This meeting has been convened to consider the Immigration, Residence and Protection Bill 2010. Apologies have been received from Deputies Noel Treacy and Niall Collins. I welcome the Minister for Justice and Law Reform, Deputy Ahern, and his officials to the meeting. A grouping list has been circulated as has a list of correspondence and submissions.
Immigration, Residence and Protection Bill 2010: Committee Stage
Amendments Nos. 1, 22, 23, 26, 32, 33, 38, 43, 44, 47, 54, 55, 56, 59, 68, 74, 76 to 79, inclusive, 82 to 85, inclusive, 101, 102, 106, 107, 115, 118 to 121, inclusive, 128, 148, 154, 159, 160, 161, 166, 168, 173, 182 and 230 are related and will be discussed together by agreement.
I move amendment No. 1:
In page 12, to delete lines 29 to 34 and substitute the following:
"(b) information about those characteristics held in automated form,
but does not include information relating to the DNA profile of a person; and references to the provision by a person of biometric information mean its provision in a way that enables the identity of the person to be investigated or ascertained;".
This is a technical amendment which moves text in paragraph (b). All of the other amendments in this group are technical amendments. Rather than explain each amendment, I would like to point out that they have been recommended by the Parliamentary Counsel and deal with such diverse matters as, for instance, alignment of text. For example, amendments Nos. 22 and 55 deal with substitution of correct wording as do amendments Nos. 33, 38, 43, 44, 83, 84, 101, 102, 106 and 107. Grammatical changes are made through amendments Nos. 82, 119, 120, 168 and 173.
I arranged for circulation to Members of the select committee of a draft of the Bill on which my proposals for change were inserted. The draft contained notes explaining the rationale for each of the proposed changes. I did so to demonstrate the technical nature of many of the Government amendments and to facilitate debate in committee. I hoped this would be helpful to Members.
Perhaps the Minister will address the first amendment. I accept the connectedness of the amendments thereafter. Perhaps the Minister will put on the record a comment on DNA profiling and so on.
The amendment seeks to correct a typographical error in paragraph (b). We are separating “but does not include .....” from “information about those characteristics held in automated form,” as it applies to (a) and (b). As it stands, it relates only to (b).
Only the structure of the paragraph is being amended.
Amendments Nos. 2, 20, 21, 70, 72, 73, 156, 178, 183 to 188 inclusive, are related and amendment No. 71 is an alternative to amendment No. 70 and all of these amendments will be discussed together by agreement.
I move amendment No. 2:
In page 13, between lines 3 and 4, to insert the following:
" "civil partner" means a civil partner within the meaning of section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, but does not include a civil partner where the civil partnership concerned has been deemed or determined by the Minister under section 139 to be a civil partnership of convenience;”.
This amendment which arises in the context of the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, seeks to insert at section 140 a new section dealing with civil partnerships of convenience. It inserts in section 2 a definition of civil partner.
Amendment No. 20 arises in the context of the insertion at section 140 of a New Section dealing with civil partnerships of convenience. It restates the provisions of the existing section 7 and expands them to include civil partnerships. A number of amendments make technical changes arising from the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
Amendment No. 70 modifies the text at section 46(10)(a). It notes that a similar amendment is being suggested by amendment No. 71 in the names of Deputies Shatter and Creighton. Amendment No. 156 substitutes a new paragraph (a) in the definition of “member of a family” at section 116(7). Amendment No. 178 substitutes a new paragraph (q) in the list of decisions to which the 14-day time period for taking a judicial review applies in section 133. An examination of the draft annotated Bill circulated to members of the committee makes clear the effects of these amendments.
Amendment No. 183 inserts a new interpretation section in the context of the proposed new section 139 envisaged by amendment No. 188. This gives rise to consequential changes at existing section 138 dealing with marriages of convenience which are given effect by amendments Nos. 184 to 187, inclusive.
Amendment No. 188 inserts a new section 139 into the Bill. The new section makes provision for civil partnerships of convenience and mirrors the existing provisions at section 138 dealing with marriages of convenience. Subsection (1) allows the Minister, in making his or her determination of any immigration matter, to disregard a particular civil partnership as a factor bearing on that determination where he or she deems or determines that civil partnership to be a civil partnership of convenience. Subsection (2) imposes a requirement on the Minister to notify the parties concerned where he or she has reasonable grounds for considering that the civil partnership is a civil partnership of convenience and afford them the opportunity to satisfy the Minister that this is not the case. Subsection (3) places the onus on the person concerned to establish to the satisfaction of the Minister that the civil partnership is not a civil partnership of convenience and, where that onus is not discharged, the Minister may, for the purposes of his or her determination of the relevant immigration matter, deem the civil partnership to be a civil partnership of convenience. Subsection (4) provides that the fact that a civil partnership has been considered in the context of a previous immigration matter does not prevent it from being open to scrutiny again. Subsection (5) sets out the matters to which the Minister must have regard in determining whether a civil partnership referred is a civil partnership of convenience. Subsection (6) allows the Minister to prescribe procedures and forms for the purposes of this section.
With regard to the responses to amendments Nos. 21, 72 and 73, tabled by Deputies Creighton and Shatter, I am opposing these amendments. Amendment No. 71 is comprehended by Government amendment No. 70. With regard to amendment No. 21, marriages of convenience are a phenomenon experienced in immigration jurisdictions worldwide and represent a significant challenge to immigration authorities everywhere. This has been clearly recognised in international instruments such as the EU free movement directive which identifies a marriage of convenience as an abuse of the rights contained in the directive. The European Union recognised this issue as far back as 1997 with the adoption of the Council resolution on measures to be adopted in combating marriages of convenience. Such marriages are an issue of concern that needs to be addressed, not only on the basis that they represent an attempt to circumvent the immigration controls of a state but also because they represent an attack on the institution of marriage which enjoys special protection in Article 41 of the Constitution by, in effect, reducing it to a commodity to be traded or exploited. It also raises trafficking concerns in respect of vulnerable persons who may be duped or coerced into entering into such enterprises. It is an issue I have raised at EU level since I became Minister for Justice and Law Reform two years ago and about which more needs to be done at that level.
The number of persons who apply for residence in the State based on marriage to an EU national has mushroomed in recent years. The statistics are telling. In 2006, 1,207 applications for residence based on marriage to an EU national were received. In 2009 the figure had increased to 2,129. The latest figures to the end of September 2010 indicate that 1,950 applications were made by non-EU nationals for residence based on EU treaty rights, of which 1,487 involved spousal applications. At the end of September there were 1,158 applications in hand awaiting a decision.
The following has been extrapolated from the 2010 figures up to 30 September: Pakistani nationals have made the most applications, a total of 286, based on marriage to an EU citizen, with 128 of these applications based on marriage to a Latvian national. Of the 286 Pakistani applicants, 266 are male and 20 are female. The second highest number of applications were made by Nigerian nationals, with 185 applications based on marriage to an EU citizen, with 40 of these applications based on marriage to an English national. Of the 185 Nigerian applicants, 121 are male and 64 are female. In total, 293 Latvian spouses have been attached to applications for EU treaty rights, with 47 being male and 246 being female. A total of 227 English spouses were attached to applications for EU treaty rights, with 118 being male and 109 being female. Many of these applications involved previously failed protection applicants or other foreign nationals who had overstayed their permission to be in the State. With regard to applications for residency on foot of marriage to an EU citizen, approximately 30% of these cases involve persons who are present in the State on temporary or limited permissions, thereby giving rise to a suspicion that the marriage is one of convenience for the purposes of circumventing immigration controls.
Further indicators of a problem are to be found in the highly unusual patterns of marriages and intelligence about inducements being offered to nationals in certain EU member states to marry third country nationals. In August this year a senior registrar was quoted as suggesting that up to 15% of civil ceremonies involving EU nationals were marriages of convenience.
I wish to make it clear to the committee that the Government has taken this matter very seriously and already strenuous efforts are being made by my Department, the Department of Social Protection and the Garda Síochána to deal with the problem. The Garda National Immigration Bureau is liaising with the authorities in relevant jurisdictions. It has lodged a series of objections to marriages which are believed to be marriages of convenience and succeeded in preventing these marriages being performed. It has also been working closely with the General Register Office which has issued guidelines to registrars on the signs to be aware of with regard to marriages of convenience and a requirement for all birth certificates to bear an official stamp or a letter from the embassy of the country concerned attesting to the certificate's authenticity. Interpreters must be from an independent verification translation company. If a person's material status cannot be determined, the registrar may ask for an official letter from the embassy concerned to prove that he or she is free to marry and the General Register Office has established new identification requirements.
The State has transposed the free movement directive by way of regulations containing a requirement that the family unit be in place in another member state before it can avail of free movement rights. This had proved to be a very effective deterrent against marriages of convenience but, unfortunately, these regulations were struck out in the Metock case which was successful in the High Court. The directive can and should be more robust in combating marriages of convenience. Since the Metock case I have endeavoured to raise the issue with the European Commission and other member states. At that time I gave them all the relevant figures from the past two years regarding what we saw as a move by certain nationalities to move on the issue of marriages of convenience for immigration purposes. The Minister for Social Protection has already announced that he intends to strengthen the powers of registrars by way of amendment of the Civil Registration Act 2004. The Bill arises as part of a commitment in the Government's legislative programme announced by the Government Whip in September.
My approach in the Bill to the issue of marriages of convenience is very practical and sufficiently robust to make a significant difference. The simple effect of section 138 would be to neutralise any potential immigration advantage that the parties to such a marriage may seek to gain. Similar provisions are being proposed by way of amendments. I propose to deal with the issue of civil partnerships of convenience. The operation of section 138 will be assisted by section 122 which contains extensive provisions governing the exchange by public bodies of information on foreign nationals which will facilitate enhanced co-operation in combating marriages of convenience. In this regard it is interesting to note that, in general, civil marriages require at least two face-to-face contacts with the registrar, one when giving notice of intention to marry and one at solemnisation. I understand that in approximately 20% of cases a third face-to-face contact is often necessary. There are opportunities within that system as it stands to identify irregularities and there will be further opportunities under the Bill based on more information and intelligence.
I can easily understand the intention of Deputies Shatter and Creighton in their amendment given that on several occasions I have tried to achieve that same objective. However, on each occasion, on analysis, the approach has fallen short of what is legally required or legally permissible. The approach in the 2008 Bill was to try to prevent marriages of convenience taking place at all, but that was changed on the basis of legal advice that it gave rise to potential constitutional difficulties. The free movement regulations involved a provision that required the family unit to be established in another member state before the free-movement rights could be exercised. However, as I said earlier, this was struck down by the European Court of Justice in the Metock case.
Following detailed consideration of the matter the approach as set out in section 138 was then developed. The section seeks to deprive the parties to a marriage of convenience of the immigration benefits they want to derive from that marriage. Section 38(7) defines "immigration matter" as meaning "any question relating to the grant of a visa to, or the entry into, presence in or removal from the State of, a foreign national". Section 138(1) states:
The Minister, in making his or her determination of any immigration matter, may disregard a particular marriage as a factor bearing on that determination where the Minister under this section deems or determines that marriage to be a marriage of convenience.
Before arriving at that determination the Minister must under section 138(2) notify the parties concerned and afford them an opportunity to demonstrate that their marriage is not a marriage of convenience. Section 138(3) places the onus on the person concerned "to establish, to the satisfaction of the Minister, that the marriage is not a marriage of convenience". Where that onus is not discharged the Minister can deem the marriage to be a marriage of convenience and refuse immigration benefit sought.
Section 138(5) outlines the matters to which the Minister must have regard in determining whether a marriage appears to him or her to be a marriage of convenience, and is based substantially on the provisions of the Council resolution of 4 December 1997 on measures to be adopted on combating marriages of convenience.
As our experience to date is that marriages of convenience are primarily contracted for the purposes of availing of these EU free-movement rights, the free-movement regulations will be amended to include similar provisions to those in section 138 and include my proposals for combating civil partnerships of convenience. In consultation with the Attorney General, I gave consideration to creating an offence of entering into a marriage which has been determined to be a marriage of convenience under section 138. However, the Attorney General advises against the creation of such an offence. The Bill defines a marriage of convenience as one in which the predominant motivation is to obtain an advantage for immigration purposes either in this State or in another. The advice received is to the effect that the definition of marriage of convenience with its reference to the predominant motivation of a marriage being that of evading immigration rules provides maximum flexibility in the context of making immigration decisions but is too vague in the context of criminal offences. I am also advised that to create an offence for criminal purposes which uses a different definition would undermine the definition at section 138 and thereby create ambiguity and confusion about the proofs necessary for immigration purposes.
In effect, any offence so created could, in practice, turn out to be ungovernable. Clearly, the introduction of an ungovernable offence is undesirable and would undermine the provisions in section 138. Furthermore, I am advised that any provision which criminalised entry into a marriage of convenience would raise constitutional issues regarding the protection provided for in Article 41 and the State's jurisdiction, in Article 29, over marriages contracted or arranged outside the State. For these reasons, I cannot accept the Deputies' amendment.
The area of marriages of convenience is a complex one and there are no easy solutions. It is a question of adopting a number of complementary strategies including international police co-operation. The Government, for its part, will continue to consider further ways of preventing marriages of convenience.
Regarding amendment No. 72, paragraph (b)(ii) is intended to comprehend a child of the long-term resident who is not married who is under 18 years of age. If the child is not married, there is no need to refer to “his or her spouse”. In order to have a civil partner-----
Which amendment is that?
It is amendment No. 72 in the names of Deputies Creighton and Shatter affecting section 46(10). In order to have a civil partner within the meaning of the 2010 Act, the "child" must be over 18 years of age. Clearly, a "child" over that age cannot be comprehended by the definition as it refers to a child who is under 18.
Regarding amendment No. 73, if the marriage or civil partnership is subsisting at the time the long-term resident is seeking to avail of the definition, then the amendment is unnecessary - the child is a "child of the foreign national" and, therefore is comprehended by the amendment. Subparagraph (iv) envisages a situation where a child was not a dependant at the time of the granting of long-term residence but subsequently becomes dependent. That subsequent dependency could be a result of the marriage or civil partnership of the long-term resident where the spouse or civil partner already has children. In effect, the objective of the proposed amendment is already comprehended in the Bill.
I apologise for going into such detail. While the amendments deal with the issue of civil partnerships of convenience, it is relevant to the issue of marriages of convenience because they seek to amend section 138. We have looked at this very closely, particularly since the Metock case in consultation with the Garda Síochána, the Minister for Social Protection and obviously the Office of the Attorney General. The way we have dealt with the issue in section 138, as amended, to include the issue of civil partnerships of convenience is correct. As I said, I believe the way in which we have dealt with this situation in section 138, as amended, by including the issue of civil partnerships of convenience, is the correct one.
I will confine my comments initially to the issue of marriages of convenience which was addressed by the Minister. May I formally move amendment No. 21? The Minister said-----
The Deputy cannot move the amendment but may speak to it.
Very well. The Minister has spoken about the amendment which seeks to insert an additional provision in the Civil Registration Act 2004. It makes reference to the creation of a criminal offence, as follows:
A person who is a party to, facilitates, solemnises, makes and signs a declaration in respect of or in any other way conspires to assist in the conclusion of a marriage of convenience is guilty of an offence.
I listened with great interest to the Minister's detailed exposition of the difficulties in this area. The information he has furnished to the committee on the number of people seeking residence in the State on the basis of a marriage between a non-EU national and an EU national who is not an Irish citizen was also set out in his answer to a Dáil question tabled some days ago. There a number of problems in this area. I am concerned by the Minister's approach and reply. He has referred to the provisions in the Bill that give him discretion, in circumstances he considers to constitute a marriage of convenience, to raise questions and withhold permanent residence. We need to achieve a number of objectives in this area. Our first objective is to ensure the ceremony of marriage in this State is not abused by people who barely know each other entering into sham marriages to facilitate one party to the marriage who wishes to acquire permanent residence in the State fraudulently. Our second objective is to uphold the integrity of our marriage laws and the integrity of the structure available for the celebration of marriages. Our third objective is to uphold the integrity of our immigration laws.
We need to achieve a balance to protect those who are genuinely seeking to enter into marriages. We live in a global environment, with free movement between EU member states and many non-EU nationals residing in the State. We must be conscious that many couples who genuinely enter into relationships want to solemnise their marriages in this country, not with a predominant view to obtaining residence here but essentially because they are in love with each other. They want to give legal recognition to their desire to make their relationship permanent.
The provision the Minister has proposed in the Bill to deal with what I would describe as the general discretion conferred on him is a major source of concern. There are huge difficulties with the manner in which issues of residency, visa and citizenship applications are dealt with within the Department of Justice and Law Reform. The system that operates is not transparent. There is no independent appeals system. In theory, the Minister makes decisions on such issues, but as he and everyone else knows, the reality is that a group of civil servants deal with these files and processes these matters. The officials in question make the ultimate decisions on applications and I assume the Minister normally accepts their recommendations. If there are occasions on which that is not the case, we do not know of them because there is no transparency.
As a public representative, I have encountered cases in which people who should readily have been given them were denied visas and people who were entitled to long-term residence were denied it for the most foolish of reasons. I am genuinely concerned that the broad discretion the Minister is giving himself in this issue, in the absence of an independent appeals system, will result in the wholesale denial of the right to reside in this country to non-EU nationals who genuinely enter into marriages with EU nationals and wish to form families with them.
Regarding the Minister's approach, although I accept we must provide for a means of addressing the issue of sham marriages, I have no doubt that the structure of the Bill will give rise to substantial difficulties. I do not mean to insult the Minister or any civil servant dealing with this issue when I say that if one examines the history of the State over many decades, one will not be able to deny that decisions on visa and residency applications were tainted by racial and religious bias on the part of officials in years gone by. That is clear from State papers dating back over 30 years. I am not making a charge against anyone working in this area today. I have no doubt, however, that it was a problem in the past. I am concerned that if the Minister gives himself the broad discretion he proposes to give himself, in the absence of an independent and transparent appeals structure, there will be a presumption whenever individuals of a particular nationality enter into a marriage with an EU national in the State that it is a sham marriage. That would be the wrong approach to take. Greater care needs to be taken in the provision the Minister has proposed.
I would like to speak specifically about the Fine Gael proposal. This is a dual phenomenon. Those who are attracted to come to Ireland to enter into marriages of this nature are primarily young women from the poorer regions of the poorer EU member states. The number of Latvian nationals who have married Pakistani nationals in the State has been the subject of much publicity in recent times. The young women in question are lured to Ireland by the prospect of some small financial or personal gain. They enter into marriages with individuals they barely know and, in fact, do not meet until they agree to come to Ireland for these purposes. This is a real problem. I accept that they participate in this voluntarily, that they are not coerced to come here. In so far as there is coercion, it may surround the economic pressures they are experiencing in their own country.
Anyone who comes to Ireland in such circumstances to engage in such a marriage can do so without fear of punishment of any nature, even though they may intend to undermine our marriage and immigration laws. I am not convinced on the true extent to which some of the young women who engage in this activity understand the implications of what they are doing. There is no deterrent of any description. Under the Bill as constructed, it will continue to be the case that there will be no deterrent of any description. We need a deterrent in order that it will become known that an EU national cannot, in return for payment, simply come to Ireland to enter into a marriage of convenience and thereby facilitate other unscrupulous individuals to circumvent and undermine the integrity of our immigration and marriage laws.
A second element of this matter has been well documented recently by Mr. Jamie Smyth, a reporter with The Irish Times. In addition, an article by a journalist from Latvia who has written a book on the issue was published in the same newspaper recently. I refer to the fact that international criminal gangs are now involved in this activity. They are seeking to identify and procure women - primarily - to bring to Ireland for the purposes of engaging in sham marriages. They are making a great deal of money out of this activity. The position is that we have instances, of which the Garda is aware, of women coming to Ireland from countries such as Latvia in the belief they are coming to engage in legitimate employment in another European Union country only to find themselves confined and with threats issued as to consequences for their families in their state of origin if they do not co-operate in a sham marriage. There are no penalties or sanctions of any description in the legislation to tackle the criminal gangs, the activities of which need to stopped. They are preying on vulnerable women, essentially for immigration and residency purposes, and engaging in trafficking. There must be a sanction and penalty.
The Minister has correctly taken us through the European Union background. There is nothing in the proposal Fine Gael has brought forward that is in any way contrary to European Union law; indeed, it is in harmony with it. In the context of declarations at European Union level, the factors prescribed in the Fine Gael measure to facilitate a court determining whether a marriage is a sham marriage are aligned with factors detailed in EU declarations made.
The Minister is correct on one point. He states, in the context of the definition he has inserted in the Bill of what comprises a marriage of convenience, that because this is vague and would require a decision on whether "the predominant motivation" was to gain an entitlement to permanent residence in Ireland, it would not stand up as a marriage of convenience or sham marriage in criminal proceedings. I concur with him on that matter, the reason the Fine Gael Party did not replicate his definition of the concept of a marriage of convenience.
Some of the factors my party has delineated are similar to those contained in other factors which would have to be considered in the determination in the Department on whether a marriage is a sham marriage. Our factors are more carefully prescribed and designed to facilitate appropriate prosecutions, whereas the factors the Minister has prescribed are vague. It is their vagueness and the requirement that, in effect, an individual civil servant looking at a file will have to make a subjective assessment as to whether individuals had a predominant motivation of some description when entering into marriage which give rise to the concerns I have expressed. There is no particular reason the factors we are prescribing for the criminal offence cannot be realigned with the Minister's on Report Stage in order that there would throughout the Bill be one thing, namely, a consistent definition of a marriage of convenience, one that would not contain a concept that was so vague that it was dangerous to use when excluding people from a residence entitlement, might result in a spouse in a genuine marriage being deprived of the right to reside here and would not create a difficulty in the area of criminal proceedings.
There is a public interest in criminalising individuals who are parties to celebrating marriages of convenience where they know that is what they are doing. The fact that we have proposed both a summary offence and an offence on indictment is designed to deal with two issues. The first relates to an individual coming from a poor European Union country, perhaps not fully understanding the consequences of what she is doing, who has been lured to Ireland by the offer of €2,000 or €3,000 in return for the celebration of a marriage and is as much a victim of her circumstances as the conspiratorial illegal approach of some member of a criminal gang who approaches her. There is a lesser offence, a deterrent, in order that people would know they should not engage in this activity.
The greater offence which prescribes the possibility of fines of up to €250,000 and imprisonment of up to five years is designed to stop the criminal gangs. I ask the Minister to give further consideration to this aspect. He is incorrect when he says the amendment we are proposing would create a constitutional difficulty with Article 41. If I had a chocolate cake for each time a Minister told me bits of legislation could not be enacted because of Article 41, I would be a person of considerably greater weight and would have a store of chocolate cakes sufficient to keep me going for the next five years.
Article 41 is about the institution of marriage and the State's duty to uphold it. A carefully prescribed criminal provision which sought to prevent criminal gangs conspiring to facilitate individuals engaging in sham marriages would be fully in accord with the spirit of the article. There is no reason of any description under European Union law or Irish constitutional law that this sanction should not become part of the Bill. The sanction becoming part of the Bill would fully accord with the spirit of the Constitution and be fully in tune with declarations at European Union level. I suspect the main reason the Minister is opposing the provision is that he has not tabled it. I invite him to give further consideration to it and suggest that if he believes there is a difficulty in the way it is drafted, he should accept it in principle and bring forward on Report Stage a Government proposal to criminalise the criminal gangs which are conspiring to facilitate sham marriages.
The one thing, fortuitously, the Minister did not do, although I am sure he will do so, was to suggest there was a technical difficulty with the amendment which would prevent it from being taken on board. That we are on the third version of the immigration Bill in four years and the Minister has again tabled amendments to his own legislation, some of which I fully support, is an indicator that we need to engage in a constructive legislative process. I am inviting him to do this on this amendment and accept it in principle, if not in full, and confirm to the committee that he will bring forward his own amendment to criminalise the behaviour of gangs which are conspiring to undermine our marriage laws and preying on vulnerable young women in other parts of Europe.
It is my understanding that for some time there has been huge concern in Latvia at the failure of the Irish Government to adequately address this problem. The action taken by the Minister so far, either in the context of trying to tighten procedures in the marriage registration area or the content of the Bill, is not resolving the issue. I congratulate the Garda Síochána on its recent work in this area which has been a major help in confirming the extent of the problem. The Garda needs the help of the House in criminalising the activities in question, in particular, those of gangs which are making substantial sums of money out of sham marriages in this country.
On the amendment dealing with marriages of convenience, I support the comprehensive overview provided by Deputy Shatter. It is important that we get right the definition and that there is an acceptable degree of clarity throughout the Bill in defining precisely what constitutes a sham marriage. I reject the Minister's contention that, due to necessity, a vague definition of a marriage of convenience is one necessitated by achieving the target of tightening our immigration laws to the detriment of introducing or imposing an acceptable criminal sanction for those involved in organising and facilitating sham marriages.
The point Deputy Shatter made is very important, namely, that it is not simply about having clearly defined terms. The wording used in section 138 in terms of the various elements the Minister shall take into account in determining whether a marriage is one of convenience lends a certain degree of clarity but only in regard to people engaging in a sham marriage, thereby completely excluding those who have facilitated it such as the criminal gangs which we know operate in this country, throughout the European Union and beyond. If we are serious about clamping down on and actively deterring the practice of human trafficking which is clearly linked and the arrangement of marriages of convenience for financial gain, it is essential that clear sanctions are put in place and that there are deterrents. The fine proposed in the Fine Gael amendment, in addition to a reasonable period of incarceration, is perfectly reasonable. If the Minister cannot accept the amendment, I hope he will come back with an alternative wording on Report Stage. It would be a shame if the legislation were passed, even though it ignored one of the biggest problems facing the State.
I thank the Deputies for tabling the amendment which draws attention to the issue. I do not accept any criticism in this regard in terms of lack of action on the part of the Government. I have ploughed a lonely furrow on the issue at EU level for the past two years since the figures were brought to my attention for the substantial numbers of non-EU citizens marrying EU citizens in the Republic. The Metock case brought the matter starkly into focus. I remember attending an informal meeting of European Union Ministers two years ago at which I gave them all of the figures. It was clear that there had been attempts to arrange marriages of convenience in order to circumvent immigration law. Following my interventions, the only country to support us was Denmark and, to a lesser extent, Germany. No other country supported us at the EU table. Because of the directive on free movement the European Commission is extremely reluctant to open up that principle. The clear suggestion to member states such as this country which are experiencing this problem is that we should and could deal with it under immigration law, but that has not stopped me consistently raising the issue at EU level, as I was not satisfied with the response I received from my colleagues.
When I spoke with the Garda Commissioner, senior management and management of the GNIB two years ago, I suggested they look at the issue more closely than perhaps might have been the case previously. Deputy Shatter is correct that the Garda Síochána has been extremely vigilant in challenging so-called marriages of convenience. However, the approach adopted has not always been successful. I remember seeing one report from the Garda which was somewhat jocose, but it is the case that a raid was carried out on a residence in which it was suspected people were orchestrating a marriage of convenience. The couple was found in bed. The Garda decided not to proceed with an investigation in that case.
I have looked and will continue to look at the possibility of introducing further sanctions in cases where it is proved a marriage is one of convenience. The continuing advice in this regard is that we have to proceed slowly. Deputy Shatter can refer to the number of times constitutional issues are raised and what he terms "excuses" are made, but we do not have the luxury he has of ignoring the Constitution and the advice of the legal adviser to the Government. The Attorney General's strong opinion is that if one had in the Bill two offences side by side with different levels of proof required, it would cause ambiguity and inconsistency between one and the other. The Deputy finds fault with section 138 in which the Minister has power in the matter, but it has been the case that power has been delegated in legislation to the Minister to make decisions on immigration matters. A debate on having an independent appeals process will take place later.
The concept behind the Bill is to, in effect, deal with a situation which heretofore has been unacceptable - to me at least and most Members of the Oireachtas - where decisions are made and one has to go over another hurdle and continue in that vein. One often hears it said how terrible it is a quick decision cannot be made. Decisions are made as quickly as possible. The fact is that under existing legislation, people do not accept the decision made in many cases and move to the next hurdle. Equally, as I said many times in previous discussions on the Bill, people rush to the courts for a judicial review. Deputy Shatter will agree with what I said previously, that judicial reviews of immigration cases account for 60% of all judicial review cases taken to the High Court. What the Bill is trying to do is ensure decisions will be made relatively quickly from an administrative point of view by the Minister. If one has an issue with this, the independent appeals process will ultimately involve the courts.
To return to the issue of marriages of convenience, the level of proof required under section 138, if queried by the court, is the Minister's opinion based on the information available to him. That does not constitute sufficient grounds to criminalise a marriage of convenience. One would have to have much more detailed proofs.
I am not saying we are against the proposal. If we could have achieved what is desired, we would have done so. Given that the amendment is attempting to criminalise the act of marriage which is protected under the Constitution, the motivation or intent of the person getting married would be criminalised. To prove that in court would be extremely difficult. One just cannot prove it based on the provisions of section 138, under which the Minister, from an immigration perspective, may have formed the view that the marriage is one of convenience, but that is not sufficient to criminalise it. What would constitute the legal proofs?
The Deputy states in his amendment that "a marriage of convenience is a marriage concluded with the sole aim of circumventing the rules on entry and residence of foreign nationals and obtaining for the foreign national a residence permit or other authority to reside in this state or any other EU member state". How could one prove the sole aim? One could have the sole aim of circumventing the rules, but one could spark with one's future spouse before getting married. How could one prove this in a criminal court if, as the Deputy states, the sole aim was to circumvent the immigration rules? The Deputy's amendment would be criminalising motivation and intent. The difficulty we have is that proofs in this regard are and would be extremely difficult to establish. This is especially the case because of the constitutional imperative to protect marriage. To take a prosecution in regard to an act that has the special protection of the Constitution would require a very intense process of establishing proof.
I do not accept that we do not already have laws on the circumstances of trafficking, false imprisonment in regard to forced marriages, etc. The measure in question is purely and simply related to circumstances where two people have voluntarily entered a marital arrangement. Proving such a marriage is a sham or not reasonably pure would be a problem. For example, it could be said certain people marry for convenience but not to circumvent immigration rules. A couple living together for some time might, for the sake of convenience, decide to marry for taxation reasons or to share a property. In Irish society in the past women who became pregnant out of wedlock were nearly forced to marry by moral pressure. Their marriages could be regarded as marriages of convenience in that there may have been no love between the spouses when they married. It is not a simple issue of criminalisation. It is not an issue of strict liability but one in respect of which establishing proof would be extremely difficult.
I can accept that people react to newspaper reports. When we lost the Metock case, I reacted immediately. I have been examining it to determine whether we can penalise further those who enter a marriage of convenience voluntarily. However, it is not a simple matter. If I can come up with other suggestions, I will do so. We will continue to liaise with the Office of the Attorney General on the matter.
I do not accept the Deputy's contention that his position is closer to that of the Council resolution of 1997. The position we are adopting in section 138 is similarly analogous to the provisions of that resolution. Our difficulty with the Deputy's amendment concerns the concept of "sole aim". While I accept there are laws on the Statute Book on criminalising attempts and intent in regard to other offences such as a burglary, criminalising intent and motivation in regard to marriage is a horse of a different colour. While I am not averse to continuing to consider the issue, I cannot accept the amendment for the reasons mentioned.
The Minister is never slow to be inventive. It was interesting listening to what he had to say because he has now charged off on two horses in opposite directions. The first point which is very simple and straightforward is that there is no particular reason, for the purposes of this legislation, the definitions of a marriage of convenience cannot be harmonised. That is not a complex issue.
Harmonised with what?
The definitions of "marriage of convenience". The Minister has said our concept of a marriage of convenience, or the factors we prescribe to help determine whether a marriage is a marriage of convenience, is not the same as his. Section 138 details-----
Harmonise the two.
Yes. Section 138 details a variety of factors. Our provision also details a variety of factors, some of which are very similar, the phraseology is slightly different. What we do not do is prescribe as for a criminal offence, as the Minister is suggesting we have done, that someone would be instantly criminalised and liable to a charge because a Minister took the view that his or her marriage had a "predominant motivation". That a Minister takes a view about anything at all does not render anyone liable to criminal prosecution, and no one is suggesting this.
The Minister uses the concept of "predominant motivation" to exclude individuals who have married from being granted a right of residence where one spouse is a non-EU national. All of the arguments the Minister has given as to why one cannot have a criminal provision in this area equally apply to everything contained in section 138. Let me give him an example. Consider the case of an Indian gentleman who marries a German woman where both are living in Ireland. If the Indian national wants to be granted long-term residence in Ireland, the application goes to the Department of Justice and Law Reform. Given the predisposition of those who review these files, an alarm bell rings instantly, simply because one of the spouses is an Indian citizen. Such a case would be referred to Deputy Ahern on the basis that he is Minister. The file would state an Indian gentleman, an Indian citizen, had married a German national and that it was the Department's belief his predominant motivation was to be granted residence in Ireland. He may have had other motivations. Perhaps sparks did fly before the marriage and even after the marriage. A decision was made that this was a predominant motivation. How anyone jumps to that conclusion, in the context of the Minister's provisions, is problematic.
My concern is, because there is a disposition within the Department to regard applications for visas from certain nationals as suspicious, there would be a predisposition to assume when particular nationals marry, it is always a marriage of convenience. In years gone by, on various occasions I have had to fight battles with the Department to persuade it to allow the relations of Indian and Pakistani nationals in my constituency to visit Ireland on tourist visas and spend time with their families. These were often cases in which they made a simple application to come here for a four-week vacation but were turned down because there was a predisposition in the Department to believe elderly Indian or Pakistani nationals visiting Ireland obviously want to stay here illegally. This has been a genuine problem for people genuinely trying to stay here for brief periods.
I believe this is going to be a problem with the Minister's provision on marriages of convenience. No one is suggesting there should be a vague criterion. All the objections the Minister is raising to our proposals apply in spades to his vaguer provision - which he acknowledges is vague – in section 138. Having said that, I absolutely accept in principle there must be a facility where the Minister is of the view that a marriage is a sham marriage and to deny long-term residence. It is a matter of how it is phrased and approached. The issue of a transparent appeals system in this context is hugely important.
I accept the Minister has tried at European Union level to get this issue addressed by other member states. I accept his bona fides in saying that. I make the point again, however, that through no fault of his, he still has not been successful because other European Union member states are not interested in addressing this issue on the basis of an EU regulation or directive. They do not want to go there because they do not want to interfere with an area of law across Europe that has been a cause of difficulty.
There is nothing in European Union law to stop us criminalising sham marriages. If we provided a criminal offence which criminalised the criminal gangs conspiring to organise these marriages, our enacting a law of that nature in this State may become a precedent for a European Union wide approach. There is no particular reason we should not travel that route.
In the context of the Minister's comments about general marriages of convenience, of course we know there are elderly people who live with each other who may marry but there may or may not be intimacy. In the past, there have been all sorts of circumstances in which there have been marriages of convenience. There have been marriages in circumstances where people have been very close to each other and someone is unexpectedly the victim of a terminal illness. People marry in circumstances in which there may not be intimacy. I do not think that type of marriage can be properly described as a marriage of convenience. Perhaps someone might so interpret it.
What we have proposed is not - the Minister is aware of this from his other remarks – to criminalise marriages of convenience generally. Fine Gael carefully phrased this proposal as applying to marriages that are entered into for: "the sole aim of circumventing the rules on entry and residence of foreign nationals and obtaining for the foreign national a residence permit or other authority to reside in this state or any other European Union member state". This terminology makes it clear that it only applies to a marriage entered into where the sole objective is to achieve a long-term residence visa.
The Minister may ask how the sole objective is determined. The criminal proposal is not suggesting that this is a decision to be made by any Minister of the day in the context of criminal proceedings. That would be a decision to be made by the courts. The courts, if criminal proceedings were issued, would have to determine whether an individual had celebrated such a marriage with that sole aim. To facilitate the courts making that determination, there are seven specific different factors prescribed to which a court would have to have regard. Those include: whether a matrimonial cohabitation is maintained; the lack of an appropriate contribution to the responsibilities arising from the marriage; the fact that the spouses never met before the marriage; the spouses are inconsistent about their respective personal details, in other words, when interviewed by the Garda they knew nothing about each other's jobs, relations, background or qualifications; they do not speak a common language; and, in particular and very importantly, that a sum of money had been handed over in order for the marriage to be contracted with the exception of money given in the form of a dowry in the case of nationals of countries where the provision of a dowry is a common practice. The past history of both the spouses would also have to be considered. It is not a question of looking at a couple and saying they only married for this reason. The court would have to look at the totality of the background to the ceremony that was celebrated. One of the issues, obviously, would be, whether they knew each other before they married, whether there was a common language and whether one of them was simply paid a sum of money to marry the other. That is not a complex concept but a pretty straightforward one.
I would suggest that instead of the Minister trying to nitpick he would look at this constructively in order that we can provide for a criminal provision in this area. In particular, the care with which this is put together prescribes how we criminalise the criminal gangs which are arranging these marriages which the Minister has not addressed in the Bill and is quite clearly not getting a European Union common approach on it. The Minister said he does not accept we do not have the laws to deal with the criminal gangs in the information he gave to the committee today and the same information he gave to me in reply to a parliamentary question when it is absolutely clear that a number of marriages that have been entered into are sham marriages. I said on Second Stage that it is an international known that there is some special relationship between Pakistan and Latvia which results in a disproportionate number of Pakistani nationals marrying Latvian nationals in Ireland. The Garda knows there is a problem in this area. The Latvian state knows there is a problem in this area. The Latvian Government is aware of it. It is a problem that needs to be addressed.
If the Minister thinks our laws are adequate, can he give the committee an example of a single successful prosecution taken against any member of a criminal gang responsible for arranging marriages of convenience in this State? To the best of my knowledge, there has not been. Perhaps some other laws have been used. If we are going to stop young, impressionable women, eastern European primarily, being trafficked into this country for small financial gain – in some cases none – to be used for sham marriages to circumvent our immigration and marriage laws, there is an absolute public need to provide for a criminal sanction specifically focused on those conspiring to arrange the marriages. The marriages are not happening because sparks are flying over the telephone systems or the Internet or website. In so far as sparks are flying to create marriages of convenience, the fuse is lit by shady criminal gangs operating in Europe trying to exploit the laws of this State.
We do not know the extent of the problem we are discussing. We know enough to realise there is a problem and that it ought to be addressed. When we last discussed the Bill, this issue was touched on but there was very little information available to the Minister on the scale of it. He now has figures which were not readily available on the previous occasion. I am not questioning them but there certainly is evidence that some of it is too much of a coincidence if it is believed to be real.
If at last we are producing landmark legislation on immigration, whatever its merits, it is important we do not allow the question of sham marriages to undermine the initiative. The main amendment from the Minister ensures the same provisions in respect of a civil partnership of convenience apply as for a marriage of convenience. He seems determined to resist the proposition that it ought to be made an offence. Deputy Shatter has set out the argument for that. I do not want to retrace that territory but I would like to ask the Minister about an area he slid over in the sense that he said there was a separate amendment on the Order Paper in respect of an independent appeals mechanism.
That is one of the aspects of it that concerns me. I do not doubt there is a problem of sham marriages. I do not doubt it is probable in most cases that this is being organised for purposes of criminal gain. I am unhappy, however, that there is no transparent appeals mechanism, because injustice can be done here as well. The Minister has frequently brought to our attention the extent to which immigration decisions in one respect or another are being judicially reviewed and the implications of that for the courts system and so on. The absence of any appeals mechanism concerns me because there is no doubt there is a predisposition issue. We dealt with it on the previous occasion in very particular terms because there was a court judgment which established the point beyond yea or nay. There is a danger that this will be brought to bear as well on cases such as those we are discussing.
The absence of any appeals mechanism to deal with that, apart from anything else, invites judicial review, and it seems to me to be unfair. While the Minister says it is on the Order Paper separately, that does not deal with the point at issue. Was it not the Government of which the Minister is a member that committed to an independent appeals mechanism? Was that not an explicit commitment in the programme for Government? It would appear he is still mindful to resist it.
In relation to appeals, I said at the previous deliberations of this committee on the 2008 Bill at which Deputy Rabbitte was present that we intended putting in place in this Bill an appeals office similar to the social welfare appeals office, which is a model that works and which Members of the Oireachtas accept is an independent appeals process on social welfare issues. The appeals process we have in mind is a similar type of process which would be gone through before a person would ultimately go to court, as he or she is entitled to do.
Would there be resort to it in this type of case under section 138?
Yes, there would. As to the difference between the amendment tabled by Deputies Shatter and Creighton and the provisions, we are dealing with two different things. We are all trying to prevent immigration law being circumvented through marriages of convenience. Deputy Shatter's amendment is criminalising it, in effect, and his motivation is not only to criminalise those who facilitate it but also those who participate in it. The proofs in relation to that are much higher however, because one is creating a criminal offence. The very fact that marriage in itself is based on motivation and intent makes it difficult for any court to determine whether a marriage was entered into from a criminal viewpoint. That is trying to penalise a person. We are trying to deal with the issue of sham marriages being entered into to circumvent immigration law. We are dealing with this from an immigration aspect, and therefore the proofs in relation to it are much less onerous and are based on what the Minister has based his or her opinion. Even then we have not said in our amendment that it is the Minister's opinion that the marriage was "for the sole aim". We have calibrated it to predominant motivation, which to a certain extent gives some leeway with respect to the people entering into the marriage.
In the amendment tabled by the Deputy, because it is a criminal offence, the only opportunity persons will have to fight that is in court. Under section 138 we provide that, "Where the Minister, in taking into account a marriage for the purposes of making a determination of any immigration matter, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage" setting out the nature of the initiative. We give them an opportunity to come back and make representations. From a criminal sanction viewpoint, the only option open to them would be to consult lawyers and go to court.
Deputy Shatter has said I have set my face against this. We have not set our face against it, and have continually looked at the possibility of having some further sanction against people who enter into and facilitate sham marriages or marriages of convenience. Unfortunately, the Department has been prevented from so doing to date based on the advice of the Attorney General that it should hasten slowly in respect of criminalising an act of marriage which is guaranteed or given special position under the Constitution.
When Deputy Shatter referred to harmonisation, I misunderstood him to mean harmonising the definition of marriages of convenience across Europe, whereas he was proposing the harmonisation of the amendment and the section. Ireland has a Constitution that other countries do not have, which is the reason it has been easier for other member states to criminalise marriages of convenience. The Office of the Attorney General has advised strongly that the Department should hasten very slowly in this regard. It is being considered, however, and based on today's committee discussions, the Department will continue to do so up to Report Stage. I do not hold out much hope, however, based on the suggestions that have been made to the Attorney General thus far either by the Department or arising from this committee. I have spoken to him personally many times in this regard rather than simply dealing with officials in the Office of the Attorney General.
Members should remember that this is an attempt to prevent immigration law from being circumvented by sham marriages or marriages of convenience. I believe members on all sides will accept that is what is intended. This does not pertain to other marriages of convenience but to marriages of convenience for the purposes of circumventing immigration law. I accept this is a problem and that one might desire to penalise people further. The best way to deal with this issue from an immigration point of view and to solve the problem is for the Minister to make a determination. People obviously are penalised by the fact that once the Minister makes such a determination, they will not get the benefit of immigration. I acknowledge there obviously also will be an opportunity to go to the appeals process and go to court to challenge such a determination. Nevertheless, the Minister making such a determination from an immigration point of view constitutes penalising the people involved.
That does not go as far as criminalising them. Criminalising people would require a much stronger level of proof than just a Minister's opinion that the people concerned entered into a sham marriage for the purpose of circumventing immigration law. Such further proof goes to the core of the reasons people enter into marriages. Potentially, it would be a lawyers' paradise in those circumstances as they could proposition any sort of arrangement that might be commonplace in society but which might be regarded as a marriage of convenience. While they might have nothing to do with immigration, at the same time if one is criminalising-----
If it has nothing to do with immigration, it is irrelevant to the Bill.
No, hold on a second. If one criminalises someone from an immigration perspective vis-à-vis a marriage of convenience, why not criminalise someone who was doing it for taxation reasons or some other purpose? It would be very difficult to ground a prosecution when one is trying to criminalise people’s intent on entering into a relationship. I accept Deputy Shatter’s amendment has tried to do this but it states “the Court may consider” and obviously it can consider other factors. The point I am trying to make is that the best way to deal with this issue from an immigration point of view is to deal with it in the Immigration, Residence and Protection Bill by having a lesser standard of proof in respect of the determination of the issue rather than going further and criminalising it. It is not that I do not have a desire to criminalise people who enter into sham marriages for the purpose of circumventing any laws of the State - of course I do. It is that the practicality of securing proof in that regard causes a difficulty.
Neither I nor my officials are setting our faces against this. We have engaged with the Attorney General's office at length on this issue for the past two years. I am sceptical of some media comment regarding statements that have been made by people from Latvia in particular to the effect that the Irish authorities have not engaged in this regard. I assure members this is not the case. I would love to have received or to receive more support around the European table in this regard because I do not accept Deputy Shatter's observation that this is not an issue or that other countries do not wish to open it up. Other countries have this problem but probably are not as aware of it as we are, mainly because this is a small society. It is more difficult for such matters to remain under the radar here than would be the case in a society with a large population. I still believe this issue can be dealt with at European level if we can convince a number of other member states, including Latvia, and one or two other member states that appear to be the focus of this phenomenon.
As I am conscious the committee must deal with other issues, I will give a genuinely brief response to the Minister. In his response to me, I noticed he studiously avoided addressing the issue of the criminal gangs. I appreciate this may not have been deliberate as it is a lengthy and difficult issue.
Sorry, it is-----
The Minister should allow me to conclude on this point as I will be brief. There is no reason that I can understand why Ireland cannot have a law that criminalises the criminal gangs who essentially are conspiring to subvert its immigration and marriage laws. The Minister gave members the example of a couple who might marry for tax reasons. While couples may marry for tax reasons on occasion - people marry for all sorts of reasons - international criminal gangs are not ploughing the highways and byways of Ireland and primarily exploiting impressionable young women to try to get them to marry Irish men for tax reasons. Consequently, the analogy is not accurate.
While I wish to move on to deal with other aspects of this very important Bill, unfortunately, this particular problem will not be resolved unless the activities of the gangs in this regard are criminalised. The difficulty is that, at present, they know they have impunity and can do what they like. If a marriage does not work out because some young woman bolts from Ireland when confronted with entering a registry office or if she does not give in to threats that may have been issued, these gangs know there will be no consequences for them because helping to organise someone to marry, even in the context of a sham marriage, does not result in any aspect of our criminal law being broken. I asked this question of the Minister and he responded that the law was adequate. I asked whether he could provide an example of a single prosecution taken against an individual specifically because he or she had arranged a sham marriage but no such example exists. Both the Minister and I know this to be the case. I have acknowledged previously that the Garda has carried out really important work in this area in recent years. Ultimately however, it has a difficulty in dealing with these gangs and individuals, especially if some are individuals who are entitled under EU law to reside in the State. The Garda has a real problem in dealing with them unless ultimately they can be prosecuted and we have a real problem in providing deterrence unless such individuals feel at risk.
I have spoken more than enough at this stage but the final point I wish to make is to agree with a comment made by Deputy Rabbitte to which I referred earlier. I refer to the other side of this issue whereby a couple, one of whom is an EU national and the other of whom is not, genuinely enters into a marriage. In the context of the present or any future Minister simply being able to exercise an opinion of the nature described without a transparent appeals system, there is a serious risk that serious injustice will be done. None of what the committee has discussed today relates to Irish citizens. I personally know of an individual who is an Irish citizen and who has married a non-EU national. He is experiencing great difficulty in persuading the Department of Justice and Law Reform that his marriage is genuine and he cannot get a residence visa for his wife. I have no reason to believe his marriage is not genuine but, because of the country from which his wife comes, there is a disposition, to use Deputy Rabbitte's word, to believe it to be a marriage of convenience.
There is no transparent appeals system. This difficulty is the catalyst for 60% of judicial reviews being taken in the area of immigration. Although we will deal with the matter at greater length later, a transparent appeals system, apart from the provisions contained in this Bill, would ensure that people would be properly dealt with and treated. It would also ensure that, where people felt aggrieved, they would know that they had had a full and proper hearing. It is as relevant to this issue as it is to other issues that we are going to address.
The Garda has been active in terms of prosecutions, as the Deputy stated, and is looking to take prosecutions against individuals in a number of cases.
There has not been a single conviction in this regard yet.
The recent activity of the Garda Síochána has mainly been in response to my exhortations on the issue. This is not to say the Garda was not examining the matter before the Metock case a number of years ago, but that case put a stark glare on the matter because the figures subsequently started increasing significantly. A number of general Garda files I have seen indicate that the Garda is not only targeting those who participate, but also those who facilitate.
The definition of "criminal gang" is difficult to prove. The Deputy referred to international criminal gangs, but the best way of dealing with the issue is not to prove whether a criminal gang exists. We all know only too well the difficulty in proving a gang exists in the context of the Criminal Justice (Amendment) Act on so-called gangland crime which was passed a number of years ago. However, the Garda has powers under legislation passed by the House in 2008 to deal with issues like false imprisonment and human trafficking. The Garda is using these powers significantly to deal with the trafficking of individuals into Ireland. If the Garda required further legislation in this regard, it would be in contact with us. Instead, it is dealing with the matter under current legislation, particularly legislation on immigration.
I am not averse in principle to criminalising sham marriages, but I have already mentioned the difficulty many times. While I would like to criminalise it, I am constrained by the advice of the Attorney General on the special position of marriage. It would be the first time since the foundation of the State and the enactment of the Constitution that we would criminalise an act of marriage on the basis that it had some sort of malicious intent. This issue has only cropped up in relatively stark media hype in the last while, mainly in the form of a number of articles in The Irish Times. However, we have been grappling with the issue for some considerable time and will continue to do so.
We can deal with the question of the independent appeals process when we reach it. We have examined the issue high up and low down in the Department in order to be reasonably fair to people in the determination of decisions which must be made by the Executive and to give them an opportunity to have an appeals process. Based on the amendments and our long discussion on the previous Bill, we agreed to include a system of appeals analogous to what pertains in terms of social welfare. I have never heard any Member of the Oireachtas complaining about the social welfare appeals system. People accept it works well.
The problem with immigration heretofore, one that has been a source of frustration for those involved in the process and those I represent in the Department, is that these cases go on and on and are appealed to courts. I provided one instance of a case in which someone went to court 24 times and took two Supreme Court and four High Court decisions. That case is similar to other cases.
The Bill is trying to be fair to people in the determination of their cases while providing a more concertinaed application process which can be appealed through the appeals system built into the legislation and, if they subsequently see fit, to the courts.
I move amendment No. 3:
In page 13, line 41, to delete "established".
This is a technical amendment.
Does the Deputy wish to speak to it or shall I just have the Minister reply?
Just have the Minister reply.
EU nationals are only outside the scope of the definition of "foreign national" for the purposes of this Bill when they have established their right to enter and be present in the State pursuant to the regulations referred to in the definition. It is important to note that the free movement directive is without prejudice to the provisions applicable to national border controls. In practical terms, this means that an immigration officer can require an EU national presenting at the frontier to establish that he or she is such a national. Once this has been established, the person is free to enter the State in pursuance with his or her free movement rights.
Section 27(1)(b) and subsection (5) set out how such nationals are to be treated for the purpose of gaining entry into the State. Under section 27(1)(a), an EU national must present to an immigration officer at the frontier but, under section 27(1)(b), he or she does not need to apply for permission to enter. This is because, once the EU national has established himself or herself as such, the right to enter and be present in the State pursuant to the regulations referred to in the definition is vindicated.
Section 27(5) provides for the taking of biometric information to establish nationality in the case of EU nationals and persons travelling within the common travel area. However, such information by virtue of section 27(5)(b) cannot be retained, stored or compared. Thus, from the perspective of the effective operation of the provisions of the Bill and to ensure that EU nationals can exercise their free movement rights without prejudice to the provisions applicable to national border controls, it is important that the definition remain unchanged.
The expression "has established" implies a right of entry and residence of EU citizens and their family members who are dependent upon possession of a permanent residence certificate, a residence card, a permanent residence card or evidence of an existing application for such a certificate or card.
No, one just has to establish that he or she is an EU national. It is the same with any person coming through Dublin Airport. One has to establish the right to enter. That right is established by proof of one's passport or some EU document. If the word "established" was to be deleted it would cause difficulty.
This is just a technical amendment and it is not designed to make the Minister's life difficult in any shape or form. It is concerned with a definition of "foreign national". It is not about the procedure when one lands at an airport and presents one's passport. The provision defines "foreign national" for the purposes of the Bill. As amended the provision would read:
"foreign national" means a person who is neither-
(a) an Irish citizen, nor
(b) a person who has a right to enter and be present in the State under the European Communities (Aliens) Regulations 1977...
If the Minister is right in what he is saying, the provision would mean a person who is neither established to be an Irish citizen nor a person who has established a right. The word "established" is superfluous and seems to suggest that EU nationals, who are not Irish citizens, have some subsidiary right to enter the State in circumstances where there is a right to free movement under EU provisions.
This is just a technical amendment, there is nothing mystical about it. We are dealing with a definition of "foreign national" and not the procedure that applies at a point of entry to the State to establish one's bone fides, whether one has an Irish passport or a passport from another EU state. It is purely a technical amendment.
I disagree. Ultimately it boils down to whether a person passing through immigration controls comes within the scope of the Bill. The people at the frontier have to establish that the person has a right to enter based on his or her EU citizenship. This follows from the directive on free movement, Article 7 of the Recitals, which provides that the formalities connected with the free movement of Union citizens within the territory of member states should be clearly defined without prejudice to the provisions applicable to national border controls. Irish citizens are entitled, as of right, to be in the country but this is to determine other EU nationals who have to establish that right.
We do not know whether a person is an Irish citizen until they arrive at the port of entry and produce their Irish passport anymore than if a person arrives from the UK, America, France, Latvia, Canada or wherever. If it was necessary to phrase it this way one would say that a "foreign national" means a person who has neither established that he is an Irish citizen nor a person who has established a right to entry.
I will not delay the meeting on this issue because this is a definitional technicality. It could be suggested that it is placing EU nationals who have a right of entry under EU law in a somewhat different position to an Irish citizen who has the same right of entry. I have no doubt the word "established" is superfluous in a definition of "foreign national". The strange thing is that the world will continue to revolve on its axis if we leave it there. Perhaps the Minister would think about it further for Report Stage.
This issue has been looked at very carefully. The idea behind the definition of "foreign national" is whether to bring a person under the scope of the Bill. Clearly an Irish citizen does not come under the scope of the Bill. The other EU national is entitled to be in this country under the EU directive on free movement, subject to conditions. An Irish national is not subject to any conditions. Whether they have committed murder or whatever they are entitled to be in this State. EU citizens must establish that they come within the scope of the directive, not just that they are EU citizens and entitled to come in without conditions. They are entitled to come in under the directive, subject to conditions but they must establish that.
Perhaps we can look to the future, say, four or five years hence when the Minister has been out of Government for a few years. He arrives at Dublin Airport and the man or woman in the box will not recognise him and he will have to establish that he is an Irish citizen by producing his passport.
I do that all the time.
It will be exactly the same.
I have to show my passport.
It makes no sense having the word "established" for other EU citizens but not for Irish citizens.
It does not matter. It is not worth wasting the time of the committee.
No, it does matter because the purpose here is to establish the definition of a "foreign national" in order to bring them within. There may well be EU citizens who are not entitled to be in this country, based on the EU directive on free movement, as they do not comply with its conditions. I hazard a guess that there may not be too many but there may well be. This definition seeks to exclude those people who have already established their right to be here based on the conditions of the directive. It is not as simple as Deputy Shatter suggests.
How stands the amendment?
Perhaps we will come back on Report Stage and the Minister might have another look at it.
I move amendment No. 4:
In page 14, lines 3 to 5, to delete all words from and including "the" in line 3 down to and including "2006);" in line 5 and substitute the following:
"the European Communities (Free Movement of Persons) Regulations 2006 and 2008;".
This is a technical amendment reflecting the correct citation for the regulations.
I am aware that the collective citation of the free movement of persons regulations requires amendment. However, I am considering amending those regulations to, among other things, include provisions similar to those for marriages of convenience and civil partnerships of convenience that are to be comprehended by the Bill. I thank the Deputy for bringing it to my attention. I ask the Deputy to withdraw it on the basis that when the regulations are amended I will bring forward a suitable amendment.
Will the regulations be amended before the Bill goes to Report Stage?
In those circumstances we will withdraw it and come back to it on Report Stage if that does not happen.
Amendments Nos. 5, 99 and 100 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 15, to delete lines 36 to 39 and substitute the following:
" "protection applicant" shall be construed in accordance with section 75(1)(b);”.
This is a technical amendment that takes account of the insertion by amendment No. 99 at section 75(1) of a new paragraph (b) which clarifies that a person is a protection applicant until the protection application entry permission granted to him or her, under the paragraph, ceases to be valid under section 75(4).
Amendment No. 100 is also a technical amendment that deletes unnecessary text at lines 4 and 5 of page 85 of the Bill. In view of the new definition, a protection applicant, inserted at section 2, and the new paragraph (b), inserted at subsection (1), this text is unnecessary.
Amendments Nos. 6, 9 and 12 are related and may be discussed together by agreement.
I move amendment No. 6:
In page 16, between lines 38 and 39, to insert the following:
" "separated child" means a child under the age of 18 who is outside his or her country of nationality or, if stateless, outside his or her country of habitual residence, and who is separated from both parents or from his or her previous legal or customary caregiver;".
There is no definition in the Bill as it stands of a "separated child". The legislation can only be considered to address issues in respect of children who arrive unaccompanied if they are from outside of the European Union. I hope it is not necessary at this stage to go into a long explanation of why we ought to have particular regard to the position of children or persons under 18 years of age, given what we now know. We had considerable discussion on this on the last occasion and I understood the Minister was disposed towards accepting the substantive import of these amendments. That was so far back that it was the current Minister's predecessor who was in occupancy at the time. I understood from what he said then that he was well disposed towards giving recognition to separated children, although we had a discussion about separated children as compared to unaccompanied minors. There is a distinction. When we left the issue, I thought the Minister was minded to go with the term "separated children" or at least to consider that for Report Stage. There could be an unaccompanied minor, or rather an accompanied minor but that minor is not accompanied for her best interest. A "separated child" is a different definition.
The Minister will be aware that we took submissions on the 2008 version of the Bill from many NGOs, persons and organisations concerned with the Bill generally, particularly its child protection dimension. He will be aware that this is not just a migration issue, but also a child protection issue. Amendment No. 6 proposes to insert:
"separated child" means a child under the age of 18 who is outside his or her country of nationality or, if stateless, outside his or her country of habitual residence, and who is separated from both parents or from his or her previous legal or customary caregiver;
This definition is familiar to and acknowledged by organisations working at the coalface and I submit it is different from "an unaccompanied minor". My recollection is that when Deputy Ahern took over as Minister, he undertook to honour the commitments made by his predecessor. I took those commitments to be positive in the context of the question of separated children. The amendment is careful to point out that separated child means a child outside of his or her country of nationality. That could be an EU state. However, as the legislation stands, we are talking about outside of the EEA area. On the previous amendment we discussed sham marriages. There is no doubt but that it could very well be a person under 18 from an EU member state who would find herself in these vulnerable circumstances.
Amendment No. 9 requires that, "In making any decision under this Act in relation to a child, the Minister shall have due regard to the best interests of the child." This was something held with some conviction by organisations working with children in their presentations to us. The Minister at the time, Deputy Brian Lenihan, was well disposed towards this and said the amendment was in principle accepted, subject to further consideration with the Attorney General and the Parliamentary Counsel. He pointed out that it was clear the State was committed to the principles of the UN Convention on the Rights of the Child, to which we are full parties since 1992. He welcomed the amendment and drew our attention to the fact that it does not automatically follow that the best interest of the child means automatically that the child ought to remain in this jurisdiction. I accept that. There may be circumstances where the best interest of the child is to rejoin his or her family or parents in the country of origin. However, it is important that the legislation gives expression to the centrality of the position of the child. That is what I seek to achieve through my amendment.
This is an issue on which we had much discussion previously and on Second Stage of this Bill I indicated the position we were adopting on it. Ultimately, we all want to ensure that children are dealt with. This is one of the reasons we do not differentiate in the way in which we treat children, as either accompanied or unaccompanied, which is a broader definition of unaccompanied or separated. Ours is a better definition and we go further than the directive in this regard.
My predecessor, Deputy Brian Lenihan, indicated the position as pointed out by Deputy Rabbitte but with the proviso that this was subject to further consideration with the Office of the Attorney General and the Parliamentary Counsel. The Attorney General has advised that the inclusion of the amendment in the Bill would create a risk that a court would interpret this as meaning that the best interest of the child must be considered prior to any consideration of applications from parents or accompanying adults and that only when the best interest of the child had been determined, would the application of others be considered. The Attorney General advises that this could lead to a situation where a child is effectively a commodity that could potentially be exploited to secure the presence in the State of an accompanying adult, notwithstanding that the adult would not ordinarily be allowed to enter or be present in the State. Such an outcome, obviously, would indirectly encourage or facilitate child-trafficking, is undesirable and would be detrimental to the best interest of the child.
On amendments Nos. 6 and 12, -----
Before we leave that issue, I am an admirer of the Attorney General, but I find that response fantastic. The Minister is arguing that parents may arrive at a portal to the State and hold up their young one, but that the Attorney General thinks that the court may have to consider the best interest of the child and that the parents may be using the child as a commodity to effect entry to the State. I remarked when presenting the amendment that I did not necessarily think that the best interest of the child was its automatic retention in this jurisdiction, but that it might be joining his or her parents in the country of origin. If the parents are refused entry, it follows that the best interests of the child is to remain with its parents.
I find very puzzling how the Attorney General could advise as he did on a requirement to acknowledge the special position of the child. We have had discussions about trafficking and just now we have had discussions about sham marriages. It is a fact, I am advised by organisations at the coalface, that young women are being forcibly trafficked, or otherwise, here including from EU member states, and are being used for gain or exploited for sexual or other reasons. To put up in lights our commitment to the best interests of the child and have that construed as stating the child might be used as a commodity to effect entry to the State for the parents seems to me fantastic.
I will continue to deal specifically with the amendments Nos. 6 and 12. Section 28 contains provisions dealing with the treatment of a foreign national under the age of 18 who arrives at a frontier or who is found present in the State and who is not accompanied or to be accompanied by an adult who is taking responsibility for his or her protection. This section has very broad application and comprehends those categories of foreign nationals who are referred to in the Deputy's amendment. There is also a provision at section 28 whereby an accompanying adult can be required to satisfy an immigration officer that he or she is taking responsibility for the child and is authorised to do so. These provisions are based on, and strengthen the protections already contained in, section 8(5) of the Refugee Act 1996.
In practice, an immigration officer will encounter a child who is not accompanied or to be accompanied by an adult. Having encountered such a child, the immigration officer is under a statutory duty to notify the HSE and the Child Care Acts are thereupon triggered. The immediate and ongoing needs of unaccompanied minors relating to accommodation, medical and social needs as well as the preparation of their application for refugee status then becomes the responsibility of the HSE in accordance with the Refugee Act 1996 and the Child Care Acts. The Bill will not change that position.
This outcome is, I believe, more important than any label that can be ascribed to the children concerned, whether they are unaccompanied or accompanied. The fact that certain categories describe children in a particular way for public discussion purposes is not, necessarily, a reason to so describe them in the Statute Book. Not distinguishing between accompanied, unaccompanied and separated is preferable. While not including either the definition of "separated child" or other widely used definitions of "unaccompanied minor" contained in the directive, the objection of these definitions is clearly and comprehensively covered in the text of the Bill. In view of the above, it is not proposed to provide in the Bill a definition of "separated child".
With regard to the amendment No. 9, I undertook to consult the Attorney General on a similar amendment in the 2008 Bill. As I outlined on Second Stage, on the basis of those consultations I am satisfied that the Bill already, where necessary, caters for the special position of children in all instances. Where an immigration officer or a member of the Garda Síochána has concerns about a foreign national under the age of 18, whether or not accompanied, the HSE is to be notified and the child automatically becomes a child to whom the Child Care Acts from 1991 to 2007 apply. Section 3(2)(b) of the Child Care Act 1991 is explicit about how the HSE is to treat the welfare of every child who does not receive adequate care and protection. It is required to have regard to the welfare of the child as the first and paramount consideration. This formulation is modelled on section 3 of the Guardianship of Infants Act 1964, as amended, which sets out how a court dealing with the matters affecting the guardianship, custody and property of a child is to regard the child’s welfare. The formulation is restated in section 24 of the Child Care Act 1991 for court proceedings under that Act.
The advice available to me is that an amendment to the Bill along the lines that have been suggested would create a risk that the child could be used effectively as a means to secure the presence in the State of an accompanying adult notwithstanding that the adult would not ordinarily be allowed to enter or be present in the State. I believe this outcome is undesirable and detrimental to the best interests of the child and would indirectly encourage and facilitate child trafficking.
The Bill is replete with provisions taking into account the special position of children. For example, in all cases where an immigration officer or a member of the Garda Síochána believes a person is under 18 years, he or she must respond under the Acts and notify the HSE. Once the child comes within the ambit of the HSE, the welfare principle is automatically triggered by the operation of these Acts. I am advised that the amendment along the lines suggested would lead to the belief that the Oireachtas is suggesting an alternative standard be applied. In consequence, in the event that the statement of principle were to be enshrined it cannot be guaranteed that there would not in future be an adverse finding that the best interests of the child were paramount and to be considered prior to any matters in the determination of the application.
Looking at the issue of the best interests of the child, it is advised that a provision specifically referring to the best interests of the child is unnecessary and for that reason superfluous and perhaps imprudent. The Bill which deals with immigration, residence and protection issues already takes into consideration the best interests of the child. Were there to be an inclusion of an extra wording in the Bill, even as a statement of principle, it cannot be guaranteed that there would not be a future adverse finding that the best interests of the child were paramount.
The scheme of the Bill already makes provision for children in several contexts: in section 9 on the provision of services; section 28 on the arrival at the frontier; section 46 on long-term residence permission; sections 36 and 76 on the registration of foreign nationals; section 115 on the issuing of travel documents; section 116 on the ability to apply for family reunification if in possession of a protection decoration; section 59 on removal from the State; section 64 on arrest and detention for failure to comply with a condition imposed; section 66 on liability for costs of removal; section 71 on acts of persecution; section 79 on the arrest and detention of protection applicants; section 81 on protection application procedure and information; section 83 on the investigation of protection applications; section 93 on oral hearings; sections 102 and 108 on the protection review tribunal; section 109 on protection declarations; section 124 on the provision of biometric data; and section 142 on the payment of fees.
The scope of the welfare principle is well established. In O'S v. O’S, the Supreme Court considered the issue of welfare and Mr. Justice Walsh stated the word “welfare” must be taken in its widest sense and decisive consideration ought to be what is best for the welfare of the child. Mr. Justice Henchy stated while all relevant matter must be given due consideration the statute requires that the first and paramount consideration must be the religious, moral, intellectual and social welfare of the child. Mr. Justice Griffin stated that section 3 of the Guardianship of Infants Act provides that where in any proceedings the custody, guardianship or upbringing of an infant is in question, the court in deciding that question shall regard the welfare of the infant as the first and paramount consideration, and also stated that the welfare of the infant comprises the religious, moral, intellectual, physical and social welfare of the child.
The principle is laid down in existing legislation which, to quote Mr. Justice Griffin, shall regard the welfare of the infant as the first and paramount consideration. This is already built into existing legislation, particularly the Guardianship of Infants Act 1964. The courts would have to take into account in the determination of applications before it particularly with regard to children who are in the State, rather than those coming into the State at the frontier. This is to determine whether the application is valid. I have spoken about this issue to the Attorney General and his advice has been constant. He says that if the amendment proposed by Deputy Rabbitte were to be included in the Bill, there would be a risk that a court might interpret this as meaning that the best interests of the child would have to be considered prior to any consideration of applications by other persons and only when the best interests of the child had been discerned would the applications of the other persons be considered. He says there is a fear this would lead to confusion in the sequence in dealing with the application. While we all want to ensure that, as Judge Griffin stated in the O'S v. O’S judgment, the interests of the child are paramount, the issue must also be dealt with from an immigration point of view. The adoption of the Deputy’s amendment might lead to the consideration of the best interests of the child before the determination of the application which could lead to a situation where children were used in an effort to remain in the State.
It is from an immigration point of view that I advocate the amendment. It seems I have more confidence in the good sense of the courts, if seized of this issue, than the Attorney General. Let us not make it too complicated. All I am seeking to do in the interpretation section of the Bill is to provide for a definition of separated child, for which there is no definition, notwithstanding all of the sections in which children are mentioned. What I am seeking to do is merely to add such a definition of a separated child. Under the Minister's preferred formulation for an unaccompanied minor, if a trafficker turns up at Dún Laoghaire Port holding a young person's hand, that is fine because the minor is accompanied, even though it manifestly is not in the best interests of the young person that he or she find himself or herself in such circumstances. There is a world of difference between these two ideas. I repeat that if I am incorrect, I will withdraw the amendment, but the Minister has not said I am incorrect. The formulation of my amendment refers to a person under 18 years who is outside his or her country of nationality which could include Latvia, whereas the current formulation refers to countries other than those within the European Union. It is important that we provide for this. Young people from other European states have found themselves in this jurisdiction in the circumstances we have discussed.
The Minister has made reference to the fact that he has been advised consistently. However, when discussing the previous Immigration, Residence and Protection Bill, the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, said:
That brings me to Deputy Rabbitte's amendment No. 33, which would insert a requirement to have regard to the special position of separated children. The only doubt I have regarding the amendment is whether it puts the proposition in the right place in the Bill. Apart from that, I am minded to accept it. If the Deputy would agree to withdraw the amendment for the moment, I undertake to discuss with the Parliamentary Counsel where best it should appear in the Bill, and to bring forward an amendment on Report Stage that will achieve the substance of the Deputy's proposal.
That was the then Minister's point of view - endorsed, I presume, by his conscientious advisers - in 2008, only a short time ago in the life of this extraordinary legislation. What has changed since?
It seems there is a certain amount of silo thinking. Children at risk are the responsibility of the HSE, and those in the Department of Justice and Law Reform may consider they have enough problems without taking this on board. However, I am not asking that a separate agency be established in the Department to deal with it; I am merely asking that the primary legislation give expression to the special position of children. Ultimately, in the big bad world in which we live, adults are expected, more or less, to look after themselves but persons under 18 years are a different consideration.
I support Deputy Rabbitte on this issue. We have not yet voted on the issue of sham marriages; we will come back to it later.
We have not voted on Deputy Shatter's amendment.
We have just discussed it; we have not made a decision on it.
I support Deputy Rabbitte's comments. I am disturbed by what the Minister has had to say, to which I have been listening carefully. There has been genuflexion by the Government in the direction of child welfare and children's rights, but when it comes to implementing anything discussed, not a whole heap happens and very little changes. I would have thought, in our approach to dealing with separated children, that the welfare of the child would feature as a prominent part of the decision making process. There is an argument to suggest, even if Deputy Rabbitte's amendment is not implemented, that section 3 of the Guardianship of Infants Act 1964 would automatically have the effect of ensuring the Minister would have to regard the welfare of the child as the first and paramount consideration. I would be interested in hearing the Minister's observations on the extent to which this is being considered. My concern is that, without this provision in the Bill, the welfare of children will too frequently be ignored in the decision making process.
I am aware of a case that has been wending its way through the District Court for some time; I do not know if finality has been brought to it. As far as I know, it has not been the subject of any media coverage, but a written judgment was given by a District Court judge, which is very unusual. It was determined that the mother of a young child who had brought up the child throughout its lifetime was to be deported from the State. She was placed in temporary accommodation that could not facilitate the child and the child was placed in the care of the HSE. The Minister's Department arranged to fly both mother and child out of the country. For once, the HSE got something half-right; to regularise the position in its legal care of the child, it was obliged to make an application to the District Court. However, when the then Department of Justice, Equality and Law Reform made an application to the District Court judge in the child care proceedings to facilitate the deportation of the mother and child, the District Court judge concluded that it was not in the child's best interests to be deported. The child who had been in the care of the mother was taken into care by the HSE and the last I heard was that the child had been moved through two or three foster homes. What did the Department do? It deported the mother. This did not happen ten or 15 years but during the past 18 months. I do not know what the outcome was, but the last word was that the child was still in care and that the mother was in a non-EU country. The child had been deliberately separated from the mother in the decision making process that continues in the Department. In circumstances where, in the interests of the child's welfare, the district judge had declined to facilitate the deportation of a child who had been cared for properly by the mother in the State, the mother should not have been deported. However, there was an obsessive need on the part of the Department to deport her. I understand the Minister's concern that children should not be used as "commodities" , as he put it, to facilitate people in getting around the immigration laws. I am concerned, however, lest children are perceived to be invisible, inhuman and without attachments of significance in their lives, that conclusions are reached in the Department to deport their parents even though the courts, in the interests of a child's welfare, have made a decision a child should remain in Ireland. The case mentioned classically illustrates the reasons we need to ensure more specific reference is made in the legislation to the welfare of children.
The Minister approaches this issue using a prism; he ask whether, if the amendment was made to the Bill, immigration rules would be circumvented by people using their children in this way. He does not approach it from the perspective that we have an obligation to protect the welfare of children. Since its foundation the State has consistently violated this obligation, despite all the verbal flimflam. This is a serious issue, on which I do not accept the Attorney General's view. Attorneys General can be wrong; in different Governments during the years on occasion they have got matters relating to child welfare issues classically wrong.
This is a serious amendment that deserves to be dealt with in a most serious way. I draw to the Minister's attention the fact that he has given two reasons it cannot be made. The first is that it would allow children to be used as a commodity in order to allow the parents to stay in the country. The second is that it cannot be made because it is meaningless and would not add anything to the Bill. It cannot have the first impact if what the Minister gave as the second reason for not adopting it is accurate. Only one version is correct. The Minister's response to Deputy Rabbitte included what I would describe as the usual menu of things served up by a Minister who does not want to take on board an amendment. When one invents every excuse in the book, it does not matter how contradictory it may appear to oppose a constructive amendment. I would have thought, given the disgraceful history of the State in the care of children, that as a minimum the Minister would be willing to take this issue on board. I suspect, however, it relates to another issue and that part of the reason we are not progressing the constitutional referendum on children's rights is that the Government is terrified that in immigration issues, on occasion it might have to give consideration to child welfare concerns. I support Deputy Rabbitte's amendment.
I agree this is a very serious issue. I do not accept the criticism Deputies are making in regard to the way in which the State and the HSE have cared for children within their remit. That does a disservice to those who work in the HSE. I do not want it to be suggested there is not, under existing legislation, a requirement on the HSE to deal with the best interests of a child. The Bill clearly-----
I suggest that on occasion it has patently failed to do this.
Deputy Rabbitte's definition of a separated child would call into question the position of EU children who do not come within the scope of the Bill because we are dealing with immigration issues. Such EU children are entitled to come to the State. If there are child care issues, they can be dealt with under other legislation. The child care legislation-----
That is another example of silo thinking, the discussion we had during the debate on the human trafficking Bill when we tried to do X and Y and the Minister took the position that we would deal with the matter when we came to deal with the immigration Bill.
No, my point is that these issues have been dealt with under existing legislation.
The Minister spent the first part of the meeting discussing young people from Latvia, EU citizens, who clearly and manifestly are not protected by existing legislation.
They are, but in such cases the people in question voluntarily enter a marriage. They are not forced to do so. We have legislation dealing with forced marriages.
In all fairness, I believe the Minister and Deputy Shatter exchanged an agreement that in that situation there was a criminal conspiracy. In any case, it not true to say young people are voluntarily entering into a marriage.
That is why I referred to existing legislation, in particular, the human trafficking legislation which is the most modern and toughest in the world. It is being used by the Garda Síochána in cases where there is coercion. The debate is similar to that on prostitution, whether persons are forced into prostitution or participate in it entirely of their own volition for reward. Again, these are not easy issues to deal with in legislation. I make the point that, by and large, EU citizens are excluded under this legislation. As a result of the Deputy's amendment, they would be included in the legislation which has not really been designed to cater for EU citizens. Section 28 states: "Where ... it appears to an immigration officer that a foreign national under the age of 18 years who has arrived at a frontier of the State is not accompanied, or is not to be accompanied, by an adult who is taking responsibility for the care and protection of the foreign national, the officer shall, as soon as practicable, notify the Health Service Executive of that fact". When the child is referred to the HSE, the legislation under which it operates, namely, the Child Care Acts, demands it take into account the best interests of the child.
The Deputy's amendment is superfluous in regard to the entire concept of ensuring children entering the country, either accompanied or unaccompanied, are dealt with in accordance with the principle of ensuring the best interests of the child are taken into account. The Deputy might look at section 28(4) which states: "It shall be presumed that a foreign national in respect of whom the Health Service Executive has been notified under this section is a child in need of protection, and the Child Care Acts 1991 to 2007 and other enactments relating to the care and welfare of persons under the age of 18 years shall apply accordingly". In other words, the legislation is absolutely strict in what it provides for. When a child is referred to the HSE, it must deal with him or her under the Child Care Acts which are replete with references to the best interests of the child. The Deputy's amendment would make it a condition precedent in deliberating on an immigration application. This would particularly be the case in the context not only of a person arriving at a frontier but more so in the determination of whether a person can remain in the country. In any application the court must take this as a condition precedent on the application before it determines the application for the adults.
Deputy Shatter adverted to a particular case but, as Minister, I am loth to refer to it. I am not fully au fait with the up-to-date circumstances but it was a very difficult case. Deputy Shatter has attempted to suggest it was the Department which made the decisions on the initial deportation. A deportation order was signed for the person concerned but the decision was made on the spot by the Garda Síochána.
The circumstances that pertained in that case strongly suggest that the position I am adopting on this amendment is valid. I will say no more save that the mother in question refused to sign an order releasing the child from the care of the HSE. In other words, she refused to accept responsibility for her child in the deportation process. However, subsequently, she has refused and declined to be reunited with the child despite great efforts by the HSE and others to reunite the child with the mother. I can say no more than that with regard to the case. It is somewhat unfair to raise the matter. It is a remarkably difficult case and one which was brought to my attention subsequent to the events taking place. I fear that we must be somewhat careful about the type of amendment suggested by Deputy Rabbitte. There could be the potential for people, as in the case of sham marriages, to use children as an opportunity to come into and stay in the country were one to state explicitly in the context of an immigration application that the best interests of the child must be taken, in effect, as a condition precedent to the determination of the overall application.
The Minister is now suggesting it is a condition precedent. The advices he read from the Attorney General earlier suggested that there was a danger that it might be a condition precedent. We have stepped up the certainty since then. It is remarkable that the position in the Department has toughened since we were dealing with these issues under the former Minister, Deputy Brian Lenihan. I am unsure whether that is a reflection of economic circumstances or otherwise but, certainly, it has changed.
Reference should be made to our absent colleague, Deputy Naughten, who has been a member of the committee for some considerable time and who made a significant contribution to the 2008 processing of Committee Stage legislation. He was concerned with this issue long before the legislation came to the House. In a considerable number of interventions he set out the reason, he believed, we were insufficiently careful of the child welfare and child protection stage. For example, he stated:
According to the figures furnished by the Minister's officials, 5,369 referrals were made to the HSE and 2,536 children were placed in care between 2000 and 2007. Of the 441 children who went missing, 53 are accounted for. The numbers are substantial. Approximately one in five children from the period 2000-07 remain unaccounted for, including five Nigerian girls who went missing from their accommodation in June 2007, the youngest of whom was 11 years of age. Some of these children may have been trafficked into the United Kingdom or other parts of continental Europe or are being used in Ireland's sex industry.
We are aware that the system is not operating as well as we would wish but I find it difficult to accept the argument that other provisions of other legislation or decisions of the superior courts will look after this. We know that is not the case.
When we were dealing with the Criminal Law (Human Trafficking) Bill, the position taken by the Minister was that we cannot deal with this and that because these would be dealt with when we come to the immigration Bill. The fact is that a great deal of the trafficking which takes place is trafficking into the EU and trafficking of young EU nationals here and elsewhere. This is why the definition of a separated child in my amendment is constructed deliberately to pick up young people, minors and persons under 18 years who come here from other EU states.
The Minister stated that where an immigration officer encounters a situation at a portal to the State where the child is not accompanied by an adult, he or she is immediately referred to the HSE. What about a circumstance where a minor is accompanied by an adult but for reasons not in the best interests of the minor? Why are we reluctant to deal with that? The Minister referred to the fear held by the Attorney General about the condition precedent. Why not provide for it in the legislation and make plain that the purpose is not to use a child as a bargaining counter to effect circumvention of the immigration laws? I find it rather difficult to believe the there is a genuine fear of a person taking the position of "don't hit me now with the child in my arms; you must give me residence". If a family presents at Dublin Airport I cannot foresee a court taking a decision that, because of this section of the Bill dealing with the special position of children, we must admit them. If the Minister's fear is that it might be a condition precedent, we could provide to exclude that situation but, at the same time, acknowledge that there is a child protection dimension to this migration issue.
The Minister might return to the point and inform us how he foresees section 3 of the Guardianship of Infants Act 1964 interacting with this Bill anyway. Regarding the case he mentioned, what he said classically illustrates why we need more express child protection provision in the legislation. This is not about the HSE. The references Deputy Rabbitte made to my good colleague Deputy Denis Naughten's previous involvement in this legislation relate to the failure of the HSE to care properly for children who were separated and who came into its care. The numbers have simply disappeared. Not only do we know that they were not properly cared for, but that they were put in inappropriate facilities as well. This is not the Minister's issue; this is the manner in which the Department and the Minister for Justice and Law Reform must approach the matter. The issue for the Minister, when an immigration issue arises and a child is involved, is that there is proper concern for the child's welfare in the way it is dealt with. The Minister, in the case to which he and I referred, said that it was not his decision to deport the mother in question, it was a decision made by a garda. It was a decision made by a garda after our District Court had determined that the child's welfare demanded that the child remain, for the time being, in Ireland. If there was joined-up thinking, the Minister's Department had an obligation to communicate that decision to the Garda Síochána and, in my view, in the interests of the welfare of that child, at that point of time, to defer any deportation. That might be an issue to revisit at a later stage. I am not fully up to date on the position as of today. The Minister now complains that his Department or the HSE has attempted to reunite the child with the mother. The last I heard of these proceedings, it was the court's view that the child's welfare was consistent with the child remaining in Ireland and a District Court judge could not be convinced that the welfare of the child would be properly protected if the child was deported. In those circumstances it is not, as Deputy Rabbitte so graphically described it, a question of "do not deport me and do not hit me with the child". This is a court decision in this country, as I know of it, that the child's welfare was consistent with it having to remain in Ireland and yet-----
The Deputy needs to be careful in referring to cases that he does not identify those involved.
I am deliberately preserving confidentiality but unless Franz Kafka is running the State we cannot have things happening in our courts, including the involvement of the Department of Justice and Law Reform and the HSE, and not be allowed refer to them at an Oireachtas committee in circumstances where the anonymity and confidentiality of the individuals are preserved, otherwise-----
I am anxious that-----
In fairness, the Deputy raised this case in a parliamentary question.
I did and the Minister responded to it. If we had joined-up child welfare thinking-----
This is a case where I am constrained in what I can say. Great efforts were made subsequently to reunite-----
-----the mother with the child and every effort was refused by the mother. Despite a number of staff members from the HSE, including the Garda National Immigration Bureau, going out to Nigeria in an attempt to assist the mother - my information is not up to date - it showed clearly that a great effort was made to reunite the mother with the child. If memory serves me correctly, the mother in question came to this State and within two days of arrival gave birth. Within two days of having the child she made an application for asylum and disappeared for four and a half months. She was located coming back from the UK to Ireland with a four-and-a-half year old child and presented at the airport. Neither I nor my officials were aware that a decision was made on that occasion. In normal circumstances the mother would release the child. Because of the process laid down in section 28 which is already in situ in existing legislation, the immigration officer immediately referred the child to the HSE and, obviously, the HSE had to deal with the child under the best interests of the child principle.
Decisions were made. Deputy Shatter is correct when he said the District Court judge made a decision to deport the mother. Once the mother was deported, it is a particularly difficult case, and when it was brought to my attention we had to deal with it as best we could. People did go out to Nigeria to try to encourage the mother to take the child back to Nigeria. Up until at least three months ago she has refused to be reunited with her child. It is unfortunate that we are referring to this particular case but to a certain extent it raises the point I made in regard to this amendment which suggests that the best interest of the child is not to be taken into account. That is not the case. The legislation clearly mandates the immigration officer, a garda or whoever, if he or she fears that a child is not being dealt with under the care and responsibility of their parent and is in danger, the child should be referred to the HSE. The HSE then obviously has to take into account the best interests of the child in any way in which it deals with it in terms of medical, social, and other supports, such as accommodation. Deputy Rabbitte's amendment would potentially allow, where parents were challenging their deportation when they are in this country illegally, a situation where before the court could determine whether the decision made by the Minister was valid, it would have to take into account initially the best interests of the child as a core principle. That would cause difficulty from-----
May I interrupt the Minister because he interrupted me? I want to complete one issue, I am conscious of time. I am not defending the conduct of the mother who came to this country in the context of the background circumstances. I am merely making the point that once an Irish court had decided it was not, at that point in time, in the interests of a child's welfare to be deported, the Irish State should not, at that moment, have proceeded to deport the mother. There should have been joined-up thinking as to how to address that issue at that moment in time. I am not trying to defend the conduct of the mother. There was no joined-up thinking. The predicament that has occurred here results from an Irish court, quite properly, finding it was contrary to the interests of the child's welfare to deport the child, and the mother, the HSE and the Garda being now at variance as to what should occur. We need joined-up thinking and to ensure when dealing with children we do not exact revenge on them for the bad behaviour of parents. This is a case where, whether or not the mother had a valid reason to be in Ireland - the Minister suggests she did not have a valid reason to be in Ireland, I have no reason to know differently - it may well have been appropriate that ultimately she was deported, but effectively, what has occurred in this situation is that the State has taken its revenge out on the child. The child's attachment to the mother was broken and the child was placed in care. Substantial expense is being incurred by the Irish State on that particular issue. Like the Minister, I do not want to unduly focus on that particular case.
Chairman, I ask Deputy Shatter to withdraw his accusation that the Irish State took revenge out on a child. What the Irish State did was exactly what it was required to do under its legislation and under its UN obligations. It took the child into care and the child is now being dealt with, is fostered and is in good health here in this State. The State did nothing other than try to protect the child. It is very wrong for the Deputy to suggest that the State and those who work in the Health Service Executive, and the immigration people involved, did anything other than-----
I am not accusing the HSE of doing anything.
-----respond humanely to the situation.
The HSE dealt with it entirely correctly in the context of its-----
I do not think the Deputy should use-----
-----procedures before the courts.
I ask the Deputy to withdraw the words "exact revenge" because-----
What should not have occurred, however, is-----
-----that is patently unfair and untrue.
The deportation should not have occurred in those circumstances.
Patently unfair and untrue.
If the Minister's Department had proper regard to the welfare of the child, at the very minimum that deportation would have been delayed while the problems were addressed.
I want to put on record, Chairman, that Deputy Shatter is refusing to withdraw the words "exact revenge".
Does Deputy Shatter wish to withdraw that remark?
I have made no accusation against the HSE of any-----
He did; he referred to the Irish State.
Deputy Shatter said that the State took revenge on the child.
The Minister, representing the State, should have intervened to prevent the mother's deportation at that moment in time. Arising out of the mother's conduct it may have been perfectly appropriate at a later stage that she be deported but in circumstances in which-----
It is deplorable. The Deputy is trying to squirm out of-----
No. I am not trying to-----
-----a false accusation made against people.
The Minister is trying to obfuscate, as usual.
I am not obfuscating; I am being direct. I am asking the Deputy-----
He does that, and he misrepresents-----
In fairness to the people involved-----
I am not denying an accusation I never made.
-----they were confronted with a very serious situation-----
And the HSE dealt with it correctly.
-----and in my view they dealt with it as dispassionately as they could.
The HSE dealt with it correctly-----
-----and the gardaí should have been informed by the Minister's Department of the events that occurred in the court.
-----showed clearly that it acted properly because the mother refused-----
The gardaí should have been informed by his Department-----
-----to take the child back to Nigeria.
-----of the event that occurred in the court.
Deputy and Minister-----
The Deputy is very wrong in that regard.
-----we are gone beyond our allotted time. We can check the record as to exactly what was said. We will be resuming on this the next day anyway and Deputy Shatter will have the opportunity to reflect on it at that stage if he wishes. We will not finish the debate on this subject. Do the members want to try to finish it?
It might be as well to finish this debate, Chairman. The Minister has set out his case. I look forward to reading what he has said but it seems to me that the issue will go to Report Stage anyway.
I will make one concluding comment. I am genuinely puzzled by the Minister adhering to his line that the best interests of the child could result in parents of the child, the guardians of the child, being facilitated in circumventing the immigration laws because it seems to me there is what must be tantamount to a presumption that the best interests of the child is to remain with his parents. I would have thought any court seized of an issue such as this one would start from the point that the best interest of the child is to stay with the parents and if the parents are refused entry to the State, it is in the best interests of the child that he remains with the parents. I am very puzzled about that argument, and I rest my case.
How stands the Deputy's amendment?
I withdraw it pending Report Stage.
We will adjourn our deliberations on this legislation. The select committee is adjourned until 2.30 p.m. on Wednesday, 10 November 2010 when it will consider the Criminal Law (Insanity) Bill 2010.
Chairman, I want to flag-----
Are we not continuing this debate in the afternoon?
No. We agreed-----
When are we resuming on this Bill?
That is the point I want to raise.
Deputy Creighton wants to allude to that.
It was originally set for 12 November but it was changed at the last meeting. I have a problem with 19 November. I will be out of the country and will not be able to attend. In deference to the Deputies coming from rural constituencies, I reiterate that meeting on Friday is a massive inconvenience. The preference would be to deal with our business on Thursday afternoon or Thursday evening.
We are being criticised constantly for not meeting on a Friday, Deputy. Let us be frank about it.
There is no problem meeting on a Friday but we have a meeting on Thursday afternoon as well. Many of us are here anyway. The argument was made that the Minister was not available. If the Minister could be available on Thursday afternoons we could-----
I am not available mostly because I am at a committee. If Deputies wish we can put in a Minister of State but we have had that argument previously when I have put in a Minister of State.
This committee or what committee?
In the run up to the budget I can tell the Deputy we meet on a Thursday afternoon, Tuesday morning-----
The Cabinet. We meet regularly. As a Cabinet we have met virtually every day this week and, in fairness, the only day that suits me is a Friday. I thought we were continuing the debate for the entire day today.
No. We never had the intention-----
No. That was not-----
The Oireachtas is castigated all the time for not sitting on Friday. We are here sitting on a Friday and we are ending the meeting at 1 o'clock.
In terms of what we agreed, we had hoped to sit-----
In fairness, Minister, some of us have commitments.
It is not that we are heading off to take a half day.
We all have commitments but our first commitment is to the Dáil.
We had hoped to take that Thursday afternoon and Friday morning but, unfortunately, it was not possible to do that.
And Thursday evening.
When did we say we are coming back?
We had it scheduled for 19 November.
I understood we were meeting next Friday.
We were told the Minister was not available.
We were told the Minister was not available next Friday.
I have no difficulty being available next Friday. I understood originally that we would meet and then I was notified the committee was not sitting next Friday because the Minister was not available.
I ask the clerk to the committee to liaise with the members and the Minister.
If the Dáil is our first priority we should all be here next Friday morning.
Is it agreed that the Clerk to the Committee will liaise with the various people involved? Agreed.
I do not have a major problem with next Friday. I do not know how anyone could have said that.
Is it agreed to meet next Friday? Okay.
Could we liaise about the time on Friday?
Yes, we will do that.