SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Tuesday, 20 May 2008

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

Vice Chairman (Deputy Dinny McGinley)

The purpose of this meeting is to continue the committee's consideration of the Immigration, Residence and Protection Bill 2008. The meeting will conclude at 7 p.m. The committee will reconvene on Thursday, 22 May 2008. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials to the meeting.

Deputies will recall that at the select committee's meeting of 29 April last, amendment No. 12, which was to be discussed with amendments Nos. 13, 15, 18, 50, 54, 59, 61, 81, 85, 94, 95, 97 to 99, inclusive, 183 and 253, all of which are technical in nature, was withdrawn by the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, by leave of the committee and without debate. He advised the committee that he could not explain the purpose of the amendments because he did not have any speaking notes on them. When amendments Nos. 15 and 18 were reached at a later stage, they were also withdrawn by leave of the committee. When we reach amendment No. 50 today I will propose, with the permission of the committee, that the Minister, Deputy Dermot Ahern, group together and debate amendments Nos. 50, 54, 59, 61, 81, 85, 94, 95, 97 to 99, inclusive, 183 and 253. I will do so because I think we would be better off dealing with those amendments on Committee Stage rather than continuing to withdraw them as they are reached. Is that agreed? Agreed.

Section 7 agreed to.

NEW SECTION.

Deputy Pat Rabbitte

I move amendment No. 49:

In page 16, before section 8, but in Part 2, to insert the following new section:

8.--The Minister shall establish a website and telephone service, subject to the use of a password or security measure by an applicant for a permission including a visa under this Act, or his or her representative (including a public representative), which will allow any applicant or his or her representative to have ready access to information on the progress of his or her application.".

This amendment seeks to insert a new section 8 into the Bill. The new section would require the Minister to "establish a website and telephone service", as described in the amendment, for the benefit of applicants. It is important that an applicant, or his or her representative, should have easy access to information about the progress of his or her application. The Minister is as aware as the rest of us that the difficulty of accessing information within the system is a bugbear for all concerned. Members of the Oireachtas find it almost impossible to access information about the progress of applications. The applicants themselves encounter similar problems. The difficulties caused by language and other impediments can make this process absolutely frustrating. That Members of the Oireachtas cannot find out the stage of progress by lifting a telephone or accessing a website makes it extremely difficult to assist those concerned.

The Minister will be aware that Members of the House whose attempts to access information are frustrated often try to make progress by tabling parliamentary questions. His officials, not unreasonably, have pointed out that they are smothered in such questions. The Minister might suggest that there has been some improvement recently, but I am not sure whether that is the case. I am not in a position to judge the improvement. All I know is that the frustration in my office continues unabated. There does not seem to be much improvement. In this era of information technology, there is no reason one should not be able to find out how much progress has been made with an application. We are not trying to find out whether a local school will be refurbished, or anything else that might mitigate against the Minister concerned as he or she tries to pull a stroke. This is a straightforward case of applicants looking for answers about where their cases stand. I hope the Minister will take this amendment on board. I understand that one of his ministerial colleagues is broadcasting far and wide that 200 amendments are to be accepted by the Minister. I should have asked the Minister to make an opening statement to give him an opportunity to take the political credit for their acceptance. Like my colleagues, Deputies Naughten and Ó Snodaigh, I deserve to be informed if 200 amendments are to be accepted. I do not doubt that Deputy Finian McGrath has a passing interest in the matter too.

Deputy Finian McGrath

I was getting worried for a second.

Deputy Seán Connick

Those of us on this side of the room are being left out in the cold.

Deputy Finian McGrath

I thank Deputy Rabbitte for proposing some of my amendments recently when I was absent.

Deputy Denis Naughten

I congratulate Deputy McGrath. He should compete in the Olympics. The athletes who will participate in the 100 m sprint in Beijing this summer are in the tuppence ha'penny place compared with him.

Deputy Finian McGrath

I had a conflict of interest. I had to go to another important meeting.

Deputy Denis Naughten

I would like to speak about the amendment before the committee. I spoke last week about the huge frustration evident in many of the e-mails I receive from people in all parts of the country about the ongoing delays in dealing with visa and immigration applications. This is compounded by the fact that it is virtually impossible to get information on what is happening with an application, the stage it is at and the timetable for completion of the process. In fairness, INIS has recently introduced a new e-mail service but it falls far short of the parliamentary system and of the system over which the Minister had control in the Department of Social and Family Affairs some years ago, and even the Property Registration Authority, the former Land Registry, which deals with queries via e-mail within three working days. It is important that this process is speeded up because it leads to great frustration on the part of applicants.

Deputy Rabbitte's amendment is reasonable. I hope the Minister will accept it not only on the basis of the points the Deputy has made but in the context of the points I raised last week in regard to the great frustration people experience with the system as it operates at present.

Deputy Aengus Ó Snodaigh

I support the amendment. It is a reasonable amendment given the pressure on public representatives and the individuals in question who seek simple answers to questions such as how long it will take for a decision to be made in their case. If a parliamentary question is tabled one usually gets some indication but those timeframes often shift. Whereas somebody may be told that it will take 12 months to process his or her application, a year and a half or sometimes two years later, the application may not have been dealt with. It is that type of frustration that leads many applicants to approach me and others to use our influence, not to influence the decision, but to ascertain the stage the application is at in the process.

We are dealing with people who may not have a mastery of the language to enable them deal with websites or understand the letter sent by INIS or the Department. Other Departments have such a facility. For all the criticism we make of the HSE, at least the parliamentary advisory groups who deal with questions come back to one within a month or two. While they do not necessarily answer the questions as put, at least one has some indication.

The Department of Social and Family Affairs was mentioned. When one tables a question to that Department one gets an answer before the question appears on the Order Paper. It is reasonable for us in the House to get an answer which is clear and gives an indicative timeframe. I am not suggesting that in most cases one can get an answer to the day but a month or two later is acceptable given the scale of the problem of shifting which in some cases, particularly regarding those who are seeking residency, has been great. Some people were told two years ago that they would have to wait some months but are still awaiting a decision. I ask the Minister to seriously consider accepting this amendment or to bring forward his own amendment which would allow us to carry out our duties and allow those who made the application in the first instance an opportunity to track where it is at in the system.

If one sends a letter by registered post one can track it on-line. It is a simple process. If that system applied, one could check how many applications were ahead of a particular application if it is done on a chronological basis. In that way one would have an indication that one's application was near the top of the list or alternatively that nothing would happen for at least two years, in which case one could keep a watching brief on it.

Deputy Finian McGrath

I welcome amendment No. 49. It is a positive proposal and I ask the Minister to consider it. The idea of the website and the telephone service is a sensible and practical proposal. Many of us spend much time supporting foreign nationals in their different needs. Recently I had a few successful cases and wish to acknowledge the joy and security for the families concerned because it meant a great deal to them. Given that the issue of access to information is important, I ask the Minister to look at the proposal very seriously.

Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern)

I wish to make a general point on the Bill and the amendments. There is no doubt this is major legislation. My predecessor and I have indicated we are more than willing to look at amendments tabled by the Opposition and that we will propose some similar amendments along the way. It is beneficial that we have a good debate on some of the amendments tabled by the Opposition.

In regard to this amendment, I concur with previous speakers that generally more needs to be done in response to queries. One of the first things I did when I came into the Department was to suggest we publicise the fact that Oireachtas Members have a new e-mail service which is working reasonably well. The service was introduced on 31 March. Up to 18 April, 307 inquiries were received with 235 completed. The hope is that answers would be provided to inquiries within a maximum of ten days.

The point about the amendment is that it is not really necessary to put it into legislation. I have emphasised to my officials, given the large number of parliamentary questions tabled in regard to specific cases, the importance of responding in a manner similar to that of the Department of Social and Family Affairs. The system in that Department came about as a result of significant difficulties and complaints about the lack of response at a particular period. Thankfully, that has changed.

To be fair, the position in regard to the whole immigration service and the numbers who have come into the system is a relatively recent phenomenon. If a Member tables a parliamentary question my officials should respond in such a way that the parliamentary question does not go onto the floor of the House. If at all possible, the response should be given before the due date for answer.

On the face of it, the proposal appears fair but I would refer Deputies to sections 15(2), 16(6) and 18(4) of the Bill which make provision for the notification of certain visa decisions to a visa applicant or his or her representative, by means of a secure Internet process. Details are listed by visa application number only and no biological details are shown. This procedure is operated at present on an administrative basis. We believe it is working well. It is working well for applicants worldwide.

In regard to what Deputies have said, I will continue to insist that information is made available as quickly as possible directly to applicants, through their representatives or, in the case of public representatives who make representations, that we accept we can do better in regard to the provision of information.

Deputy Pat Rabbitte

I am not prescribing my amendment as the only way forward but I am concerned that this issue be addressed effectively. Notwithstanding what has been said about the new e-mail system, many continue to attend clinics or make contact on the very point that they cannot access information of a routine nature. The Minister cannot welcome the fact that members on this side and his own backbenchers table parliamentary questions on the subject which should be capable of being answered elsewhere.

I do not know where my amendment stands after the Minister's remarks. He accepts that we need to improve the quality and speed of responses to queries but I get the impression that he does not want a provision to that effect to be included in the Bill. Sections 15(2) and 16(6) are particular references. The former refers to visas and covers a relatively narrow area. Is the Minister saying he might bring forward a regulation to deal with the matter? The system is clogged up and, despite the best efforts on this side of the House, not working well. More and more colleagues tell me they will continue to table parliamentary questions because they cannot get answers otherwise.

Deputy Dermot Ahern

I repeat my point that legislation is not the place to deal with this matter as it is administrative work and many visa applications are made from abroad. Substantial investment is being made in a new IT system which I hope the Opposition will support. It deals with asylum, immigration and citizens' applications and will replace a multiplicity of systems not currently integrated. The investment will continue throughout the year and the system will I hope be fully delivered in 2009. It will help in the delivery of information on the progress of applications at a given time but we do not yet have the benefit of it because work is ongoing on it.

Deputy Pat Rabbitte

I do not want to delay progress on the Bill if the Minister says the substance of the amendment is being addressed. If the system needs investment to make it work more efficiently, we would all support it. We have waited a long time for the Bill. Once it is enacted, the people sitting around this table, including, I suspect, the Minister's officials, will not want to revisit the subject for obvious reasons. This is the sixth day on which we have discussed the Bill and we are only on section 8. If we pass over this matter on the basis that the Minister will deal with it by investment or instigating more efficient procedures, that is fine and I will take him at his word. Nevertheless, for several thousand people the issue is a constant bugbear and forces them to visit Deputies' clinics and send e-mails with what are, for the most part, routine queries. Some are more complex and problematic but many are routine in nature. We should be able to receive a brief and intelligible answer on how the system works that can be understood by people for whom English may not be their first language.

The issue relates to other questions we have discussed such as family reunification which we discussed the other day. Many find themselves in this jurisdiction for varying reasons and do not know where they stand. Despite being an Opposition spokesperson and constituency representative, I cannot give them clear answers. I do not doubt the Minister's word or his commitment to improve the system through further investment but a provision relating to access to information warrants being set down in an order if he thinks it is not a matter to be dealt with in primary legislation. In this case it would involve a charter to which people in such circumstances could refer for details of how they could receive information within a reasonable period.

Deputy Dermot Ahern

I reiterate that the response system for Members of the Oireachtas is only just up and running. Although I have only been in the Department for a week or so, I have indicated to officials that they should readvertise it to Members because I am not sure they actually use it as much as we would like. I have not been immune from the frustration felt by members on the subject of visa applications, as I have received such queries in my own constituency office. However, I have told officials that we should follow the template used by the Department of Social and Family Affairs and that it should not be necessary for Members of the Oireachtas to table parliamentary questions, incurring huge expense.

Information should be much more accessible. The committee might look at what the Department is doing in terms of investment in IT systems. It is important people are satisfied that decisions are co-ordinated across the various schemes and made in a proper manner and that information is made available to those waiting for a decision on their application. I do not believe primary or secondary legislation is the way to accomplish this. It should be accomplished by an administrative scheme because tying ourselves down with too much legislation may be counterproductive.

Deputy Denis Naughten

I support what Deputy Rabbitte said. The Minister mentioned the e-mail system and that was a welcome development. Any level of access to information is welcome but the target turnaround time is ten days, whereas for a parliamentary question it is four days. The maths do not add up. If we can receive information through the e-mail system in a timely manner, more Members will use it. I hope the initiative will be resourced to ensure this happens in order that it can be used as a conduit in getting information to constituents on their applications. It is important that provision is made for people to access information in a timely manner, either on the Department's website or through its publications. That is not happening at present and people are experiencing a great deal of frustration.

I wish to raise a related issue when we discuss the section.

Deputy Dermot Ahern

An internal report has been done on the issue of customer service. A draft of the report containing certain recommendations is being considered. The recommended measures will allow for information to be given and decisions made more quickly.

These recommendations include: the creation of a centralised Irish Naturalisation and Immigration Service customer service unit with a public office which would process all customer queries made in person, in writing or by telephone, post, e-mail or fax; the development of an INIS website as a source of information for customer inquiries; answers to frequently asked questions on various immigration and asylum topics would be available on the site; the creation of a central e-mail service within the proposed customer service unit; provision of an internal INIS awareness campaign; a high standard of training for staff who work in the area; expansion of the hours of existing telephone helplines; the creation of a new central telephone helpline answering service for all INIS customer inquiries; agreement on target response times under a new INIS customer charter for written and e-mail customer inquiries; and the establishment of a centralised postage facility for the receipt of post, and prompt acknowledgment of correspondence.

We are giving serious consideration to how we can do better and there is an acknowledgment that we can do better. We hope to move further on this issue.

Deputy Pat Rabbitte

On the basis of what the Minister has said, I withdraw the amendment. I will consult colleagues on all sides of the House before Report Stage to see how the system is working.

Amendment, by leave, withdrawn.

SECTION 8.

Vice Chairman

Amendments Nos. 50, 54, 59, 61, 81, 84, 85, 94, 97 to 99, inclusive, 183 and 253 are related and may be discussed together.

Deputy Dermot Ahern

I move amendment No. 50:

In page 16, subsection (1), line 8, to delete "in this Act referred to as a".

These are drafting amendments. The effect of amendments Nos. 50, 54, 59, 61, 95, 97, 183 and 253 is to standardise the text on internal definitions in the relevant sections. The effect of amendment No. 81 is to provide for the definition of a visa refusal in section 15(1). The effect of amendment No. 85 is to provide for the definition of visa revocation at section 16(1). Amendment No. 94 is consequential to amendments Nos. 81 and 85 and amendments Nos. 98 and 99 make clear that the decisions referred to in sections 17(5) and 17(7) relate to a visa review application.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 51:

In page 16, subsection (2)(b), line 18, after “regulations” to insert the following:

"relating to the affixation of visas to travel documents".

This amendment will provide clarity as to the purpose of the regulations referred to in the subsection.

Amendment agreed to.

Vice Chairman

Amendments Nos. 52, 55 to 58, inclusive, 64, 191, 192, 212, 213, 217, 219, 225, 226, 228, 229, 362 and 415 are related and may be discussed together.

Deputy Denis Naughten

I move amendment No. 52:

In page 16, subsection (3), line 21, to delete "as the Minister considers appropriate" and substitute "as specified in regulations under section 125”.

This amendment and the others grouped with it are of a similar tone. Section 36 deals with language and integration, section 34 with the details included on a residency permit, section 38 with the details on the foreign nationals register and the register of protection applicants, section 69 with the details on a protection applicant's entry permit and section 74 with who is allowed to be present during investigations of protection applicants.

It is imperative that we have clarity on these issues. A person may be asked if he or she has a specified disease, such as HIV or tuberculosis. Is this the sort of information which the Minister might consider appropriate to be included on a visa? These sections deal with specific issues which can be provided for, as the Minister considers appropriate. A huge amount of secondary legislation will follow from the Bill. Other provisions of the Bill will not find their way into secondary legislation but may give rise to ministerial orders, schedules or unwritten rules and regulations. We must have a clear and transparent system. People must know the rules, the conditions of their permits and what elements of their applications will be assessed or evaluated. These things should not be done behind closed doors.

This issue relates to the issue dealt with previously. It is of fundamental importance that we have a transparent system. The existing system is obscure. There are no clear rules and no information available regarding the conditions under which people enter the country, their responsibilities when they have arrived here or the conditions under which they may remain or be deported. It should be made clear who gets in, under what circumstances they get in and what are their rights and responsibilities.

The Bill makes several references to phrases such as, "as the Minister considers appropriate" or "the Minister may make regulation". For example, language is of fundamental importance to integration. If people do not have a basic competency in English they will find it impossible to integrate and migrant populations will lead separate lives, leading to ghettoisation. This ministerial discretion will lead to a disincentive to integration. The Bill leaves a great deal of discretion to the Minister. When the Bill is enacted no Member of the Oireachtas, including Deputy Rabbitte and myself who will have dealt with the legislation line by line, will be able to deal with a constituent's query regarding the application procedure for an entry visa or residency permit. It is difficult to know what we are enacting because the detail of how this legislation will be implemented on the ground is left to the discretion of the Minister, secondary legislation or some other vague ambiguous system that is not in the public domain.

The majority of submissions we have received in our inch and a half of documentation, whether from the Law Society, the Human Rights Commission, or some of the non-governmental organisations, raised the issue of the Minister's discretion. While it is important that the Minister has discretion in some elements of the legislation, and I am not trying to take from that, it is important there is a clear and transparent system, that people know the processes they must go through in order to have their application considered by the Department. Will the Minister look favourably at these amendments?

Deputy Dermot Ahern

We may have short-circuited it. We would be of a mind to have a look at this again. I accept the Deputy's point that the phrase "as the Minister considers appropriate" would leave it very open. I accept his point also that it is correct that the Minister should have some discretion on the issue.

I ask the Deputy to withdraw the amendment and we will look at it again before Report Stage to try to get a balance between discretion and not leaving it open. In section 8(3) which provides for other information in respect of foreign nationals, it was never envisaged that medical information would be contained on a visa.

Amendment, by leave, withdrawn.

Deputy Dermot Ahern

I move amendment No. 53:

In page 16, between lines 21 and 22, to insert the following subsections:

"(4) A foreign national, other than a foreign national referred to in section 10,

shall not enter the State without having obtained a visa in respect of that entry unless he or she has been granted an entry permission under this Act.

(5) A foreign national who contravenes subsection (4) shall be guilty of an

offence.".

The purpose of this amendment is to make clear in the Bill that a foreign national who requires a visa to enter the country is prohibited from entering this State without first having obtained a visa. The only circumstance in which a foreign national can lawfully be present in the State is where he or she has been granted an entry permission. Such a permission would, for example, be granted to a person unlawfully present in the State who claims protection.

The amendment closes a potential gap in the Bill in section 23(1)(a)(iii), which is designed to comprehend the entry to the State of a foreign national from Northern Ireland. In recognition of the fact that we do not have formal systematic immigration processes on the land frontier with Northern Ireland, the Bill provides that a foreign national is not under an obligation to present to an immigration officer immediately after he or she crosses the land frontier. He or she is required to present as soon as practicable to an immigration officer at an immigration area office for the immigration area in which he or she will have his or her dwelling place within the State. During the period between the crossing of the frontier and presenting to an immigration officer, the person will not have contravened any provision of the Bill, but the expectation is that he or she will complete the necessary immigration formalities as soon as possible.

I very much welcome that. I do not want people queuing up on the Border in my constituency.

Deputy Pat Rabbitte

Is this provision to deal with the implications of the Good Friday Agreement?

Deputy Dermot Ahern

No. It is to try to cater for a situation where there is a time lag between the person crossing into the State and applying formally to the immigration officer.

Deputy Pat Rabbitte

Did I hear correctly that a different test applies for somebody crossing from Northern Ireland as to those presenting at any other frontier of the State?

Deputy Dermot Ahern

It is different. A person coming from Northern Ireland is not required to present immediately once he or she enters the State, whereas a person coming by boat or aeroplane would be required to do so.

Deputy Denis Naughten

The amendment states: "A foreign national, other than a foreign national referred to in section 10, shall not enter the State without having obtained a visa in respect of that entry unless he or she has been granted an entry permission“. Should that not then say ”other than a person under section 23(1)(a)(iii)”?

Deputy Dermot Ahern

In the legislation we are now saying for the first time that a visa is required for a foreign national. We are formally saying that a foreign national cannot enter the State without a relevant permission.

Deputy Denis Naughten

Let us take the example of somebody from outside the EU who comes in from Northern Ireland but cannot enter the State unless he or she has the visa. Are we saying then that section 23(1)(a)(iii) no longer applies?

Deputy Dermot Ahern

No. Section 23(1)(a)(iii) states: “In any other circumstances, as soon as practicable to an immigration officer at the immigration area office for the immigration area in which he or she will have his or her dwelling place while present in the State”. It does not specify Northern Ireland. That is to cater for the situation on the Border where we do not have fixed immigration patrols.

Deputy Denis Naughten

I understand that provision in section 23, but my question is whether amendment No. 53 to section 8 contradicts that? In section 23 we are saying that a person who is coming from Northern Ireland will present at the local Garda National Immigration Bureau office wherever he or she will reside. Under amendment No. 53 they are guilty of an offence if they go through the Border without having received the visa.

Deputy Dermot Ahern

If a visa is required, they must have a visa.

Deputy Denis Naughten

Yes.

Deputy Dermot Ahern

That is all that is here.

Deputy Denis Naughten

If a visa is required, people must have a visa. Are we not saying in section 23(1)(a)(iii) that people can go to the immigration officer to apply for their visa?

Deputy Dermot Ahern

I do not see any discrepancy between what we are saying. We are only reinforcing the fact that a foreign national must have a visa on entry to the State. That is not specified elsewhere. The relevant provision in section 23 is to take care of the unusual situation we have - there are fixed points of entry, ports and airports, and then we have the circumstances on the Border. This amendment is only to reinforce the necessity for a visa.

Deputy Denis Naughten

Are we saying that a person who is required to have a visa must have his or her visa prior to crossing the Border and must then present it within a reasonable time to the immigration officer?

Deputy Dermot Ahern

Yes.

Deputy Denis Naughten

What is the case then for someone who is visa exempt? Yes, I see we have made provision for that in section 10.

Deputy Pat Rabbitte

How do we deal with a person from Belfast who wants to enter the State? Is the Minister saying he or she would need a visa? "Foreign national" is defined in the Bill as a person who is not "an Irish citizen". Many people in Belfast do not consider themselves to be Irish citizens.

Deputy Dermot Ahern

This obviously applies to foreign nationals other than those referred to in section 10.

Deputy Pat Rabbitte

Does the Minister refer to asylum seekers?

Deputy Dermot Ahern

The people in question are described as "visa-exempt". Irish nationals and EU citizens do not require visas to come to the Republic, obviously. The provision set out in amendment No. 53 will apply to all others who require a visa.

Deputy Denis Naughten

Surely people who have been trafficked will be exempt, as protection applicants, from the provision set out in amendment No. 53. It is likely that such people will not have visas when they enter the State. A trafficked person will probably not have a visa when he or she enters the State. If this amendment is made, he or she will be guilty of an offence in such circumstances.

Deputy Dermot Ahern

Special legislation is in place to deal with the circumstances that obviously apply to people who have been trafficked.

Deputy Denis Naughten

I accept that. We are suggesting that this amendment will make people guilty of an offence if they are not covered under section 10. A trafficked person or a protection applicant will not be covered under section 10. It will not matter if such a person applies for protection as a trafficked person or as a protection applicant - he or she will already have committed an offence under section 8 by virtue of not falling into the categories set out in section 10.

Deputy Dermot Ahern

Section 124, which deals with victims of trafficking, will take care of cases of the type referred to by the Deputy - cases which are not picked up by section 10.

Deputy Denis Naughten

Section 124 relates to people who apply for protection as victims of trafficking. Such people will already be guilty an offence under section 8, as amended by amendment No. 53.

Deputy Dermot Ahern

No. I cannot explain it in any other way. Special provisions, such as that in section 124, will cover those who do not fall into the categories listed in section 23.

Deputy Denis Naughten

Section 23 does not apply, as it relates to the presentation of documentation only.

Deputy Dermot Ahern

It relates to presentation.

Deputy Denis Naughten

I am talking about section 10. The point I am making is that it is likely that a certain percentage of people who are trafficked or are considered as protection applicants will not have an entry visa and will not be visa-exempt under section 10. I suggest that amendment No. 53 will make such people guilty of an offence by virtue of their not having documentation. They will be deemed to have broken the law even though they will be eligible to apply for protection as a trafficked person or as a protection applicant.

Deputy Dermot Ahern

Everyone must have some documentation.

Deputy Denis Naughten

Yes.

Deputy Dermot Ahern

It is accepted that there are exceptional cases. Those who do not have the appropriate documentation are catered for in the Bill, particularly in section 124.

Deputy Denis Naughten

People will have documentation of some type, but they may not have a visa. While provision is made in section 124 for such people, they will already have committed an offence under section 8, as amended by the amendment under discussion.

Deputy Dermot Ahern

I would not have thought so.

Deputy Denis Naughten

Should the amendment not mention sections other than section 10? Should it not refer to section 124 and to the section that covers protection applicants?

Deputy Dermot Ahern

We can consider the matter in advance of Report Stage. I am advised that it is not necessary to include all the exemptions Deputy Naughten mentioned in an earlier amendment to this section.

Deputy Pat Rabbitte

I would like to return to a point I made earlier. For whom is section 10(1) designed?

Deputy Dermot Ahern

The Immigration Act 2004 provides that visa orders can be made designating certain countries, the citizens of which will or will not require visa documentation. The Minister is allowed to issue a list of "members of specified classes of non-nationals" who "are not required to be in possession of a valid Irish visa ... when landing in the State". I can highlight an example of one of the visa orders that was made in 2006. It was made under the old legislation. Basically, it declares classes of non-nationals who are or are not required to have visas when entering this State. That is what section 10(1) is about.

Deputy Pat Rabbitte

Can the Minister give examples of who we are talking about?

Deputy Dermot Ahern

The order that was made in 2006 sets out various classes of non-nationals who are not required to be in possession of an Irish visa when they enter the State. It specifies the classes in question. I do not want to list all the classes of people who are not required to have a visa. There are also classes of people who are required to have a transit visa when arriving in this State - for example, for the purposes of passing through a port in this State to travel to another state. A valid Irish visa is required by certain classes of person in such circumstances.

Deputy Pat Rabbitte

I will put the question differently.

Deputy Dermot Ahern

I can give the Deputy a copy of the order in question so that he can have a look at it. This is the most recent order.

Deputy Pat Rabbitte

Fine. Do the present-day descendants of planter stock in Northern Ireland need to have a visa to get into this State?

Deputy Dermot Ahern

No.

Deputy Pat Rabbitte

If they are they visa-exempt, under what section of the Bill do they attain such status?

Deputy Dermot Ahern

I am informed that provision is made in section 5(1)(b) of the Bill, which the committee has already considered. That section makes provision for a “national of the United Kingdom of Great Britain and Northern Ireland”.

Deputy Pat Rabbitte

Are people from outside the United Kingdom who come to the Republic of Ireland through Northern Ireland required to seek a visa before they enter this State, even though we will not check it at the frontier?

Deputy Dermot Ahern

An order such as this, a copy of which I will give to the Deputy, specifies those countries in respect of which a visa is required. The amendment seeks to reinforce that requirement.

Deputy Pat Rabbitte

The Minister said he needs the amendment because nowhere else is it clear that one cannot enter the jurisdiction without having first obtained a visa and that, therefore, to put the issue beyond doubt, we have to do this. What are the practical implications of amendment No. 53 for those coming to this jurisdiction? Are they more likely to use the Northern Ireland route as a result?

Deputy Dermot Ahern

It has been the case that people have crossed the Border. The amendment is to reinforce the fact that those who require a visa will commit an offence if they try to do so. Where people coming into the State do not encounter immediately an immigration officer at a port or an airport, there is a requirement on them to present themselves at the nearest location.

Deputy Denis Naughten

There is a requirement on them to go to wherever they will reside and present themselves.

Deputy Dermot Ahern

Yes.

Deputy Denis Naughten

What is the current position? Is a person who crosses the Border without a valid visa guilty of an offence?

Deputy Dermot Ahern

The normal practice is that an immigration officer gives them permission to enter or will allow them to enter if there are exceptional circumstances. Obviously, if they do not have visa papers, as required under the regulations, they will not be entitled to remain in the State.

Deputy Denis Naughten

Are they committing an offence?

Deputy Dermot Ahern

Yes.

Deputy Denis Naughten

I know they are committing an offence under the regulations. However, as the Minister said, the GNIB has a certain degree of discretion where, if there are exceptional circumstances, it can issue a visa. Is that where such persons are not guilty of an offence in crossing the Border?

Deputy Dermot Ahern

My advice is that it is an offence under current legislation to be in the State without the required visa or permission. This is tidying up what is already included in legislation.

Vice Chairman

Is the amendment agreed to?

Deputy Pat Rabbitte

We will agree to it. However, it is an issue on which we will both probably need to take expert advice between now and Report Stage.

Amendment agreed to.

Question proposed: "That section 8, as amended, stand part of the Bill."

Deputy Denis Naughten

The Minister spoke about upgrading the IT system within the Department. That is welcome. Traditionally, there have been problems in the issuing of visas for third country nationals for entry into Ireland. For example, I have come across businessmen who travelled to the United Kingdom and then decided they would also like to come to Ireland, perhaps to look at an investment opportunity. They find they have to go back to their country of origin to apply for a visa to come here. Naturally, they will not do this if they are in the United Kingdom. Given that they are just a short hop from Dublin, can some mechanism be put in place to deal with the issue? I have come across one example of a senior Indian businessman who travelled to the United Kingdom-----

Deputy Dermot Ahern

Who was looking for a visa from where?

Deputy Denis Naughten

The individual concerned had travelled from India to the United Kingdom. While there, he wanted to come to Ireland but the procedure is that he has to apply for a visa from India. Perhaps a system could be put in place to facilitate such individuals, otherwise business opportunities may be lost. I am sure the UK authorities have already done a thorough check on them.

In regard to the issue of visas in the country of origin, sometimes the turnaround time is very slow. The applicant's passport must be submitted and there have been instances where passports have been lost. A long-term visa for entry into the United Kingdom or the United States is very valuable and applicants have to reapply if their passport is lost.

Deputy Dermot Ahern

I am informed that Chinese nationals legally resident in the United Kingdom have been accommodated in making applications in London to the visa office in the embassy.

Deputy Denis Naughten

I am not talking about persons who are legally resident but about people from third countries who are visiting the United Kingdom and who decide they want to come to Ireland.

Deputy Dermot Ahern

Would they not be legally present in the United Kingdom?

Deputy Denis Naughten

Does the Minister mean legally resident?

Deputy Dermot Ahern

Yes. They would have a visa to enter the United Kingdom.

Deputy Denis Naughten

Yes.

Deputy Dermot Ahern

They decide when in the United Kingdom that they want to come to Ireland.

Deputy Denis Naughten

Yes.

Deputy Dermot Ahern

It is an issue at which we can look. There could be an opportunity for people to get around our system by-----

Deputy Denis Naughten

The type of person about whom I am talking is not trying to avoid the system but the type of person we should be encouraging through the use of the red carpet to come to the country.

Deputy Dermot Ahern

Fair enough, there may be such persons but, equally, there may be people who will try to circumvent the process.

Deputy Denis Naughten

I know that. The reason this is causing a problem is that the system is in place with belt and braces to keep people out. What we are actually doing is putting up a barrier to block potential investment. That may or may not happen, but if such persons come and see what is going on, there is potential.It appears that the system-----

Deputy Dermot Ahern

Would someone such as the person being referred to not realise when in London that he or she might require a visa to come to Ireland?

Deputy Denis Naughten

They actually do not come as a result. It seems the United States and the United Kingdom authorities are more amenable in such cases to providing long-term multiple entry visas for periods of up to 12 months, two years or five years, whereas in such circumstances we provide single entry visas. A more flexible approach needs to be taken. We should rely more on our consular staff abroad to advise on the character of an individual. We should provide more flexible visas for entry into the country if there is a potential economic benefit.

Deputy Dermot Ahern

It has been my experience that we do, in fact, rely on officers in our embassies for that information.

Deputy Denis Naughten

It has been brought to my attention that the system is not working in all cases.

Deputy Dermot Ahern

If the Deputy has examples illustrating his point, I would be grateful to hear of them.

Vice Chairman

Perhaps the Deputy could correspond directly with the Minister.

Deputy Denis Naughten

I will do so.

Question put and agreed to.

SECTION 9.

Deputy Dermot Ahern

I move amendment No. 54:

In page 16, subsection (1), line 22, to delete "in this Act referred to as a".

Amendment agreed to.

Section 9, as amended, agreed to.

SECTION 10.

Amendment No. 55 not moved.

Deputy Dermot Ahern

I move amendment No. 56:

In page 17, subsection (3)(h), line 6, to delete “specified” and substitute “prescribed”.

Amendment agreed to.

Section 10, as amended, agreed to.

SECTION 11.

Amendment No. 57 not moved.

Deputy Dermot Ahern

I move amendment No. 58:

In page 17, subsection (3)(h), line 30, to delete “specified” and substitute “prescribed”.

Amendment agreed to.

Section 11, as amended, agreed to.

SECTION 12.

Deputy Dermot Ahern

I move amendment No. 59:

In page 17, subsection (1)(a), line 38, to delete “in this Act referred to as”.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 60:

In page 18, subsection (2), line 8, after "made" to insert the following:

"and the manner in which the visa applicant's biometric information is to be provided".

The purpose of the amendment is to make it clear that the regulations under subsection (2) may include provisions relating to the manner in which the visa applicant's biometric information may be provided. The regulations may, for example, require a visa applicant to provide fingerprints or have a photograph taken at an Irish consular office in his or her country of origin. The intention is to put in place a framework which is workable and accessible for visa applicants and which provides better security so that the identity of the persons is verifiable.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 61:

In page 18, subsection (3), line 10, to delete "in this Act referred to as a".

Amendment agreed to.

Deputy Finian McGrath

I move amendment No. 62:

In page 18, subsection (4), lines 28 to 31, to delete paragraph (j).

Deputy Dermot Ahern

I oppose the amendment.

Amendment, by leave, withdrawn.

Vice Chairman

Amendments Nos. 63 and 293 are related and may be discussed together.

Deputy Finian McGrath

I move amendment No. 63:

In page 18, between lines 34 and 35, to insert the following subsection:

"(5) In prescribing different fees for the purposes of this Part, the Minister--

(a) shall have regard to the likely means of the visa applicant or of applicants of that class of visa; and

(b) shall not set the fee for a particular visa or class of visas above the estimated direct cost of processing that visa application or class of applications.”.

The purpose of these amendments is to prevent visa fees and bonds being used as a means of dissuading people from applying for visas or the visa process becoming merely a money making scheme. We should bear in mind the number of visa applications filed to enable people to visit family members who have been invited to this country to contribute to the economy. As long as there is no legitimate reason to deny the visa, such persons should be reasonably facilitated.

Amendment No. 293 would apply the same principle to residency applications. The main point of amendment No. 63 is the issue of costs and its ethos is to protect vulnerable persons. We must be very vigilant and on our guard not to discriminate against certain persons. I have concerns about this issue on the broader international stage. Each country has an international duty to assist people in need and not to put a money barrier in front of them.

I am concerned at the drift in debates at this committee. We should not confuse poor people with criminal elements. We all accept that a small minority is involved in crime and that we must be vigilant in that regard. However, I often become worried at the language used in the debate and about defensive comments that lead us to take our eye off the ball. We need to treat the vast majority who are respectable people impartially. It is important we remind ourselves that respect for human rights must be at the core of this legislation.

Deputy Dermot Ahern

I oppose both amendments. The purpose of section 12(4) is to allow for the setting of fees for visas by reference to the criteria laid down in paragraphs (a) to (k). The intention is that visa fees be used as a tool to enable the development of flexible responses to immigration needs. The level of fees set will be determined not by the ability of the applicant to pay the fee but by the assessment of whether the State needs to encourage a particular category of foreign national, for example, a skilled worker or a health care worker, to migrate to the State and, conversely, by the potential immigration risk that may be posed by issuing a visa to a particular category of foreign national.

The subsection provides flexibility to impose a reduced fee or no fee on persons coming from particular countries from which health care workers are recruited into the health system in the State and who seek visas for that purpose. Were there a general right for any person of whatever nationality to come to Ireland, provisions of the type proposed in the amendment would probably be necessary to ensure people were not being unfairly deprived of the means to exercise that right. However, there is no such right. Accordingly, considerations in amendment No. 63 do not arise. The effect of that amendment would be to constrain the flexibility necessary for the effective operation of a proposed visa system and, in the circumstances, I cannot accept it.

The general means test which paragraph (a) of amendment No. 293 seeks to introduce would neither be appropriate nor workable. Accordingly, I cannot accept it.

Amendment, by leave, withdrawn.

Section 12, as amended, agreed to.

SECTION 13.

Amendment No. 64 not moved.

Vice Chairman

Amendments Nos. 65, 72 and 118 are related and may be discussed together.

Deputy Dermot Ahern

I move amendment No. 65:

In page 18, subsection (1)(a), line 37, to delete “or” where it secondly occurs and substitute “and”.

These are technical, drafting amendments.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 66:

In page 19, subsection (4), to delete line 4 and substitute the following:

"(4) A deposit, bond and guarantee shall contain, or otherwise be subject to, the condition that if the visa applicant--".

The amendment is required to provide clarity as to the nature of the conditions that will apply to a deposit, bond or guarantee. In this manner there will be no doubts as to the nature of the contract being entered into for the purposes of obtaining a visa subject to the provision of a bond, deposit or guarantee.

Amendment agreed to.

Deputy Pat Rabbitte

I move amendment No. 67:

In page 19, subsection (5)(b), line 13, before “an” to insert “a company registered under the Companies Acts or”.

The amendment seeks the sensible addition as guarantor of a company registered under the Companies Act or an Irish citizen.

Deputy Dermot Ahern

I can short-circuit the discussion by saying I will consider the possibility that a company registered in the State could be a guarantor for the purposes of section 13. I have a concern that this provision might be abused by "brass plating". However, I will consider the amendment before Report Stage.

Deputy Pat Rabbitte

I withdraw the amendment and will come back to it on Report Stage. I hope the Minister will be able to accept it in the interim.

Amendment, by leave, withdrawn.

Vice Chairman

Amendments Nos. 68 and 69 are related and may be discussed together.

Deputy Dermot Ahern

I move amendment No. 68:

In page 19, between lines 19 and 20, to insert the following subsections:

"(6) Where the Minister intends, under subsection (4), to secure the forfeit of a deposit or enforce a bond or guarantee, he or she shall give notice in writing to the person against whom that action is intended; and the Minister shall take no such action within the period referred to in subsection (7).

(7) The person notified under subsection (6) may within 15 working days of the issuing of the notification make representations in relation to the matter.”.

The purpose of the proposed subsections (6) and (7) in amendment No. 68 is to put in place an arrangement similar to that which applies where bail bonds are being forfeited. The person who has provided a bond or deposit will be put on notice of the intention to forfeit that bond or deposit. He or she will be given 15 working days within which to make representations as to why the forfeiture should not proceed.

Amendment No. 69 is intended to make it clear that the deposit will be refunded where no action that would give rise to its forfeiture has taken place. I note that Deputy McGrath has also put his name to this amendment. I am happy to make this change to the text of the Bill.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 69:

In page 19, subsection (7), line 23, to delete "may" and substitute "shall".

Amendment agreed to.

Vice Chairman

Amendments Nos. 70 and 71 are related and may be discussed together.

Deputy Denis Naughten

I move amendment No. 70:

In page 19, between lines 26 and 27, to insert the following subsections:

"(8) The Minister shall only require a bond, deposit or guarantee where, but for that bond, deposit or guarantee he would not be willing to grant a visa to the applicant.

(9) In setting the amount of a deposit or bond, the Minister shall have regard to the means of the applicant or guarantor, as appropriate, to ensure that the amount of deposit or bond will act as a deterrent to the breach of a visa, but not to cause serious financial hardship to the resident within the State.".

Until now people may have been refused visas because of the risk that they might remain in the State beyond the permitted 90 days. We have all come across cases of families, legally resident in Ireland, who were refused visas for, perhaps, a grandparent who wished to come to Ireland to help with a new baby. The amendment proposes that a bond should not be required in circumstances where a visa would otherwise be granted. It also proposes that the amount of a bond should be appropriate to the risk of default and also to the financial resources of the guarantor. The amount should not be sufficient to cause financial hardship to the person resident in the State. A person who came into the State on foot of a bond could breach the conditions of his or her visa. The family who entered into the bond might then find themselves in financial difficulty and be obliged to claim social welfare benefit. No one wishes to see that happen. I hope the Minister can accept the amendment.

Deputy Dermot Ahern

Section 14 outlines the detailed conditions for determining a visa application. Subsection (10) lists a number of reasons a visa might be refused. One reason is the likelihood of an applicant's inability to support himself or herself without recourse to public funds. Entering into a bond shows a person's bona fides. A person who cannot produce a bond is likely to become a drain on the State.

Deputy Denis Naughten

The bond would be guaranteed by a person living in Ireland, not by the person coming into the country. A person applying to enter the country is prohibited from entering into a bond.

Deputy Dermot Ahern

The bond is to ensure the person to whom the visa issues complies with the conditions attached to it.

Deputy Denis Naughten

The guarantor who is resident in the State would be entitled to apply for a social welfare payment.

Deputy Dermot Ahern

A person entering the State would become eligible for social welfare payments subsequently, if his or her circumstances deteriorated after he or she entered the country.

Deputy Denis Naughten

The Minister is mixed up. The person who submits the bond to the Department is already legally resident here. He or she is working and contributing to the economy. Let us suppose his or her parents wish to visit Ireland and the Department sees them as a flight risk to the United Kingdom if they are issued with a visa to visit Ireland. In such a case the Department may issue a visa on foot of a guarantee by the relative living in Ireland. If the visiting parents breach the conditions of the bond, it will be forfeited to the Department. If the bond is set at a high level, the person who enters into it could be obliged to apply for a social welfare payment. He or she would be fully entitled to do so, having made PRSI contributions and the taxpayer would, in effect, pay the bond. That is not the object of the Bill.

Deputy Dermot Ahern

I do not understand the Deputy's amendment. He is asking that we only require a bond where we are not willing to grant a visa.

Deputy Denis Naughten

Yes. I thought that was the objective of the section.

Deputy Dermot Ahern

I would not have thought so. If a visa is refused, it will be on one of the grounds listed in section 14(10).

Deputy Denis Naughten

Are people currently issued with visas to enter the State where a bond should have been required?

Deputy Dermot Ahern

We are providing in the legislation for the possibility that a bond will be requested.

Deputy Denis Naughten

Are visas currently issued in cases where the Department believes a bond should be in place?

Deputy Dermot Ahern

Visas have been granted in circumstances where a sponsoring company or individual gave guarantees, perhaps in writing, that the applicant would not become a drain on the State but where he or she subsequently did so. Perhaps we are, in effect, taking care of a situation which might arise by having such a bond.

Deputy Denis Naughten

There are cases of visas being issued where a bond should have been put in place.

Deputy Dermot Ahern

There may be.

Deputy Denis Naughten

That is interesting. It is not my experience of the visa system. I will leave that aside. I take the Minister's point. I will come back to my proposal for a new section 13(8) on Report Stage. Can the Minister comment on the proposal in my amendment to provide for a new section 13(9)?

Deputy Dermot Ahern

It is again a question of means testing. When we are making decisions on visa applications, we will need to be sure that the applicants will not be a drain on the State. The Deputy is seeking to introduce the possibility of means testing such people, in effect, when setting the amount of a bond. The visa system is used to enable the State to manage the arrival of people into this country. It is up to the State to make decisions.

Deputy Denis Naughten

We both have the wrong end of the stick. I understand, having read the legislation, that the bond is paid by the individual who is here in Ireland, rather than the individual who is trying to come to Ireland. The Minister can correct me if I am wrong in that regard.

Deputy Dermot Ahern

The Deputy is right.

Deputy Denis Naughten

Such people are not a drain on the State in normal circumstances. They would not be able to afford a bond in the first instance if they were. I have every confidence in the Department's officials. I do not doubt that if a family which is already resident in this country is a drain on the State, there is no way the Department will issue a visa to another family member to join that family in this jurisdiction. We are not talking about such people.

Deputy Dermot Ahern

The tenet of the Deputy's amendment, which provides for the bond of a guarantor, is that we should take into account the means of the guarantor.

Deputy Denis Naughten

Yes.

Deputy Dermot Ahern

A bond is a bond. In such circumstances, it would be suspicious of us to take into account the means of the person who is sponsoring the applicant. Questions would arise about whether we should grant the visa in the first instance.

Deputy Denis Naughten

It depends on the level of the bond that is to be put in place. I accept the Minister's argument that a reasonable bond needs to be put in place as a deterrent. We do not want to put in place a system whereby, if the bond is breached, the taxpayer will end up supporting a family that is already legally resident in this State. That is the only point I am trying to make.

Deputy Dermot Ahern

If that is the Deputy's intention, his amendment is not well drafted. It asks us to take into account "the means of the applicant or guarantor". If the Deputy is trying to protect the State by ensuring that the bond that is obtained can be forfeited - that there is something at the end of it - I will be prepared to consider a proposal to that end on Report Stage. If he suggesting, by contrast, that we should be somewhat lenient in requesting a type of bond based on the means of the guarantor, I would have some serious concerns about that.

Deputy Pat Rabbitte

How frequent is resort had to bonds?

Deputy Dermot Ahern

This is a relatively new provision. We do not do it at present.

Deputy Pat Rabbitte

Is the Minister saying we do not do it at all?

Deputy Dermot Ahern

Yes.

Vice Chairman

Is the amendment being pressed?

Deputy Denis Naughten

I will come back to it on Report Stage. I will give the Minister an opportunity to examine the issues in advance of the Report Stage debate.

Deputy Dermot Ahern

We can have a look it. I do not envisage that we can offer too much leeway in this regard, to be honest.

Deputy Denis Naughten

The Minister might look at it again. I am not sure he understands the point I am trying to make. The advice he is receiving is based on the need to protect the State. I think my amendment does that. I accept that the amendment may not be perfectly drafted - the phrase "the applicant" may have to be removed from it. Opposition spokesmen cannot avail of the services of the Office of the Parliamentary Counsel. I ask the Minister to examine the proposed new sections 13(8) and 13(9).

Amendment, by leave, withdrawn.

Vice Chairman

I was supposed to bring this meeting to a conclusion at 7 p.m., but we can consider the final amendment to section 13 if members wish.

Deputy Pat Rabbitte

I do not know if I still have powers of attorney for Deputy Finian McGrath. Perhaps he has said he intends to withdraw his amendment No. 71, which is the only outstanding amendment under section 13.

Vice Chairman

Amendment No. 71 is in Deputy McGrath's name.

Deputy Pat Rabbitte

Perhaps I will move the amendment to allow the Minister to read his reply to it.

Vice Chairman

That is okay.

Deputy Pat Rabbitte

I move amendment No. 71:

In page 19, between lines 26 and 27, to insert the following subsections:

"(8) The Minister shall only require a bond, deposit or guarantee where, but for that bond, deposit or guarantee he would not be willing to grant a visa to the applicant.

(9) In setting the amount of a deposit or bond, the Minister shall have regard to the means of the applicant or guarantor, as appropriate.".

Deputy Dermot Ahern

I oppose the amendment.

Vice Chairman

Is the amendment withdrawn?

Deputy Pat Rabbitte

It will cause Deputy Finian McGrath - wherever he is - a twinge, but I have to withdraw it in the circumstances.

Amendment, by leave, withdrawn.

Section 13, as amended, agreed to.

Vice Chairman

I thank the Minister and his officials for attending this meeting. We will see them again on Thursday.

Deputy Pat Rabbitte

If any of the amendments are to be reordered or regrouped in advance of Thursday's meeting, could the committee's officials send such details to us in advance?

Vice Chairman

That will be done.

Progress reported; Committee to sit again.

The select committee adjourned at 7.10 p.m. until 10.30 a.m. on Thursday, 22 May 2008.