Amendments Nos. 19, 96, 234 and 237 are related and may be discussed together.
Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).
SECTION 4.
I move amendment No. 19:
In page 13, between lines 6 and 7, to insert the following subsection:
"(2) Where a foreign national applies for and is refused a permission referred to in subsection (1), he or she may appeal that refusal (other than a refusal of a protection decision which may be appealed under Part 7) in accordance with regulations made by the Minister, which regulations shall provide for a visibly independent appeals process to review the decision at first instance.”.
We have made spectacular progress in reaching section 4 of the Bill, which relates to foreign nationals being in the State lawfully or unlawfully. Amendment No. 19 proposes to insert a new subsection which requires that the Minister make regulations to provide for a visibly independent appeals process to review in the first instance a decision to refuse permission to a foreign national to remain in the State. Applications for protection are dealt with separately under Part 7. The requirement here is to publish regulations that would set down this visibly independent appeals process. I have not sought to introduce a detailed amendment that would be prescriptive in terms of how that appeals mechanism should function, the categories that might be excluded, the restrictions that might apply to a particular category and so on. Rather, the Minister would be required to promulgate regulations under which such a visibly independent appeals process would apply, which is important.
The Minister, or at least the Government, also considered it to be important. I go nowhere without my copy of the programme for Government in order to consult it regularly and find inspiration. In the section headed "Immigration", the Government made a commitment to "ensure a visibly independent appeals process". In those circumstances, I would have thought the Minister should be able to take on board what is a reasonable amendment. I also have to hand the policy platform of another party in the coalition Government, namely, the Green Party, which states it will "introduce a visibly independent appeals process for Immigration decisions, based on the principle of fair and prompt treatment of applicants".
As my amendment is based on the policy aspiration of the Government, I hope it will feel enabled to include it in the Bill and it is important to so do. I repeat that I am not trying to be prescriptive. I will leave it to the Minister to introduce the regulations and will allow him to tussle with the detail of what should be included therein.
I support amendment No. 19 tabled by Deputy Rabbitte. It constitutes the basic minimum that must be included in the legislation under discussion, both because the programme for Government states the Government is committed to it and because the Minister made clear on Second Stage that it was his intention to introduce, at some future date, an independent appeals process.
This is not a detailed amendment. I tabled a detailed amendment on such a proposal for a later stage that, sadly, has been ruled out of order because it would involve a cost to the Exchequer. While I believe details on how such an appeals system would work should be incorporated in primary legislation, at a minimum, amendment No. 19 should be adopted in this Bill. It is of critical importance to so do because we must ensure the existence of a clear, transparent and unambiguous immigration system. This is not in place at present and the enactment of the Bill as it stands will not facilitate such a system being in place.
As a basic requirement, an appeal mechanism must be placed on the Statute Book. The Minister's colleague, the Minister of State with responsibility for integration, also believes that such a system must be put in place. It is imperative to provide people with a clear avenue to appeal a decision of the Department and that it is seen to be independent. The Minister suggested something along the lines of the social welfare appeals office and this is his opportunity to facilitate such a development. He should either accept this amendment or table his own amendment on Report Stage.
Amendment No. 234, which is also being discussed, was tied with an amendment that was ruled out of order yesterday on the grounds of cost to the Exchequer and which pertained to the appeals tribunal issue. I ask the Minister to give consideration to such amendments that will be ruled out of order on the grounds of imposing costs on the Exchequer. While one does not necessarily wish to cause the Government undue expense, the amendments are reasonable. I refer in particular to the amendment pertaining to the appeals tribunal. The Minister should consider them and perhaps he could introduce an amendment of his own in respect of an appeals tribunal along these lines on Report Stage. Such a mechanism has been raised at this level and allows for amendments to be tabled by the Minister on Report Stage, as members cannot table amendments on Report Stage that are likely to incur a charge to the Exchequer. The only person who can do so is the Minister himself with the agreement of the Minister for Finance. Were such an amendment to be put in place, it would save the Exchequer money in the long term.
As for amendment No. 236, this Bill only allows five working days for people to apply for a review of a decision to refuse residency renewal. I believe this is an unreasonably short timeframe, especially given the possibility that a person will be obliged to supply documentary evidence--
Is this amendment not being discussed separately?
The revised grouping list indicates this amendment will be dealt with separately.
The amendment is included on the list appearing on the monitors.
The Deputy is correct to state the amendment is appearing on the screen. However, I indicated that amendments Nos. 19, 96, 234 and 237 will be discussed together.
That is not a problem. I was out of the room when the Chairman indicated this.
That grouping appears on the revised list. It is a mistake on the screen.
This is not a problem and the committee will come back to it.
That concludes my contribution. As amendment No. 234 is related to amendment No. 17, which was ruled out of order, it probably should be withdrawn or not discussed further.
While I oppose the amendments, I agree with much of the spirit of what was said by those members who tabled the amendments under discussion. The Bill will put in place an independent appeals process for protecting applicants who are refused protection either as refugees or as persons eligible for subsidiary protection in the State. It replaces the current Refugee Appeals Tribunal with the protection review tribunal, which has an expanded jurisdiction to consider appeals against a refusal to grant subsidiary protection.
Later in this debate, members will have an opportunity to examine in detail the provisions relating to the new protection review tribunal. Without wishing to anticipate that debate, I wish to advise members that I am examining the provisions relating to the protection review tribunal. I wish to signal now that I will bring forward additional proposals on Report Stage dealing with the make-up and structure of the tribunal.
It is important to note that in respect of asylum cases, one should distinguish between the type of decision being made in a protection case and the issues that arise in respect of an immigration permission. Protection matters are governed by our international obligations and are determined by reference to well-established international standards. This is as it must be, given the issues involved. On the other hand, immigration decisions in respect of non-EU states are made at the discretion of the Government. The Supreme Court recognised this clearly in respect of the Bode case last December, when it made it clear it is both the right and the duty of the Government to safeguard the external boundaries of the State and that the Government has responsibilities in this area deriving from the Constitution.
Clearly, the State can set out how it is proposed to exercise its discretion in legislation. Fundamentally, however, immigration is not a right but a facility granted by the State. A visa to visit Ireland is an act of hospitality by the Irish State. Attempting to have, for example, a tribunal or independent body to adjudicate on decisions, which necessarily must be taken by the Government and the Administration, is not the way to go in respect of this particular legislation. In the Supreme Court, Mrs. Justice Denham referred to the granting of permission to remain in the State as a gift. This constitutes the thinking and analysis of the Supreme Court in this regard. Were one to set up a tribunal and allow appeals, there would be appeals in every case. As members are aware, that has been the experience in refugee applications. The determinations of the office are always appealed to the Refugee Appeals Tribunal. If one establishes an immigration appeals tribunal, there will be universal appeals to it against all adverse decisions. This is the reality on which Deputies should focus their minds when considering this legislation.
Built into the Bill are a number of review processes for the different types of decision that arise at various stages of the immigration process. For example, section 17 deals with a visa review application, section 40 contains a review mechanism for the non-renewal of a residence permission, and sections 44 and 45 contain processes for making representations as to why permissions should not be revoked.
In addition, section 100 sets out the process for the revocation of a protection declaration. Lest there be any confusion on the matter, it is important to clarify the meaning of "independent" in this context and in the context of the commitment contained in the programme for Government. It means independent of the original decision maker and does not relate to the capacity to exercise a discretion parallel to that of the Minister or the Government. An independent appeal of an immigration decision must operate within the same framework as that facing the original decision maker. These guidelines will be set down in regulations, administrative schemes and directions. Those conducting the appeal cannot substitute their opinions as to who should be permitted to come to Ireland or to reside here for those of the Government or the Minister.
In this context, I am anxious to ensure during the lifetime of the Government that we implement the commitment in the agreed programme for Government, to which Deputy Rabbitte referred fairly, to ensure a visibly independent appeals process in immigration matters. I assure the committee that the commitment will be fully met within the Government's lifetime.
Before we commit ourselves to a legislative solution to this matter, I want to ensure that what we are legislating for will work and will have been proven to work well in the interests of the State. For this reason, I am taking the approach of introducing systems of independent reviews of immigration matters on an administrative basis at first. As such, I have indicated my intention to appoint on an administrative basis a person to act as chief review officer with the function of ensuring consistent and high-quality decision making among those who deal with visa reviews under the legislation. This way of introducing independence may prove satisfactory and, if so, can be implemented throughout the immigration process before being placed on a statutory footing. However, I am in no rush to create another happy hunting ground for lawyers in this legislation.
It is worth the effort to do what the Department of Social and Family Affairs did, namely, establish a visibly independent appeals system within the Department, to have a chief appeals officer and to initiate the system on an administrative basis rather than a legislative one. By trial and error, we can ratify the system in robust legislation. By taking this incremental approach, I am satisfied that I will fulfil the Government's commitment to provide independent reviews on immigration matters and to do so in a manner that will prove efficient, lasting and in the public interest.
The Minister's intervention was interesting, but it did not address amendment No. 19 or related amendments. He drew our attention to the fact that he has made provision for an appeals mechanism in respect of the protection of applicants, which we accept. I welcome the fact that he will introduce changes to the operation of the Refugee Appeals Tribunal or, as it will be called, the protection review tribunal, but it is a separate issue from the gravamen of this amendment on immigration. The Minister repeated his comments on Second Stage, when he stated:
Another commitment in the agreed programme for Government is for an independent appeals process. I wish to signal my intention to introduce an appeals mechanism along the lines of the system used in the Department of Social and Family Affairs. This will operate on an administrative basis at first and, once developed, may be put on a statutory footing.
Much consideration went into the crafting of that paragraph. How would it be possible to have an administrative system of appeal to a statutory decision? I am unsure as to how that could operate.
I am sure the Minister understands the larger issue better than me. Leaving aside the idea that the purpose of the programme for Government was a certain amount of flummery and puffing, the Minister separated the matter clearly in that a chapter in the programme entitled "Asylum, Immigration and Integration", addresses those issues separately. Under the immigration heading, there is a commitment to ensure "a visibly independent appeal process". The Minister quoted Mr. Justice Keane, Mrs. Justice Denham and so on and, on Second Stage, I referred to the Laurentiu case. It is worth reading into the record a paragraph from Mr. Justice Keane's judgment, in which he stated:
It cannot be too strongly emphasised that no issue arises in this case as to whether the sovereign power of the State to deport aliens is executive or legislative in its nature: it is clearly a power of an executive nature, since it can be exercised by the executive even in the absence of legislation. But that is not to say that its exercise cannot be controlled by legislation and today is invariably so controlled: any other view would be inconsistent with the exclusive law making power vested in the Oireachtas. The Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to be exercised: what they cannot do, in my judgment, is to assign their policy making role to a specified person or body, such as a Minister.
Mr. Justice Keane's statement rebuts the Minister's statement more effectively than I can. Apart from the provisions of the struck down Aliens Act 1935, Mr. Justice Keane accepted that, as the Minister argues, the sovereign State enjoys the power to expel and deport aliens. However, he stated that the right to expel or deport aliens inheres in the State by virtue of its nature, not because it has been confirmed on an organ of the State by statute.
Mr. Justice Keane went on to make plain that the effect of legislation was to permit the Minister by regulation to decide what class of aliens might be deported. My amendment is consistent with this opinion of the then Chief Justice, as I am asking the Minister to make such regulations, thereby allowing him to decide which categories of aliens might be deported. We will know which when they are published. Section 54 addresses access to justice, but we will jump that bridge when we come to it. That a person might be deported does not mean he or she does not have a right of access to justice. However, I am bringing the argument on.
As far as this argument is concerned, I am seeking to give expression in the Bill to the commitment in the programme for Government that it would ensure a visibly independent appeals process. Rather than enumerating conditions in a detailed amendment, I have chosen to be more feasible and, according to the Supreme Court, constitutionally consistent by requiring the Minister to make the regulations and to stipulate whatever he believes he should stipulate. However, it is not meeting his own commitment in the programme for Government to say that he will draw my attention to the arrangements for protection applicants and that he wants to signal now that there will be changes to that. I welcome all that but that is not the issue here. I cannot accept that the Minister's response to this amendment is a reasonable one.
I support the point Deputy Rabbitte has made. It is fundamentally important to the integrity of this legislation that we have a visibly independent appeals process which is enshrined through this amendment in the legislation. It still facilitates the Minister in bringing forward secondary legislation to flesh out this proposal and that legislation can be amended at any stage if the Minister believes changes are required.
There is a considerable difference between what the Minister is proposing and what is in place in the social welfare appeals office. That office publishes an annual report and makes its decisions based on entitlements that are guaranteed either in primary or secondary legislation. The difficulty with much of what is dealt with in the area of immigration is--
We are not talking about entitlements here, we are talking about a gift.
The Minister should allow me to finish. The difficulty with this legislation is that we do not know under what criteria decisions are made. The Minister says it is a gift and as such, there should not be any criteria. However, I believe that a basic set of criteria should be laid down against which people are benchmarked to determine if they are entitled to immigrant status and to enter the country and reside here. That is not in place and it is not envisaged that it will be in place in the future. It is partly covered in secondary legislation and in other regulations the Minister may draft. In that sense, it makes it very difficult to see how a chief review officer can be seen to be independent on the basis of the fact that the decision is a gift and not on the interpretation of primary or secondary legislation that has been laid before the House.
Deputy Rabbitte should note that I made it clear that my intention is to implement the commitment in the programme for Government in the lifetime of this Administration and to start implementing it on an administrative basis. If we were to accept the amendments proposed to this section, we would infringe the very Supreme Court decision Deputy Rabbitte referred to, namely, the Laurentiu case, where the Supreme Court said that the powers conferred on the Minister cannot be delegated in a vague and general way but require specifics. We cannot simply provide in this legislation that there should be a visibly independent appeals system. That invites the suggestion that too much power is delegated.
On the constitutional point and the authority referred to by Deputy Rabbitte, the up-to-date and binding authority in this matter is the decision of the Supreme Court in Bode (A Minor) v. the Minister for Justice, Equality and Law Reform. That decision was handed down on 20 December 2007. It is an authoritative judgment of the Supreme Court on a fundamental point concerning our immigration practice. As Deputy Rabbitte and other Deputies are aware, the State decided on foot of the amendment to the Constitution that took place in 2004 to come to an arrangement for those who had children born in Ireland prior to 1 January 2005 who were thereby Irish citizens. An arrangement was drawn up by the Minister on an administrative basis and upheld by the Supreme Court when challenged in judicial review proceedings.
In her judgment in the Supreme Court, Ms Justice Denham expressly addressed issues relating to the executive power of the State and said that in this case, one of the fundamental powers of a state arises for consideration in every state, of whatever model. The State has the power to control the entry, residency and exit of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State.
The Supreme Court also quoted earlier remarks of Judge Costello in which he stated the following:
In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interests of the common good to control aliens, their entry into the State, their departure and their activities within the State.
The special role of the State in the control of foreign nationals was also described by Judge Gannon in a 1986 case when he said the following:
That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State.
Mrs. Justice Denham affirmed and adopted that description and went on to say:
While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals - as a gift, in effect. The inherent power of the State includes the power to establish an ex gratia scheme of this nature. Such an arrangement is distinct from circumstances where legal rights of individuals may fall to be considered and determined.
That judgment gives ample powers to the Minister to proceed by way of an administrative scheme to establish an appeals system. While I would like to see that system incorporated in legislation in time, it would be far wiser from the point of view of the State and the public interest to proceed by trial and error in the establishment of an appeals process rather than legislate for an extensive appeals process at this stage with uncertain consequences and indeterminate results. That is how I propose to proceed on the matter and I have indicated that I intend to establish, on an administrative basis, a chief review officer to ensure consistency is an integral part of decisions on immigration matters and that independent reviews of decisions take place. There is nothing to inhibit the Minister doing that under the Constitution or under the Bill as proposed before the committee. Incidentally, Mrs. Justice Denham recognised the inherent powers of the Minister. It is not a question of conferring powers on the Minister
I have not heard anyone assert that the sovereign State does not have the right to deport aliens, to use the term that was used in the past. Nobody is arguing that. What we are arguing, and the courts have commented on this, is that the principles and policy ought to be set out in primary legislation. In many cases here we have not done that because we have opted for a framework that maintains that it is in order for the Minister to make regulations, from time to time, as he or she sees fit. However, because the power to which the Minister refers inheres in the State, it does not mean to say that where we decide to legislate that, we then do not submit ourselves to the courts. No one is disputing the fundamental right of the State to deport aliens but where we legislate, that legislation can be quoted before the courts and the courts can then make whatever decisions they choose. I repeat what Mr. Justice Keane said, "that is not to say that [the power's] exercise cannot be controlled by legislation" and today it is invariably so controlled. I am still not entirely clear about the Minister's position. He seems to be making a commitment to a system, on an administrative basis, similar that which exists in the Department of Social and Family Affairs to be the review mechanism in this situation.
I ask the Minister whether it is feasible to maintain such a review system on an administrative basis when appeals are made on a statutory foundation. Mr. Justice Keane stated: "The right to expel or deport aliens inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute". The Minister accuses me of not having regard to the Denham judgment in the Bode case which states we cannot proceed in a vague and general way, but that is what I am trying to prevent. By incorporating the amendment in the Bill, the Minister would be required to introduce regulations that would be particular and specific rather than vague and general.
I do not want to make a political football of the matter but the Minister has sidestepped the commitment that the programme for Government makes in this regard. Is it not worth at least rebutting me or claiming the provision was put together late at night and that he did not mean it? Was it because there may have been a few immigrant votes to be gained? I ask him to give me some reason rather than leave me hanging and arguing that I am trying to implement the commitment in the programme for Government but for some reason he is resisting. That could have a terrible effect on a legislator's health.
I am sorry to impact on the Deputy's health. Of course, I am committed to the independent appeals process set out in the programme for Government. I am saying I propose to introduce it initially on an administrative basis, as I am perfectly entitled to do under the authority of the Supreme Court decision. Deputy Naughten used the word "entitlement". I have made the point that the Supreme Court characterised the capacity of the State to admit a foreign national as a gift, not an entitlement. That is at the heart of this discussion because the State is entitled to make decisions and exercise discretion in this area. That is the opinion of the Supreme Court which also agrees that the Minister can draw up an administrative scheme to confer gifts.
Clearly, if the legislation provides for various determinations that can be made by the Minister, there is no reason it cannot be supplemented with a review mechanism. As that mechanism is tried and tested in the years ahead and as a chief officer is appointed to ensure consistency in the review processes and that cases are treated in a like manner, the most essential element of justice, it can be incorporated into legislation.
The amendment would not add anything to the Bill, as it stands, because its implementation would require extensive statutory instruments. I do not think we are in a position to take such a route at this stage. We will have to see how the appeals work in practice. The Legal Aid Board was established on an administrative basis but is now operating under statutory regulation. The powers of the board and deciding officers are set out in legislation. It makes sense to introduce the independent review mechanism in the same way because it would allow us to learn by trial and error through a form of scheme which has been upheld by the Supreme Court and which permits the Minister to vary elements as a more perfect system is devised.
We are presented with the Bill; therefore, there is little point in saying we should prepare it differently. Certain issues are important such as access to justice and an independent appeals process. We are at an important juncture in the Bill. I am prepared to withdraw the amendment on the clear understanding that I will resubmit it on Report Stage, by which time I hope the respective arguments advanced by the Minister and me will have been subjected to some analysis in the public domain. I have serious reservations about the Minister's proposals. At this stage, we should have sufficient experience of immigration to be able to publish regulations that meet the concerns of many. The issue is not that they are trying to challenge the State's right to deport.
I never said it was.
To facilitate progress, I will re-enter my amendment on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 20 and 305a are related and may be discussed together.
I move amendment No. 20:
In page 13, between lines 6 and 7, to insert the following subsection:
"(2) (a) Where a foreign national is sentenced on indictment to a term of imprisonment of 12 months or more, any permission he or she enjoys under this Act to be present in the State shall thereupon stand revoked.
(b) Where a person referred to in paragraph (b) of the definition of “foreign national” in section 2 is sentenced on indictment to a term of imprisonment of 12 months or more, he or she shall, notwithstanding that definition, be deemed to be a foreign national for the purposes of this Act, any permission he or she enjoys under this Act to be present in the State shall thereupon stand revoked; but before an immigration officer or member of the Garda Siochána removes the person from the State under section 54 he or she shall have regard to Article 28 of Directive 2004/38/EC of the European Parliament and of the Council.
(c) Where a foreign national is sentenced on indictment to a term of imprisonment of 12 months or more, any protection declaration he or she enjoys under Part 7 shall thereupon stand revoked, and section 100(11) shall apply to such revocation mutatis mutandis; but before an immigration officer or member of the Garda Siochána removes the person from the State under section 54 he or she shall comply with Article 32(3) of the United Nations Convention relating to the Status of Refugees.”.
We have tabled a record number of 707 amendments, designed to improve the Bill from the philosophical standpoint we have been articulating. There is more than a nuance of difference between this side of the House and the Minister. That is not to say, however, we want an open door system or to facilitate the entry into this jurisdiction of persons who will not obey our laws. Amendment No. 20, structured according to the circumstances of leave to remain or residence in paragraph (a), the right to establishment of EU nationals in paragraph (b) and asylum and protection applicants in paragraph (c), would make the legislation consistent with Article 8 of the European Convention on Human Rights, which is why the amendments require that no action be taken unless, for example, Article 28 of the European directive or the UN convention relating to the status of refugees is observed. The principle of refoulement would still apply but it is reasonable where we grant such permission that beneficiaries should be expected to comply with the law of the land.
I will speak to my amendment No. 305a which has a similar objective to Deputy Rabbitte’s amendment. Where somebody has been convicted on indictment of a criminal offence he or she shall either leave or be removed from the State in accordance with the provisions of this Act and again the refoulement condition is placed on this. This would apply only to somebody who has received a custodial sentence after having served that sentence. The Department of Justice, Equality and Law Reform has deported non-Irish citizens after serving a prison term. From January 2001 to the end of February this year 130 individuals have been deported and we want to see that put on a statutory footing. It is important we set down clear rules that somebody involved in serious criminal activity here is not wanted here and shall be deported. We have had several examples recently of individuals who have been involved in very gruesome activities in this jurisdiction and I hope they are deported after they serve their prison sentence. The Minister talks about the issue of the gift in the earlier amendment we are dealing with. If it is a gift, it is important such a gift can be withdrawn if somebody blatantly disregards the law of the land here. I ask the Minister to give serious consideration to the amendments before him.
I understand why these amendments were tabled. They address a very important issue, but that issue is already addressed in the legislation. I agree with the fundamental point made by Deputies Rabbitte and Naughten that where a person to whom the hospitality of permission to be present in the State has been extended abuses that hospitality by committing an offence, the question of that person's continued stay in the State must arise and be dealt with. I agree with that proposition. We begin from that same point but the question is how we implement that in the legislation.
Deputy Rabbitte's amendment has certain simplicity about it. It provides for the automatic revocation of permission to remain on conviction of specified offences. However if one examines the legislation it deals with this issue depending on the nature of the permission granted. Because of the nature of the permission involved, different considerations necessarily apply on revocation. I refer Deputies to section 43(1)(b) which permits the Minister to revoke an entry permission, a residence permission or a qualified long-term residence permission granted to a foreign national if he is satisfied at (b) that “the foreign national has served or is serving a term of imprisonment imposed in the State”. That allows the State to impose a term of imprisonment and the Minister, in the course of this term, to deport the foreign national concerned. By and large that is the practice of the Department in these matters. If somebody commits a criminal offence the Irish courts are entitled to punish that offender, but the Minister is also entitled to consider the removal of that offender from the State. That position remains under Section 43(1)(b).
Section 43(2)(a)(iii) enables a Minister to revoke a long-term resident’s permission granted to a foreign national if the Minister is satisfied that the foreign national, “having been by a final judgement convicted of a particularly serious crime, constitutes a danger to the community of the State”. Again, I am open to persuasion on the wording of that. It may be too rigorous and in light of what has been proposed by the other speakers I will have a look at it, although there are certain EU obligations in this area on third country nationals. Section 43(1)(d) refers to “danger to the security of the State” and 43(2)(b) relates to “an actual and serious threat to public security, public policy or public order”. All of that is written into the revocation provisions. When we come to those provisions we can explore it further. Provision is also made in section 99 for the revocation of a protection declaration and the question of a particularly serious crime constituting a danger to the community of the State is legislated for in that context. That is the scheme envisaged in the legislation for the protection of national security and the exercise of discretion in cases where criminality has been displayed. I am satisfied that it addresses the concerns raised by the Deputies save in one respect.
Paragraph (b) of Deputy Rabbitte’s amendment appears to relate to EU nationals who, by virtue of the definition of foreign national in section 2, are excluded from most of the provisions of this Bill. The reason for that is that the right of the EU national to reside in the State is not governed by the Immigration, Residence and Protection Bill but by the free movement regulations, SI 656 of 2006. Those free movement regulations govern entry into the State, presence in the State and removal from the State of EU nationals and those regulations were drawn up under the relevant EU free movement directive. This Bill does not and cannot address matters where we are under obligations by virtue of our membership of the EU. Regulation No. 20 of the EU free movement regulations provides, among other things, that the Minister may by order require a person to whom the regulations apply to leave the State where, in the opinion of the Minister, the conduct or activity of the person is such that it would be contrary to public policy or would endanger public security or health to permit the person to remain in the State. Under EU law I have to deport EU nationals from the State and I cannot introduce in this legislation measures which would infringe our European obligations.
Deputy Naughten's amendment goes further by seeking to apply itself to all who are not Irish citizens and ignores our European obligations. On that ground alone I cannot agree to it. In general I agree I should have the power to consider the termination of the residence permission of a foreign national where there has been a serious conviction but I must have a power to consider the matter and follow a process which will arrive at a decision in a fair way. Were I to accept the suggestions in these amendments I would have no consideration to give in the matter irrespective of the circumstances.
Do we have any figures on this? The Minister says there is an existing practice. In any of the recent years how many persons to whom the Bill applies and who have been convicted on indictment of a serious offence have been returned to their country of origin? This is not the place for legal tutorials, but I have difficulty understanding the refoulement. If there is a prohibition on a person's being returned to his or her country of origin for fear of abuse, torture or whatever, I would have thought such a person in the first instance would have had a right to asylum in the country in which he or she sought refuge. I have never been able to get my head around why we are so protective of the concept of refoulement. By definition it seems to me that if a person has grounds to fear returning to Rwanda, Angola or wherever, he or she would have been entitled to asylum or refuge here in the first place.
Does the Minister have those figures to hand?
I have a reply given to Deputy Jim O'Keeffe from November 2006. I thought it was a more recent parliamentary question.
I have those. Deputy O'Keeffe's reply is dated 1 April, and it seems to only deal with non-EU citizens.
Yes.
Will the Minister give an indication of whether anyone has been deported under regulation 20 of the European Communities (Free Movement of Persons) (No.2) Regulations 2006? I am glad to see these figures are available and I had drafted the amendment before the figures became available. I hope that similar treatment is given to EU citizens, subject to the conditions of the European Communities regulations. Will the Minister give us an indication of that?
It is important for the interests of Irish citizens and the vast majority of migrants who come here, some of whom do so to establish livelihoods. Others wish to come here for a number of years to return income home before going back to their country of origin. They want nothing to do with individuals who come here and get involved in criminal activity.
I was surprised when I came across recent figures in the prisons report showing the number of non-Irish citizens in Irish prisons. The figure of 30% seems to be extremely high. I hope that all things being equal, and the Minister taking into consideration the points he must have to review each case on the basis of its merits, these particular individuals will be shown the door after they have served their sentence.
Will the Minister give us an idea of the figures for EU citizens?
My understanding is that the relevant regulations are very difficult to apply to other EU nationals who have committed offences in this jurisdiction. That has been the experience of several EU jurisdictions. I can speak from my own direct knowledge since appointment as Minister that I sent the necessary notices under the regulations to the group of Roma Travellers who last summer encamped on the M50 near Ballymun. That was the legal basis upon which I invited them to leave the State. They voluntarily left the State afterwards.
Apart from that, I have not as a Minister had occasion to exercise this particular power. I am advised that it is a very difficult power to exercise in the context in which the Deputy has referred to it. I have raised the issue with my counterparts, the EU justice Ministers, to see how we can address the matter.
It is a growing and difficult issue given the substantial enlargement of the EU to 27 states. It is inevitable that more such offenders will present themselves. The rationale is that the Irish offender in Germany, France or Spain, for example, would be in exactly the same position as offenders here. I would not single out offenders here by country of origin.
What type of response has the Minister received to date from his colleagues? Are they prepared to consider changes in these regulations?
The concern is shared and these issues have been raised but we are not yet at the stage of a full review of the regulations. I am anxious to have them reviewed. The difficulty is that the directive lays down the template or framework within which our regulations must be drawn up. We cannot legislate for this by statute.
One question I am prepared to revisit and have asked to have looked at in the context of this legislation, is whether we can implement the issue raised by the Deputy in a more robust way in this Bill by way of amendment while complying with our obligations under the primary directive.
I thank the members.
Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
The select committee adjourned at 4.45 p.m. until 10 a.m. on Thursday, 1 May 2008.