed; the second is to return to Nigeria from where they fled persecution and face an uncertain and dangerous future. Let us not make any mistake about this. Their case is well documented and there is no question about that.
This case, above all else, proves the point I made, along with my Sinn Féin colleagues and others here, about the urgent need for a human rights-compliant, comprehensive and compassionate reform of our immigration laws. No provision exists in our laws for complementary protection in which a person who does not qualify as a refugee can still be acknowledged as in need of protection on other grounds. If Precious were somehow to make her way to this country, the Garda at her port of entry would simply turn her back. This is fundamentally unjust, and nothing in the Bill remedies it.
That is not true.
That is the case.
If she is under 16, she will not be turned back. That is in the Bill.
Is the Minister prepared to revisit his decision of refusal of this child's plea?
I am informing the Deputy that he has got the law wrong.
Who has their law wrong and where is the real heartlessness in all of this? The Minister cannot suggest that the child can find entry here after repeated refusals on his part.
The Bill before the House is unjust for the reasons already set out by my colleague, Deputy Ó Snodaigh, and several other Opposition speakers. This State already has a full complement of unjust immigration laws, which should be more accurately described as anti-immigration laws. We do not need to add another one. We need laws to remedy the injustices that this State's short-sighted,ad hoc approach to immigration has caused. This needs to be addressed urgently.
I appeal to the Minister to revisit the case of this young woman with which he is familiar. It is an outrage and a shame on every one of us that he has repeatedly denied this child the opportunity of reunification with her parents and siblings.
The saga surrounding everything to do with this Bill is breathtaking and frightening in the extreme. I fully support firm and proper controls on immigration and I say this because I do not want my words to be misconstrued.
I have no confidence that the content of the Bill is proper. Everything to do with the Bill has been rushed. Its introduction into the House has been unsure, as was the case with its introduction to the Seanad. From its inception, it has reeked of incompetence. An example of this is the use of the word "disability" without clarification in the original text. This example alone shows the incompetence and insensitivity surrounding the formulation of the Bill.
The fact that some 20 amendments have been tabled to the Bill demonstrates that, until today, the Minister is still unsure of the approach to take to the legislation. What would have happened had the Bill come before the House last Wednesday? We would not have the benefit of the 20 amendments. However, it is of no benefit to receive 20 amendments on the day a Bill is being considered in the Chamber. It defies explanation that a Minister who has a view on everything and everybody's business and is able to tell everybody how to do their business, can act in such an incompetent way and make such a cock-up of everything to do with the Bill.
It is not possible to expect Deputies to support the passing into legislation of this Bill with all the uncertainty surrounding it and with all these last minute changes. However, I accept the need for effective controls and that it is necessary to enact legislation to give a degree of protection on immigration controls. If this could be done on an interim measure, it would allow time for proper consideration to be given to this matter so that legislation introduced subsequently would be acceptable to the majority. The interim measure should be put in place for a specified maximum period of six months to allow time for proper consultation. This would also allow for mature consideration and provide time for the Minister and his officials to reflect on this saga with a view to getting it right, something which should be the bottom line. With so many alarm bells ringing, the Minister should listen and consider what reasonable people say. He should withdraw this Bill, replace it with interim legislation and work towards putting in place proper legislation to control immigration.
In his contribution to this debate, Deputy Peter Power expressed the fear that, if we did not put this legislation in place as soon as possible, none other than the bold Osama bin Laden would soon be hitting our shores. Unlike Deputy Power, I do not have a direct line to Osama bin Laden. He claimed that this could happen if nothing is done on foot of the High Court decision. He suggested that people, inside and outside the House, wish that nothing would be done. I am not aware of any Deputy who supports the proposition that nothing would be done. A number of Deputies, however, are concerned about many issues regarding this legislation. None of these has suggested that nothing be done, rather that whatever is done now be revisited in a few months when full and proper consideration is given to the issue. I want firm and proper controls on immigration, but because of all the questions surrounding this legislation, I have no confidence that we are getting them.
In the week and a half of formal sittings this year, matters arising outside this House have heavily influenced the Government's legislative programme. Not only are we considering this Bill for this reason, the Civil Registration Bill has come before the House as a result of Supreme Court consideration. We can also anticipate a Bill to deal with the result of the Carrickmines decision when the Minister for the Environment, Heritage and Local Government acted beyond the scope of his powers. Many Opposition Members did not need a court to confirm this.
It does not bode well for a Government that likes to pretend it is concerned about reforming legislation and setting an agenda for a future Ireland. This Bill is the ultimate example of panic legislation. While the Minister may call it emergency legislation, the consideration that the House will give it — even though the Government has twice relented on how it is presented to the House — is nowhere near the degree of scrutiny that should be given to any legislation, particularly legislation that might show itself to be flawed when it is considered by the courts.
I am happy Government Members have chosen to come to the Chamber. Earlier, it seemed that no Government Member other than the Minister was choosing to speak on the Bill.
That is not correct. Opposition Members did not turn up and Deputy Jim O'Keeffe called a quorum.
That is not true.
A Government Member missed a slot.
The Minister is trying to pull a stunt.
I ask the Deputies to refrain and allow Deputy Boyle to continue.
I was grateful for the short contribution from my Cork city colleague, Deputy O'Flynn, on this subject, although he has said far too much already. The House did not need to be exposed to any more of his ill-informed opinions on this topic.
The Minister is facing criticism from bodies like the Immigrant Council of Ireland, the Irish Council for Civil Liberties, the Irish Refugee Council, the Migrant Rights Centre of Ireland, Cairde, Amnesty International and State linked bodies such as the national committee on racism and interculturalism and the Human Rights Commission. The breadth of bodies criticising the Minister should make him take notice and produce a more considered Bill over a longer time period.
Of all people, the Minister should realise the danger of emergency legislation. It can be dangerously applied and, more worryingly, it can become permanent. This is happening in a vacuum; we are passing immigration legislation in the absence of an immigration policy. My view, and that of my party, is for a more liberal approach to immigration. We can sustain higher levels of immigrants and we will benefit culturally and economically by inviting people to the country. However, the levels of immigration must be sustainable and only then should suitable levels of control be introduced. The Minister, who styles himself as a liberal yet shows precious little evidence of being a liberal in the legislation he publishes, is putting anad hoc immigration policy in place that assumes people coming to this country have something to hide and are in some way not worthy of being here. Until we have such a policy, legislation such as this should not be brought before the Houses.
The Minister is panicking by introducing a Bill he knows will only cover the short-term problem raised by the court case. I hope he gives more attention to Committee Stage deliberations than he is giving to this debate.
The arguments for strong controls made by the few Government Members that contributed to the debate strike me as being extremely insular. I speak as a child of Irish emigrants. The idea of the country being swamped by all manner of infectious diseases — which informs this legislation and how people with disabilities are likely to be defined as being of ill health — is an insular attitude that can be equally applied to people who emigrate from this country. If we want to keep this island pure, surely the argument of putting the strongest controls in place to prevent people from coming here should also be applied to people coming back to this country. If our history as an emigrant nation means anything, we must learn from the experiences that we have had in other countries, where the Irish have been treated as second class citizens and where we have been exposed toPunch-type caricatures.
It is offensive that we are making these arguments in our more developed economic and cultural state. Immigration can help benefit our development as a country and has the potential to bring greater prosperity. Immigrants can add to our greater cultural and economic stock. On these grounds, the Minister is again perpetrating bad legislation. The Opposition has no option but to use every means at its disposal to ensure this legislation is exposed for what it is. We lack the means to prevent it from reaching the Statute Book. We can only hope that provisions are made to bring this emergency legislation to the House for review, as has been suggested by Cairde, at three, six or even 12 month intervals. Perhaps then we can have confidence that a proper long-term and all-embracing immigrant Bill will come before the House.
I do not think any Oireachtas Member wanted to see this Bill published, or the manner in which it was brought before the Seanad on Friday and the Dáil today. The decision of the High Court on 22 January was clear. It unequivocally stated that existing laws and statutory instruments are unconstitutional. The Government had no choice but to introduce the legislation. Much as we regret the haste with which the legislation was drafted, published, and is now being debated, fair-minded Members and commentators will acknowledge the difficulty in which the Minister finds himself.
This is not the first time emergency legislation has been introduced to fill a vacuum created by decisions of the courts. I am pleased to note that the Minister is appealing the decision to the Supreme Court. However, as Members are aware, this is going to take some time and we do not have the luxury of allowing the vacuum to exist. The Garda and immigration officers do not have the authority to seek documentation from non-nationals.
In the meantime, the Government is obliged to implement this legislation in order to fill the vacuum. We have an obligation to protect the human rights of Irish citizens and those who seek asylum here. I do not think any Member can say that the Government, or any previous Government, has not protected the rights of persons that have come to this country. Many Irish people have had to emigrate to other countries and some were harshly treated.