Immigration, Residence and Protection Bill 2008: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan)

There are those who would argue, and have argued, that this is a hard-line approach and will operate unfairly in regard to foreign nationals who are unlawfully present. Last night, I assured the House this will not be the case under the Bill. In general, a foreign national will not be able to be unlawfully present in the State except in one of two ways. As I outlined yesterday, the first is to put oneself knowingly in this position, by either evading immigration controls altogether or by staying on after the entry or residence permit has expired. The second way is by going through a fair process leading to the revocation or non-renewal of residence permission. In each case where there is a proposal to revoke, typically based on criminality or some other breach of the conditions of the permission, the Bill requires that the holder of the permission be notified of what is proposed and why and given an opportunity to make representations as to why that course should not be taken.

In the special case where a person has claimed protection based on the fear of persecution or related issues, there is also a thorough process in which the claimant participates in the investigation of the claim. In all of these cases, the foreign national's presence in the State remains lawful until that process has reached a final decision. Once the final decision is made after that process, and that decision is negative, it will be for the person to remove himself or herself. Looked at in that perspective, it is clear the Bill is a model of fairness and ensures respect for human rights, including the right to fair procedures, at every stage.

Section 53 sets out the rule against refoulement. This ensures no person will be sent back to a place where they would be in fear of persecution or at risk of serious harm, as those terms are defined in the relevant international instruments. That provision applies to all removals from the State under Part 7, not just those that arise at the end of the protection process.

Part 3 sets out, for the first time, a statutory basis for making and determining visa applications. The visa process offers to immigration authorities the opportunity to pre-clear an intending visitor or migrant. A foreign national to whom a visa has been issued can be reasonably confident of being allowed to enter the State on arrival.

The Bill sets out a basis for designating classes of foreign nationals as visa-exempt or, as the case may be, transit-visa-required. It also sets out the processes for applying for a visa, making decisions on such applications, revoking visas and seeking a review of a decision to refuse or to revoke a visa. The intention is that the processes will be consistent and transparent.

In the Irish context, as in that of our fellow EU member states, a visa is simply a permission to present oneself at the frontier seeking permission to enter. The term "visa" is used in common parlance to describe a foreign national's residence permission. However, in Irish law, the visa is specifically a certificate that the person has been through a pre-clearance process and the permission to enter or to be present in the State is a separate matter to which I will come in due course.

At present, the nationals of some countries are exempted from the requirement to have a visa before arrival at an Irish point of entry. The Bill will facilitate the possibility that, in the future, visa exemption will be available for nationals of those countries only for short-duration visits. Where a person from a "visa-free" country wishes to come to Ireland for work purposes, or even for a visit that is going to last more than three months, he or she will have to get pre-clearance by applying for a visa in advance. This will operate in ease of intending migrants from countries at present visa-free, as it will give them clarity and certainty in advance of their arrival in Ireland.

Of particular note is the provision in section 13 which envisages the possibility of a visa applicant having to arrange for a deposit, bond or guarantee, provided by a guarantor lawfully resident in the State, to accompany the visa application. This measure will help to ensure any conditions attached to the visa and subsequent permission to enter the State will be complied with. It will take some time to put in place the technical and administrative arrangements for this but it has considerable potential.

Sections 17 and 18 provide a process whereby a person aggrieved by a visa refusal or a visa revocation can have that decision reviewed. The review is to be carried out by a different officer, and where possible one of senior rank to the one who made the decision that is to be reviewed. Many decisions on visas are taken not just in the State, but outside in our embassies. This is one of several review processes built into the Bill for the different types of decisions that arise at various stages of the immigration process.

These provisions lay the foundation for the fulfilment, during the lifetime of the Government, of the commitment in the agreed programme for Government to ensure a visibly independent appeals process in immigration matters. What I have in mind is to appoint, on an administrative basis at first, a person to act as chief review officer with the function of ensuring consistency and a high quality of decision-making among those who deal under the Bill with visa reviews.

Part 4 deals with entry to the State. It substantially restates current law compiled from several existing Acts, mainly the 2003 and 2004 Acts. It deals with all aspects of frontier and arrival operations, setting out provisions regarding approved ports and what can be required by way of infrastructure to cater for immigration functions at them. Among the new features is a flexible provision for the consent of the Minister for arrivals at places that are not approved ports.

Also dealt with in this Part are the provisions relating to a carrier's responsibilities for passengers being brought to the State. The collection by carriers of advance passenger information is a feature of many immigration systems worldwide. In order to facilitate the introduction of such arrangements to Ireland at a future date, I will bring forward an amendment on Committee Stage to section 28 to allow for the making of regulations requiring information to be provided by carriers, before departure for the State, in respect of specified intended arrivals.

The provisions in section 25 set out the power of the Minister to permit or refuse entry to the State to a foreign national. That power may be exercised on the Minister's behalf by an immigration officer. The immigration officer's power to refuse may be exercised only in the circumstances delineated in section 27(1). Section 25 also makes it clear that a person who claims protection, or otherwise indicates a fear or persecution or a related fear, must be admitted to the State. The only exception to that rule is where the person is the subject of an exclusion order under section 117.

When a foreign national is permitted to enter the State, and does not already have a current permission, the person is given an entry permission, reflected in a stamp in the person's travel document. An entry permission will last a maximum of 90 days and will say whether the holder is eligible to apply during that time for a residence permission. Where the holder is not eligible to apply for a residence permission, the entry permit expires on the date shown on it and the person is expected to leave on or before that date. Typical uses for such entry permission would be short visits for holiday or family purposes or short courses of study.

The next phase in the immigration process is the granting of residence permission, dealt with in Part 5. This sets out a framework for the granting of residence permission as the basis for lawful residence in the State. The intention is that there will be a variety of classes of residence permissions to suit different categories of foreign nationals. Residence permissions will be subject to conditions as to the duration of the permit, whether it is renewable, whether the holder can access public funds or seek employment etc.

It is my intention that regulations drawn up under section 127, in consultation with the relevant Departments, will set out the various categories of permissions which will be issued and the conditions attaching to them. This will ensure a whole-of-government approach to attracting immigrants to the State and providing access to services for them.

A residence permit will show the immigration status of the holder, and thereby his or her entitlement to benefits, etc. Much has been made of the fact that residence permits will contain biometric information and will have to be produced by a foreign national on demand to an immigration officer or member of the Garda Síochána. Current law provides for the inclusion of biometric information in similar documentation. Existing immigration law requires a foreign national to produce identification when required to do so.

In essence, these requirements currently operate without fuss and with minimal inconvenience to all concerned. With advances in technology, there is a general trend in identity documents worldwide. For example, Irish passports issued since October 2006 incorporate biometric data as a matter of course. This provides a readily verifiable way of ensuring the document proffered by a person does actually relate to that person and reduces the risk of abuses of a person's identity. The proposed residence permit will be evidence of the lawful residence in the State of the holder. This will assist Departments, banks and other service-providers wherever the service in question depends on the status of the person in the State.

An important innovation in the Bill is the introduction of a statutory long-term resident status in section 36. This status will be available for those who have at least five years' satisfactory residence in the State. Periods as an asylum-seeker or short-term student will not be reckoned. It will bring with it access, for the foreign national and his or her dependants, to the employment market and State-funded services and benefits generally on a par with Irish citizens.

The benefits of this special status are an acknowledgement that, over time, those who migrate to Ireland contribute increasingly to society and the economy and have earned this status and the stability it brings. The section provides for standard eligibility requirements for qualifying for long-term residence status. These include in particular the requirement that the foreign national should have resided in the State for five out of the six years prior to the application for long-term residence, be of good character, tax compliant, can demonstrate a reasonable competence in the Irish or English language, has made reasonable efforts to integrate and has been supporting him or herself and any dependants without recourse to publicly-funded services.

Concerns have been raised on some of these requirements, in particular, the language and integration requirements. It is not unreasonable to expect a foreign national, who wishes to make Ireland his or her home for the long term, to be able to demonstrate a reasonable language competence and to have made efforts to integrate.

I point to the steps so far taken by the Government to facilitate integration, most notably the establishment of the Office of the Minister for Integration. This office has in development several initiatives to advance this most important Government commitment. The question of whether the language and integration requirements will apply to applications for naturalisation is under consideration in my Department as part of a more general review of the eligibility criteria for the acquisition of Irish citizenship.

Section 37 makes provision for a qualified long-term residence permission which will be available where the Minister determines that this would be desirable in order to attract particularly sought-after migrants. This permission will last for two years and will allow the foreign national and his or her dependants to access the employment market and certain State-funded services during that period. After the two-year period has expired, the foreign national will be able to apply for a long-term residence permission if he or she otherwise satisfies the standard eligibility requirements. This should be viewed in tandem with the Employment Permits Act 2006 and the use of green card-type employment permits, the holders of which will qualify for the accelerated process for obtaining long-term residence.

I see these provisions as the key to a new approach to immigration policy in Ireland. The new status will enable us to devise attractive arrangements, with this status at their core, for encouraging those with sought-after skills and qualifications to think of Ireland as a desirable destination for the long term, as a place where they and their families can settle and form a new life. Traditionally, the practicalities of migration to Ireland have been based on a legal system that caters for individuals staying temporarily for a year at a time and it is safe to say that much of the longer-term migration that we have experienced from outside the European Union has happened despite, rather than because of, the legislative arrangements in place. This innovation gives us the opportunity to rethink our policies in a strategic way, starting from the basis of what Ireland needs rather than the needs of individual employers or the hopes of individual migrants. In this way we can ensure that the broader needs of migrating families, rather than individuals, are considered and planned for. The aim will be to move towards a situation in which the question of family reunification is no longer an issue because our policies will be directed towards retaining the unity of families of migrants rather than dealing with migrants as individuals separated from their families.

There have been many calls for greater clarity on the policy and processes surrounding family reunification in the State. While family reunification for the purpose of joining certain categories of persons in the State is governed by legislative provision — for example, reunification for those granted refugee status or those exercising EU free movement rights — other administrative schemes have developed on an ad hoc basis having regard to our international obligations and the pattern of immigration to the State. It is time to review our current policies in the light of experience and social change in the past few years with a view to setting down a more comprehensive policy. That review, which is under way, is not without its difficulties. However, I am committed to progressing this work as a matter of priority.

Sections 39 to 45 set out the processes for non-renewal or, as the case may be, revocation of residence permissions. Those sections also set out the circumstances in which a review of a decision not to renew a permission can be sought or representations made against a proposal to revoke a permission. These are among the further provisions that I am prepared to consider in operation as we develop more experience with the independent administrative review mechanisms to which I referred earlier. This will be in the next phase of my plan to deliver on the commitment in An Agreed Programme for Government regarding an independent review.

The effect of a negative decision at the end of the processes in sections 39 to 45 will be that the foreign national in question will, from the date of the decision, be unlawfully in the State. It will then be up to that person to leave the State and the person runs the risk, if found in the State, of being removed and if necessary detained for the purpose of removal, as I have described. There will be no deportation order as such. Current deportation orders require the named persons to leave the State and remain outside the State thereafter. Under the provisions of this Bill, a person removed will be required to remain outside the State for a minimum period of six months. If, during the process leading to revocation of the permit, the view is taken that the person should be required to remain away for a longer period, the process will give the person notice of that intention and a non-return order can be made at the same time as the decision to revoke the permit. Non-return orders can be for any period, including indefinitely.

Section 47 restates the provisions of section 24 of the Refugee Act 1996 dealing with programme refugees. Section 48 provides for a scheme of temporary protection in accordance with the provisions of Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between EU member states in receiving such persons and bearing the consequences thereof. Section 49 provides for the issue of travel documents to protected persons and their family members. Section 50 sets out the circumstances under which permission to enter and reside in the State may be granted to family members of the holder of a protection declaration.

I have dealt with many of the important aspects of removal from the State, which is covered by Part 6. Removal will only arise where the foreign national concerned, being unlawfully present in the State, has failed to comply with his or her obligation under section 4 to leave. Much of this is a restatement of current law, aspects of which were given a constitutional clean bill of health in the Article 26 referral of the Illegal Immigrants (Trafficking) Bill in 2000. Among the innovations to which I draw attention is section 56, which provides for an alternative to detention for the purposes of removal, namely, a requirement to comply with a written direction given by an immigration officer or a member of the Garda Síochána, including a direction to reside or remain in a specified place.

Section 60, which is also new, provides that the Minister may require a foreign national removed from the State to pay the reasonable expenses incurred by virtue of his or her detention, removal and maintenance for the purposes of that removal. The purpose of this provision is to discourage those unlawfully present from hanging on until the State authorities move to enforce a removal. While there is no realistic expectation that costs would in many cases be recovered, the fact that removal from the State rather than voluntary exit incurs a debt which must be discharged before further entry to the State will be permitted may serve as a deterrent.

Part 7, which deals with protection, is mainly a restatement of the substance of the Refugee Act 1996 and the European Communities (Eligibility for Protection) Regulations 2006. However, there are some innovations to which I draw Deputies' attention. The most important of these is the introduction of a new single procedure to deal with all aspects of the desire of a protection applicant to remain in the State. The Bill transposes into national law the EU asylum procedures directive, Council Directive 2005/85/EC. While our procedures were already largely in compliance with the terms of that directive, the preparation of the Bill also provided an opportunity to reconsider, in view of our experience over the last decade, how best to deal with protection claims in the State. That experience shows that the principal desire of most protection claimants was not recognition as a refugee but permission to stay in the State. This is addressed by a multi-stage process in which the first question examined is whether the applicant is a refugee and only when that has been answered in the negative by the independent Refugee Applications Commissioner and, in most cases, again by the Refugee Appeals Tribunal is the question of eligibility for subsidiary protection addressed.

An Leas-Cheann Comhairle

The Minister has one minute left. Perhaps the House will allow the Minister to conclude his speech.

Deputy Michael D. Higgins

Agreed.

Deputy Denis Naughten

I have no difficulty with that.

Deputy Brian Lenihan

I am obliged to the Leas-Cheann Comhairle.

I dealt with the question of subsidiary protection. The other issue that can arise is whether there are other reasons a person should be allowed to stay on humanitarian grounds. All this is addressed in a lengthy consideration of representations by the Minister. This inevitably delays the final decision, and the delay itself can affect the outcome. Under the single procedure, the protection applicant will be asked to set out all grounds, including protection grounds under the Geneva Convention and the EU Qualification Directive 2004/83/EC, on which he or she wishes to remain in the State, and all those grounds will be investigated by the Minister.

The possible outcomes of the investigation are as follows: first, the person is allowed to remain in the State on refugee grounds or subsidiary protection grounds and is granted a protection declaration; second, the person is allowed to remain in the State on other discretionary grounds and is granted a residence permit on that basis; third, the person is not allowed to remain in the State and is thus required to leave or be removed. Each applicant will be given a special protection application entry permission, which will remain valid until the last step in the process. For those who succeed, that entry permission will be replaced with the appropriate entry or residence permit. For those who are unsuccessful, the protection application entry permission will cease and any person who does not leave will be unlawfully present in the State from that point on, with the consequences that I have already covered.

The introduction of the single procedure will bring the State into line with processes in many other EU states. Under the Bill, the functions currently carried out by the Office of the Refugee Applications Commissioner will be subsumed into the Irish Naturalisation and Immigration Service, an administrative body within my Department. The present statutory provisions allowing access to information about cases by the United Nations High Commissioner for Refugees and allowing a representative of the UNHCR to be present at individual interviews are restated. I intend to continue the co-operation that has existed with UNHCR, particularly that body's signal contribution to the training of staff in refugee decision-making.

The Refugee Appeals Tribunal will be replaced by the Protection Review Tribunal, which will be statutorily independent and will deal with appeals against a refusal to grant refugee status or subsidiary protection under the EU qualification directive. This expanded remit for the appeals body underpins our commitment to those in need of protection. Other changes provided for in the Bill include the possibility of establishment of full-time members of the tribunal, provisions to increase consistency in decision-making among tribunal members and arrangements for access to previous decisions of the tribunal that will take account of the jurisprudence in this area while continuing to respect the privacy rights of applicants, the infringement of which could put them or their connections at home at risk.

The new approach to protection applications will result in a more streamlined and efficient process which will ensure that a protection applicant receives a quick and comprehensive answer to the question of whether he or she can remain in the State. In this way it ensures the State's obligations under the Geneva Convention on Refugees and other international instruments will be fully respected and enshrined in law while reducing the scope for abuse of the arrangements.

I will comment on some miscellaneous provisions in the Bill. Part 8 contains provisions dealing with a variety of matters, some of which I propose to comment on here. If Deputies have any questions about particular provisions on which I do not touch in this contribution, I will do my best to ensure they can be covered in my closing speech.

Section 118 deals with the question of judicial review in immigration matters and is modelled on the existing provisions of section 5 of the Illegal Immigrants (Trafficking) Act 2000. Deputies will recall that this provision was the subject of a Supreme Court finding of compatibility with the Constitution in 2000. The intention now as then is to prevent the misuse of the judicial process by a foreign national solely or mainly for the purpose of frustrating his or her removal from the State. In a feature not hitherto seen in immigration legislation, the Bill reproduces a provision that already exists generally in statutory form in the Rules of the Superior Courts, providing that the court may award costs against a lawyer who brings a frivolous or vexatious case on behalf of a client. Another feature is the statement in section 118(9) and (10) acknowledging that the existence of a judicial review need not, of itself, act to postpone a person's removal from the State and leaving it to the court to decide whether to permit or suspend the removal in each case. I can say at this stage that I am thinking again about a number of aspects of this section and may have to introduce further amendments in respect of this subject on Committee Stage.

Section 123 is an attempt to curb the growing problem of marriages of convenience, a problem that is being observed not just in Ireland, but across Europe. This provision has already been the subject of a fair deal of comment, not all of which appears to acknowledge that there is a substantial trade in marriages for the purpose in particular of conferring on non-EU nationals the important immigration advantage of being able to move with relative freedom throughout the EU. The fact that there is a real trade in marriage is particularly evidenced by advertisements in newspapers and websites in the Baltic states. The law in this area is the subject of evolving jurisprudence and I believe that we will have to revisit the current section on Committee Stage. Addressing this issue in legal terms is difficult and I am not suggesting that the draft before the House in section 123 is a perfect solution to the problem. I am open to constructive suggestions as to how we might tackle this sensitive and serious subject.

Section 124 deals with the immigration aspects of our commitment to fight trafficking and support victims of trafficking. Deputies are aware of the strategy that has been put in place to deal with the issue of human trafficking and the many strands of that strategy, including legislative measures contained in the Criminal Law (Human Trafficking) Bill, the establishment of the high level group on combating trafficking in human beings, the drafting of a national action plan and the establishment of the new anti-human trafficking unit. The measures contained in the Bill will further strengthen the work undertaken in this regard by providing for a period of recovery and reflection in the State and, in certain circumstances, periods of temporary residence in the State. Part 9 contains necessary transitional provisions which I will not address at this stage.

To conclude, I am asking the House to support and approve our efforts to put in place the most comprehensive immigration legislation since the foundation of this State. It will enable this and future Governments to devise and implement immigration policies that complement wider Government strategy. The tools required must be sufficiently flexible to accommodate a great variety of approaches of circumstances and the unknown combinations of economic and social challenges that we will meet in the future. The legislation must be seen to operate in a predictable manner in individual cases and to incorporate fairness of procedure at every stage. There must be effective measures to deal with the situation where individuals take it upon themselves to ignore or circumvent decisions arrived at fairly in the interests of the State. This Bill has been devised with those principles in mind and I commend it to the House.

Deputy Denis Naughten

I welcome the opportunity to speak on this Bill. It is very welcome legislation that gives us the opportunity to deal with many of the issues we are now facing in the area of immigration. The recent growth in the rate of immigration in Ireland is resulting in what is, arguably, the greatest economic and social transformation in our country since independence. Immigration and immigration policy have developed in a haphazard manner over the past ten years. This transformation presents Ireland with both a significant challenge and an opportunity. Given Ireland's history of emigration, the country has a special responsibility to address the challenge of immigration.

While immigration can be excellent for Ireland's future, it is imperative that we get it right. Immigrants have rights but they also have responsibilities. They should have the right to be free from discrimination and have their contribution to the country recognised, but they also have the responsibility to integrate into our community, comply with our laws and respect our cultural traditions. I do not want to see a situation develop where our immigrant population live separate lives. We have a responsibility to facilitate and encourage this integration. Immigration must be managed in a way that keeps Ireland safe. We must ensure that Irish laws are understood and adhered to by immigrants. We must also send a strong message that people who want to come to this country to commit serious crime are not welcome and will be dealt with severely. I commend the Minister on the provisions of the trafficking legislation.

Immigration must be a force for improving rather than threatening living standards. We must protect Irish jobs and the rights of those who come here to work. Companies that pay below the minimum wage should face severe fines. Immigration levels from non-EU countries must be explicitly linked to the economic conditions and needs of our labour market.

Immigration policy must be supported by a system which is efficient, fair and transparent. Our immigration system is an obscure system with no clear rules or information about how it works and how an applicant gets into the country. This is bad for the migrant who wants to come here and contribute to society and the economy. For Irish citizens, it breaks down trust between people and our immigration system.

While this Bill is very welcome and is long overdue legislation which tries to address the flaws in the current haphazard system and while I do not doubt the Minister's intentions and his attempt to streamline the process, there are holes in it. I acknowledge the thrust of the Bill, although it contains some weaknesses and areas that need further clarification. In fairness, the Minister acknowledged those in his Second Stage speech.

I have a principal objection to the legislation, which is its vagueness. As the Minister stated last night, immigration policy needs to be fluid and policy will be given effect via secondary legislation and administrative schemes. There are 116 references to regulations in the legislation and 151 references to orders. All of this will come before the House through secondary legislation, which we all accept is not being dealt with adequately in the House. That is a principal issue with which we must deal on Committee Stage.

Key questions remain unanswered in the Bill. Who gets in and under what circumstances? What rights and responsibilities do they have? While the legislation clearly states who is or may not be entitled to enter, it is ambiguous on key issues like criminality and is silent about who is entitled to enter.

As I said previously, we want an immigration system that is efficient, fair and transparent. Sadly, when tested against those three principles, this legislation is very weak. While there is no doubt that the legislation will assist in the management of the existing system, there is no indication that it will address the long and protracted delays that are systemic in the current process.

One issue that is not mentioned in the legislation is customer service. I can guarantee that if the type of service provided at the moment was replicated in any other element of Irish society, there would be blue murder in the House. Even the HSE would come close to it. This issue must be addressed to ensure that we have a proper customer service policy in respect of our immigration system. It does not just relate to the public. Members of this House experience the same problem when they try to contact the immigration service and this issue needs to be addressed.

It takes between 18 months and two years to process a long-term residency application, after which an applicant may then be required to furnish police clearance from their country of origin, which can take a further 12 months. A citizenship application can take up to three years to process at the end of which period an applicant might be refused because of a small technicality and put back on the list. As for the asylum process, that can take years.

I question the Government's commitment to delivering an efficient service. The Irish Naturalisation and Immigration Service, INIS, budget for 2008 has been cut by €4 million to help pay for the Office of the Minister for Integration. In that regard, the fund for the integration of legally resident migrants, which was established last year, appears to have evaporated after only one year. A total of 22 organisations were funded under the scheme last year. Many of them are only beginning to have an impact in terms of the work they are doing and now the rug is being pulled out from under them because the Minister says the funds of €2.5 million that were made available last year will not be available this year. It is one thing to bring forward legislation, and the Minister's colleague, the Minister for integration, has highlighted many issues, but in terms of his own responsibility the resources do not appear to be available.

The Minister pointed out in a Dáil reply to me last year that the Office of the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the Irish Naturalisation and Immigration Service have vacancies totalling approximately 90 staff. While the process will be streamlined and the right to go to court restricted, we still have no indication how it will impact on the current waiting times, which are unjust. They are unjust in terms of the asylum applicant — from now on in the legislation referred to as the protection applicant — who must reside year after year in an accommodation centre with nothing to do. That is inhumane for any individual and it is unjust for Irish citizens who must fund a system to the tune of over €350 million a year for court, accommodation, processing and deportation costs.

Under the proposed system of processing immigration and protection applications, there is no degree of transparency. For example, we cannot get a definitive answer on the number of deportation orders that have not been served. A total of 5,630 people appear to have evaded deportation orders. We do not know how many of those are still resident in the country. The Department does not appear to know either and while some of us suspect that some of those people may have been illegally trafficked into the country, there are no figures in that regard. We do not know what is going on and the Department does not seem to know either.

While the Minister may make a regulation outlining the procedures for granting immigration or protection status, the real fear is that the current practice of implementing policy through a scheme within the Department will continue and with it the cloak of secrecy surrounding the entire immigration process. The public remain none the wiser as to the person or persons who will be given a right to remain or enter this country. That power, while rightly held with the Minister, should be clear and unambiguous as to the type of person who will be allowed entry and given residency.

The Bill fails to set out clear rules regarding the rights and obligations of migrants who come into Ireland and as a result, the rules setting out the basis for migrants to enter and remain in the State, the conditions on such permissions that will be granted, the entitlements of migrants and who may or may not remain in the State is being left to secondary legislation.

It is important for the Minister to clearly set out for migrants their entitlements and obligations in primary legislation which will help to prevent the difficulties they and those charged with administering and enforcing immigration legislation currently face. That in itself would save money and will also help the public understand the immigration rules in this jurisdiction.

It is clear that the current process does not deal fairly with applications. The best example of that is that our courts are filled with judicial review applications.

Deputy Brian Lenihan

Which applications?

Deputy Denis Naughten

Asylum applications. I ask the Minister to hear me out.

Deputy Brian Lenihan

I will.

Deputy Denis Naughten

The Minister for integration has put the blame on rogue solicitors, and that is the indication in this legislation, but if we had a fair system which outlined the reasons for refusal and a review system that had some semblance of being independent and balanced, and if the Department could trust its own system and not settle cases on the steps of the courts, there would be far less need to take court challenges in the first instance.

The Government has recognised the failure in this area by committing itself to establishing an independent appeals process in the programme for Government. I acknowledge that the Minister announced last night his intention to shelve the tribunal system. I welcome that because it has been exposed as being biased. Establishing an independent immigration appeals system will save money, reduce the number of court challenges and provide a more efficient and cost effective immigration system. I look forward to the Minister fleshing out that particular issue.

Last night the Minister also stated:

In general, a foreign national cannot be unlawfully present [in the State] except in one of two ways. The first is to put oneself knowingly in that position by either evading immigration controls altogether or staying on after the entry or residence permit has expired. The second way is by going through a fair process leading to the revocation or non-renewal of residence permission.

There is a third issue, however, and it is important that we address it, namely, the people who are falling through the system through no fault of their own. I realise the Minister has tried to encompass it within the definition he has used in the Bill but we all know that is not what happens in reality. Undocumented workers who are in a state of legal limbo are suffering. They came here legally but for one reason or another — they were abused in respect of employment law, their permits were not renewed or whatever — they have been left in a legal limbo. It is important that a bridging visa is provided to those people who came to this jurisdiction legitimately.

I am not calling for something that is not already in place because an informal mechanism is in place in the Department of Justice, Equality and Law Reform but it must be formalised. A bridging visa would be a temporary permission to remain for a short interval while the problem regarding a new work permit application was addressed. We should not try to fit everyone into a pigeon hole, so to speak. There is a difficulty and it must be acknowledged. In fairness, the Department acknowledges it informally but a formal structure must be put on that. I hope we can deal with that aspect on Committee Stage.

This legislation is extremely weak in respect of children; it is anti-children. It does not give any formal recognition to any type of family reunification. In every society, whether they are new Irish communities, as in Irish citizens, or migrant communities, people only begin to get to know their neighbours when they have children, either through attending the crèche, school, sports ground or other extra curricular activities. Communities will never integrate unless we can ensure that the children of today's migrants are proud to be Irish and become involved in day to day activities. That cannot happen if they live thousands of miles away from their parents who reside here.

Ireland is the only EU member state that does not have national rules regarding family reunification enshrined in primary legislation. Given the importance of family life to our society, a clear entitlement must be provided in this legislation for Irish citizens and legal residents to be joined by their immediate family members, including the spouses or minor children.

There is currently no right in legislation for a non-EEA family member of Irish citizens to reside in Ireland. That causes great difficulty for many families who wish to resettle or return to Ireland. I have given examples in the past of people legally or illegally resident in the United States, or married to an American citizen which would make them legally resident, who want to return here which causes major problems. This is not the sole reason the Bill fails in respect of children. I brought the issue of unaccompanied children to the attention of officials last week. The procedure, enshrined again in this legislation, is that unaccompanied children are passed to the HSE, an organisation that every Member believes is incompetent in doing the job it is supposed to do, never mind dealing with migrant children. In recent years the HSE has lost more than 300 children who were passed on by the Department of Justice, Equality and Law Reform.

Deputy Michael D. Higgins

It is an absolute scandal.

Deputy Denis Naughten

Based on what officials told me last week, the number of unaccompanied children coming into this jurisdiction is relatively low, significantly fewer than 100 per year. A significant percentage of these children disappear from HSE accommodation.

There is no provision to improve the protection of separated children. Given the concerns with the existing system, this is a fundamental problem with this Bill. Nor is there specific provision for trafficked children. Examples in Sweden and Holland illustrate how children come in unaccompanied under the asylum process, disappear from accommodation centres and are trafficked into the sex industry in other countries of the EU.

Another fundamental weakness is the provision in the legislation allowing the immigration officer to decide which adult will take responsibility for unaccompanied children. This area must be examined. The current policy of handing over children to an organisation that has already failed more than 300 children in recent years is unacceptable. Through his officials, I asked the Minister to provide some figures on this issue but the Department could not do so. It is appalling that the Department does not have a handle on the issue. We cannot continue to brush this under the carpet.

It is fundamentally important that resources are provided for education in the interests of integration. The language supports available in primary and post-primary schools are inadequate to meet the needs of migrant students. This forces teachers to slow the pace of education in the class because migrant children are not up to speed with basic English. That is to the detriment of Irish pupils.

The lack of capitation grants for migrant children, especially those of asylum applicants, is forcing schools to fund extra curricular activities or cancel them due to the financial pressures placed on the school. An additional financial pressure has now been placed on the school in respect of water charges. This has a direct impact on all children, migrants and Irish children.

The failure of the Department and the Government to provide the most basic information on the background and traditions of migrant pupils leads to a lack of understanding of individual students. That issue is not solely a problem with the Department of Justice, Equality and Law Reform. There are examples in the west of asylum and protected children arriving into school on 1 September from asylum accommodation centres, with no information provided for the schools on the background, nationality or traditions of the children. No resources are provided for the schools in respect of language support or additional support for the extra curricular activities of asylum children.

Some schools bring their pupils swimming on a weekly basis but the Department of Justice, Equality and Law Reform will not provide funding for that. The matter is passed on to the local community welfare officer. No specific provision is made for trips to this House or other parts of the country. As a result, Irish children are being discriminated against because the school does not have the resources to fund asylum children. The policy of the school is that no children will go unless all children go. This is correct because we do not want further discrimination in our schools.

Education is a basic right. Over the next five years we will need an extra 2,300 additional classrooms to deal with the additional numbers attending primary school, estimated to be just under 60,000. It is estimated that there are 31,000 migrant children in the primary system alone.

The Government policy is to stop resources being allocated to extensions and new buildings in favour of dealing with the explosion of population in the vicinity of Dublin and other population centres. This discriminates against rural communities, in favour of providing resources in the Dublin region. Classrooms are not there at present as a result of the lack of planning by the Government and the Department of Education and Science to meet these needs. I spoke to the Minister in his previous role as Minister of State at the Department of Education and Science about Cornafulla national school. Sanction was approved for the spending of €2.5 million and, while the commitment was given by the Department of Education and Science, the project could not go ahead because the Department would not give the final green light. That funding will be spent in the Dublin region.

The current system of allocating language support teachers is not serving the interests of children. School principals at primary and secondary level have told me the support from the Department is not meeting the key issue of the language deficit. Children are lost in the school setting unless children of all nationalities can communicate and understand.

We must tackle deficiencies in the education system and adult literacy, specifically the literacy of our Irish citizens and English fluency of the migrants coming here. It is estimated that one quarter of people attending adult literacy programmes are from non-English speaking countries and are seeking to improve their English. That is not benefiting Irish citizens who need to increase their language and literacy skills, nor is it benefiting migrants in the long run. There is an onus on employers and State agencies to address English proficiency.

With regard to recent crime figures, the issue of people on the run has hit the headlines today. Last year there was an increase in serious crime. It was another record-breaking year, with the highest number of murders in the history of the State. Immigration is having some impact on it but we do not know what that impact is. Last Sunday, statistics were published that 30% of those in Irish prisons in 2006 were from outside Ireland. It is important that we lay down a clear marker. The Bill indicates that this matter will be examined, but it is vague. It is important that the Garda Síochána and the Department of Social and Family Affairs have adequate resources to screen people entering the country. There is need for greater co-operation between both arms of the State. The Minister's officials compiled examples of abuse of the social welfare system where people got tens of thousands of euro illegally. There needs to be co-ordination between the Garda National Immigration Bureau, our immigration service and the Department of Social and Family Affairs to ensure these abuses are exposed and that we have a more watertight system of issuing PPS numbers. Someone who has a conviction for a serious crime should be refused entry. If someone is convicted of a serious crime in this jurisdiction, he or she should be deported once the sentence has been served. It is important that we elaborate on this provision in the legislation.

Last Sunday week a serious road traffic accident occurred in my parish in which two Polish brothers were killed. Anyone who has personal experience of road traffic accidents and fatalities cannot but have huge sympathy for the family of those two individuals. There is a responsibility on us to ensure that immigrants are aware of the rules of the road and that information on them is provided clearly and concisely in their own language. It is also important that we have more visible signage informing people they must drive on the left-hand side of the road.

It is vital that we deal with the penalty points issue. One quarter of all penalty points notifications cannot be issued because they are attached to licences from outside this jurisdiction. We should establish a parallel record of a driver's behaviour to bring out-of-state licences under the jurisdiction of the courts. We should keep a record of these licences and the penalty points attached to them and people should be taken off the road when they reach the threshold of 12 penalty points. There is no legal difficulty in doing this and it would ensure that everyone in this country comes under the jurisdiction of the penalty points system.

My colleague, Deputy Gilmore, highlighted the issue yesterday of worker exploitation and the fact that even though the Government committed itself last December to have 90 labour inspectors carrying out inspections there are still only 50 inspectors. In 2007, 1,500 fewer inspections were carried out. It is important, both for Irish people and for immigrants that the law is not abused and that immigrants are given the same entitlements as Irish citizens.

The Bill provides for limited access to benefits and services provided by a Minister, a local authority and the Health Service Executive. The Employment Appeals Tribunal should be included in that provision. I am concerned that medical personnel working in the HSE will be forced to assume the role of immigration officers, as is the case with regard to the marriage provision in section 123.

I wish to bring to the Minister's attention a report in The Connacht Tribune of last week concerning an Athenry man who died in Boston after becoming ill. He declined medical attention for fear of being deported. We do not want to see a repeat of that in this jurisdiction. It is important that those protections are put in place.

I urge the Minister to end the inconsistencies in family reunification policies for Irish and other EU citizens living here; that we simplify and clarify the paths to permanent residency; introduce some degree of immigrant selection to ensure a positive contribution to the economy and social cohesion; ensure we have proactive anti-discrimination campaigns with the social partners; introduce proactive integration policies through the education system and the provision of English language training; and establish strong enforcement of policies, including the active deportation of people who are not benefiting Irish society. I look forward to dealing with these issues on Committee Stage.

Deputy Pat Rabbitte

Immigration for most of the 20th century was not a major issue for Ireland. Through the decades when this country was a failed economic entity, the preoccupation was with emigration. Fifty years ago, between 1956 and 1961, net emigration represented a loss of 212,003 persons, significantly more than the entire population of Limerick. Even as recently as 1986 to 1991, we lost 134,170 people to outward migration. Emergency legislation introduced in 1935 still constitutes the statutory cornerstone of our immigration policy. It would be stretching credulity to call what we have an immigration policy.

The deficit has been dramatically exposed since the 1990s when inward migration to Ireland became a reality. The inward flow of people accelerated following the addition in 2004 of ten new accession countries to the European Union. The numbers wildly exceeded official predictions. However, the prospect of an unending flow of educated young people as a rich source of cheap labour caused euro signs to dazzle even those who, in other circumstances, might be more cautious about, or some of them even resistant to, the sudden explosion in inward numbers. Strain and stresses on infrastructure, schools and hospitals took second place to the appetite for largely uninvigilated cheap labour. At the same time our hospitals in particular have been significantly reliant on migrant labour.

Meanwhile the then Tánaiste and Minister for Enterprise, Trade and Employment was touring the world as part of an agency roadshow to attract labour from regions as far flung as Newfoundland and South Africa. Thus inward migration from outside the European Union also increased in the search for employment and improved life chances in Ireland. To cope with all this our public sector had to make it up as it went along. This ad hoc approach added to the confusion in the public mind as to the distinction between immigration and asylum, between citizens of the European Union who are entitled to seek work here and people from outside the European Union and European economic area who are economic migrants on the one hand and on the other hand asylum seekers seeking sanctuary in this country. The then Minister of State, Liz O’Donnell, described her Government’s policy in this latter area as “a shambles”.

There were, and are, inordinate delays in decision making, inconsistent decisions, lack of clarity, lack of transparency in procedures and over reliance on the courts to sort out the mess. A seemingly deliberate policy of last minute out-of-court settlements contributes to the lack of transparency and raises serious questions about the fairness of the system.

Between 2002 and 2006, net inward migration was 191,331 persons. According to census 2006 there were 413,223 non-Irish nationals usually resident in the State, or 10% of the population. Of these, 271,974 or 66% are EU citizens; 6% are from the rest of Europe; 34,564 or 9% are African; 46,064 or 11% are Asian and 5% are from the Americas.

The Immigration, Residence and Protection Bill 2008 is therefore long awaited and sets for itself the objective of setting out a legislative framework for the management of inward migration to Ireland. That the Bill is finally before the House is welcome, but how well it meets its objective is disputed.

The principal legislation governing the entry and residence of non-nationals is the Aliens Act 1935 and the orders made under it, as amended or re-enacted. The only substantive amendment to our laws since the 1930s was the Refugee Act 1996, which was at first ignored and then gutted. Its application is confined to those seeking asylum in the State owing to well-founded fears of persecution.

The legislation passed since 1996 has been driven by the need either to streamline our procedures for removing non-nationals from the State or to proof those procedures against constitutional challenge. It has had nothing to say, as Deputy Naughten has remarked, about who should be entitled to come here in the first place, outside of the asylum process.

Most people recognise that some of those who travel here and seek asylum are not in reality seeking sanctuary but are fleeing poverty and deprivation, in search of a new and better life for themselves and their families. They are seeking the same opportunities that countless Irish people have sought abroad for generations.

It is clear that the current system favours neither the genuine asylum seeker nor the economic immigrant. By "genuine", I mean an asylum seeker whose case fits the relatively narrow criteria for recognition set out in the 1951 Geneva Convention. The failure to tackle this problem also costs the taxpayer. Those who wait for their cases to be dealt with often wait more than a year, during which time they cannot work and must be supported by the State. Members of this House encounter difficulty and frustration in trying to even access meaningful information on individual cases.

Equally, on the immigration side, it is clear that the current work permit system is not working. There is considerable administration involved, the system is not flexible and it leaves immigrant workers, as has already been remarked, open to exploitation.

The current approach has left us with an expensive, ineffective and unfair mismatch. There is no speedy, fair or effective system for processing economic migrants, many of whom are prepared to work hard to make a valuable contribution to our society. On the other hand, the procedures for claiming asylum are clogged up with many economic migrants. This causes delay and additional costs and is ultimately unfair to asylum seekers whose cases have a real prospect of being recognised as valid.

Since the former Progressive Democrats Minister of State, Liz O'Donnell, described the Fianna Fáil-Progressive Democrats coalition's policy on asylum seekers as a "shambles", little has been done to tackle the issue of how we treat our asylum seekers and refugees and nothing at all has been done to introduce any rational, fair or effective policy for people who wish to immigrate to our country to work.

Imagine the reaction that I or any other Member of the House would have got from the Minister or from his Department if I alleged that there was bias in appeals brought before the Refugee Appeals Tribunal. I would have been brushed off. We were brushed off——

Deputy Michael D. Higgins

We were.

Deputy Pat Rabbitte

——and yet when one reads the trenchant remarks of Mrs. Justice Denham in the Nyembo case, one wonders what has been going on. The conduct in that case was outrageous——

Deputy Michael D. Higgins

Disgraceful.

Deputy Pat Rabbitte

——and that ought to be stated in this House. People concerned with policy will state that it was disgraceful and they do not defend it, but the Minister stood over it and one wonders what invigilation he brings to bear on those who make these decisions because that certainly conferred no credit on this country.

For much of the intervening period there has been confusion in the public mind between asylum seekers and those who should, more realistically, be described as economic migrants. The State has not had an immigration policy. It is of course true that some of those seeking asylum have no real prospect of being granted it but, so far, there has not been any other more appropriate system in place by which they could apply to live, and earn a living, here.

Any proposals of the Department of Justice, Equality and Law Reform for an immigration and residence Bill are therefore to be welcomed but it is important to bear in mind why legislation is so necessary. What is needed is a comprehensive package of legislation that is grounded on known and stated immigration policy, and organised within a structured framework. A purely enabling measure, that maintains a system of executive discretion and decision-making on a case-by-case basis is no improvement on the status quo.

The Labour Party rejects an approach that prefers a legislative framework designed to be capable of accommodating any conceivable immigration policy, from open doors to iron curtain, with room for all sorts of intermediate schemes based on skills, countries of origin or any other quota system.

The legislation must be drafted by reference to the policy and it follows that the policy must be decided first. To pass an Immigration Act and afterwards decide an immigration policy is like having the OPW design a public building without first knowing whether it should be a school, a prison or a hospital.

The Constitution also requires that all the various discretions inherent in a statutory framework, both the Act and the orders and other statutory instruments made under the Act, must be governed by statements of principle and policy that are to be found in the governing legislation. For too long, our law on non-nationals and their rights has amounted to a bare statement of the extent of ministerial powers and discretions over these "aliens", without any reference to purpose, principle or policy. That is what has made these laws so vulnerable to constitutional attack.

This Bill must be judged, therefore, by reference to the extent that it includes statements of policy that bring certainty to aspects of people's lives — where they can live, whether they can work, whether their families can live with them — where certainty is a basic entitlement, and by reference to whether a clear, coherent and ascertainable policy is reflected in the body of the statutory provisions. Judged against these criteria, the Bill is severely wanting.

It must be remembered that the main constitutional challenge to the Aliens Act 1935 arose from the fact that it was a short emergency Act that simply delegated to the Government the power to make rules. The courts have long held that the Dáil and Seanad cannot simply wash their hands of the duty to make laws and subcontract the power to Ministers. There has to be a framework of policy and principle set out in an Act of the Oireachtas, under which Ministers, gardaí and immigration officers then operate. What we were expecting from then Minister, Michael McDowell, therefore, was a comprehensive immigration code, setting out the rights, obligations and responsibilities of all concerned. What we got instead was a step back to 1935, back to a time when law was for the Government to decide and the Oireachtas was expected simply to sit back and watch.

The then Minister, Michael McDowell, had insisted — he set out his argument in the body of the Bill itself, without precedent — that framing an immigration policy is exclusively and inherently a function of the Government, and not of the Oireachtas. The then Minister went further when he insisted that not only could he make up the law as he went along without reference to the Oireachtas, but that this law should bind everyone else in the country but not himself. He wanted to exempt the Minister personally from any objection to comply with his own policy statements. His Bill was an attempt to create a system of completely unfettered and potentially quite arbitrary discretion and decision making on a case-by-case basis. We have a right to expect that the law should bring fairness and certainty to aspects of people's lives.

Presumably the present Minister, Deputy Brian Lenihan, has dropped some of the more objectionable characteristics of his predecessor's legislation because he regarded them as constitutionally untenable. Although this Minister no longer makes in the Bill itself the extraordinary claim that the framing of immigration policy is an Executive rather than a legislative function, he has not adapted the rest of the Bill he inherited to take account of the fact that this assertion has been dropped. The Minister, in fact, repeats his predecessor's assertion in the explanatory memorandum rather than in the Bill itself. This is more astute, but is it different? The explanatory memorandum states:

The executive power and responsibility of the Government to make immigration policies as they consider suitable to the conditions of the day is at present supplemented by a variety of statutory provisions designed to facilitate the implementation of those policies.

The test is whether what is challenged as an unauthorised delegation of law-making power is more than a mere giving effect to principle and policies contained in the statute. If principle and policies are laid down in the statute and details are only filled in or completed by the designated Minister or subordinate body, then there is no unauthorised delegation of legislative power.

This Bill, like the one produced by the former Minister for Justice, Equality and Law Reform, Michael McDowell, appears to be drafted on an assumption that this rule does not apply in the area of immigration. Ministerial thinking appears to proceed along the following lines. First, the courts have said that the State must have wide powers in the interests of the common good to control non-nationals, their entry into the State, their departure and their activities within the State. Second, this must mean that it is the function of the Legislature merely to supplement the Government's Executive responsibility for making policies to manage migration to the State within a statutory framework to facilitate the promulgation of the Government's immigration policies and their day-to-day implementation without fettering or supplanting that Executive responsibility. Third, the normal rules of constitutional law, which require the Oireachtas to set out in primary legislation the statements of principle and policy by which a Minister is bound when he or she makes statutory instruments, has no application in the field of immigration. This line of thinking appears to me to be based on a failure to read or a deliberate misreading of the relevant Supreme Court judgments.

Mr. Justice Keane and Mrs. Justice Denham addressed the issue in the Laurentiu case in 1999, a case which resulted in the effective provisions of the Aliens Act 1935 being struck down as unconstitutional. Mr. Justice Keane made his position clear when he stated:

It cannot be too strongly emphasised that no issue arises in this case as to whether the sovereign power of the State to deport aliens is executive or legislative in its nature: it is clearly a power of an executive nature, since it can be exercised by the executive even in the absence of legislation. But that is not to say that its exercise cannot be controlled by legislation and today is invariably so controlled: any other view would be inconsistent with the exclusive law making power vested in the Oireachtas. The Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to be exercised: what they cannot do, in my judgment, is to assign their policy making role to a specified person or body, such as a Minister.

This appears to me to be patently clear. Mr. Justice Keane accepted that:

altogether apart from the provisions of the 1935 Act and any preceding legislation, the State as a sovereign state enjoyed the power to expel or deport aliens from the State: the right to expel or deport aliens inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute.

He went on to point out that the effect of legislation in the area was not to confer on the State an absolute and unrestricted power to deport aliens — this power was already vested in the State — but to permit the Minister by regulation to decide what class of aliens might be deported. He also stated: "The Oireachtas had, in effect, determined that policy in this area should be the responsibility of the Minister." As Mr. Justice Geoghegan more succinctly put it: "The Oireachtas of Saorstát Éireann did not legislate for deportation; it merely permitted the Minister for Justice to legislate for deportation."

Mrs. Justice Denham stated: "But the legislature, having seized itself of the subject, its power to delegate, as it purported to do to the Minister, is the kernel of the case and the issue for decision." She pointed out that if there had been no legislation, the situation would have a parallel to that of the issue of passports prior to the passing last year of the Passports Act. She stated:

That also is a classic example of an exercise of an executive power of a Sovereign Nation. There has been no legislation on this matter in Ireland. The scheme is run by a Minister of the executive. It must be run in a constitutional and fair manner. However, there is no issue of the constitutional ambit of delegated legislation as the Oireachtas has not sought to give the powers to the Minister.

Even in the field of immigration, these cases make it clear that there are limits to permissible delegation of law-making power by the Oireachtas to the Government; the Oireachtas may not abdicate its power to legislate. As Mrs. Justice Denham put it: "In accordance with the democratic basis of the Constitution, it is the people's representatives who make the law, who determine the principles and policies."

Finally, it is worth quoting a passage from the judgment of the then Chief Justice Keane in the Osayande and Lobe cases:

Many would wish to see the development in Ireland of a tolerant and pluralist society, capable of accommodating immigrants from diverse ethnic and cultural backgrounds, because that is a desirable objective in itself, recognises the openness and generosity with which Irish emigrants in times past were received in other countries and, on a purely economic level, remedies serious shortages in the skilled and unskilled labour market. At the same time, the legislature and executive cannot be expected to disregard the problems which an increased volume of immigration inevitably creates, because of the strains it places on the infrastructure of social services and, human nature being what it is, the difficulty of integrating people from very different ethnic and cultural backgrounds into the fabric of Irish society. The resolution of these complex political, social and economic issues which, it need hardly be said, are not in any sense unique to Ireland, is entirely a matter for the Oireachtas and the executive. The function of the courts is to ensure that the constitutional and legal rights of all the persons affected by the legislation in question are protected and vindicated.

There is nothing in any of these cases to give rise to the argument made by the Minister in his explanatory memorandum that it is an Executive function to make immigration policy and that the Oireachtas is confined to the supplementary role of passing legislation designed simply and solely to facilitate the implementation of Government policy.

These regulations are intended to provide for a wide range of actions as listed in my speech. One does not need to be a lawyer to spot the basic point that apart from giving the Minister power to legislate on all these matters, this Bill is entirely silent on the nature and content of that delegated legislation. For example, does Irish immigration policy favour family re-unification? The answer is that we do not know and we will not find out until the Minister makes regulations in this regard.

Enabling a Minister to make regulations to deal with an issue is not the same as making a statement of principle and policy about that issue. For want of any statement of policy on these issues, section 127 of this Bill, which purports to give the Minister power to make laws about all of them, falls into the same error that resulted in the successful challenge to, and striking down of, the Aliens Act 1935.

This is an occasion where the time allocated for Second Stage individual speeches might more appropriately have reverted to the old days when one could tease out the Bill at length. That is not possible but I look forward to the opportunity to do so on Committee Stage.

Deputy Ciarán Cuffe

I intend to share time with Deputy O'Flynn.

I welcome this complex Bill of 142 pages and 139 sections. Many aspects are strongly needed while the details of other aspects are of concern and will need to be fleshed out on Committee Stage. I acknowledge the engagement of the Minister and his officials with us on the Bill and I applaud the dedication of the NGOs that have commented in detail on the Bill's content.

There is a pressing need to modernise legislation in this area and a clear imperative to engage with the many organisations working at the coal face with recent immigrants to our shores. I was interested in Deputy Rabbitte's comments on the need for a clear policy statement. The previous Bill published in May 2007 allowed for the Minister to lay out a clear policy statement. There are concerns that this might tie his hands in future policy. While I accept where we are, I would have preferred a Green Paper, a White Paper and a lengthy period of public consultation on the Bill. However, there is a need to move quickly to enact legislation in this area.

I noted Deputy Rabbitte's concerns on the ministerial discretion that permeates a large part of the Bill. I hope the schemes the Bill would bring about would take a strong onus from the Minister to be seen as the point of last resort for people who have exhausted all other possibilities. There is a problem in any body of legislation if the Minister is the point of last resort. It would take much pressure from the Government and Opposition if Deputies were not given that space to make representations directly to the Minister.

We need an overhaul of immigration and protection law and an update of the legislation, and this is a first step towards a more comprehensive immigration and asylum system. I look forward to positive engagement with the Minister on the Bill's passage through the Oireachtas. We are moving towards comprehensive legislation but we are only at the start of a programme for Government that makes clear commitments in this area. The programme for Government contains a commitment to an immigration appeals procedure and I was glad to hear the Minister refer to a visibly independent appeals process. I trust the Minister will incorporate sufficient independence in this procedure and I hope it will be delivered in a timely manner.

I welcome the streamlining of the process towards a single procedure that will allow for the efficient processing of applications. However, I hope that in the practical implementation of this new streamlined process, transparency in decision making is not sacrificed for the sake of expediency and that fair procedures and due process are addressed. There is concern that the speeding up of the process could introduce difficulties.

There are genuine concerns around the issue of summary deportation. While recognising the need to have a comprehensive immigration system in place, flexibility is also needed within such a system to cater for those who have fallen through the cracks. This issue must be examined in detail.

There has been a discussion in the media and elsewhere regarding the issue of detention on the point of entry. I acknowledge that this is not the introduction of detention by stealth but I am concerned about the signal it may send out. Somebody seeking asylum in this country, looking to the Irish State for protection, can be held in prison, albeit temporarily, before his or her application can be processed. We should be clear that this will only be for a matter of hours. Perhaps we should make some reference to the timing in this section of the Bill because it is open to misinterpretation.

We must examine in more detail the rights of children in the context of the legislation. We have the United Nations Convention on the Rights of the Child and we have, in Irish law, a very clear distinction between the rights and obligations of the HSE and of the Minister for Justice, Equality and Law Reform. The HSE was found wanting in the relatively recent past and we must ensure that proper procedures are in place there. We must address the needs of trafficked and separated children also and it is important that we do not have a cut-off point at a particular age in that regard.

I noted the Minister's remarks regarding trafficking. There are concerns in the public domain about the relatively short period during which someone who is trafficked can have recourse to the appeal procedure. The Minister spoke about the possibility for rest and reflection in order for information to be given. It must be made very clear that we are not talking about a very limited period of time in this context. We should look at models from other countries, such as Norway, where a longer period, of up to six months, is allowed.

As previous speakers pointed out, an enormous amount of the meat on the bones of this Bill will reside in the schemes that are drawn up. As I discussed with the Minister recently, there may be a case for providing for public discussion, debate and consultation on the schemes that will be put in place. The Bill is, in a sense, an empty vessel until we put flesh on its bones, if the Ceann Comhairle will forgive me for mixing my metaphors. Public consultation could lead to better schemes, which would be in everyone's interest.

Concerns about staffing within the Department have been raised time and again. A large number of people have come to me with concerns that their applications are being processed very slowly. The allocation of staff is insufficient to cater for the needs of those seeking information or decisions. I hope we can address the staffing requirements within the area of immigration as part of the development of the Bill.

I noticed much talk from the Fine Gael benches earlier in the debate about crime and social welfare abuse in the same breath as immigration. It is important, on the introduction of this Bill, to talk very clearly about the positive role immigration has had, is having and will continue to have in Irish life. The Green Party takes the view that immigration is a vital and positive part of any dynamic nation and we must say that clearly and unequivocally.

Deputy Denis Naughten

Had the Deputy listened to my speech, he would have heard that.

Deputy Ciarán Cuffe

It can be a vital part of a country's cultural, social and economic development. Indeed, as an island nation off the coast of another island, as Ireland is, it is no harm to have some mixing of the gene pool. Deputy Varadker and I are testimony to the positive aspects of such mixing. Indeed, the House is the poorer without the contributions of the former Labour Party Deputy, Dr. Moosajee Bhamjee, which gave us all cause for thought.

In terms of the cultural sphere, while I grew up with Gael Linn and the Clancy Brothers, these days I am far more likely to listen to Ali Farka Touré or some other aspect of world music. It is important to put that positive contribution on the record of the House. Indeed, one of the most successful festivals on the island is the Festival of World Cultures in Dún Laoghaire, where one might find a Zimbabwean listening to music from South America while eating food from Asia. The enthusiasm for such events shows us all that we are the richer for this cultural, economic and social mixing.

I am aware of the very detailed submissions that have been made by many groups, particularly the immigration NGOs, who held a press conference yesterday to highlight their concerns about the Bill. Last night, the Dún Laoghaire Refugee Project made available to me a list of concerns they have with the legislation. During my meeting with the Dún Laoghaire Refugee Project last Monday, I met a great group of children and young adults from Burundi, Rwanda, Sierra Leone and elsewhere, who all have a very positive role to play in the future development of Ireland. They are intelligent, enthusiastic and committed to contributing to the Ireland of the future. We must put that on record. Indeed, where would the future of the Irish soccer team be without the input of a prospective immigrant to our shores, Mr. Giovanni Trapattoni?

I say this from a desire to put on the record of the House that immigration is, and will continue to be, a very positive part of Irish life. Of course, it brings its fair share of challenges. We must have a system of immigration that is clear, timely and transparent. This Bill is one of the first steps towards fulfilling the mandates within the programme for Government. I look forward to the discussion on Committee Stage and see this as a step on the way towards a further review of our immigration legislation. That will be required because immigration, almost by its nature, changes. The concerns, policies and solutions will be different in five years' time from those being considered today. I welcome the legislation. Its detail is paramount and I look forward to constructive engagement with the Minister and Opposition benches on the final text.

Deputy Terence Flanagan

I welcome the opportunity to speak on the Bill. It is true to say that Ireland has changed dramatically in the past ten years. Our great economic success has resulted in citizens no longer emigrating in the same numbers as they once did and our country having to deal with thousands of immigrants for the first time. Immigration has been of great benefit to Ireland, but migrants and their family members have a right to be treated fairly in legislation and in practice.

I welcome the contents of the Bill, which seeks to reform our outdated and inadequate immigration legislation, but some aspects of the current system are not adequately addressed. The Bill is a unique opportunity to rectify some glaring anomalies within the current system of family reunification. Currently, there is no right in legislation for non-EEA family members of Irish citizens to reside in Ireland, causing great difficulty for many families who wish to resettle in or return to Ireland. In many cases, a non-EEA spouse of an Irish national can be forced to wait for more than 12 months without the right to work while his or her application for residency is processed. This is simply not financially viable for many families.

The current lack of rights for Irish citizens means that if a refugee is granted Irish citizenship, he or she loses his or her legal right to family reunification, a clear and problematic disincentive for people to become Irish citizens and a broader issue for the integration debate. The other anomalous situation is the fact that certain categories of non-EEA family members of EU citizens living in Ireland have a stated right in legislation to have their family members live with them. This situation is not coherent with that of Irish citizens with no legislative rights. All migrants should have clear and accessible pathways to family reunification and Irish citizens need to have clear rights to family reunification in primary legislation.

Section 123 of the Bill must be removed. This section proposes that, in order for a non-EEA national in Ireland to get married to anyone, including an Irish citizen, he or she will require the permission of the Minister for Justice, Equality and Law Reform. This proposal is an unnecessarily invasive act that would downgrade the institution of marriage and should be removed immediately.

Deputy Michael D. Higgins

It is St. Valentine's Day.

Deputy Terence Flanagan

Measures must be put in place to prevent abuses of certain rights under immigration legislation. Such mechanisms are in place in the Irish Naturalisation and Immigration Service in respect of applications for residency in Ireland based on marriage to an EU or Irish citizen. Legislative rights and protective measures can operate side by side without the unnecessarily intrusive measure of direct involvement by the Minister for Justice, Equality and Law Reform in the institution of marriage.

We should operate in line with Article 41.1 of the Constitution, which states that immediate family members of Irish citizens should have a right in primary legislation to reside in Ireland with their families. We should keep in mind the spirit of the Constitution, which still holds the key to building a new Ireland. I take this opportunity to thank the staff of Crosscare and the Immigrant Council of Ireland for their good work in this matter, often in difficult circumstances.

There are other omissions from the Bill that I wish to highlight. The Bill fails to set out in primary legislation clear rules regarding the rights and obligations of migrants seeking to come to Ireland. As a result, the rules setting out the basis for migrants to enter and remain in the State, the conditions on which such permission will be granted and what entitlements migrants may or may not have while in the State will be left to secondary legislation.

The Bill, like the previous draft published by the former Government, makes no statutory provision for family reunification. It fails to deal directly with the rights of students, their partners, their children, researchers, the self-employed, non-economically active migrants and the undocumented. The legislation has no real meaning when it comes to defining who can reside in Ireland, for how long and on what basis. Clearly spelling out migrants' entitlements and obligations in primary legislation will help prevent the difficulties they and those charged with administering and enforcing immigration legislation face. Some of these problems revolve around the delays in obtaining decisions and inconsistencies in decision-making. Given the problems encountered under the current system, such as lengthy delays in decision-making and inconsistent decision making that leads to challenges, it is crucial that the Government should honour its commitment in the programme for Government to introduce a visibly independent appeals process for immigration decisions. An independent appeals mechanism would provide transparency in the decision-making process and could be more cost effective than the current system.

Migrants' rights to family life should be spelled out clearly in primary law. There is a lack of clarity regarding which family members may be admitted to the State, the conditions under which family reunification may be granted and the length of time it takes to process applications. It is not good enough that Ireland is the only EU member state that does not have national rules regarding family reunification enshrined in primary legislation.

The repeal of section 3 of the Immigration Act 1999 without an equivalent replacement in the Bill is of grave concern as it may lead to the summary deportation of vulnerable migrants who have become unlawfully resident in the State through no fault of their own. There must be an avenue to deal with and provide for persons in exceptional circumstances. The Bill provides no flexibility to deal with persons whose residence permits are non-renewable and it allows for a regime of creeping charges at every stage of the immigration process. There are charges for visas, entry and registration. The fees should correlate to the cost of administration only and not be used as a double taxation of migrants lawfully coming to Ireland. There is no reason a visitor or worker, for example, should pay a different fee on entry to the State.

The Bill empowers the Minister to require visa applications to be accompanied by a bond or deposit. The circumstances warranting the requirement of a bond or deposit should be spelled out in primary legislation to ensure these requirements are proportional and to prevent any discrimination or inconsistency in their imposition.

The provisions contained in section 124 fall short of Ireland's obligations under the Council of Europe Convention on Actions to Combat Human Trafficking, which entered into force on 1 February. The convention applies to all forms of trafficking in human beings, whether national or transnational, and would certainly apply to all victims of trafficking regardless of their nationalities. It is of concern that the recovery period of 45 days provided in subsection 124(1) in conjunction with subsection 124(3) is not long enough. Victims of trafficking will often be highly traumatised and may not recover sufficiently within 45 days to make an informed decision about whether to participate in an investigation or prosecution. Overall, the Bill leaves victims of trafficking in a situation of passivity by not allowing them or those acting on their behalf to make applications for recovery and-or protection residence permits.

The Bill deals with general immigration and asylum protection issues in the same legislation, a major fault. This is likely to perpetuate confusion about the status of foreign nationals in Ireland. Ireland needs a workable, fair and forward-looking system and the Bill before the House does not meet the obligation to provide it.

Deputy Michael D. Higgins

I have rarely called a quorum in the almost 20 years I have served in this House, but I must now do so as this Bill and those who will speak on it deserve the attention of Deputies. I call a quorum.

Deputy Terence Flanagan

Hear, hear.

Deputy Bernard J. Durkan

It is a good idea.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Deputy Noel O’Flynn

Ireland has experienced immigration much later than most of our European neighbours and is in a good position to learn from their mistakes, as we are doing. It is vital, as we move forward, that immigration is accompanied by policies which will ensure that integration takes place. We have, for the first time, appointed a Minister of State with specific responsibility for integration, Deputy Conor Lenihan. Approximately 40,000 immigrant children from a wide variety of backgrounds and cultures attend Irish schools. To ensure they do not lag behind their Irish counterparts, we have recruited almost 1,900 language support teachers to meet the needs of children whose first language is not English. In some cases, the mothers of these children cannot speak English and are unable to help with their school work. The roll-out of adult education classes is also vital if integration is to proceed. More than 12,000 places have been taken up by migrants learning English in classes provided by the national network of 33 vocational education committees.

We have read much in recent press reports about the exploitation of migrants. I am pleased the law is being changed to provide that green cards and work permits will be issued to employees as opposed to employers. A key aspect of changes in the new legislation being rolled out is that permits will not be issued for jobs paying below the national minimum wage. I welcome the introduction of hefty fines and more serious consequences for employers who take advantage of migrant workers who work hard alongside Irish people.

A number of communities are experiencing difficulties with integration. I will give the House a flavour of the types of integration problems outlined to my Fianna Fáil Party colleagues and me by representatives of the Polish community at our meeting last Saturday. Other immigrant communities may be experiencing similar problems. Those who run mycork.org, a website for Polish immigrants, informed us that Polish is taught for a number of hours every week in St. Patrick’s school in the city. Polish migrants favour more integration and while they do not want separate schools, they seek greater assistance from the authorities for teaching Polish, mathematics and other subjects that are taught differently on the Polish curriculum. Many Polish parents intend to return home with their children. The group indicated it had not made contact with State authorities on this matter or other matters. Perhaps it did not know how to access the authorities and it may have been unaware of what services are available.

From the note I received, I understand 1,000 Polish children and parents are involved in the classes at St. Patrick's school, which are recognised by the Ministry for Education in Poland. The Minister for Education and Science should examine what services are available for the various language communities to enable them to continue to study their national curriculum alongside English and Irish. Sylvia Adamska, a migrant officer from the west Cork community partnership who works with Poles and other immigrants in Bantry and Clonakilty, emphasised the importance of the project and asked for assistance for its activities. I understand funding for the project will finish in March 2008. She has written to the Minister of State, Deputy Conor Lenihan, and I hope further funding will be made available.

The Minister for Enterprise, Trade and Employment, Deputy Micheál Martin, and other Ministers were present at the meeting, which was a briefing for Fianna Fáil Members and councillors. I have no doubt the other parties will receive similar briefings. I was astonished to hear about impoliteness from officials in the social welfare service and the tax office, particularly where Polish people who had no knowledge of the English language were treated unpleasantly. This was also mentioned by a lady who acts as a translator for people dealing with State agencies and assisting Poles in accessing information or benefits to which they are entitled.

In the 16 years I have been in public life I have not heard a bad word about an official in any Department. They are always extremely polite and helpful. I raised this matter on Saturday, stating if this is true it is first time I have experienced it. Perhaps we will speak with people in State agencies and bodies to see whether we should provide Polish interpreters or Polish workers in the Department of Social and Family Affairs and the Revenue Commissioners to deal with the number of people who wish to access the services.

Provision of official migrant workers' rights and entitlements in the Polish language was also requested. This would be helpful in raising awareness and self-confidence among migrants. A particular need exists for information on employment rights, taxes, working conditions and anti-discrimination legislation, which we recently introduced. The matter of English classes was also raised.

Another issue raised was the exploitation of migrant workers, which generally takes the form of underpayment of wages or non-payment of entitlements or overtime. The vast majority of employers pay immigrant workers from EU states the rate they should be paid and are not exploiting them. I must state some are unscrupulous and abuse EU and other nationals who do not understand the language and cannot find out about their rights. This is neither fair nor right. I hope our enforcement officers will deal with this, and I believe they are doing so.

This is a flavour of the difficulties experienced by one community. I am sure it is the same for other communities. The Government and local agencies must do more to integrate such people into our society.

Deputy Bernard J. Durkan

I am delighted to speak on this important Bill. I am not certain whether the Bill addresses in full the issues arising at present but it attempts to deal with some of them. Perhaps it does not do so in the same manner I would have but this is in the nature of things and doctors differ.

We should be more familiar with emigration than any other nation on earth. For a long time, we have wandered the face of the earth and gone to every country, location and jurisdiction. My generation is the first of my family since the 1840s in which no one had to emigrate out of necessity. At present, emigration is the only answer for people in many other countries.

I was amused when the previous Minister for Justice, Equality and Law Reform used to state he did not believe some of the stories coming from refugees and asylum seekers. He stated they did not always tell the truth. I used to marvel at this. After all, anybody practising in the courts will have questioned much of what they have been told. He seemed to be amazed at the suggestion that somebody would lengthen or improve a story. I would have thought this to be the normal procedure. We know somebody making a case will try to make the best possible case and embellish it. The story might not always be exactly as it happened. One cannot blame people for improving their story to make it more convincing.

However, I have reservations about matters which have occurred. It is well known that a particular individual who adjudicates applications for asylum and refugee status has never once granted asylum. I cannot understand how not one application out of 10,000 or 11,000 considered over a number of years was granted. How could those allocating the cases be so selective as to ensure that prior to being examined, this adjudicator received all of the cases which did not qualify? This makes me suspicious and the system must be examined. This Bill proposes changes and after it is passed the Minister and officials must recognise these matters must be addressed as a matter of urgency. The fact that something is happening which may be seen to be clever and about which people have a quiet nod and a wink and a snigger does not mean it should continue under any circumstances.

Another matter which has come to my attention is the hardship caused to young children whose parents have been here for a number of years. They have gone through the primary and second level education system and are now ready to enter third level education and want to do so. They do not qualify for a higher education grant and can only continue in education if they have €5,000 or €10,000 to spend. It is extremely sad to see these teenagers making their pleas and speaking in Dublin, Kildare, Sligo and Roscommon accents. They have been here since they were five or seven years of age. These cases must be addressed. The Minister mentioned the possibility of an amnesty. This is where the amnesty should kick in and deal with these cases as a matter of course in accordance with fair play.

Other speakers mentioned criminals entering the country. We all know we do not need criminals as we have enough of them here already. Our home-grown criminals do very well throughout the world, as I mentioned several times on the Order of Business. They are doing so well they are recognised internationally as a growing force in the criminal world. We must have a simple means of sifting applicants at an early stage so as not to penalise all applicants for asylum and economic immigrants. This would eliminate many snags and back logs and the long drawn-out process we have.

I doubt I am unique in that 99% of the people who come to me for advice have one thing in common. They want to work. They want to be independent and will do whatever work is available, whether it is driving a bus or a digger or nursing. It is eternally frustrating not to have status to work for those whose cases have been pending for up to ten years and who have brought up their children here.

I hear mention of people who are here illegally, and some did come here illegally. However, others became illegal by virtue of changing their address. Some cases could have done with another hearing and a sympathetic ear. From all the questions I have asked these individuals, their motives do not appear to be in any way more sinister than simply avoiding having to go back to from where they came.

Like every Member, various immigration cases have come to my attention. Various evidence has been submitted and forms filled out with a decision taken by the relevant officer, argued in tabular form. The case made in some of these arguments on paper is highly suspicious, leading to only one conclusion. If an officer disbelieves everything put before him or her and has an intimate knowledge of the conditions prevailing in the applicant's homeland, the Department of Justice, Equality and Law Reform should refer to the Department of Foreign Affairs. There one gets a different story and that matters in the homeland are very different from those proclaimed in the adjudication of the asylum-seeker's status.

The Department of Foreign Affairs adjudicates on what it sees internationally and theirs is a fair assessment. The Department of Justice, Equality and Law Reform looks at it in a different form. I am not saying this to open the floodgates and allow everyone who wants to enter the country. It must be done at European level, with the one regime across the EU. It needs to be regularised in some fashion. It cannot, like a tap, be turned on and off, simply because some people are going to be discriminated against.

There is the matter of first landfall covered by the Dublin Convention. For example, an individual fleeing from the Democratic Republic of Congo is turned back from Belgium. If that individual turns up in Ireland, under the Dublin Convention, he or she is returned to the place from whence they were first deported, in this case Belgium.

I had a case of a woman who had been seriously abused in her homeland. She managed to flee to France but was deported from there. Eventually she came to Ireland but was deported by virtue of the fact the original deportation was in order. Close questioning of the woman revealed a horrific list of abuse and hardship. I raised her case with the then Minister for Justice, Equality and Law Reform, Michael McDowell, and asked what was likely to happen to this woman if she were deported. Was her welfare and well-being taken into account? Was she to be sent back to a safe haven in her country? When I followed it up, she was not, ending up on the streets with no protection from any quarter.

Care must be given to the replies given to parliamentary questions because the veracity of those replies could have serious implications for the individuals who are the subject matter. In those circumstances, there is an urgent need to appraise each situation accurately and fairly from everyone's point of view. I accept changes have been made on humanitarian grounds where reviews can take place, albeit they can take a long time. There must always be a mechanism whereby the individual's particular circumstances, precarious as they may well be, should be taken into account in such a way as to protect that person's life if they have to.

One question I pursued with the Minister's predecessor was to ascertain in the cases of deportation, whether the well-being of the deportee was safeguarded. I never got an answer to that particular question because it was not in the then culture of the thinking to give one.

I am not being critical of individual officers but it is a simple fact of life that if we want to be treated fairly in the world, then we must be fair to those who come here for whatever reason. It is not a crime to come to Ireland for economic reasons. The previous Minister used to marvel at the notion that people would come to Ireland for economic reasons. "They are economic immigrants", he proclaimed, aghast at the very thought. There is nothing wrong with that. It has always been the case that people move around seeking employment. It is not a crime.

Regarding the language provisions in the Bill, English can be difficult for immigrants if it is not their first language. Incidentally, many immigrants have learned the Irish language successfully. For example, take the local authority housing application form. Once it used to be a simple two-page document. In the 1980s, the Revenue Commissioners used to have a 25-page document, form 12, that everyone castigated. Eventually, it was reduced to a two-page document and still served its purpose. Never to be outdone, what did the local authorities come up with for the housing application form? They turned a two-page document into a 27-page one. Many questions are asked several times such as "What is your first language?", "Where do your parents come from?", "How many times have you moved house in the past five years?", "What was your address in the previous five years and the previous five years to that?". I never read so much raiméis in all my life.

Deputy Denis Naughten

One had to give PRSI numbers, claim numbers, pension numbers and more.

Deputy Bernard J. Durkan

Eventually, a dossier is compiled which would intimidate the most fluent English speakers. It is put there, however, for African, Polish and Estonian applicants. If one really wants an English fluency test, this is the form.

While I anticipate some criticism from some local authorities on the matter, they should cop on to themselves and not make a situation worse.

Deputy O'Flynn claimed some officers are occasionally abrupt. I am not referring to any particular officer in a particular location but there have been the odd ones. There has been the odd situation whereby an officer dealing with immigrants of all nationalities has been less than sympathetic. It could be argued they are of that disposition when dealing with local people. For several officials I know about, if I were them, I would not pursue it too far. They are just about on the borderline and escape from a serious charge being made against them. I will not say any more than that. People in those positions need to recognise their actions and responses can be seen as a reflection not on them but on the country, a much more serious matter. A little Christian charity does not go too far wrong in these circumstances.

This subject, as we know, is a broad one and we could go on forever, although unfortunately, or perhaps fortunately, we are restricted to 20 minutes nowadays. I emphasise the things that need to be dealt with as quickly as possible. The processing of applications for naturalisation needs to be speeded up. It is appalling how many times we must write to the relevant section of the Department of Justice, Equality and Law Reform or to the Minister asking about the status of applications. This takes up the Minister's time. We are told the process sometimes takes 22 months; it takes five years. I have been dealing with one case for the past eight years and it is only now coming to fruition. The people concerned, the applicants, want their status clarified. They have employment and they want to continue working. They want to make an economic contribution to this society and they make no bones about it. Thus, I ask in the context of this legislation that this process be speeded up.

I note that there has been a huge drop in the number granted refugee status. I would like to think this is due to reduced interest and smaller numbers of applications, but I am not so sure about that. It behoves everybody to deal with these applications as quickly as possible. There may be difficult circumstances in the homeland of an individual that may not come to light in the first instance, but it does not take three, four or five years to go through the details. It should be possible to go through them in a shorter space of time. It costs nothing to be courteous to people. Even if one cannot help someone, it must surely be possible to explain the situation in a courteous manner.

I will finish off with the habitual residency clause, which has been frequently mentioned recently in connection with qualification for social welfare benefits. Unfortunately, through rigid application of this rule the State encourages and forces people into lawlessness. Women are forced into prostitution because they have nowhere else to go and nothing else to do. Why leave people with no option? Why not deal with the situation by trying to ensure that people, at least while they are here, do not have to beg on the streets? Why not deal with it from that point of view? If a case is found to have no legitimacy and does not stand up to examination, it should by all means be treated under the general rule, but otherwise I ask, in Heaven's name, that the Department deal with these people in a sympathetic fashion.

I will not go through the issues such as housing loans which I had intended to mention. We in the House could speak on this subject until tomorrow without the slightest difficulty. I hope and pray that the Bill, if it does nothing else, will focus on fair play, efficiency and cutting out the red tape that has crept into the area in recent years.

Deputy Finian McGrath

I thank the Cathaoirleach for the opportunity of speaking on this important legislation, the Immigration, Residence and Protection Bill 2008. Before I go into the details of the Bill I must mention the importance of having a wide-ranging debate on immigration and listening to all views on this important issue. To those who say that politicians never discuss this issue, I say get real. We deal with the immigration issue each day of our lives in our clinics and our constituencies. It gets up my nose when I hear so-called enlightened people or commentators saying such things.

I also wish to challenge the hypocrisy of certain people in this regard. Our politicians and lobby groups have been jumping up and down about the illegal Irish in America, yet they stay silent when the issue comes up in our own country.

Deputy Bernard J. Durkan

That is true.

Deputy Finian McGrath

We must end such hypocrisy. I will always support the Irish in America, but I will also support and assist immigrants in our country even when it may not be popular politically. Let us be honest. We all get regular requests from immigrants and asylum seekers at our offices and clinics. This type of work has been going on for years. We are not looking for gold medals as Members of the Oireachtas, but I ask the Minister not to lecture TDs or Senators, saying they do not know about the immigration issue.

While we are dealing with immigration, I must also mention the issue of race. The sad reality is that some immigrants in this country are abused, jeered and mocked regularly on their way to work or to meet friends. Some are so afraid that they lock themselves in their flats and apartments at night. This is an absolute disgrace and it is not acceptable in our country in 2008. Our immigrants should be allowed to enjoy our country and get on with their lives in a positive way. Politicians must take the lead on this by showing solidarity with and support for our immigrant community. There is no room for this in broader society. There is also no room for racism or sectarianism. After all, if we look at our history we will see that Ireland was built on emigration. Generations of Irish people, including many of our own family and friends, have travelled around the world to places such as the US, England and Australia. Our history is steeped in emigration. The Kennedys have Irish roots and we recently heard that Barack Obama has roots in County Offaly. In addition, Che Guevara had Galway roots, James Connolly had Scottish and Irish connections and Paul Keating also has Galway roots. Many other families emigrated from Ireland and did very well in foreign countries. It is important that we remind ourselves of this.

On the matter of immigration, exploitation and racism, I welcome the recent statement by the Australian Government apologising for the treatment of the Aborigines. I thought this was a brave decision by the Prime Minister and the Government and I compare it with the previous Government. By saying sorry, Australians now have a chance to move on by respecting what they have done in the past to the Aboriginal people. It was a brave and positive contribution by the Australian Government and we can all learn from it, particularly in our country as we try to develop strategies for conflict resolution on this island.

These issues are linked to the debate on immigration. However, one aspect about which people do not often hear is the positive contribution of our immigrants. They have made a massive contribution to the State. We have all heard racist views on the doorsteps. There are those who privately express racist views but will not say them publicly. I encourage these people to enjoy difference and diversity. Before I was elected to the Dáil I worked with immigrant children. I taught children of many nationalities and for the children in my school, aged from four to 13, race and religion were never issues. The people with the baggage and problems seemed to be the adults. I remember one under-13 team in the Cumann na mBunscol league which comprised children of five different nationalities. The children were not interested in where the other children came from, the colour of their skin or their religion, they were only interested in having players on the team, playing together, enjoying the game and winning the next match. It is the adults who have issues with immigration and race. It is important that we focus on these things in the debate today.

When we go into the details of the legislation we see that the Bill sets out a legislative framework for the management of inward migration to Ireland. It lays down a number of important principles governing the presence in the State of foreign nationals, including the obligation of a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa for entry to the State, residence and being required to leave where necessary. The responsibility of the State, through executive functions vested in the Government, to operate immigration controls in the interest of the common good have recently been restated by Mrs. Justice Denham in the Supreme Court:

In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State.

That is the core issue in the legislation.

Of special note is the provision in statute for foreign nationals to obtain long-term residence permits which give the holder rights in the State that are similar in most respects to those of Irish citizens. The Bill also makes general provisions for powers of immigration officers, exchange of information, notification requirements for marriages of foreign nationals, special provisions on judicial review based on the present provisions of section 5 of the Illegal Immigrants (Trafficking) Act 2000 and requirements relating to the departure of foreign nationals from the State. That is the core issue in this legislation.

However, when we discuss the Immigration, Residence and Protection Bill 2008, we have a responsibility to listen to different views across the House and outside groups. I urge people to listen to the Immigrant Council of Ireland, ICI, and its submissions and recent lobbying. The ICI is an independent non-governmental organisation established to promote the rights of migrants through information, legal services, advocacy, lobbying, research and training. Concerns raised with the council by clients through its information and support service and legal service inform its campaigns and research. In 2007, approximately 10,000 people sought information and support from the ICI. The ICI also provides information, support and training to a wide variety of organisations, including State agencies, other non-governmental organisations, ethnic minority-led organisations, businesses, community-based organisations and politicians. The ICI makes a major contribution to Irish society and I commend it on its valuable work and the role it plays in an at times difficult situation. This organisation is good for immigrants and this country.

The Immigration, Residence and Protection Bill 2008 represents an ideal opportunity to comprehensively reform outdated and inadequate immigration legislation. While I welcome some aspects of the Bill, such as the provision of basic protection for victims of trafficking in human beings, some of the problems inherent in the current system are not adequately addressed. The ICI has committed considerable resources and effort to help ensure the legislation achieves the Government's stated aim of setting out "in a clear and integrated approach the whole process for foreign nationals coming to the State, staying here and, when necessary, being required to leave". I support its position on that and believe we should listen to it. When people say they have certain concerns about the legislation, we should be open and honest about it and look at them.

My concerns are centred around 12 core points. These are the failure to set out clear immigration rules in primary legislation; the need for an independent appeals mechanism for the review of immigration decisions; the lack of provision for a right to family reunification, an issue I will revisit in more detail; summary deportations; the limitation of access to benefits and services for persons who are unlawfully present in the State; fees and excessive ministerial discretion; failure to provide legal safeguards against refusal of entry and revocation of residence permits; no real permanence in respect of long-term residence; limitation of access to justice for migrants; limitation of the right to marry and international human rights obligations; insufficient protection for victims of trafficking; and combining immigration and asylum issues in the same legislation. These are genuine issues and concerns raised by people which we all have a duty to look at in more detail. It is important we take these views on board.

In respect of the failure to set out clear immigration rules in primary legislation, the Bill fails to set out clear rules regarding the rights and obligations of migrants seeking to come to Ireland. Instead, it provides a legal skeleton, providing procedural rules which the Minister will then have the power to flesh out by making regulations pursuant to section 127 of the Bill. As a result, the rules setting out the basis for migrants to enter and remain in the State, the conditions on which such permission will be granted and the entitlements migrants may or may not have while in the State will be left to secondary legislation. I do not know when the regulations will be introduced or the areas they will cover.

For example, issues relating to family reunification and rights to family life are consistently among the most common inquiries migrants raise with the ICI. The 2008 Bill, like the previous draft published by the former Government in April 2007, makes no statutory provision for family reunification. The Bill also fails to deal directly with the rights of students, students' partners or children, researchers, the self-employed, non-economically active migrants or the undocumented. All these areas are to be covered by as yet published immigration regulations. For the time being, the Oireachtas is left to vote on legislation with no real meaning when it comes to defining who can reside in Ireland, how long they can do so and on what basis. We must deal with these issues. When groups raise these concerns, it is important that we are sufficiently brave and open to look at them.

I welcome the Minister of State at the Department of Community, Rural and Gaeltacht Affairs, Deputy Conor Lenihan, to the debate because some of the research is very relevant to the issues with which he deals. A 2007 report entitled Black African Women in the Irish Labour Market by Florence Hegarty produced some interesting findings. The report found that while migrant African women tend to be highly educated, they are often over-qualified for the jobs they can access. It also found that many migrant or African women experience barriers to accessing the labour market and discrimination and hence face the double burden of gender and racial discrimination despite being aware of Ireland's equality legislation. We must all be conscious of this finding. Another finding was that their grievances regarding social discrimination by workers or clients were not taken seriously by supervisors. If an immigrant tells somebody that they face a discrimination issue, the matter should be examined professionally, objectively and properly. The research tells us that this is not happening. It goes back to the broader issue of how we need to bring our public with us in respect of enjoying difference and celebrating diversity. This is the bottom line and we all have a contribution to make. It should not be left to one Minister because it is a broader community issue. One can bring it into politics, sport, the arts and music. All these areas have a contribution to make. I commend the people, particularly in the areas of sport and the arts, who have been a significant positive influence in respect of dealing with interculturalism, having respect for diversity and enjoying difference. They have made a significant contribution and we should work very closely with them.

I have talked about Ireland as an emigrant nation. It is very important for us to remember and understand our long history of emigration. We understand the psyche and psychology. We all have relations in different countries abroad and know about the contribution they made to these countries when they settled there. However, we also have a responsibility to ensure we respect and look after immigrants in our country. We know that, from an economic, social and sporting perspective, the children of emigrants have brought many happy times to this country, for example, in our international football team. We should be very proud of this and not be afraid to say it when we are involved in this debate.

There is a need for an independent appeals mechanism to deal with immigration decisions because this is the only way to ensure access to fair procedures and effective remedies for migrants and their family members who seek to challenge decisions affecting their human rights as protected under the European Convention on Human Rights and Fundamental Freedoms, in particular, Article 3, which prohibits torture, Article 8, which guarantees the right to family life, as required by Article 6, which guarantees the right to a fair trial and Article 13, which guarantees the right to an effective remedy. We should look at these issues.

In respect of the lack of provision of the right to family reunification, migrants' rights to family life should be spelt out clearly in primary law. Family reunification is a major source of immigration internationally and a major issue of concern to migrants and Irish citizens in Ireland due to the absence of a formal application process, apart from recognised refugees and EU citizens. There is a lack of clarity regarding which family members may be admitted to the State, the conditions under which family reunification may be granted and the length of time it takes to process applications.

The wide discretion of the Minister in the granting of family reunification has led to inconsistencies and a lack of transparency in the decision-making process. Ireland is the only European Union member state which does not have national rules regarding family reunification enshrined in primary legislation. The previous Government decided not to opt out in respect of the EU directive on the right to family unification. However, Irish rules regarding family reunification should be inspired by international best practice. We all come across cases every day in our clinics. It is a human story.

Given the fundamental importance of family life to all of society, the Bill should provide a clear entitlement for Irish citizens and legal residents to be joined by immediate family members, including spouses or partners and minor children. Discretionary provisions should allow for the admission of other family members such as parents and dependent adult children on certain conditions. Such discretionary provisions could be a solution to many of the problems we encounter. We are talking about families — men, women and children — and protecting and defending their rights.

On the issue of summary deportations, the Immigration, Residence and Protection Bill, as drafted, allows for the deportation without notice of any person unlawfully present in the State. Section 4(5) provides a significant new power which is being vested in the State and effectively abolishes the section 3 process established under the Immigration Act 1999, as amended. A person who has entered and is residing in Ireland without permission can be removed from the State on foot of a deportation order. Currently, the deportation order requires notice to be given; the person concerned is given 15 working days to make submissions as to the reasons he or she should not be removed from the State. They can include such matters as family circumstances, duration of residence in Ireland and humanitarian considerations. That is an important issue.

Another issue is the provision of insufficient protection for victims of trafficking. The provisions included in sections 1 to 4, inclusive, fall short or Ireland's obligations under the Council of Europe convention on actions to combat human trafficking which came into force on 1 February. Most importantly, the convention applies to all forms of trafficking in human beings, whether national or transnational, and would certainly apply to all victims of trafficking, regardless of their nationality. By comparison, section 124 only applies to foreign nationals. A foreign national is defined in section 2(f) as a person who is neither an Irish citizen or a person who has established a right to enter or be present in the State under the EU regulations; in other words, EU-EEA nationals are generally excluded from its application. A large proportion of those being trafficked to Ireland for the purpose of sexual or other forms of exploitation will not be able to avail of the protection guaranteed by the convention. This aspect should be closely examined.

I welcome this major debate on immigration and urge the Minister to take on board my concerns and to listen to the views of the Immigrant Council of Ireland. We should treat all immigrants with respect and dignity.

Deputy Michael D. Higgins

I welcome the opportunity of contributing to the debate. Many years ago as a young academic I initiated courses on the sociology of migration. In Manchester, I had an opportunity to examine not just migration from Ireland, but African migration on the Continent of Africa and out of Africa.

The Deputy who has just spoken mentioned this area and it is important to try to abstract values from our own historic experience. I speak of values that would be drawn from the circumstances of major outward migration from Ireland pre-famine, which hardly touched the west of Ireland. It was based on a type of skilled migration to parts of the United States, mostly from the northern part of Ireland and the Border counties, and then the great waves of post-famine migration. There are articles that describe the experience of Ireland responding to the post-famine migration. There are very good works by people like Dr. Frances Finnegan and others.

Effectively, people from Donegal and elsewhere, who had seasonal roots established in Britain, suddenly found those rivulets were becoming wide rivers. There were tens of thousands of Irish, many of whom would have aspired to go on to the United States but who completely failed, and in Liverpool, Coventry and elsewhere they were pushed from one poor law union to another. In Frances Finnegan's work, Poverty and Prejudice, there is a description of the death of Teddy McAndrew. The book is in the Library and I recommend that people read it. It involves a family looked after by the Quakers pushed from one poor law union to another and from one institution to another.

I often remember that when I visit people who are in direct provision in Galway, people from Africa who have now been waiting up to five years for a decision in their case and who live on just over €19 a week. They are prohibited from working. Their children, if they have any, are denied many rights that are available to other children.

I recall also the great period following the declaration of the Republic in 1948 and the commission on emigration. In the 1950s, no less than 45,000 people left Ireland each year. Between 1955 and 1960 alone, 250,000 people left Ireland. They differed in various characteristics. The 1980s emigration referred to earlier, and I do not intend to extend this aspect, was different in character. It was more of a circulatory migration, that is, people had the capacity through skill and income to look forward to coming back to the country and perhaps leaving again. Circular migration is a form of migration that has been ignored in the literature. It is the dominant kind of migration in many countries. I say that because there is a great disjunction between the values that one might have expected to come out of such experience and what we are putting into practice. I have travelled to the United States twice in the past five years to make a good case for people who cannot come home to attend funerals. We heard of the tragic case in County Galway recently where a young man died of pneumonia rather than being discovered as an out of status person.

When we examine it, does it make sense to keep people four and five years in this non-process without the right to work or enter society or get a decision while living on €19 a week? It is a scandal. People may differ from me in terms of what I have said, but I wrote to the Minister for Justice, Equality and Law Reform. I put down questions to him, asking him to consider introducing a scheme like the one introduced in The Netherlands. That scheme, which involved people who had arrived before 2001, effectively wiped out the backlog and created a system under which one could set up a new scheme. It was based on a fundamental principle that we would accept in the sociology of law that a decision delayed unreasonably long is a right denied.

The general amnesty in The Netherlands involved any person who had submitted a first application for asylum before 1 April 2001, a person who lived in The Netherlands continuously since 1 April 2001 or a person who had stated in writing that they would unconditionally withdraw any other application. The scheme was introduced and it is working.

I was intrigued by the answer I received regarding this attempt to clear the ground to allow us start again with a system that addressed the separate issues affecting the refugee and economic migrant. The reply I received stated that this would be sending the wrong signals. I do not have the time in this 20 minute slot to deconstruct what this means. The message it sent was that the purpose of action and inaction was to function as a vague deterrent. With a great sense of depression and anger, I calculate that my constituency office spends 35% of its time dealing with cases involving ridiculous correspondence. The correspondence refers to my views being referred to the appropriate section, which will be writing to me in due course. I am supposed to send the meaningless correspondence I receive onto other people.

With others, I welcome legislation in a difficult area. However, as Deputy Rabbitte points out, if we are to have a policy, the Oireachtas must undertake the responsibility and obligations of that policy. One moves on to the role of the Executive to administer it. It is not the function of the Oireachtas to anticipate every detail. It is the responsibility of the Oireachtas to take its constitutional responsibility seriously and it does not do so by handing over the responsibility that should reside in the Oireachtas to what is described as ministerial discretion in the name of flexibility. The Minister stated:

I am aware of calls to deal with immigration entirely in primarily legislation. That cannot be done. We need flexibility to deal with immigration and it is the right and duty of the Government to make policy in the national interest in this area. That policy can be given effect through secondary legislation on foot of this Bill and also on foot of administrative schemes.

I profoundly disagree. This is a basis for voting against the legislation even on Second Stage because we will find that we cannot get accountability and transparency on secondary legislation and administrative schemes when the Bill has passed Second Stage. It is important that principles are set out in primary legislation. These principles arise in a number of fundamental areas. Discussion on the attempt to establish distance between the international law and obligation and domestic arrangements has been singularly missing from the debate. There are fundamental rights regarding the child that should be recognised. We are signatories to, and have ratified, the fundamental rights of the child. I refer to attitudes towards the family and marriage.

Section 123 refers to the Minister giving permission to an Irish citizen to marry a non-EU person. A distinguished international lawyer who worked in my office and dealt with me on the issue of Afghan refugees was engaged to be married to a citizen of Sudan. She will be reluctant to seek permission from the Irish Minister for Justice, Equality and Law Reform to get married. This is invasive nonsense. If one wished to deal with what is described as marriages of convenience, there are several other ways of doing it. The Minister resists primary legislation and the Oireachtas performing its function, yet takes these crazy powers into a half-administrative function.

I have a more fundamental difference. The existing administrative system is a disaster with regard to, for example, renewing stamps. Is it reasonable to have the GNIB office in Galway open for two hours every morning? Is it reasonable to have people queuing up at 5 a.m. and, if they have a single mistake in a document, they must return the next day between 8 a.m. and 9 a.m? This is wrong — an administrative nightmare and an administrative insult to those who use it. It is unsatisfactory in every respect to those who have represented our constituents, in my case for nearly 30 years. I say this with anger. Some people told me how they arrived at 5.30 a.m., lost their place in the queue and the opportunity was gone at 9 a.m. There is no garda after just a couple of hours. The GNIB office is located not at the Garda station in Mill Street, but at an industrial estate on the outskirts of the city, to which there is no bus service. One can make them walk up there and then treat them like dirt. That is what is happening.

I am dealing with a case that has been referred to the Government. The family has left direct provision and is staying in accommodation elsewhere. The children have been cut off from benefit on the basis that they did not do what they were told. One must deal with this issue, which has arisen since 2004, where the Irish diaspora went all over the world and had children. We do not treat all children equally. We have cut off those who are not EU citizens from certain types of child benefit. Is there not a case for universality of child benefit?

I visited the Marino Institute and spoke to a young man who was getting ready for the leaving certificate. He prepared for the exam in the only space he had, on top of a bed in an adult hostel. He could look forward to receiving his leaving certificate results and, on reaching 18 years of age, to being deported. Several people I met on that occasion were among the hundreds of children who went missing, unaccompanied minors who were transferred to the HSE and now nobody knows where they are.

The idea that one can drag all these matters together and deal with them with secondary legislation and administrative best practice does not convince me. As a legislator, I want the fundamental principles decided where they should be decided, where the process can be accountable, in the Oireachtas.

I anticipate much difficulty on Committee Stage because many of the measures discussed by Deputies are not referred to directly in the text of the Bill. We may have difficulty in discussing them.

A number of issues are incredible. It is time to mention the unmentionable. What about the appeals officer, Mr. Nicholson, who decided 900 to 1,000 cases and was so inspired by rectitude, good law and administrative excellence that he did not give a favourable decision in a single case? The fact of that, and its implications for those in the judicial process, was not conceded and was hidden. It was only when it was extracted through the courts that the facts of that outrageous behaviour was discovered. It is now supposed to be something that happened yesterday. That he is now gone does not satisfy the question. I am not saying that everyone was like him but attention was drawn to his existence and it was not dealt with in the administrative system. I have no faith in an administrative system that behaves like this. I do not speak with just passion on all of these areas, I speak with information garnered from my office and elsewhere as I deal with these cases every day.

It is important to set out clear immigration rules in primary legislation. Mrs. Justice Denham's injunction, quoted by Deputy Rabbitte earlier, is quite clear in that regard. Let us decide, state the responsibility and then let those who administer the system administer it. It is wrong of us to put our omissions on to immigrants as a burden. I reject the notion that in the name of flexibility one can leave many significant areas imprecise. I say this on the basis that the existing practice is not acceptable.

I find it distressing in terms of applications for refugee status that there is no reference so far today to one of the difficulties that regularly arises, appropriate translation. I dealt with African migration in my work 40 years ago. There are differences in dialect in Africa. Many of the people who went through the appeals process suggested there was a serious deficiency in regard to information that had been translated. A heavy burden is placed on applicants in terms of the information sought, for example, whether they can name the church in which they took refuge or give the name of the street into which they turned, which in many cases they could not.

In one case the appeals tribunal informed an applicant that peace had been restored in Sierra Leone. One can ask whether that referred to the capital or to the regions. This is the difficulty with the system. I have some sympathy for the refugee service as these are matters that cannot be dealt with by way of appeal to the courts. In the case of judicial procedures, the examination is on the process but it is not on the fact, nor is it on the merit of the story or the context of the original application. That is a deficiency and these are issues we should address in primary legislation.

I spent my life listening to lectures from people about the Irish family. It is very interesting to note the contradiction between that and family reunification and the incredible obstacles we have put in the way of same. People should be concerned about summary deportations. I have already spoken about the business of getting permission from the Minister for Justice, Equality and Law Reform to get married to a non-European Union citizen. We need not delay on this matter as it is derisory.

One of the issues sought by the members of the all-party visit to the United States in the Kennedy-McCain days to make the case for the out-of-status there was that whatever agreement was made regarding the right to work and relieving the position of these people, it should lead to some form of permanent residency and even acknowledged citizenship. Do we honestly believe that people will not see the contradiction in what we are trying to do? We were right to look for that but it is right also to grant it to the people who are here. We will, if we get to it. I hope other speakers will take up this issue.

I welcome some provisions of the Bill such as the addressing of the issue of illegal trafficking. Let us remember it is dealing with adults and ask whether it makes enough allowance in terms of length of time. I believe not. It is also silent on the issue of the children who are involved as possible victims. The idea that one can detain while one decides inflexibly what one is willing to allow is to my mind simply not acceptable on the grounds of jurisprudence.

Deputy Martin Mansergh

This is one of the most important pieces of legislation likely to come before this Dáil. I compliment the Minister, Deputy Brian Lenihan, and his Department on the very substantial work that has gone into it. I also welcome and recognise the good work being done by the Minister of State, Deputy Conor Lenihan, on the integration of immigrants. No doubt the Bill can be further refined in the course of its passage through the Oireachtas. It certainly deserves to be fully debated at every Stage.

The immigration of the past ten years has become a major force in changing and reshaping our society. It has, by and large, been needed, and been beneficial. There would have been no Celtic tiger, or only a pretty brief one, without it.

I recall during one of the Tipperary by-elections — the Minister, Deputy Brian Lenihan, will have reason to remember the second one very clearly — standing outside the church of St. Peter and St. Paul in Clonmel on a Sunday morning. A man of late middle age and of indeterminate politics came up to me to say how much he preferred what he called the Irish culture of 30 to 40 years ago. It soon became clear that he was talking about immigration. I explained to him with a brevity and conciseness, with which few Deputies might credit me, that when a country becomes prosperous it attracts and needs immigrants. His response was very logical: "Well, couldn't we become a bit less prosperous then?" This is not an aspiration that would be too widely shared. Not just hospitals, but an unimaginable number of enterprises would close down, or be in severe difficulties, if they did not have access to a larger pool of labour than the longer-established population of this country can provide. Rough estimates suggest that up to 10% of our workforce today consists of recent immigrants.

We are a world away from the times when we had a more closed society, from which people emigrated and to which few, bar some self-sustaining wealthy individuals, wished to come. The common travel area on its own worked mostly in one direction, to the benefit of the British economy. Ireland was reluctant to take in refugees and asylum seekers, particularly of another cultural or religious background, at a time when opportunities for employment were scarce, even for those born here.

Mr. de Valera's attempts to let in even a tiny handful of Jews during the war met endless delays by the Department of Justice. We took in small numbers of Hungarians after the rising in 1956 and Vietnamese in the 1970s after the fall of Saigon, some of whom might have preferred to settle elsewhere. Only a certain number stayed and were integrated well.

When I came back from a diplomatic posting in the Federal Republic of Germany some 30 years ago, and before settling into a new position in the Department of Foreign Affairs, I was asked to do some research on the basis of our refugee and asylum policy by the then director in the political division. What was evident from the files was an extreme reluctance by the Department of Justice to put anything down on paper with regard to this policy area. Clearly, there was a strong preference for ad hoc oral discussion of issues as they arose and only on a few occasions, and with some considerable effort of political will, was the stonewalling overcome. There is no reluctance, obviously, today to lay down clear legal parameters because we are discussing this Bill.

Since the 1970s, membership of a steadily enlarging EU has increased cross-border mobility. Most immigration to Ireland today comes from within the EU and especially the central and eastern European accession states, which joined in 2004. The view among economists in Germany is that they mistakenly, from an employment point of view, closed their borders with Poland, resulting in skill shortages, which are quite compatible with high unemployment among the relatively unskilled. We decided not to exercise the same liberality vis-à-vis Bulgaria and Romania when they joined the European Union, for fear of putting too much strain on social cohesion. Some social welfare provisions only become available for recent arrivals after a certain length of stay.

From approximately 1999 to 2004, economic pressures caused us to search wider afield. There were jobs fairs in countries such as South Africa. People from Africa and Asia were allowed in more freely than has been the case since 2004, although nursing in particular, hotel staff and a variety of small businesses are partly staffed by immigrants from south-east Asia.

While there is oppression in parts of the world and there are refugees, and I accept the point made by Deputy Higgins that how risks to persons are assessed needs to be more clearly scrutinised as that is not always an easy matter for any court or tribunal to deal with, the attraction of Ireland to foreigners and our need for them is overwhelmingly economic. It is an EU-wide issue, not just an Irish one. Over the past ten years, we have been trying to manage the inflow constructively and in a way which commands public confidence, and we cannot stress too much the need to gain and sustain public confidence. There has been undoubtedly a certain amount of trial and error involved, and that may be part of the price of getting it right in the longer term.

We do not have to look far beyond our borders to see the consequences of getting it wrong — social ghettoisation, street disorders caused as much by those reacting to or feeling threatened by immigrants as by immigrants themselves, isolated but lethal acts of terrorism out of sympathy amongst second generation young people with events in the Middle East, and divisive public controversy over the limits of multiculturalism and about symbols that may or may not be worn or displayed, as well as pressures, which are being addressed here, on such matters as schooling. We must accept, however reluctantly, notwithstanding problems in our various constituencies, that acute pressures must be addressed where they arise as a matter of priority. I also commend Archbishop Martin on his creative response to the challenges to the system of mainly denominational education, with which people are broadly happy.

To manage the challenge of integration successfully, the increase in numbers must not be too great at any one time. Tribute should be paid to many people in the community throughout the country who assist immigrants to settle in.

Ireland is a democratic society, with its own culture and traditions, which are developing and diversifying and which should not be static or stagnant. The cohesion of our society is based not just on the law or Constitution, but on certain values which evolve with time. We should cater for diversity to the maximum extent compatible with social order and cohesion, without — at least in an idealistic sense — apologies for who and what we are. Certainly, most of the countries from which migrants come do not hesitate to protect their own societies, sometimes using methods with which we would not agree and certainly would not use.

On the whole, the experience has been so far a reasonably positive one, which is not to say there are no problems. There is a certain amount of crime and other offences by immigrants, but also against them. We all would have come across complaints about alleged official discrimination in favour of immigrants and that they are taking jobs, but such complaints are to date mercifully few. As I stated yesterday in another context, we should refrain, where at all possible, inside or outside this House, from pitting the interests or position of immigrants against those of our own citizens. We also need by the firm enforcement of employment law to protect immigrants from casual or structured exploitation, which will often have negative knock-on consequences for Irish colleagues in the workforce.

Left to itself, our legal system is anything but expeditious over a wide range of areas, and far beyond the field of immigration. It is necessary in the interests of everyone concerned that decisions are made much more expeditiously as to the rights of immigrants and asylum seekers to stay. No one can be happy that people are left a long time in a state of legal limbo, that people are uprooted when they have begun to settle, and who can blame them for that if they are here for a lengthy period, or that genuine families are kept apart.

Clarification of the law, where it gives rise to ambiguity, prevarication and delay, is necessary. For example, the Bill clearly states in Part 2, section 4 that a foreign national whose presence in the State is unlawful shall leave the State and may be removed in accordance with the provisions of the Act. It also states that the onus of proving identity and rights to stay for a particular nationality lies with the person concerned. There should be no advantage to losing all documentation, or even memory. Indeed, it is reasonable to ask anyone applying to stay in this country that he or she give complete and reasonable co-operation to the authorities here.

There has been very strong criticism, which has just been repeated, of aspects of the operation of the Refugee Appeals Tribunal, and of a particular individual well known to me but whom I will not name as I do not approve of mentioning in this House the names of persons outside it. The criticism is mainly on the basis that he, in particular, has turned down all, or almost all, appeals. I do not know whether it is all or practically all. Implicit in the criticism, coming in the first instance from lawyers but echoed by Deputies and some commentators, is that, as in a lottery, out of fairness a certain number should be allowed to win their cases. I regret if the criticism is justified. I have read of few documented examples of persons whose appeals were dismissed on grounds that were demonstrably wrong and unjust. At the same time, the new protection review tribunal takes account of difficulties, whether real or presumed, that have arisen and addresses them so that the reform system presumably will work in a way that is more to general satisfaction.

I have long felt that there should be a structured asylum policy, where we would take in a certain number of genuine applicants under international programmes. Their prior presence in this country would not be required for their applications to succeed. The majority of people who want to come to live in Ireland are economic migrants, and likewise a structured immigration policy, which is being developed, is also needed to deal with that.

I have read complaints that clergy and others officiating at marriage ceremonies would be required to see that such marriages have the necessary clearance. At present, they are obliged to ascertain that those seeking to be married are legally entitled to do so, and in the case of divorce — where the church or office in question recognises divorce — they are obliged to require detailed documentation before proceeding. Many similar obligations are placed on lawyers and accountants and publicans, to name but a few, to ensure they are not condoning or colluding in illegal acts. I do not see a difficulty in principle in that regard.

The Minister is to be notified of instances of marriage with a non-national. That has been criticised strongly by Deputy Higgins, who mentioned that there were alternative ways of dealing with this problem. I accept that Deputy Higgins did not have time to set those out in a 20 minute contribution——

Deputy Michael D. Higgins

Abuse of residency.

Deputy Martin Mansergh

——but the purpose of Committee Stage is precisely to set out such matters in more detail, and I am sure Deputy Higgins will do so.

I agree with the concept of providing long-term residence permits, where appropriate, and that the record of applicants while in this country should be taken into account, including such matters as good character, tax compliance, ability to provide for themselves and their dependants, and ability to communicate.

We need to bear in mind that immigration policy is far from being the only or main instrument for assisting the poor of the world. Our foreign, trade and development policies and our peacekeeping efforts can all assist. Ideally, we want a world in which migration happens out of choice and voluntarily not because of oppression or economic necessity. We need to accept that there will be some moral problems about permanently taking from less developed countries, whether in eastern Europe or further afield, many of their most enterprising, energetic and intelligent people. Temporary work experience abroad can be mutually advantageous to the sending and receiving countries.

Even after the passage of this Bill, we will have a backlog of unsettled cases. At least some of those who have sought asylum might be encouraged to seek an employment permit. One of the advantages of having a clear legal framework for the future and a much more expeditious system is that it would give us a chance to deal pragmatically, with humanity and without prejudice with long outstanding cases that precede this legislation including, in many instances, the issue of family reunion. Our approach should be tempered by our experience in the past as a nation of emigrants. Indeed, we continue to lobby in America on behalf of the undocumented and to a degree in Britain for welfare for the elderly, in particular those who are single.

There has been criticism of the Minister's power to issue regulations. I support the argument that the system needs some flexibility without constant recourse to legislation. There are many means by which members may raise secondary legislation in this House where they are not satisfied with it or its consequences.

Finally, the administration of many of the provisions of this Bill will in the future fall to officers of the Department of Justice, Equality and Law Reform due to take up occupation in decentralised offices in Tipperary town. Since last May, it has been public knowledge that an advance party of 60 out of an eventual 200 is to take up residence in the town prior to construction of a permanent building. I would welcome if the Minister could indicate in his reply when precisely he expects this to take place and if there are outstanding issues of detail remaining to be resolved.

Deputy Leo Varadkar

I welcome the opportunity to contribute to this debate. A number of speakers have mentioned that Ireland is an emigrant nation having contributed to populations around the world from the United States to Canada, Australia, New Zealand, Argentina and so on. Ireland is, and always has been, a country of immigrants be they Celts, Normans, Vikings or English people. There is no aboriginal, normal, ethnic-Irish race. Migration has been and will continue to be the natural course of human settlement. People will continue to move from different parts of the world for various different reasons.

To a certain extent, I speak with a degree of personal experience in respect of this debate. I represent the constituency of Dublin West, the population of which is made up of approximately 25% immigrants and foreign nationals. Like Deputy Cuffe, I, too, am a product of immigration, my parents having met as immigrants in the United Kingdom. My father is from India and my mother is from Ireland. Both emigrated to the UK where they met and subsequently married and lived for many years. I am aware that other Members also have an immigrant background, including Senator Norris, who was born in the Congo. He is technically an immigrant to this State as was Eamon de Valera, the founder of the party opposite. Reference was made earlier to Senator Obama and his links to County Offaly. We should also remember that Senator McCain has links to County Donegal. It is not unusual to have connections to immigration in this regard.

Deputy Mansergh correctly noted that wealthy countries become the focus of immigrants. It can equally be argued that migration also makes countries wealthy. Among the most successful countries in the world, economically, are the United States, France and Britain. These countries have benefited enormously from migration. It is important to note the synergistic relationship that exists between migration and wealth creation and the subsequent encouragement to migrate to a country.

Like Deputy Higgins, I have had the experience of dealing with a large number of queries from migrants. In my role as a doctor, I also provide medical services to a reception centre once a week. In this regard, I am aware of both sides of the asylum debate. I have met people who have had a hard time and are deserving of our protection and other people whom I did not believe existed, namely, people in designer clothes with blackberries and English accents claiming to be asylum seekers from Somalia. I have heard some comments in the past which I considered to be racist but my experience has helped me to understand from where they arise.

It is important to acknowledge that despite the benefits of immigration, the quick influx of immigrants into this State has led to difficulties particularly in the school and criminal justice systems and in the integration of communities. However, it is important immigrants are not blamed for this. A lack of proper immigration policy from Government and proper organisation of our education and criminal justice systems has created these problems. It is important that where people are looking to attribute blame they blame the right people, namely, not the immigrants but the Government whose responsibility it is to organise these affairs.

I am happy to welcome the Bill which provides for restrictions on illegal trafficking of adults. The creation of a single procedure is necessary and valuable given the situation which prevailed for a long time whereby people were claiming asylum and being denied it and then claiming the right to remain and being denied it and so on. I also accept we need stronger powers for deportation given that deportation orders in the vast majority of cases cannot be enforced.

I welcome the inclusion of a list of safe countries. This will ensure it is easier on a prima facie basis to make provisions at an early stage to separate claims likely to be valid from those not likely to be valid. I have some concerns about the Bill though I accept I may have misunderstood it. My concern relates to the ID card system. I may be wrong but it appears provision is made in the Bill that all immigrants be required to carry an ID card with biometric data on it. It is not clear, however, whether it is possible to require immigrants to carry the ID card at all times. I have grave difficulty with this provision if this is the case. It is a draconian measure which essentially criminalises legal immigrants. This is no way to treat foreign doctors, midwives and so on who are of enormous benefit to this country. I also query on what basis an official of the law would ask an immigrant to present such an ID card. It has been explained to me in the past that an official may be able to enter a restaurant kitchen and ask people to produce cards so they can establish who should or should not be there. If so, this power is potentially wide open to abuse. I would not like to legislate that any official of Government or member of the Garda Síochána could request an individual to prove their identity on the spot. Perhaps I misunderstood the provision.

If it does not already exist in law there may be a case on Committee Stage to set out the terms under which an official can request the card. Whatever about the 10%, it is unacceptable to expect the 90% who are here legally, working hard and paying their taxes to present their identity card because some official says so. If protections do not exist in law, perhaps they should be written into the Bill on Committee Stage.

I have heard the debate on marriage permission between Deputies Mansergh and Higgins and will have to examine it in more detail. I would be concerned if what Deputy Higgins has told us is true. It would be particularly grotesque if any Irish citizen has to request permission from the Government to marry. When my parents married my father had to ask permission of the Pope.

Deputy Conor Lenihan

It is the law. I do not want to disabuse Deputy Varadkar of any romantic notions but it is a requirement that one produce certain evidence that one has not previously married within the State. We still have bigamy legislation.

Deputy Michael D. Higgins

The issue is its specificity to non-Irish people.

Acting Chairman (Deputy Johnny Brady)

Deputy Varadkar is losing his time.

Deputy Leo Varadkar

I would rather have a genuine debate than read statements into the record.

Deputy Conor Lenihan

I welcome the questions.

Deputy Leo Varadkar

I am happy to give way to the Minister and we will potentially have an interesting Second Stage on this.Whatever about the aspects of the Bill that carry over in existing law, the Bill is also an opportunity to improve on existing law, not just to tighten it and make it more firm, but also possibly to make it more fair. The section whereby we require people, as in olden days, to write to the Vatican for permission to marry is not the kind of thing I want to see in Irish law.

I would like to address the delay in deciding on asylum applications. I do not see why we cannot have a provision whereby if the State fails to make a decision on an asylum case after, say, one year, direct provision ends and the applicant is free, if not required, to enter the labour market and support him or herself. The State should be able to make a reasonable or initial decision in that period. Such a provision would encourage and force the Department to make decisions faster. Perhaps there is a case for that.

I would like to mention the delay it takes to process long-term residency and naturalisation applications. We often discuss the knowledge economy. I have a number of people in my constituency who are highly qualified, work in IBM in Blanchardstown, own property in some cases and pay tax, and are expected to wait three years for their application to be assessed or four or five years for naturalisation. That is unjust. In many cases the application is not looked at for two years, whereas we all know if the application was looked at for 25 minutes it would be granted. When my father applied for naturalisation after living here and being a de facto citizen for 20 years it was processed rapidly. Ten years on a similar person has to wait five years for a decision. That is not justifiable.

The leave to remain granted to parents of Irish-born children could be addressed in the Bill. There are many parents of Irish citizen children and Irish-born children who have been here since before the referendum. Perhaps there is a case for something similar to the McCain-Kennedy Bill to introduce a means by which the status of these people can be regularised, a pathway to permanent residency or, more important, citizenship so we do not continue to have people in a grey area for the rest of their lives. That applies to children of immigrants who are not entitled to higher education grants, which is an appalling injustice. If the people are going to be here and we accept they are staying, we may as well recognise it and allow them the grants. It is absurd to leave people in that kind of limbo.

Deputy Michael D. Higgins
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This can apply to Irish citizens who have returned from another country.

Deputy Leo Varadkar
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Yes, but I refer to people who are 18 years old and have been in Ireland for potentially 18 years, but certainly 12 or 13 years. They are not Irish citizens but have spent all their secondary school career in Ireland and are not entitled to a higher education grant. Aside from the injustice, the absurdity of it is difficult to understand. Can that be addressed in the Bill?

I have had experience of a particular group of immigrants who have come here as nurses to work in accident and emergency departments or as midwives to work in, say, the National Maternity Hospital and people who have come to work in information technology. These are valuable people and are core to building a knowledge economy and our public services but we are often losing them to America, Canada and Australia. We are losing these good, valuable people to countries that will treat them better. If we are serious about having a modern society, integration, a knowledge economy and building up our public services we must stop that immediately. We must turn Ireland into a country that welcomes people of talent and ability from all over the world and gives them fair treatment, not one that makes people jump through administrative hoops time after time. Fair play should be an Irish value but it is not practised.

I broadly welcome the Bill. I accept it largely carries over provisions that already exist in law. In some areas it tightens immigration law as it should. However, the opportunity to inject some fairness has been missed while procedures have been loosened in other areas. I have concerns about the civil liberties aspects of this Bill regarding identity cards and marriage restriction. I am also concerned about the general treatment of immigrants who have arrived in the country legally, worked in the country, paid their taxes, obeyed the law, and yet are treated like criminals. That should be changed, perhaps by amendment on Committee Stage.

Debate adjourned.

Control of Exports Bill 2007 [Seanad]: Report and Final Stages.

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Message from Select Committee.

Dáil Éireann debate - Thursday, 14 Feb 2008

Immigration, Residence and Protection Bill 2008: Second Stage (Resumed).

Dáil Éireann debate -
Thursday, 14 Feb 2008