We will now hear a presentation by Ms Denise Charlton and Ms Catherine Cosgrave of the Immigrant Council of Ireland. They are both welcome. I apologise for the absence of colleagues due to other commitments in both Houses and at other committees.
Immigrant Council of Ireland: Presentation.
I am listed to act as Acting Chairman in the Dáil at some period. If I have to leave, it will not be out of discourtesy.
Perhaps the Deputy is in training for a more permanent occupancy.
Ms Charlton and Ms Cosgrave will discuss the work of the Immigrant Council of Ireland. We have received the report, The Voices of Immigrants: The Challenges of Inclusion. We are delighted Ms Charlton and Ms Cosgrave will make a presentation to the joint committee. I draw to their attention, as I am obliged to do, the fact that while members of the committee have absolute privilege, the same privilege does not apply to witnesses appearing before the committee. I invite them to make their presentation. Both may wish to contribute. They can set their own agenda.
Ms Denise Charlton
I thank the joint committee for inviting the Immigrant Council of Ireland to make a presentation. We will give some background information on the council and its set up, rationale and remit. We will also deal with research we commissioned and highlight some of its findings bearing in mind the remit of the committee from the human rights perspective. We want to focus particularly on one issue which is highlighted in the research and which is probably the key issue that arises in the services provided by the council.
The council is an independent non-governmental organisation. It was set up to address some of the emerging needs of immigrants. It was deemed at the time that there was a considerable number of organisations providing support for individuals coming into the country under our international obligations and looking for protection but that there was very little support for the wider range and category of individuals coming to work, visit, join families or study. That was the reason the council was set up. It was launched by the Taoiseach in 2002. The document circulated highlights some of the achievements and the impact we have had in the short time since its initiation. I will not go through these today but will leave the information for consideration by members at their leisure.
Moving on to the research we commissioned, The Voices of Immigrants: The Challenges of Inclusion, I will give some information on the aims of the research, its context and findings which we hope the joint committee will consider. The aim of the study was to give a voice to immigrants and their families. Through those voices, we were seeking to inform public opinion on Government and non-Government policies and strategies that affected individual immigrants.
The overall conclusion of the research for the council was that the issues raised by the 22 participants were echoed in our services on a daily basis. Last year we provided services for approximately 3,000 immigrants but we also provide support and information for other organisations such as the citizens advice bureaux or others providing services.
Ireland has quite rapidly become a country of destination and immigration but our legislative and policy framework has not quite caught up with that. There are gaps and challenges in this change and diversity but immigration policy has been reactive. While it is flexible and market-driven there is not enough focus on a human rights framework and the rights and entitlements of immigrants. The focus is on security control and admissions which are part of an immigration policy but there should be more focus too on rights and entitlements.
The immigrants who participated in our study came from a wide range of countries, with different histories, cultures and languages. They were men and women from different class backgrounds and religious affiliations and with different legal status which was crucial to the research. They included workers with work permits, working visas or authorisation, people with no recognised residence, a student, some refugees, and individuals who had been granted leave to remain and work here.
The focus and scope of the study, set in the context of globalisation and international migration, explored people's reasons for coming to Ireland, their experience of settling here, family and community issues, matters of particular concern to women, work experience, racism and attitudes. We will outline some of the key findings of violations of human rights and related issues that this committee could consider.
The main issue was the difficulty of family reunification. My colleague, Catherine Cosgrave, will discuss this in more detail. It is an issue that recurs daily in our services. A secondary but nevertheless important issue was domestic violence and gender-based violence against which women lack protection, especially those on dependent visas who may experience domestic violence. Some of the organisations with which we work around the country provide support for these women but they report that the women feel they must sacrifice personal safety because they cannot access legal protection. There are international precedents we could follow in this regard. Trafficking of women and children for sexual exploitation also arose along with the need for the State to protect women against this and associated crimes.
Other points raised that do not qualify as human rights issues but are matters of rights and entitlements, include the limited opportunity for integration, limited access to appropriate accommodation, and to develop language proficiency, or education. The ESRI reported recently on the downward mobility of many migrants and the lost opportunity for highly skilled people in low-paid jobs, which is a loss for Ireland and is unsatisfactory for the immigrant.
Individuals surveyed experienced prejudice and racism about which we hear through our services. We urge the Government to proceed with the long awaited review of the incitement to hate legislation. The Irish Human Rights Commission has also highlighted this.
There has been much recent media coverage of the exploitation of workers and the difficulties for individuals who are in the work permit system or who have free access to the labour market but experience exploitation. The research highlighted this and we deal with it daily in our services. The problems include long hours, poor working conditions, reductions in salaries, poor accommodation and the difficulty of access to adequate information to access the legislative protection available. The Immigrant Council of Ireland offers individuals support in accessing this support but this is limited because we do not receive State funding.
Irregular migration was also raised, whereby individuals come into the country with documentation and through no fault of their own become undocumented. It is difficult to regularise one's status when that happens.
These are the key issues that we encounter every day and are confirmed by detailed studies. While each of those is important and must be considered in formulating an overall comprehensive immigration policy, for which the Irish Human Rights Commission has called, the chief issue concerns family life and reunification. For more detail on that I hand over to my colleague, Catherine Cosgrave.
Ms Catherine Cosgrave
We welcome the opportunity to be here this morning to share our research with the committee and to make a submission on the issue of family reunification entitlements. This was the key finding of our study, Voices of Immigrants: The Challenges of Inclusion, and was the main issue arising in the Immigrant Council of Ireland services in July 2004.
While it is well established in international and domestic law elsewhere that migrants have the right to family reunification there is no legislative domestic framework in Ireland to provide specific family reunification entitlements for migrants within our society. Ireland has also failed to ratify the International Convention on the Protection of the Rights of All Migrant Workers which was introduced in 1990 and came into force in 2003.
It is a matter of administrative law and practice that people who live in Ireland are generally permitted to apply for family reunification but it is not provided for in legislation except in the case of refugees. Ireland has implemented EU directives providing specific protections for EU migrant workers but there is no statutory protection for all other migrant workers here. Rights and entitlements conferred on individuals to apply for family reunification largely depend on the legal status of the individual, for example, whether he or she is on a work authorisation, work visa or work permit.
There are no clear administrative guidelines as to when a person can apply for family reunification under these permits. A work authorisation is granted to a person who needs neither a visa nor work permit and that person is entitled to automatic family reunification from the outset. Moreover his or her spouse has access to the labour market. By contrast, someone on a working visa has limited rights to family reunification and can apply for a family member to join him or her after three months.
A person on a work permit does not have immediate access to family reunification entitlements and would be permitted to apply only after 12 months and then the application is subject to control, namely, the amount of money the person earns because the spouse or child will be a dependant only with no access to the labour market.
These issues are presented to the Immigrant Council of Ireland on a daily basis and they arose as a key area in the study we commissioned in 2004. Some of the problems encountered by people in accessing family reunification entitlements have been identified by the council and it has highlighted them comprehensively in the document presented to the committee. Members might, given the limited timeframe, take an opportunity to consider them outside this setting.
We draw attention to the Tánaiste's acknowledgement, in her former role as the Minister for Enterprise, Trade and Employment, in 2004 of some of the difficulties of migrant workers and family reunification entitlements. In what was considered a welcome move by the council, she introduced some administrative arrangements that would give more flexibility, particularly to people, such as nurses, on working visas, and give them greater freedom in bringing their families to Ireland. However, this was not put on a clear statutory framework and only applies to specific types of workers, not to all people within that category of persons. The logic is that it is designed to make migrant nurses desire to stay. As a matter of economic competitiveness, it will become the case that people recruited to work in Ireland may leave in large numbers to work in countries with greater family reunification entitlements.
It was a welcome move in the context of nurses but we submit to the committee's consideration that this type of initiative should be extended across the board to all migrants within our society and not to a specific category of workers deemed to be necessary for Ireland. The issue of family reunification has received attention outside Ireland. There was a European directive on this in 2004 that aimed to harmonise family reunification measures throughout the EU. Ireland opted out of this framework. In itself, this was not a bad move as the provisions of that directive are not comprehensive or generous towards migrants and family rights. However, it is something that should be reviewed in the near future at an EU harmonisation level or in Ireland in order to address a legal framework for conferring statutory reunification entitlements on migrants.
In the context of these entitlements, I refer specifically to spouses and married persons and they difficulties they encounter. We have found during our research, and increasingly within our services, that this is also an issue for people who are unmarried, whether they are in same sex or opposite sex relationships. Provisions in an administrative context are practically non-existent for people in this scenario. I have outlined them comprehensively for the committee in the document and would welcome the consideration of our submissions in this regard.
Bearing in mind the deadline for applications under the recently introduced IBC/05 scheme by the Department of Justice, Equality and Law Reform on 31 March 2005, it is timely to speak about the family and human rights considerations that are relevant to the permission to reside in Ireland as the parent of an Irish citizen child. It has been stated that if, under this scheme, parents are granted residency on the basis of their child's Irish citizenship, family reunification is not an automatic part of the package. Of concern to migrants and organisations providing them services, there has been an indication that family reunification entitlements will not be conferred at all in the future to this category of persons. This is unsatisfactory given that, in many cases, we are speaking about spouses of the Irish resident, the parent of an Irish child who has not yet had the opportunity to come to Ireland or minor children of the family unit outside the State.
It is of significant concern that family reunification is considered on a comprehensive basis and will be granted to people in appropriate cases. We welcome the committee's serious consideration of this issue, as it has been identified by the council and other organisations, such as the Coalition Against the Deportation of Irish Children, CADIC, that family reunification may be the key issue arising in 2005-06 and consume much of the Government's time.
I have outlined the background of this issue from page 12 of the document onwards, including the relevant Supreme Court cases that have resulted in the scenario Ireland currently faces. I will not go through that information now but members will find on page 14 specific questions that I hope the committee will consider. There are specific issues if the Department of Justice, Equality and Law Reform proceeds to deal with the IBC/05 scheme in the way it is currently understood and family reunification entitlements are not granted, if the family is required to leave with their Irish child or if they are granted residency here and have no opportunity to provide for a parent or minor child joining them.
What obstacles might prevent an Irish child from vindicating constitutional or human rights while residing in a parent's country of origin? If removed from the country, how will Ireland guarantee the Irish child's constitutional rights, including rights to education, access to adequate medical care, protection from abuse and all of the other rights children enjoy under the Constitution and the UN Convention on the Rights of the Child? What are their specific rights to family reunification if they remain in Ireland, particularly regarding separation from parents as identified under article nine of the UN convention and family reunification entitlements as provided under article ten of the same convention, to which Ireland is a signatory? What protections and assistance will be available to Irish children if the authorities in the parents' country of origin subsequently refuse the Irish child a right of residence there? The Irish child will be allowed to return to Ireland but will he or she have the care and company of parents within the Irish jurisdiction? What are the constitutional rights of Irish children in circumstances where a migrant parent is refused residency and opts, in the long-term best interests of his or her Irish child, to leave the child behind?
We urge the committee to consider these issues. They are serious matters that are not theoretical or academic. They have already arisen and will continue to do so. We welcome the committee's contemplation of the specific human rights considerations that arise in this particular context.
The Immigrant Council of Ireland takes this opportunity to express severe reservations about the apparent intention of Government not to entertain applications for family reunification granted residency under this scheme or made by family members who are currently overseas to join relatives here. It is submitted that, if a blanket family reunification policy is adopted and the Minister declines to consider applications, such a policy is unlawful and a breach of Irish constitutional standards, the European Convention on Human Rights and the UN Convention on the Rights of the Child. I thank the committee for its consideration.
I thank Ms Cosgrave for her detailed submission. She has posed interesting questions and the requests she wishes us to pursue with the Department are substantial. We will try to deal with them.
I welcome the opportunity to speak. It is a most informative and comprehensive submission and I would welcome any elaboration or explanation on Ms Cosgrave's part on her last comment about her reservations. I am not a lawyer and would appreciate an exploration of these in reasonably simple language.
As a Dublin Deputy, the issues that strike me tend to be ones of serious exploitation of migrant workers in the construction, hospitality and horticultural sectors. I have dealt with many cases of exploitation of construction workers. I am aware this issue has been raised before. I compliment the trade unions on the manner in which they have dealt with the matter. They are extremely balanced in terms of promoting workers' rights. From the interviews held with workers and so on, what in their view is the way forward? I presume they want equality in terms of having the same rights and entitlements as others. What in their view are the main barriers to preventing that happening?
Another issue of concern is that of work permits. This issue needs to be considered by Government. I have raised the matter but have not made much progress on it. Some immigrants, in the advance of an inevitable deportation order, voluntarily leave the State. Immigrant workers are generally reputable workers and employers do not make applications for renewal of a work permit unless they are satisfied with the quality and standard of work they receive. However, it takes the Department of Enterprise, Trade and Employment or the Department of Justice, Equality and Law Reform, a long time to address such issues. I am aware of a number of cases involving applicant members of the EU which have involved unnecessary tedium. Does Ms Charlton have any advice as regards smoothing out that process?
I have first-hand knowledge of the problems surrounding education given the high number of immigrants in my constituency participating in education. While we are making reasonably good provision for such people at first and second level, the system is patchy in terms of further education. The provisions for education at third level are largely inadequate. Participation at that level is prohibitive because non-EU students have to pay the full costs involved. That provision is creating an enormous barrier.
There are many issues surrounding participation in first level education. A primary school with 14 non-national children is entitled to one additional teacher. A school with 28 non-national children is entitled to two additional teachers. However, a school with 128 non-national children is only entitled to two additional teachers. There are many kinks in the system that need to be addressed. There are many primary schools in which there are more than 28 non-national children enrolled. I do not believe this is that difficult to address.
The issue of domestic violence was raised. Do the provisions of barring orders and so on apply? Do immigrant workers believe they are not as free as others to approach the courts for protection? What happens when they apply for such orders? It is quite clear what would happen if the violence continued. Are there agencies to which these people can be referred? I have met many people from various nationalities. I agree that the issue of family reunification is a critical one and will continue to be so into the future. Perhaps Ms Charlton could reiterate the points she made on family reunification and the reservations about proposed Government policy in that regard.
Ms Charlton
The construction industry, or members of it, have in terms of exploitation, received considerable publicity in recent times. Two issues arise for the immigrant council. One relates to the non-availability of resources. The Deputy asked what the individual immigrant wants. There are many cases in the public domain. Some of the workers of the employers involved came to the immigrant council some time ago but we did not have the resources to follow up the cases although we did raise them with the unions. We believe we could provide greater support to particular individuals currently accessing support.
People want to be able to get redress and to retain or change job without fear of repercussions. A person from an enlarged Europe is in a position to do that with information and support while negotiating his or her way around the system. We can provide that service, resources permitting. However, the situation is more problematic within the work permit system. There are many concerns in that regard. It is our understanding that the Government is reviewing the work permit issue. We also understand the conclusion will be that the labour pool will come from an enlarged Europe with the possibility of the introduction of a green card system for highly skilled workers from outside the EU. We are concerned that such a provision will create a tiered system of rights and entitlements in that who one is, where one comes from and what type of work one does may determine the rights and entitlements and type of redress in terms of exploitation one will receive while living in Ireland.
We are working with the construction industry which is providing resources for the immigrant council to ensure its workers have information on their rights and entitlements and to develop a social mentoring programme. The programme is operating on a pilot basis but we hope to extend it after 12 months.
I am aware of that work. A particular construction company is engaged in bringing in workers and housing them on site with kitchen and canteen facilities. The people concerned are contained as an ethnic group. What redress is available to a worker on that site who falls out with a foreman and so on? There is a great deal of peer pressure to marginalise such people. Are immigrants aware of their rights of redress?
Ms Charlton
Yes. SIPTU provided information on terms and conditions of employment and we worked with it in translating the information into different languages. When the information was distributed, people came forward. Assisting immigrants can be as simple as providing in their own language information on their rights and entitlements and where they can access further information and support. Many immigrant workers want redress. The system in place is a good one but we must focus on providing information and support. However, that is a particular category of status and does not necessarily apply for the work permit system. There is much we could do in that area.
Domestic violence is an issue with which the immigrant council, Women's Aid and the African Women's Network deal. We recently made a submission on the matter to Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, in his capacity as chairman of the committee on violence against women. Organisations around the country are increasingly providing support for the diverse needs of women and are looking for support to develop culturally appropriate responses. We will work with the African Women's Network and Women's Aid on this issue, all of us bringing with us different skills and information. The legislation supports all women. The difficulty for a woman is that if she is residing in the State on a dependant visa and she wants protection from domestic violence, her permission to stay is dependent on her violent partner. In other jurisdictions, if evidence of domestic violence is produced, the woman is given independent status and we advocate that measure. The first step would be to work with the groups around the country, such as Women's Aid, which already have services in place and to try to develop approaches that are deemed appropriate by the different nationalities.
Ms Cosgrave
With reference to the points made such as the barriers to holders of work permits accessing full equality of protection, Ireland has very good labour law protection for all employees, whether nationals or non-nationals. I acknowledge there can be problems with any system but the system provides full protection to any employee, irrespective of nationality or the type of permission a person holds to work in Ireland. The specific difficulties for work permit holders can relate to the fact that their permission to work in Ireland is completely committed to a specific employer. There is no freedom of access within the wider labour market. If problems arise in a specific employment and that employee wishes to seek full redress, they are allowed access to the Equality Authority or other mechanisms but if they become vocal about their dissatisfaction there is every chance that an employer might take the view that the person is difficult and may not apply for a renewal of the work permit.
There is no obligation on an employer to renew a work permit from year to year. Irrespective of whether the job is available, the work permit is of 12 months duration and it can be renewed at the discretion of the employer. Many work permit holders are reluctant to speak out about employers because of that system of control. As a result of the administrative arrangements in place in the Department of Enterprise, Trade and Employment, they are fearful that if they were to lose their work permit they have no clear guarantee that they would be allowed change employer and secure a work permit for a different position. This prohibits them accessing full equality within the labour market.
Regarding the issue of domestic violence, the issue of dependant status needs to be addressed as a matter of urgency. Many women are fearful of speaking out. They have access to the courts and to barring orders but the situation can be very difficult for those from a different culture. It is not regarded as acceptable for women to speak out in such a way and they may not have the necessary confidence or access to appropriate legal representation, given the difficulties with the free legal aid system. More particularly, with regard to their specific immigration status, if they leave the family home and seek refuge as an Irish person would, their immigration status and permission to be here can become jeopardised. In fairness to the Department of Justice, Equality and Law Reform, it has accommodated women in particular cases and has granted them independent status. The difficulty is that the administrative provisions in place are ad hoc, they lack transparency and can frequently take a very long period of time to process because of the lack of resources available to the Department to deal with the number of cases. Even if women or men in that position were to make a submission to the Department to address their situation, they could be left in limbo for a period of a number of weeks or months, up to 18 months or two years, until their status could be resolved and they could be granted independent status to remain here. This can be a very stressful period for a woman who already has a stressful life. She and her children have no guarantee that they will be allowed to remain in the country.
On family reunification entitlements, to put it simply, family reunification relates to the entitlement of a person living in Ireland to enjoy the care and company of family members while they are resident here for a short period of time or indefinitely. It is generally recognised that family is the key constituent element of any society and family unity has been specifically protected in Ireland under the Constitution and by means of legislative frameworks. Migrants, and indeed Irish citizens who live in Ireland and have non-national spouses, do not have any specific legal rights to state that they are allowed live in Ireland with their chosen, immediate family members, not second cousins or uncles twice removed, but their spouse and minor dependant children.
Even if they are married here?
Ms Cosgrave
Even if they are married here there is no guarantee that they will be allowed to remain in Ireland. The application process consists of a written statement that an Irish citizen is married to an individual who seeks permission for his or he spouse to be granted permission to live in Ireland. In the vast majority of cases and specifically with respect to Irish citizens, that request is granted. However, the Minister retains a discretion to refuse permission, for example in the interests of public policy where the spouse may have been convicted of a serious criminal offence. In the cases which are not extreme, there is no clear avenue for migrants or Irish citizens married to non-nationals to be guaranteed in a straightforward fashion the right to the care and company of family and children.
Different categories of migrants are resident in Ireland. Refugees have very specific statutory entitlements to an automatic right to family reunification with a spouse and minor child. However, this contrasts with the situation of Irish citizens and all other migrants. A person holding a work permit cannot immediately bring dependants such as a wife or child. Permission can be given after 12 months and at the discretion of the Minister if it can be proved that the person has permission to remain in the country for a further 12 months and is earning a certain amount of money. The guidelines are not published and visas are frequently refused. I could relate some anecdotal accounts if time permitted.
On children born in Ireland to non-national parents, it has been the policy of the Government that a person was granted residency based on the parentage of an Irish child. Once granted residency, those parents could apply for their spouse, who may in many cases be the father of the Irish child or other minor children who live outside the jurisdiction, to join them here. As a result of changes following the Supreme Court case, it became apparent that if a person granted residency status submitted an application for a close family member such as a spouse to join them, permission was refused in many cases on the grounds that no Government policy existed to deal with applications of that nature. There was no undertaking to consider them on a case by case basis.
Is it within the discretion of the Minister?
Ms Cosgrave
The Minister has full discretion in all family reunification applications.
The scheme introduced in January 2005 demands that applicants are required to sign a statutory declaration regarding the conditions to be imposed on them. One of the conditions states categorically that they must be aware that no legitimate expectation will be conferred on any family member to derive rights. This is not a particular problem because nobody can derive a right from somebody else but the indication has been stated publicly by the Minister that family reunification is not part and parcel of this package in light of the precedent established at administrative level that there is no Government policy on family reunification in respect of parents of Irish children. In the future it is clear that family reunification will not be granted to people who are granted residency under this scheme. In light of international instruments, the European Convention on Human rights and the Constitution there are obviously difficulties with the existence of a blanket family reunification policy, which is what we are driving at in our submission. A big concern would be that to date many problems have had to be resolved by instituting judicial review proceedings in the High Court which is obviously undesirable from everybody's point of view because of the stress involved and the difficulties in accessing appropriate legal representation, more particularly the economic consideration of the huge legal costs to the State in dealing with those applications, which are never put into the public domain.
It is very likely that a huge amount of litigation will result from any blanket policy on family reunification. It is at least arguable, if not an extreme reality, that every case of somebody granted residency under this scheme who is refused family reunification is very likely to go before the courts. It is timely to consider whether this is desirable from the point of view of Irish society. We need to consider what is our understanding of the family, people's rights and entitlements to the care and company of spouses and minor children irrespective of nationality and legal status in the country particularly legal residence status in the country. We need to consider whether we accept that people have a right to family life in Ireland.
The information has been very useful.
We will need to conclude proceedings within the next ten to 15 minutes and I know that Senator Mooney wishes to contribute.
Deputy Carey has covered an enormous area. Ms Cosgrave is obviously an expert and I was somewhat dazzled by the science of this complex area, which creates problems in trying to frame legislation. We are dealing with family issues. Even in our own experience each family is different. I do not know what might be the solution. Ms Cosgrave has given a number of signposts. She said that Ireland has not ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the General Assembly in 1990, which entered into force two years ago. She also pointed out that, as she puts it, Ireland has "not opted into" the draft directive on family reunification of third country nationals, agreed at the Tampere Council and drafted in 2003. I ask her to elaborate and clarify the legal position on that matter.
She also stated she believed that the discretion of the Minister for Justice, Equality and Law Reform should not be unfettered and should be exercised in accordance with set criteria. I understand that the Minister has publicly rebutted that position and has rather famously said that as Minister for Justice, Equality and Law Reform he did not feel obliged to have decisions like this taken by non-governmental organisations or others and that he had a statutory right. Ms Cosgrave may remember that he made that absolutely clear. I have certain sympathy with his point of view. I know that the Immigrant Council of Ireland made several references throughout its submission to the "unfettered position" of the Minister for Justice, Equality and Law Reform. I submit that this is no different from the British Home Office or any other Ministry in Europe dealing with the matter. While there are certain legal frameworks, ultimately the buck stops with the Minister. While I am not trying to be an apologist for him, the Minister would be set fair against any dissolution of his powers in this regard.
The Immigrant Council of Ireland submits that to protect the rights of a minor citizen, Irish law should allow "responsible parents" to reside in the State. What is meant by that term? It also states that the refusal to grant residency to the parent of an Irish child should be based exclusively on "the public conduct" of the individual concerned. Again, I seek clarification. The submission refers to an Irish citizen and I presume this refers to those children born in the window up to the Supreme Court judgment in the case of L and O. That judgment is the cause of great political division and debate within this House. One view suggests that at best anecdotal evidence existed that mothers were arriving in the country already in labour just to get a birth certificate and a passport and were leaving within days. The masters of the Dublin maternity hospitals publicly stated they were concerned about the health of many of these mothers. The question arises as to their commitment or loyalty to Irish citizenship. Unfortunately the victims are the babies who were born here through no fault of their own and towards whom we have a responsibility.
In the last page of the submission the council raises a number of issues. While I do not want to take up the time of the committee, surely the four points made could apply to any Irish citizen who moved abroad with his or her parents who work in England, America or anywhere else. The submission asks how Ireland would guarantee the Irish child's constitutional rights. How would Ireland guarantee the constitutional rights of any Irish citizen child who leaves Ireland voluntarily with his or her parents who are Irish citizens? I did not grasp why the council raised these issues. Deputy Carey and I agree that this submission is extremely well balanced, objective and informative, for which we are grateful. My questions are by way of clarification.
The Immigrant Council of Ireland submits that if the Government were to adopt a blanket family reunification policy that had the effect of the Minister declining to consider applications, such policy would be unlawful and in breach of the Constitution. Ms Cosgrave referred to this matter twice. I tend to stiffen somewhat whenever I hear such allegations. When one considers the entire architecture of Government and all the legal opinion available to it, what is inferred here is that the Government is operating unconstitutionally. If that is the case why does somebody not take it to the Supreme Court?
Ms Cosgrave
First, I shall deal with the issue of responsible parents being granted residency, which should only be refused on the basis of public conduct. If the Senator reads the entire submission specifically on parents of Irish children, we are dealing with a very specific context in which this perceived problem arose. Traditionally the practice of administratively granting residency to all parents of Irish children arose in the course of the 1990s and a significant clampdown on that particular administrative practice took place in 2002 and particularly in 2003 following the L and O Supreme Court judgment. When dealing with this issue we must bear in mind the entire context in which it arose. As the Senator acknowledged, we are dealing with a specific category of persons who applied for residency on the basis of administrative practice. They did not argue that it should apply. It did and they only applied for something that was permissible under Irish administrative law.
When I refer to granting residency to responsible parents or that it should only be declined based on public conduct, I am talking about a group of people who have applied, the vast majority of whom would be deemed to be responsible parents. There has been no issue for the majority of those parents, who are not being brought before the courts because they are not exercising the role of parents adequately towards their children. It is widely recognised that the best interests of the child are served by being within a family unit and the people in the best position to take care of children are their parents except in extreme cases they are not fit to discharge that role. Given the administrative practice and the length of time that many of these families have resided in Ireland we would submit that after a period of years — the children might be three or four years old at this time — no parent who has been discharging adequately the role of parent to a child should be removed from Ireland, the place where the child is now being reared and is well adapted. They should be removed only if it can be demonstrated that they have been engaged in negative public conduct, or if there are other reasons they should be refused residency. I refer specifically to serious criminal convictions.
The decisions taken should be proportionate to an objective that can be achieved. Such a standard is found in the principles of administrative law, particularly at European level. That is what the Immigrant Council of Ireland is driving at when it speaks about public conduct. The council accepts, obviously, that the Minister may have grounds for refusing residency in particular cases. However, such grounds should be disclosed. The council often does not know why cases are refused. The person involved is given such information and may have an opportunity to challenge such decisions but the council does not know what informs the Minister's decision on whether to grant residency. If residency is to be refused, the council submits such a decision should be taken for specific reasons only.
I would like to discuss unfettered ministerial discretion as a matter of constitutional law. While there are legal precedents for the Minister's retention of some discretion when dealing with certain matters, that discretion should not be unfettered. It should be retained on the basis of transparent and clear guidelines which outline the circumstances in which the Minister may take decisions. It would be extremely unsatisfactory to be able to say the Minister has absolute discretion and is not obliged to have regard, when taking a particular decision, to existing constitutional standards, domestic legislative standards or the international instruments ratified by Ireland which set out what we believe to be core principles.
It would not be satisfactory for the Minister to have the liberty to disregard completely all the standards accepted by our democratic society, or to grant particular services on a whim. That is what the Immigrant Council of Ireland is driving at when it states the Minister's exercise of discretion should be informed by relevant constitutional and EU law standards about proportionality and non-discrimination. If we give him blanket and absolute discretion that is not fettered, it will not stand up to scrutiny in the courts. When cases go before the courts, as they do on a regular basis, it is obvious that administrative decisions are often overturned because certain people did not follow the procedures which are deemed to be appropriate. Cases are frequently settled on this basis.
The function of the Minister taking a decision on these matters should be considered. We should ask whether clear and transparent guidelines should be available to the public. Perhaps some element of discretion could be retained by the Minister who has the statutory right to raise a particular criterion, at his discretion and in appropriate circumstances, when considering naturalisation applications. There is a precedent elsewhere for dealing with these matters in that fashion.
If that is the case and if Ms Cosgrave is inferring that the Minister can operate ultra vires, why has a test case not been taken against this procedure? It is a procedure rather than a policy.
Ms Cosgrave
Test cases are frequently taken. Issues relating to the ethical nature of test cases need to be considered. It is obvious that there are practical considerations in this regard such as access to legal representation. One might not be able to afford appropriate legal representation which is not available under a legal aid scheme. If one wishes to take a test case, one has to gain access to appropriate solicitors and counsel. It is obvious that it takes a long time. Perhaps a test case will be taken——
As the Immigrant Council of Ireland is making the case, why is it not taking a test case?
Ms Cosgrave
The council has no legal authority to take such a case. Non-governmental organisations and other bodies in Ireland do not have the legal capacity to represent individuals in that way. It is not possible for the council to take a test case in this regard for the practical reasons I have mentioned. I have outlined some policy submissions and guidelines about the standards which the council considers to be appropriate. I urge the joint committee to consider them.
I was asked about the joint committee's concerns about public sensitivity in this regard, particularly in respect of women who arrive in this country to have babies. A member of the committee referred to the concerns of hospitals in that regard. If one examines the media coverage of this issue, it will be obvious that this matter is sensitive and political in nature. I stand to be corrected but I understand the masters of the maternity hospitals said, as a point of clarification, that they did not hold the view that had been attributed to them. The statistics revealed that more Irish people than foreign nationals sought maternity services at a late stage.
It is important to bear in mind in this context that one cannot say, on the basis of what might have been a minority of cases, that every parent of an Irish child was in this position. Many people who found themselves in the position mentioned were work permit holders who came to Ireland legally but were unable to continue in their working capacity because they were pregnant or had a child. Many were international students who found they were pregnant while legally residing and studying here.
I said it was an area of division. I was not attempting to reopen a redundant debate. I appreciate that the joint committee does not have much time. I asked specifically about the international conventions mentioned in the delegation's presentation which Ireland could ratify and in the council's opinion should ratify. I submit that such conventions could alter the landscape considerably in many of the areas under discussion. That was the core of what I was asking.
Ms Cosgrave
Okay.
I think Senator Mooney and Ms Cosgrave are in agreement in that regard. I thank Ms Cosgrave and Ms Charlton for their attendance and interesting contributions. It is obvious that the joint committee is not in a position to deal with all the issues today.
I would like to discuss the set of recommendations presented to the joint committee by the Immigrant Council of Ireland. The 13th recommendation aims to increase the knowledge base of Irish people. The committee has been talking about politics and the legal challenges it faces. When a political decision is made, it can be said in some sense to reflect the prevailing current opinion or attitude. Perhaps it would be appropriate to ask Ms Charlton who spoke about increasing the knowledge base of Irish people to outline her interpretation of current attitudes. How does she consider that attitudes have changed in the past 12 months or two years? It is a central aspect of the debate and the pressure being placed on the Government and politicians. Government policy can sometimes change as a result of political pressure. How would the council describe the current attitudes in this regard?
Ms Charlton
Attitudes have changed in the past 12 months while I have been working with the Immigrant Council of Ireland which is engaged in a great deal of training and awareness work. That Ireland is rapidly changing and diverse is often attributed to those seeking asylum or refugee status or those coming here under international protection obligations, often because there is a high level of misunderstanding about the various categories of migrants coming to this country. There is little awareness of the public policy of encouraging migrant labour to come here to meet the needs of the economy.
Does the council believe the Government's policy is to encourage labour to come here from overseas?
Ms Charlton
Yes. The Tánaiste has made it clear that it is the Government's policy. She has said we should try to attract such workers in order that the economy can continue to grow. That policy is being pursued by groups such as the USI and under the enterprise strategy.
Is the Government failing to make it clear to the public that its policy is to encourage labour to come here?
Ms Charlton
Absolutely. Very little information is available in that regard. Those who have examined the discourse in the media in the past 12 months will be aware that two major debates have taken place, the first of which related to the citizenship referendum. Regardless of one's position in that regard, one cannot deny that the referendum presented a problem for the position of immigrants.
The second debate related to the enlargement of the European Union. If one followed the media coverage of the enlargement process — the Immigrant Council of Ireland monitored it in the run-up to 1 May last — one will have noticed that considerable coverage was given to the countries which were allowing free access to the labour market. When some countries started to introduce restrictions — it was clear Ireland was one of the few countries not introducing restrictions — there was very little discussion or dialogue about the rationale behind such decisions. The council was asked many questions by various groups and individuals about why Ireland was allowing so many immigrants to come here. When it explained that additional workers were needed, people made it clear that it was okay; that they supported giving rights and entitlements to such persons. The difficulty was that the debate was framed by references to scroungers and social welfare fraud. Much of the time, media and public discourse on immigration is about the problems rather than the contribution. There is a need to provide resources for a strong and significant promotion of the rationale for immigration and acknowledgement of people's fears about some of the challenges involved and of the contribution immigrants can make.
Increasingly, coverage of exploitation has been accompanied by an acknowledgement of the contribution of immigrants. The ground is shifting. Lansdowne carried out a small survey of 1,000 people recently which demonstrated that they were beginning to see the rationale behind immigration and the difference between a refugee asylum seeker and an economic migrant. While both groups, of course, have rights and entitlements, there is a difference between them. The immigrant council believes people want to engage in the debate on immigration. It sees that Ireland has changed and wants an opportunity to discuss it. Another recommendation of the research is the establishment of a forum like the New Ireland Forum or others which have operated successfully.
Do you feel attitudes have become a little more positive?
Ms Charlton
Absolutely, but both attitudes are evident. An RTE poll demonstrated that the 80% vote for the citizenship referendum was an anti-immigrant sentiment, which is very worrying and must be addressed.
It was a poll conducted by the Meath Chronicle.
Recently, we debated the exploitation of Turkish workers in the Seanad and Deputy Joe Higgins has embarked on a one-man crusade on the matter. According to the allegations, the Department of Enterprise, Trade and Employment was perceived to be reactive rather than proactive. An unnamed source in the Department said it had received no complaints and that, ipso facto, there was no problem. The matter goes to the heart of the functions of the immigrant council. Was it involved or did it miss the issue? Why was the council not out front in highlighting what appears to have been an appalling exploitation of a group of immigrant workers?
Ms Charlton
That is a valid question. We were involved and link with unions on such matters constantly. We see our role as one in which individual workers who are being exploited approach us and we link them with the unions or make representations on their behalf to the Department. We met just yesterday with the Department to discuss the role of the council in supporting exploited workers. It must be reiterated strongly, however, that we receive no Government funding and are limited in what we can do.
Where does the council get its funding?
Ms Charlton
We receive funding from foundations and had initial funding from the Sisters of Charity. It is an ongoing struggle and we negotiate with the Government consistently. One of the difficulties is that the council is seen by immigrants as a way of obtaining information and possibly accessing redress. While we play an advocacy role, the issue is one of resources.
The specific case to which I referred was in the public domain. I confess I said to Deputy Carey that I thought the council was concerned with asylum seekers and refugees. I hold up my hands and say I did not realise until I read the details that the council was involved in a very important aspect of workers' rights. I do not know if the fault is mine or the council's. Perhaps the issue is one of resources as Ms Charlton says.
Ms Charlton
Ours is a new organisation having been in existence for two years. We were involved in progressing and publicising the case to which the Senator referred. It has been the case that when individuals have approached us we have not had the resources to follow up their complaints or provide support. Without resources, it is difficult to provide the quality of service we would wish.
I propose we raise that in the context of a request. The council's work is invaluable and the sub-committee is sympathetic and supportive. The Government funds many non-governmental organisations and one wonders about the raison d’etre of some of them. Perhaps, the sub-committee has a role to play in the context of funding for the council.
Can the sub-committee obtain clarification on the questions raised about Ireland's failure toratify EU treaties and draft directives?
Yes.
To whom was the council's application for funding addressed?
Ms Charlton
We made pre-budget submissions to various Departments on different aspects of our work. The conversation we had yesterday was with Mr. Sean Murray of the Department of Enterprise, Trade and Employment.
Did it involve discussion of an application for core funding for the council?
Ms Charlton
Specifically, the application related to the exploitation of workers.
I support strongly Senator Mooney's proposal and hope we can progress it with the help of the Chair.
I thank colleagues for their attention and the delegation for attending to present its argument very strongly. As delegates will appreciate, we cannot respond immediately and positively to every issue they raised. Certainly, their attendance will help us in our overall understanding of the issue and we will take the points raised forward positively and proactively. Senator Mooney's proposal, seconded by Deputy Carey, will help to move the funding issue forward. The sub-committee will also try to obtain answers on Ireland's non-signing of various international treaties and proposals.
I apologise for the fact that some members were unable to attend. A formal apology was submitted by Deputy Quinn. As the Dáil, Seanad and other committees are meeting, members have been dragged in myriad directions. The presentation was valuable and the sub-committee certainly learned from it. Should the council wish to make any further written submission on any point of policy, it should not hesitate to do so.
The sub-committee went into private session at 1.17 p.m. and adjourned at 1.20 p.m. sine die.