This is one of the categories in respect of which there should be flexibility and an acknowledgement of people's circumstances. There are two aspects to be dealt with. The first, to which amendment No. 21 refers, relates to people who spent time here as students. The other, which is dealt with in amendment No. 32, relates to people who have spent time in the asylum process, including those applying for leave to remain here temporarily for humanitarian reasons. The proposed new section 6B(4)(b) excludes from the calculation of reckonable residency any time which the child’s parent or parents spent legally in this State on a student visa. The Immigrant Council of Ireland and the Commission on Human Rights have both raised objections to this unnecessary exclusion. It makes no sense. Students contribute to the economic life of this State, more in recent years than in the past. That foreign medical school graduates, whom we need to retain in Ireland to support our struggling health system, frequently decide to leave has a negative impact on our health care system in that we provide training for such students and our health care system loses when they decide there is no point in remaining here because the time they spend training will not be taken into account if they apply for naturalisation or citizenship.
The Commission on Human Rights maintains that this provision in the Bill is not consistent with the standards of justifiable discrimination set out in the UN Covenant on Civil and Political Rights. They are the basic reasons for my amendment. I propose to strike this provision and make all time legally spent in this State for the purpose of study reckonable in any determination. Our economy needs well educated immigrants. I hope this will provide an incentive for those educated in the State to remain after they have completed their studies to raise families and continue their contribution to Ireland's social and economic life.
Amendments Nos. 22 and 33 seek to include the time spent in the asylum process, including for those applying for temporary leave to remain for humanitarian reasons. Significant concerns have been raised by the Human Rights Commission, the Immigrant Council of Ireland, the Irish Refugee Council and the National Consultative Committee on Racism and Interculturalism regarding the proposed new section 6B(4)(c) which excludes from the calculation of a qualification period any time within which the child’s parent or parents were legally resident in the State pending determination of a refugee claim. I propose in my amendments to strike this section to allow for any time spent lawfully in the State to be reckonable in any determination. This exclusion also affects children born to parents who apply for and are later granted a temporary right to remain on humanitarian and compassionate grounds under section 3(6)(h) of the Immigration Act 1999.
The Human Rights Commission, the National Refugee Council and the National Consultative Committee on Racism and Interculturalism have called for the Minister not to penalise the children of those who are legally resident in the State for long periods pending determination of applications. Those eventually granted such protection also have a recognised right to the protection of the State under the principle of non-refoulement. The Human Rights Commission maintains there is not reasonable justification for the exclusion of children of such persons from the rights of citizenship.
I draw the Minister's attention to the commission's submission to him, where this issue is addressed. The submission states: "This exclusion is probably the most significant restriction on qualification for citizenship contained in the proposed Bill." While recognising the current six month target for processing asylum claims and the recent progress made in reducing processing times, the commission reminds the Minister:
. . . significant numbers of asylum applications are still not processed within this timeframe [and] a significant proportion of asylum seekers who are ultimately granted a declaration of refugee status are granted that declaration after appealing an initial rejection of their claim. As a result, many asylum seekers remain awaiting a final determination of the claim for extended periods of up to a number of years.
The commission reminds the Minister that "any person who is awaiting a final determination of their claim is clearly legally resident in the State and any failure to process their application in a timely fashion is ultimately the responsibility of the State and not the applicant." The commission concludes: "While it would currently be exceptional for a person to await a final determination for a period of three years . . . the vast majority of asylum claims should be processed within a three year period", as referred to in the Bill. Therefore, the exclusion in the Bill is not warranted.
With regard to the children of a parent or parents who do not fit the convention definition of a refugee but who are ultimately granted leave to remain here on humanitarian or compassionate grounds, such parents may have a legitimate fear of ill treatment. As the Human Rights Commission points out, such discretionary leave to remain in Ireland's de facto system of complementary protection exists because the Minister has not yet legislated to introduce a formal system of complementary protection, which is much needed. However, the draft Bill makes no direct reference to persons who have been granted such leave to remain for humanitarian and compassionate reasons. Therefore, such persons appear to be subject to the general residency requirement which would only begin after the leave to remain is granted as the period of time spent in an asylum process is and would be excluded.
The commission has called on the Government not to penalise the children of such applicants and, in putting my amendments, I repeat that call. How was the period of three years out of four decided upon? Why is it three years rather than, for example, four or five, or two out of four? Is there a specific reason the Government is hung up on this timespan? If so, perhaps the Minister of State will explain it to me.