We are resuming on amendment No. 169, with which amendments Nos. 187, 193, 203 and 208 are being discussed.
Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).
SECTION 25.
Debate resumed on amendment No. 169:
In page 31, between lines 31 and 32, to insert the following subsections:
"(8) Subject tosubsection (9), where a person has been granted a visa and that visa has not been subsequently revoked, he or she may not be-
(a) refused an entry permission; or
(b) granted an entry permission subject to conditions or for purposes which are less favourable to him or her than those in the visa.
(9)Subsection (8) shall not apply where the Minister, or an immigration officer acting on his or her behalf, is of the opinion that:
(a) the visa was granted on the basis of information (including information about the purpose of entry or presence) which was false, incomplete or otherwise misleading;
(b) the presence in the State of the holder of the visa would not be conducive to public security, public health, public policy or public order (“ordre public”);
(c) circumstances existing at the time when the visa was granted have changed and the nature of the change is such that, had the new circumstances existed at that time, the visa would not have been granted.”.
-(Deputy Noel Treacy).
I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and thank Deputy Treacy for moving the amendment at last week's meeting which I was unable to attend. I ask the Minister to consider the proposals made in it.
I oppose the amendments which seek to make a radical change to our immigration process, namely, to guarantee entry to and permission to stay in the State to any person to whom a visa has been given, except in very limited exceptional circumstances. The function of the visa process is to pre-clear a foreign national to the extent that he or she can arrive at the frontier and seek permission to enter the State. It is no more than that. It is not and should not be equated with a permission to enter the State. The purpose of a visa holder presenting to an immigration officer is to seek permission to enter and afford the immigration officer the opportunity to verify the identity of the person and to check the validity of his or her visa and travel document to satisfy himself or herself that there are no grounds on which entry permission should be refused. When satisfied that entry permission should be granted, the immigration officer will grant permission and attach conditions appropriate to the expressed purpose of the stay in the State.
Amendment No. 169 would make a visa equivalent to an entry permission. While there is some common ground between the two checks, they are essentially different. Under our immigration system, a visa has never amounted to permission to enter the State and I do not intend to change that position.
Amendment No. 193 starts from the premise that a visa gives residence permission. It does not under current arrangements and will not under the Bill. On that basis, I cannot accept it.
I take on board the points raised by the Minister, particularly his comments on common ground. When looking at legislation such as this, we should be open and radical and prepared to be creative.
Amendment, by leave, withdrawn.
Section 25, as amended, agreed to.
SECTION 26.
I move amendment No. 170:
In page 31, line 41, to delete subsection (2).
Amendment agreed to.
Amendments Nos. 171, 172, 184, 185, 199, 201, 203, 205, 206, 209, 222 and 223 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 171:
In page 32, subsection (4), line 1, to delete "Where" and substitute "Subject to subsection (5), where”.
The amendments are self-explanatory. Amendment No. 171 would allow for discretion in permitting applications for residency permission. It would also make provision for a foreign national who has applied for residency permission or renewal to be deemed to be lawfully present in the State pending a determination on the application and notification to the applicant of that decision. I hope the Minister will be sympathetic in responding to the amendments.
Subsection (8) of amendment No. 172 reads:
A foreign national who has applied under subsection (5) shall not be guilty of an offence under section 4(3) by virtue alone of any period of unlawfulness from the expiry of the entry permit to the submission of the application under that subsection (5).
We are seeking to allow for discretion to put a human face on the legislation.
As indicated, the Bill is, in effect, introducing a binary system under which a person will either be lawfully present in the State or, in the absence of permission from the Minister, unlawfully present. Under the provisions of the Bill, a foreign national will usually become unlawfully present in the State by his or her own conscious act, either in entering such a way as to avoid the immigration process and thus never putting himself or herself in the way of obtaining an entry or residence permission, or, having been given permission, by remaining in the State after it expires or is revoked.
Each entry permit issued will have an expiry date. The entry permit will either be finite with maximum validity of 90 days or give the holder permission to apply for a residence permit within its period of validity. Either way, the holder will know from the start that it is a limited permission to be present in the State and he or she will know its expiry date. It will be the personal responsibility of the holder to ensure he or she does not overstay. If the entry permit gives permission to apply for a residence permit, it is the holder's personal responsibility to apply for such a permit within the period stated on the entry permit. In this manner there are no circumstances, whereby unlawful presence can come as a surprise to the person concerned.
The effect of the amendments would be to allow entry permissions to apply at any time after the expiration of that permission for a residence permission. The mere fact of such an application would operate to render lawful any period of unlawful residence in the State. Therefore, a person who had overstayed could, in effect, have a further period of lawful residence simply by applying for it. That would be considered an unacceptable arrangement by most people. In this manner a person who overstays an entry permission of, say, eight weeks by a period of, say, one year and who is about to be removed from the State under section 54 could prevent removal by the mere act of applying for a residence permission. Under the amendment, the Minister would be required to consider all such applications in order that he or she could form an opinion as to whether there were good reasons permission should be granted. This proposal, if accepted, would completely undermine the framework of the Bill and the principles set out in it. In effect, we would be operating an immigration system that envisaged any person granted entry for whatever reason being lawfully permitted to remain until such time as the State made a negative determination. That would undermine the immigration system as a whole and leave open the possibility, apart from the resources that would be needed to deal with the issue, of it being flooded with applications to create a right of residence through administrative delay. Put bluntly, the amendments would make a nonsense of the notion that permissions be granted with an end date because any end date could be cheerfully ignored by waiting until after the permission had expired to apply for a renewal.
Tourism figures indicate that Ireland has about 8 million visitors per year, with approximately 1.5 million coming from non-EEA countries. Most of those visits are of short duration, pass off with little fuss and the person goes home at the end of them. The capacity of immigration officers to process such cases efficiently and in large numbers is directly related to the limited nature of the permission being given. If a shorter permission carried the potential consequences of being used as a wedge for longer term residents, the inevitable consequence would be a far more restrictive approach to the first entry.
I understand the Deputy's desire to cater for hardship cases. Such cases are dealt with as they arise and there is a particular application of ministerial discretion. Exceptions can be and are made but only in exceptional circumstances and usually on an ex gratia basis. That has served the State and individuals well in the past and will continue so to do after implementation of this legislation but to take on board the method proposed in the amendment for dealing with such cases would have people queuing up to be treated as exceptions, regardless of whether they had any claim to be so treated.
I thank the Minister for his response. I understand where the Minister is coming from but I want to focus on his last comment about the exceptional cases. He made the point that ministerial discretion has worked well up to now but his predecessor and the officials in the Department have all agreed with the members of this committee and groups outside that it is not working. That is the reason later this month, if he has not already introduced it, the Minister will introduce the scheme in respect of those who have fallen out of the system, namely, the undocumented migrant workers who came here legally and legitimately but who, for one reason or another, fell out of the system. That case was made to the Minister's predecessor on the basis that some type of structure was needed in respect of what was, until then, ministerial discretion. While it was felt there was a need for that, under the provisions in this legislation there is a greater need for it because if someone is illegally resident here they can be automatically deported. That is not the case currently. They are given notification, they can then make the case to the immigration service that the review is with the Minister's office and wait until that decision is made.
I accept the Minister's view if people legally resident here make a conscious act to become illegally resident but there are a number of cases where people have become illegally resident through no fault of their own, and the Department is conscious of that. I refer to someone who applies for the renewal of their permission to remain here within the agreed timetable. They contact the Irish Naturalisation and Immigration Service and the INIS tells them there is a three month delay in processing the application. They make that application in good faith three months in advance to ensure they will have the renewal prior to the expiry of the existing permission but because of some administrative delay they do not get the approval within that period. Those people are now illegal in the State through no fault of their own.
I accept the Minister's point that someone who applies late for renewal should not be exempt. We should not make provision for someone who is determined to fall out of the system but there is a small number of genuine cases and provision should be made in the legislation to facilitate those rather than have them in a legal limbo in that they are illegally present in the State and can be deported while the Department is considering their application. We do not want such situations to arise.
I accept there may be weaknesses in the way we have drafted these amendments but the core principle is to try to deal with those hardship cases that have fallen out of the system through no fault of their own. A difficulty is being experienced in respect of people in those circumstances. The Minister's predecessor agreed that situation should be tidied up before this legislation is enacted. This Minister is bringing forward the new scheme in that regard but we do not want a repeat of that in the future. It must be possible to make at least some provision for it in this legislation to ensure that does not happen.
I refer to amendment No. 172 on the issue of unlawful presence. I have concerns about the way the debate is going because I believe we are sending out the wrong message. I base that on my reaction to the many Irish citizens unlawfully present in the United States, for example, and the way we campaign here to ensure they get rights and that they are supported. There is all-party support for that campaign.
When we debate the immigration issue I am always concerned that we might send out the wrong message because some sort of association appears to be made that may taint and criminalise immigrants. The vast majority of immigrants who come to this country are decent, hard-working people who want to start a fresh life, make a contribution to our economy and get involved in different projects. I have met many in the past five or six years who have made a positive contribution to this country.
I am concerned about the level of debate on this issue. I accept the Minister's point on hardship cases and ministerial discretion. That is something of which every Minister should be supportive in genuine cases.
I listened with interest to the Minister's long response to these amendments. He referred to an application creating automatic lawful presence for a period if the amendments were accepted. A corollary of that situation is that there are people who are here, automatically or otherwise, who may have criminal records in their countries of origin. This goes back to the issue of criminality. I am aware of a number of cases recently. What resources or legal environment is available to the State to repatriate those people to their countries of origin when they break the law here?
To deal with the question Deputy Naughten raised, the Bill is an attempt to clear up some of the issues in our system that have not been picked up. As the Deputy said - Deputy McGrath alluded to this also - in my experience, both before and since becoming a Minister, the ministerial discretion has worked reasonably well and has been used in such a way that people who, through no fault of their own, are in some difficulties here are supported.
I accept the Deputy's acknowledgement that there are some difficulties in the way in which the amendments have been drafted because to a large extent they would drive a coach and four through the requirement for people to have papers to validate their presence here on a continuous basis. That is the reason for the creation of the binary system in that one is here either lawfully or unlawfully. From what is proposed in the legislation it is clear that for someone to be unlawfully in the State he or she would have to go through quite a few hoops before he or she would be, in effect, unlawful in the State. There are many opportunities to make applications and go through the system.
In regard to trying to tie down the issue of discretion, I have said previously that it is better that it is left on an administrative basis rather than putting it in regulations - we will come to that in some of the later amendments - because we are not tied down by the restrictions of legislation, albeit secondary legislation. I suggest it is better done that way.
Regarding Deputy Treacy's position, by and large we would not know the prior criminal record of many of the people who come here if they had one. Regarding the issue of their conviction for offences here, there are provisions for deportation. A later amendment provides for the taking into account - or not - of the view of the court in the passing of sentence on people who are illegally here. The Bill provides that account be taken of the views expressed by a judge. There are some difficulties in that respect in that this is primarily an issue for the immigration system and not the courts system to determine. It raises all sorts of issues about the divide between the Executive and the Judiciary and who decides in these instances.
I wish to raise two points to which the Minister may not be able to respond today, but he might do so on another day. Has any progress been made at European level to deal with the difficulty of the deportation of individuals who have been convicted of serious criminal activity here, served their sentences here and been deported back to other member states? The Department is pretty effective in deporting people to third countries. The Minister's predecessor mentioned that there were serious difficulties in sending such individuals back to other member states. Has any progress been made or is there a proposal on the agenda in that regard in the context of the recent comments during the commencement of the French Presidency of the European Union?
I wish to make two brief points regarding amendment No. 171. I will use the example I gave of a person who is about to fall out of the system because of an administrative delay. Such a person would have contacted INIS and would have been told it would take three months to process a renewal. The person would have applied to renew his or her application three months in advance, but because it took longer than three months to process the application, that person would have fallen out of the system and would be illegal in this State under the binary system. Such an individual would not have deliberately gone through hoops to make himself or herself illegal. The Minister can correct me if I am wrong, but that is my understanding of the position. Therefore, such an individual would be deemed, under this legislation, to be illegally resident in the State and could be summarily deported.
In regard to the issue of ministerial discretion, the idea underpinning this scheme was the need to structure this process. Fr. Gilmore met the Minister's predecessor and members of this committee and made a valid point as to why a structure should be put in place, namely, because of difficulties with regard to the exercise of ministerial discretion and of trying to obtain information on how somebody would go about doing this. Will the Minister reconsider this issue and ensure that people do not fall out of the system and end up being declared illegal here when they have done everything possible to ensure they are legally resident?
I was surprised by the Minister's response to Deputy Treacy's point concerning a person's criminal record, namely, that the Department of Justice, Equality and Law Reform would not have much information on that. With regard to a person with a serious criminal record in any country, with the advances in modern technology and international co-operation among countries throughout the world, I would have thought all one would need do is press a button or make a telephone call to find out the background of a person applying to enter this State. The Department over the years would have had major intelligence information if any left-of-centre activist from another country was coming to Ireland. The authorities in countries would not be long in making known that information. That has been the history in this regard during the past ten to 15 years.
On the debate on criminality and the immigration issue, I want to clearly state that I have concerns. I do not want people to harp on again about this issue because the majority of immigrants who try to get into this country are decent individuals who want to start afresh. That is important because we do not want to focus on the 3%, 4% or 5% of those people who are involved in crime.
Once we have put in place the new legislative proposals, the landscape will be much clearer for people. As a result of the different systems and arrangements we have had in recent years, it is accepted that there have been difficulties and on occasion people have felt that they have not got a fair deal from the system. What we are putting in place will make the position much clearer. We are putting in place a transitional scheme which, in effect, is a once-off scheme to deal with some of those difficulties. The sooner we bring in the new arrangements, the more clarity there will be in regard to people's applications. I have said time and again to officials that if difficulties are created because of administrative delays or whatever, people should be given the benefit of the doubt in that respect.
The law is explicit
To be fair, I believe they are given the benefit of the doubt. The sooner we bring in the new arrangements, the better. Ultimately, the people applying to renew their permissions have a responsibility to apply in time. The processing of these applications does not take too long. From my practical involvement in this process on behalf of constituents, I have not found that there were any long delays in renewing permissions.
Regarding this issue being raised at EU level, it is about people who have been convicted and, in effect, sending them back from whence they came. However, because of freedom of movement, this is a difficult issue. It has been on the agenda and a number of countries have raised it at EU level, but no hard and fast proposals have come forward.
Can the Minister give a guarantee that the Department will do everything in its power to ensure that a person does not fall out of the system because of an administrative delay?
We will do all we can and I can guarantee that, but I cannot guarantee that people will not fall out of the system.
I will not dwell on this point. Such a delay has huge ramifications for a person under this legislation, far more so than was the case up to now. We are now planning to deal with the people who have fallen out of the system. While I acknowledge that is a welcome development, we do not want a situation to develop where another cohort of people, who are genuine cases, will fall out of the system because of a lack of provision being made in this legislation to deal with these circumstances.
In effect, we are talking about the renewal of permissions. The process of renewal is routine and, to the best of my knowledge, there are no delays; that is what I am told by my officials. It is a matter of a person going up to the counter and having his or her application renewed in virtually a few minutes. The Deputies' amendments allow an opportunity for a time delay, but there is no reason there should be such a delay. All these people know their permission to remain in this State or their visa is time limited. Therefore, they should know in good time that they have to apply in order to renew it. There are no difficulties when people seek to renew their applications.
How stands the amendment?
I will withdraw it and consider it again for Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 172 not moved.
Section 26, as amended agreed to.
SECTION 27.
Amendment No. 173 not moved.
I move amendment No. 174:
In page 32, subsection (1)(h)(ii), line 37, to delete “an expulsion” and substitute “a removal order or an exclusion”.
This is an editorial amendment to take account of the fact that the freedom of movement regulations make provision for removal and exclusion orders, not expulsion orders.
Amendment agreed to.
I move amendment No. 175:
In page 33, subsection (1)(h)(vi), lines 3 to 5, to delete all words from and including “State,” in line 3 down to and including “or” in line 5 and substitute “State, or”.
The effect of this amendment would be to delete subparagraph (vi) which is designed to allow an immigration officer to refuse entry to the State to a foreign national who has been removed from the State pursuant to either the Dublin II arrangements or a safe third country agreement in order that the person's protection application can be dealt with other than in the State. The Council regulation, known as Dublin II because it replaced the Dublin Convention, is a valuable instrument in helping the European Union to manage the inflows of asylum seekers into the territory of the Union generally and to individual member states. It states an asylum seeker who claims in one member state and who applied or had an earlier opportunity to make an application in another member state can be returned to that member state in order to have the application dealt with or finalised, as the case may be. This arrangement has largely put an end to forum shopping, where a claimant who has failed or thinks he or she is likely to fail in one country tries to spread the chances of success or delay ultimate failure by taking himself and his application elsewhere.
The central repository known as Eurodac - the record of fingerprints of asylum throughout the territory of the European Union - has proved a useful aid in determining whether a claimant in one member state has made an earlier claim elsewhere. It is also a deterrent for those who might otherwise move from member state to member state. Many of the Dublin ll cases that arise in Ireland also, as one might expect, involve the United Kingdom. If I were to accept the amendment, I would be agreeing that it is acceptable for a person who has been sent back on the mail boat to the United Kingdom to have his or her asylum application dealt with there and to sail straight back across the Irish Sea to this country. That would make a nonsense of the sensible and fair system put in place under Dublin II. It cannot be the case that having removed a foreign national from its territory in this fashion, the State would not have the power to refuse entry to that person if he or she sought to return here.
Amendment, by leave, withdrawn.
I move amendment No. 176:
In page 33, subsection (1)(l), lines 20 and 21, to delete all words from and including “pose” in line 20 down to and including “public”),” in line 21 and substitute the following:
"pose a threat to national security, public security or public order or be contrary to public policy ("ordre public”),”.
Amendment agreed to.
I move amendment No. 177:
In page 33, subsection (1), between lines 38 and 39, to insert the following:
"(s) that any documentation provided by the applicant is false or otherwise misleading subject to section 23(9).”.
This amendment would provide clarity. It proposes that a person should be refused entry to the State if he or she provides false documentation and if he or she is not a protection applicant. It does not relate to protection applicants who may not be in a position to provide adequate or full documentation.
I am happy to accept the principle behind the amendment. I agree that seeking to gain entry to the State on the basis of false documents is a reasonable ground on which to base a refusal of permission to enter the country. I note the Deputy's proposal that the amendment is subject to section 23(9). Sections 23(9) and 25(1)(b) guarantee entry to the State to protection applicants. The granting of entry is not predicated on the nature of any documents that a protection applicant may or may not possess; rather, it is predicated on a person giving an indication that he or she may wish to claim protection in the State.
As previously indicated, the proportion of protection applicants who produce either no documents or documents of dubious providence is high. This does not act as a barrier to accepting protection applications, nor will it do so in the future. I ask the Deputy to withdraw the amendment on the basis that I will bring forward a suitably worded alternative on Report Stage in order to give effect to the substance of what he is proposing.
I thank the Minister. It is important that safeguards be put in place in respect of protection applicants.
Amendment, by leave, withdrawn.
Amendment No. 178 not moved.
Question proposed: "That section 27, as amended, stand part of the Bill."
The Human Rights Commission, in its submission to the committee, states that in order to ensure clarity in the Bill it would be preferable if the power of immigration officers to refuse a person entry to the State under sections 25 and 27 was explicitly subject to the prohibition against refoulement under section 53(1). I ask the Minister - in the context of drafting amendments for Report Stage - to consider facilitating the request of the Human Rights Commission. What is proposed would strengthen section 27. The Minister will state everything is subject to refoulement. However, the Human Rights Commission makes a valid point and I ask him to draft an amendment to take cognisance of it.
The other point I wish to make relates to section 27(1)(a) which states “that the foreign national would be unlikely to be able in the State to support himself or herself and any accompanying dependants without recourse to public funds”. This would lead to a subjective assessment by an immigration officer. Greater clarity is required in respect of the provision. When members met officials from the Department prior to the committee’s consideration of the Bill, the point was made that immigration officers at ports of entry had lists of reasons for refusal and that they ticked the appropriate one in each case. Will the Minister elaborate on what is involved, particularly in light of the fact that assessments can be extremely subjective in nature? Are rules or guidelines that immigration officers must follow laid down in respect of this provision?
I ask the Minister to be vigilant in respect of victims of, for example, human trafficking. This matter was the subject of amendment No. 178 tabled in my name. There should be a humanitarian slant to the legislation and protections must be put in place for victims, particularly those who are the subject of child trafficking.
Deputy Naughten referred to the Human Rights Commission which, like a number of bodies, stated a reference to the rules on refoulement should be included in different parts of the Bill. We do not accept this. There seems to be a concern that such a reference should be included at every point in the legislation where the question of removal is dealt with. The rule applies throughout the Bill. It is stated once. Therefore, it is not necessary to include it at each point where the question of removal arises.
The Deputy also referred to the reasons for refusal. The total figure for refusals of leave to land in 2006 was 5,900 and in 2007, 6,300. The figure up to May this year was 2,642.
These are persons who presented at the boundaries of the State.
Yes, either at Dundalk, Dublin Airport, Dún Laoghaire, Cork Airport or Dublin Port.
Were they seeking asylum?
They were seeking to come into the State.
What about Rosslare?
It is not referred to in these figures. We can check for the Deputy. These are the five locations mentioned in the figures I have. The reasons for refusal are interesting. The May figures break down as follows: intention to deceive, 199; not in possession of a valid passport or other document, 84; no visa, 103; lack of funds, 51; no work permit, 29; alien's intent to travel to Great Britain or Northern Ireland, 33; subject to deportation order, two; posed a threat to national security or contrary to public policy, one; unaccompanied minors, three; disease or illness, one. That was an exception.
Are the ages of the unaccompanied minors given?
No. The May figures break down as follows: Brazilian, 115; Nigerian, 80; Chinese, 37; South African, 16; Malaysian, 15--
I thought unaccompanied minors presenting at ports or airports were placed in the care of the HSE. I am surprised to hear some are--
I do not have information beyond these statistics. I can get the information for Deputy Naughten.
I accept what the Minister is saying. Nevertheless, is he concerned? It was my understanding unaccompanied minors presenting at ports or airports were placed in the care of the HSE and were either sent back to their families or an application was made for their protection. There is a concern that some unaccompanied minors are being trafficked for the purposes for exploitation. By sending them back, are we putting them back in the hands of people who can use another mechanism to bring them into this or some other jurisdiction?
That is a point. Equally, the fact that they are unaccompanied minors does not give them the right to come into the State. It is unlikely that they would be returned, either from an airport or port. The three unaccompanied minors would probably have been returned across the Border, where they were intercepted. I am just surmising. Perhaps we could get a profile of what has happened with unaccompanied minors. I will try to get that information for the Deputy.
This is something about which I am concerned. If unaccompanied minors are not being handed back to the authorities in Northern Ireland or elsewhere in the United Kingdom--
I quoted the figures for refusals. Several unaccompanied minors are allowed to enter the State.
Naturally enough.
They would be brought to the attention of the social services. I would hazard a guess that our authorities would not refuse entry and simply let the matter hang there. I would expect they would endeavour to ensure the minors concerned were taken care of, from wherever they had come.
Based on the May figures, approximately 10% of persons presenting are refused entry on the basis of subsection 27(10(a). Will the Minister explain to the committee, either now or at a later stage, what assessment is made in this regard? It must be subjective.
I will try to give the Deputy that information.
I presume the figures quoted by the Minister are from the Garda National Immigration Bureau.
Yes.
Gardaí would, therefore, have discretion, based on the age and condition of minors and the location of apprehension, whether to refer them to the HSE. I believe that is normally the case for minors. It is one of the options available to the Garda.
Question put and agreed to.
SECTION 28.
I move amendment No. 179:
In page 34, subsection (3), lines 44 to 50, to delete paragraphs (e) and (f).
Paragraphs (e) and (f) are restatements of existing provisions found in section 7(1) of the Immigration Act 2004. The provisions allow for a foreign national to be detained on board a vessel for the purposes of an examination by an immigration officer, paragraph (e), and for detention on board a vessel of a person refused entry to the State, paragraph (f).
The first of these paragraphs facilitates the orderly management of immigration queues. It enables immigration officers to carry out immigration checks on board or at the door of an aircraft or on the gangway of a ship, as necessary. This can be particularly valuable if a pattern emerges in relation to particular flights, or, generally, of persons who are known to have been in possession of travel documents when they boarded at the embarkation port but who do not have, or profess not to have, the documentation when they arrive at the normal immigration gate at the end of the journey. The second is a sensible provision designed to ensure a person refused entry to the State will be taken away again by the carrier which brought him or her here. I am satisfied that these are necessary provisions in the Bill, just as they are in the present law. I have no proposal to change the current law in this regard.
Amendment, by leave, withdrawn.
Amendment No. 180 not moved.
I move amendment No. 181:
In page 35, lines 24 to 26, to delete subsection (10) and substitute the following:
"(10) The Minister may make regulations under section 125 concerning the steps that shall be taken by carriers to facilitate compliancy by them with the provisions of the section.”.
The objective of this amendment is to ensure transparency. It proposes that regulations be made and placed in the public domain. I am concerned that many of the provisions of the Bill will lead to vagueness. When the Bill is enacted, none of us will know what sort of immigration system we have because many of its provisions will be left to regulation, guidelines, schedules and schemes. The amendment proposes that the provisions of this section be included in regulations which would be laid before the Houses and seen in black and white. The Minister has made the point that large numbers claim protection or asylum and have arrived by air into this jurisdiction. This begs the question as to whether the carriers have performed their duties in a responsible manner and I presume they have. I do not see any reason these provisions cannot be included in regulations. I do not see the need for guidelines as regulations would be more legally binding.
There are provisions in the Immigration Act regarding carriers' liability which are well set in stone. The system is operating smoothly and there have been no problems with carriers, nor do the carriers have problems with us.
This must be the only Department with which Ryanair does not have a difficulty.
We have not set out guidelines but the system has worked well. If we were to introduce guidelines or regulations, we would make them available for public perusal. We are happy with the way in which the system operates and do not see the need to complicate the issue further by including the provisions in regulations.
I ask the Minister to consider rewording subsection (10) in order that if regulations were drawn up, they would be published.
Yes, I will consider that aspect.
I have listened with interest to Deputy Naughten. I note the onus has been put on carriers. This is correct. However, there are other methods of conveyance, some of which have been used to bring people illegally into the State. Any regulations should include all methods of conveyance, be they by land or sea, direct or indirect.
In the majority of cases we do not have a grievance with the carriers of those who come to our attention because the people in question are already in the State. Individuals tell us they have come into the State through Dublin Airport or Dublin Port but the Department believes the vast majority come across the Border and then arrive at the immigration office to apply for status.
If an individual presents at an official point of entry seeking asylum or otherwise and specifies the name of the carrier, is it possible for the GNIB or the State authorities to confirm with the carrier whether the individual in question was carried by it?
Yes.
People may be trafficked illegally into the State by bus or lorry. Can it be ensured these methods will be included in any regulations made?
I am informed that carrier liability does not apply within the common travel area. That is part of the difficulty. The Border is relatively porous.
How does this compare with the position in the Schengen area?
There is stricter enforcement in the Schengen area.
This is a soft entry point.
The operation between member states which are part of the Schengen agreement is more or less the same as in the common travel area. Articles 26 and 27 of the Schengen Agreement compel member states to impose financial penalties on those carriers which transport foreign nationals who are subsequently refused entry.
Is it the case we cannot impose this penalty because of the common travel area?
We can impose conditions within the common travel area.
Amendment, by leave, withdrawn.
Section 28 agreed to.
SECTION 29.
Amendments Nos. 182, 186, 202 and 204 are related and may be discussed together.
I move amendment No. 182:
In page 35, subsection (1)(c), line 42, to delete “being”.
These are merely editorial amendments. I have been advised by the Office of the Parliamentary Counsel that they are warranted.
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30.
I move amendment No. 183:
In page 36, subsection (1), lines 23 and 24, to delete "in this Act referred to as a".
Amendment agreed to.
Amendments Nos. 184 and 185 not moved.
I move amendment No. 186:
In page 36, subsection (4)(d), line 39, after “information” to insert “as”.
Amendment agreed to.
Amendment No. 187 not moved.
I move amendment No. 188:
In page 37, subsection (10), line 11, to delete "not".
This is a short but important amendment. It proposes that the legislation should read that a residency permission shall, unless otherwise specified, entitle the holder to enter or re-enter the State and to present himself or herself for entry into the State. People who wish to leave the State to go on holidays or on business are encountering problems when entering or leaving the State. All Members of the House have received representations from individuals who have encountered problems in this regard. The amendment would not water down the legislation; rather, it would give a clear indication that we were allowing people granted residency in the State to exit and re-enter the State, rather than the other way around. This would be an important marker, especially with the current downturn in the economy. It would show we wished to encourage potential business people to come to the country by allowing them to enter and exit the country. I hope the Minister will accept the amendment.
I support the amendment. It is important to clarify these issues relating to entry and exit. The point made about holidays and business is very important but also there is the issue of respecting people's fundamental human rights. This measure would also be good for the economy. It is a positive and constructive amendment.
I cannot accept the amendment. Section 10 is in line with existing law. The deletion of the word "not" would have the effect of making a residence permission operate as a visa or an entry permission. As I said during the debate on a previous amendment, one cannot equate the two. In effect, to do so would give a person an entitlement as soon as the permission was granted. It is important to maintain a difference under our system between a visa or an entry permission and a final residence permission. They are two separate operations.
I waited to hear the Minister's response on this proposal. To be honest, what I have heard does not carry too much conviction. Like all of us, he must have encountered cases of the current provisions being applied in humiliating circumstances. As he said, if we leave it as it is, the existing situation will continue to prevail. I know from my clinics that it is giving rise to humiliating circumstances. If a person who has been granted residence here has to leave the country to visit a dying parent, or even for a holiday, he or she might be confronted with this situation on his or her return. It is not long since we were scampering around the world looking for workers to fill particular niches. While the work permits of some such persons may have expired - they may have been tied to a particular employer, for example - they have residence here nonetheless. The people in question often encounter difficulties when they try to get back into the State after being abroad for two weeks. If the Minister were to reverse the existing rule, as Deputy Naughten's amendment suggests, would adequate precautions not continue to be in place? We are talking about people with a residence entitlement. I do not see how the system would be put at risk if this were to be stated positively, as distinct from negatively.
It would turn the current position on its head. I cannot put it any more clearly than that. It is obvious that if people leave the country for a short period of time, they have to continue to comply with the conditions under which their original visas - or entry permissions - were granted. The same rules apply to people going in and out of America. In some cases, a person's residence permission gives him or her certain entitlements. Perhaps I can examine the matter again in advance of Report Stage but I do not think I can accept the deletion of the word "not". Its effect would be the complete opposite of the way in which the system has operated heretofore.
Its effect would be the opposite of how it has operated heretofore, but it would not be the opposite of the thrust of what is contained in the legislation. It would make a significant difference. We discussed this matter with the Minister's predecessor, Deputy Brian Lenihan. Perhaps the Minister is not conscious of the implications this change might entail.
People in the four corners of this country have e-mailed me to tell me about the substantial problems they are encountering in this regard. An Irish citizen has to go to the offices of the Garda National Immigration Bureau to get permission to travel overseas with his children who are also Irish citizens if he or she is travelling with his or her spouse who does not happen to be an Irish citizen. Such a person might have to get permission from the Garda National Immigration Bureau to travel to Scotland for a few days and re-enter the State at the end of the holiday. The current approach to this issue is causing massive problems. In recent years we have encouraged Irish people who live overseas to come back to this country to help to develop the economy. I refer to highly skilled people who work in places such as Indonesia, Malaysia and the United States. If such a person decides to move back to Ireland, he or she may encounter barriers of this nature if he or she is married to someone who is not an Irish citizen. This simple amendment would not detract from the principle of the legislation. If accepted, it would have major implications for the day-to-day lives of Irish citizens and their spouses. Such people are experiencing massive problems. Part of the difficulty results from the huge delays in processing citizenship applications. It takes between two and a half and three years to process them. People are left in limbo.
I accept that marriages of convenience take place, a subject to which we will come later in the debate. I am talking about genuine marriages, which comprise the vast majority of cases. When Irish people living outside this jurisdiction who have been married for a number of years decide to move back here, they often make a significant investment in the economy. It is not right that they should be unable to go on sun holidays or short trips to the United Kingdom without having to encounter barriers such as those mentioned. I know of people who went to a Garda station to get the telephone number of the offices of the Garda National Immigration Bureau, but were given the wrong number. When they presented themselves at the bureau, they were told they had filled out the wrong forms and had to go back and start again. The current arrangements are causing Irish citizens and people who are legally resident here untold problems on a day-to-day basis.
This issue relates to people who, under the law, are entitled to live here. They have been given permission to do so. We are making provision to grant them long-term residency of five years but not allowing them to go in and out of the country - to travel to Northern Ireland, elsewhere in the United Kingdom or other parts of Europe and come back again - without having to endure this rigmarole. This is causing huge problems and I ask the Minister to examine it seriously. The emphasis of the legislation needs to be changed. As it stands, it will assist the Department if it encounters any difficulty in imposing restrictions on an individual. The thrust and principle of the law are being changed. If the amendment was accepted, it would be a positive development for our citizens and people who are legally resident here.
I support Deputy Naughten in this regard. As a public representative, I often encounter the cases of Irish citizens who have married foreign nationals in other countries, or even in this country. I find it embarrassing that the spouse of an Irish citizen has to apply for a work permit to be allowed to stay in his or her present job. The foreign national in question could be married to the Irish citizen for five, ten or 15 years. I recently spoke to a person from the United States who works for a company in Ireland. The person had been allowed to stay in Ireland for a certain period of time, but that time had elapsed. The person was not allowed to stay in that job without certification from the Garda National Immigration Bureau that they were allowed to remain in Ireland. The children of the person in question were born here and are living on the island of Ireland. It is obvious that they are more Irish than the Irish themselves at this stage. We should put in place a system under which people can be granted one-year status, three-year status, five-year status and permanent status thereafter. No difficulties should be encountered by persons who are genuinely married with children on this island. We should not impose unnecessary and embarrassing burdens on genuine and decent people who are making a contribution to the lives of our communities, the homes in which they live and the economic opportunities of the nation.
I would like to make a further comment before the Minister comes in. He is the kind of man who, if provoked, will probably get to the point in his reply. I am puzzled in respect of his case. He is taking shelter behind the argument that this provision would turn the system on its head. We concede that it would. We are arguing that such a change is necessary in this narrow area. I genuinely would like to hear the Minister's argument against it. I am concerned about cases such as that mentioned by Deputy Treacy. On a few occasions I have encountered cases in which a person's work permit has run out. In such circumstances, one quickly picks up the message that the permit is not being renewed because the economic situation has changed. In other words, a local person can now be found to do the job. However, the person to whom the permit applies may have put down roots, having resided here in a law-abiding manner for some years. He or she is caught by this requirement.
There are many examples of persons whom we have induced to come to this country who are in the circumstances described by Deputy Naughten and who, if they leave the country for a family occasion such as their mother's burial or for a holiday, will be confronted with this situation. If the Minister can set out a rational reason as to why that is the case, other than saying it would turn the system on its head, I am prepared to go along with it. This is one part of the system that deserves to be turned on its head. With respect to the Minister, if there is a case to be made, we have not heard it so far.
I understand what the Deputies are saying, that there are circumstances where persons would not have to reapply for a visa, for instance, persons granted long-term residency and the other situations to which Deputy Treacy referred. In such instances, if the persons concerned have been in the country legally for ten years, they may make an application for citizenship but they would need to have proper work permits and validation.
What about persons waiting three years for a decision on citizenship?
That is a problem but such persons still have an entitlement to be here under the documentation they hold. There are certain classes of person granted long-term residency who can come and go but it is not universal. Equally, there are other classes of residency permission in respect of which applications would be required to go through the system in order to keep the credibility of our system intact and to ensure persons do not come and go - forum shopping - as indicated in another context and abuse our system. Although it is probably done better through regulations, I am prepared to specify the permissions that do not require renewal of a visa to come back here. I can examine the amendment in that context but more than likely it will be in the context of regulations.
This is a case in which we would wish to see the regulations before we deal with the matter. That is a fundamental problem with the current system. The Minister referred to its credibility. The issue is causing a significant problem on a day-to-day basis and raises serious question about the credibility of the system, given that people have to queue from early morning to acquire exit and re-entry permit in order to go and bury a parent or brother abroad.
There are persons who do not wish to apply for Irish citizenship for one reason or another. Perhaps it would mean having to revoke citizenship in their country of origin. Applying for citizenship is not a solution for everyone and it takes three years to apply. Does a person wait a minimum of three years before applying for citizenship and then have to wait another three to have it granted? Is it the case that an applicant for citizenship cannot leave the country or cross the Border for six years to attend a relative's funeral without having to go through this procedure?
I do not see why we cannot remove the word "not" from the section? It would still allow the Minister to put restrictions in place for certain categories of resident. I know what is the Department's reasoning and do not have a difficulty with it. However, in ordinary day-to-day cases we are saying to the vast majority whom the State has indicated are entitled to either short-term or long-term residency and to whom we are prepared to grant it, that they can stay here and contribute to the economy in some circumstances but that we will not allow them to cross the Border or go on holidays to Spain for the summer, as the case may be. That sends the wrong signal regarding this country. The inclusion of that one word has significant implications in terms of the message sent; its removal would still allow the Minister to put restrictions in place for persons who require to obtain permission from the GNIB to move in and out of the State. It is about turning the system on its head and the emphasis the other way around in order that people would be entitled to come to Ireland and that if we were to grant them residency, they could stay here and visit other countries.
I endorse what Deputies Naughten and Rabbitte said. I appreciate the legal position outlined by the Minister. I suggest section 10 should stand but that the Minister table an amendment on Report Stage with the phrase "except in the following circumstances" in order that if a person is married to an Irish citizen or living on the island of Ireland, he or she would be entitled to residency for one year, five years, ten years, etc. It would be helpful to consider such a provision on Report Stage in order that we could remove the lacuna and take people out of the morass in which they find themselves. It would also eliminate unnecessary bureaucratic administration and the pressures on politicians.
I strongly support Deputy Treacy's proposal that would provide a solution to the problem. The reality is that not everybody wants to apply for Irish citizenship. We all know this from the cases we deal with and also from family experience, whereby relatives have emigrated but still retain Irish citizenship, of which they are very proud.
I take it we are talking about people who are here long term. If that is the basis on which they are here, I do not see why they should not apply for long-term residency or naturalisation, as is their entitlement. I do not see why people should have an aversion to this. Anyone who is here on that basis and wants to go to Spain on holidays has to go through the same immigration system when they apply to go to Spain. What the Deputies, in effect, are asking is for us to do away with immigration controls that are the same as in other countries. They are asking that the onus be put back on us rather than the person concerned, which I cannot accept.
We grant them residency but Spain does not.
They are here as residents but when they come back, there is a requirement to go through immigration. The Deputy is, in effect, asking us to obviate that necessity, which we are not prepared to do. However, I am prepared to examine the matter. I do not know about the proposal to include the provision in primary legislation because that would restrict us too much and require an amendment to primary legislation. I would prefer to leave the word "not" in the legislation and deal with the specially favoured type, namely, long-term residency, as the exception to what we are inserting in the section.
I disagree. The Minister might correct me if I am wrong but the delay in processing applications for long-term residency is two years to two and a half years. At the end of that period, depending on circumstances, the Department or the INIS can write to the individual and say long-term residency will be granted subject to him or her obtaining the equivalent of a Garda clearance certificate from his or her country of origin. In some cases that causes huge difficulties because there is not a mechanism in the country of origin to provide such a document. The process can take up to 12 months to complete, which brings the wait to three and a half years. The Minister might correct me if I am wrong but the minimum time anyone can wait to apply for long-term residency or citizenship is three years. A long-term residency application can take up to six and a half years to process, while a citizenship application can take up to six years. I have spoken about cases of Irish citizens with Irish children who hold Irish citizenship but whose spouses are from outside the European Union. They must wait six years for citizenship to be granted. If they wish to leave the country in the meantime, they have to queue up in an office in Dublin to obtain a permit to do so. That is not acceptable.
I accept the Minister's position but the amendment would not take away his powers. I am not proposing to be as prescriptive as Deputies McGrath and Treacy. Instead, I am leaving the Minister with flexibility and discretion in the matter. If an individual is granted residency, other than if he or she falls into a particular category, he or she should be allowed to enter and exit the country at will. Surely, he or she should not have to go through the procedure I described. It causes frustration for those affected, many of whom are well-to-do and hold significant economic positions but their spouses must endure this rigmarole any time they want to enter or leave the State.
I do not want to be overly prescriptive. The Constitution contains the right to marry. We cannot ask the spouse of an Irish citizen, lawfully married and domiciled in Ireland, to apply for documentation to enter and exit the State. It is an outrageous insult to the rights of citizens and their spouses. I know of citizens who have made investments in the State but who because of this situation have limited the amounts. They regard it as an insult to their integrity and their rights as a citizen. The Minister should consider this issue before Report Stage. If he does not want to include it in primary legislation, he may consider granting associate citizenship after three years to overcome this embarrassing situation.
What did the Minister mean when he said a residence permission in some circumstances permitted re-entry into the State?
Long-term residency status will allow re-entry into the State without requirements under the provisions of the Bill. Deputy Naughten's amendment would turn the matter on its head. It would make the exception the rule rather than the opposite.
I cannot accept that. With due respect to Deputy Treacy, the factual position is that a non-Irish spouse of an Irish citizen is not a citizen. They may become a citizen over time because of their long-term residency status.
That is his or her choice
Yes. However, it would be like driving a coach and four through the whole issue of citizenship and immigration if one were to state that because a person was married to an Irish citizen, he or she was entitled to come and go as he or she pleased. That is not the case and we could not allow it.
That is very harsh.
I do not want to dwell on this issue but the Opposition is being reasonable. The Minister's own colleagues are looking for far more expansive powers.
I am prepared to look at this issue in the context of leaving the section in the negative and treating cases as exceptions. It can be dealt with in regulations rather than primary legislation.
I accept that.
I argue we should be dealing with the issue the other way around. Rather than making such cases the exception, they should be the norm. It would be a far more reasonable position to take.
I accept the Deputy's point. We will try to get the spirit of what the Deputy wants in another format.
That is what I am looking for.
Amendment, by leave, withdrawn.
Amendments Nos. 189 and 190 are related and will be discussed together.
I move amendment No. 189:
In page 37, subsection (11), line 16, to delete "Subject to subsection (12), the power to-" and substitute the following:
"Subject to subsection (12), section 127, and any other provision of this Act, an immigration officer may, in relation to a foreign national, at the immigration area office for the immigration area in which the foreign national’s dwelling place is situated, and in accordance with any directions the Minister may give-”.
These are drafting amendments.
Amendment agreed to.
I move amendment No. 190:
In page 37, subsection (11)(f), lines 22 to 27, to delete all words from and including “conditions,” in line 22 down to and including “situated.” in line 27 and substitute “conditions.”.
Amendment agreed to.
Amendments Nos. 191 to 193, inclusive, not moved.
Section 30, as amended, agreed to.
SECTION 31.
Amendment No. 194 not moved.
I move amendment No. 195:
In page 38, paragraph (i), line 21, to delete “or any member of his or her family”.
Amendment agreed to.
Amendments Nos. 196 and 197 not moved.
I move amendment No. 198:
In page 38, paragraph (j), lines 23 to 25, to delete all words from and including “national’s” in line 23 down to and including “public”);” in line 25 and substitute the following:
"national's presence in the State would be a risk to national security, public security, public health, or public order or would be contrary to public policy ("ordre public”);”.
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Amendment No. 199 not moved.
I move amendment No. 200:
In page 38, subsection (3), line 42, after "it" to insert the following:
"within a period of 3 months of the date of application".
This amendment would facilitate the Minister in the issues raised in some of the earlier discussions on administrative delays. It proposes that the application for renewal of a residency permission would be determined within three months. It is not unreasonable. As the Minister's officials have advised him, it is taking far more than three months to approve them. The amendment would ensure renewal within three months and that the application would not fall through the system. The law, as it stands, is only of a technical nature and has no impact on a day-to-day basis. For summary deportations, it is important this protection be inserted. I do not believe it is unreasonable and hope the Minister will accept the amendment.
The amendment seeks to introduce a three month time limit within which a decision on an application for renewal of a residence permission must be made. The amendment ignores the fact that the requirement for renewal set out in subsection (6) is for the applicant to attend in person at the immigration office for the immigration area in which his or her dwelling place is situated, and provide the necessary information to the immigration officer. In practice, there will be very few renewal applications which cannot be dealt with on the spot, given the binary nature of the arrangements for lawful presence in the State being put in place in the Bill. The likelihood is that most renewals will be granted as a matter of course subject only to the applicant satisfying the immigration officer that he or she continues to comply with the conditions of the permission. Where the question of renewal cannot be dealt with on an immediate basis, any issues arising will certainly be sorted out within the remaining 21 days of the migration. That is why the applicant is being required to apply for renewal not later than 21 days before the expiry of the permission.
The imposition of a three month time limit is unnecessary for a process which, in the vast majority of cases, will take only a few moments. I note that the Deputy's amendment makes no proposals for what might happen in default of that time limit being met.
There is provision in the law already as regards what would happen. That poor unfortunate could be deported. I accept what the Minister is saying and I believe he knows where I am coming from as regards this. On that basis I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 201 not moved.
I move amendment No. 202:
In page 39, subsection (5)(a), line 4, to delete “not renewable” and substitute “non-renewable”.
Amendment agreed to.
Amendment No. 203 not moved.
I move amendment No. 204:
In page 39, subsection (6)(a)(ii), line 14, to delete “regulations” and substitute the following:
"any regulations prescribing the form and manner of application".
Amendment agreed to.
Amendments Nos. 205 to 207, inclusive, not moved.
Section 32, as amended, agreed to.
SECTION 33.
Amendments Nos. 208 and 209 not moved.
Amendments Nos. 210 and 211 are related and will be discussed together.
I move amendment No. 210:
In page 40, subsection (5), line 18, to delete "section" and substitute the following:
"section, the permission of the applicant to be in the State pending that decision and the notification of the applicant of it, or the power of the Minister to renew the residence permission as part of his decision under this section.".
I ask the Minister to consider this amendment.
On amendment No. 210, the intention behind subsection (5) is to ensure that the person does not find himself or herself unlawfully present in the State as a result of not receiving a decision on the application for modification of the conditions for his or her residence permission before the expiry of that permission. I accept that it is not readily clear from the current wording, and I undertake to examine the provision to see whether it can be expressed in more simple language. In so doing I shall take account of amendment No. 210 and, in the circumstances, ask Deputy Finian McGrath to withdraw it so that we may substitute a revised text on Report Stage. Any new text may have to provide for a deadline, for example 21 days prior to the expiry of permission, after which an application for modification of conditions will not be accepted.
I cannot have a situation where the Bill provides a guarantee of presence until a decision is made as regards the modification of the conditions and the applicant seeks to take advantage of that provision by making such an application the day before the permission expires - thereby seeking to guarantee the applicant's continued lawful presence in the State, when he or she would otherwise be unlawfully present, and knowingly so.
I welcome the Minister's response to my amendment and also his points as regards the revised text.
Amendment, by leave, withdrawn.
Amendment No. 211 not moved.
Section 33 agreed to
Amendments Nos. 212 and 213 not moved.
Section 34 agreed to.
SECTION 35.
Question proposed: "That section 35 stand part of the Bill."
As regards section 35(2)(d), an application complies with this subsection if, “in the case of a permit which has been lost or destroyed, it is accompanied by sufficient evidence to establish that the permit has been lost or destroyed”. Perhaps the Minister can elaborate on this for me. I know people are not careless with these permits. However, if they were as careless as Irish citizens are as regards passports, as the Minister would have seen in his previous job, one could be talking about a significant number. If a permit falls into the fire, how does one prove that it has been lost or destroyed?
Something like a statutory declaration would be the normal course. If subsection (2)(d) did not exist, there would be a fairly dramatic hole in the section.
I appreciate that, but I am just asking for clarification. It is just a matter of a statutory declaration.
Question put and agreed to
SECTION 36.
Amendment No. 214 is in the name of Deputy Finian McGrath. Amendments Nos. 215, 218, 220, 221, 233 and 246 are related. Amendment No. 216 is related and alternative to amendment No. 215. Amendments Nos. 214 to 216, inclusive, 218, 220, 221, 233 and 246 will be discussed together.
I move amendment No. 214:
In page 41, subsection (1), line 25, to delete "may" and substitute "shall on application".
I ask the Minister to look at this amendment in a positive and constructive manner.
I can accept the principle behind amendments Nos. 214 to 216, inclusive, in that they seek to provide a guarantee of certainty that long-term residence permission will be renewed automatically on expiration, subject only to the possibility that the permission might be revoked in circumstances listed in section 43(2). It has always been my intention that long-term residence would invariably be renewed and that only in the rare circumstances, namely, those listed in amendment No. 246, would it be revoked. I am grateful to the Deputies for tabling these amendments. I am considering how best the provisions of section 36 can be restated. I hope to bring forward revised proposals for that section on Report Stage, so I ask that these three amendments be withdrawn.
I welcome the Minister's reaction, particularly as regards the principle and in relation to amendment No. 214, so I withdraw it.
Regarding my amendment No. 220, I hope the Minister can accept my view on subsection (4)(c)(iv), which provides that a foreign national “during his or her presence in the State, has been supporting himself or herself and any dependants without recourse to” any publicly funded services. There are situations where people, through no fault of their own, especially in current economic circumstances, will experience difficulty. I refer to someone who has come into Ireland and worked for several years, paid his or her PRSI contributions, and is, perhaps, entitled to claim a job seeker’s allowance for one reason or another, having fallen on hard times. Subsequently, he or she gets back into employment and then applies for long-term residency or renewal and comes up against this problem. Surely a mechanism should be built in in order that they could at least pay back whatever was due to the State to clear their slate.
It is easier to talk about this issue in current economic circumstances than it would have been if we were dealing with the amendment previously, perhaps 12 months ago. The amendment seeks to assist someone who is genuinely contributing to the economy but who for one reason or another has fallen on hard times. A person should not be penalised for this. A situation could arise where someone in very needy circumstances would not apply for social welfare purely on the basis that it could damage his or her record at some future date, which could lead to serious hardship for that person's family. I do not believe any of us wants to see such a situation arising. There are a number of cases, most of which are probably within the black market, but we are now to facilitate this in the legal market also in that people who are legally resident here are falling into very poor circumstances purely because they do not want to damage their record for a potential renewal at a future date.
I do not see a difficulty with amendment No. 220. I could have gone even further with it but what I seek is the basic minimum required in regard to this element. Amendment No. 221 is self-explanatory.
Amendment No. 220 is opposed. It makes provision for foreign nationals to rectify a breach of the standard eligibility requirements by refunding to the State the cost of provision of services provided for the foreign national where such provision would adversely impact on the granting of long-term residence. The mere fact of accessing State-funded services will not be a barrier to a foreign national obtaining long-term residence permission. It will be the case that most of the applicants will have been gainfully employed in the State and paying taxes and PRSI. They will, therefore, have acquired an entitlement to certain benefits and will not be penalised for exercising those entitlements.
The amendment misses the point, which is that the potential long-term resident will have been given permission to be present in the State on condition that certain State benefits are not available to him or her and are not availed of. The person who does so in defiance of conditions cannot be permitted to mend his or her hand for long-term residence purposes by paying back what should not have been taken in the first place. A general principle as regards the services that might be prescribed is that there is an expectation that those applying for long-term residence will generally have been working and supporting themselves and will not have been drawing supplementary welfare allowance, family income supplement, housing benefit and the like. Whether there will also be an expectation that they will have full medical insurance for themselves and their families is among the matters under consideration. This is merely an indicative list and matters are still in the course of development.
I do not have a particular objection to amendment No. 221. The principle is that long-term residence is to be the creature of statute in regard to which it is appropriate that any changes in the conditions for eligibility or conditions attaching to the status itself should have the positive approval of the Legislature, just as the establishment of the status in the first place was so approved. Long-term residence should not be seen as an instrument of immigration policy to be tinkered with from time to time but rather as a constant bulwark around which successive Governments can build immigration policies to suit the needs of the day. I ask the Deputy to withdraw the amendment in order that we can consult the Parliamentary Counsel to bring forward an appropriate wording on Report Stage.
That is a positive development. To come back to amendment No. 220, will the Minister give a commitment in that regard? Will he ensure the list of restricted or blacklisted payments or services will be in the public domain in order that we will know what we are talking about? The difficulty is that the legislation, as it stands, means that someone who has built an entitlement under the PRSI code could be prohibited because we do not know what the restrictions are or what is prescribed. In that context, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 215 to 221, inclusive, not moved.
Question proposed: "That section 36 stand part of the Bill."
With regard to the section and in the context of my amendment No. 221, it is important that all of these provisions are fleshed out in terms of the language used. I understand an amendment to which we will come will deal with the issue of language and integration. We want a situation where people know the barriers they must overcome to be eligible for permission. It is important for two reasons that these matters are not left vague. First, it does not benefit the migrant if he or she does not know what has to be achieved to be granted long-term residency. Second, it is important for Irish society that these criteria are laid down. The Minister of State at the Department of Justice, Equality and Law Reform has reiterated the commitment of the Department to review the legislation in regard to citizenship and to put in place language criteria in respect of that issue. It is important that these provisions are fleshed out and that we know exactly what barriers will have to be overcome or what targets people must reach to achieve this status. I hope the Minister can give a commitment in that regard.
I entirely agree. We will endeavour as much as possible to achieve it.
Question put and agreed to.
SECTION 37.
Amendments Nos. 222 and 223 not moved.
Question proposed: "That section 37 stand part of the Bill."
Subsection (2) reads:
"(a) the foreign national shall be entitled, subject to section 43-
(i) to reside in the State for a period of 2 years from the granting of the permission".
This brings us back to the point we discussed earlier. Does this provision mean persons concerned cannot leave the State? Will the Minister clarify the definition of "reside"?
This provision must be read in the context of subsection (2)(a)(ii) which stipulates that a foreign national who has been granted a qualified long-term residence permission is subject to the “same rights of travel in or to or from the State as those to which Irish citizens are entitled”.
Question put and agreed to.
SECTION 38.
I move amendment No. 224:
In page 45, subsection (2), between lines 13 and 14, to insert the following:
"(b) a number from which it will be possible to identify him or her (“registration number”);”.
This amendment provides for the inclusion in the register of foreign nationals of a facility to issue a unique registration number for each person registered.
Amendment agreed to.
Amendments Nos. 225 and 226 not moved.
I move amendment No. 227:
In page 46, subsection (4), between lines 1 and 2, to insert the following:
"(b) his or her registration number;”.
Amendment agreed to.
Amendments Nos. 228 and 229 not moved.
I move amendment No. 229a:
In page 46, between lines 31 and 32, to insert the following subsection:
"(8) It shall be an offence for-
(a) a person (other than a Minister or a person or body exercising statutory functions) to access the Register,
(b) a person to access the Register other than for the purposes of this Act or regulations made under it or for the purposes of other statutory functions.”.
I agree that the onus is on the Minister to ensure data in the register on foreign nationals are protected and not put to inappropriate uses. Any data contained in the register will be subject to the normal protections afforded by the Data Protection Act 1988 and the Data Protection (Amendment) Act 2003. This proposition is subject to the provisions of sections 106 and 107 which make statutory provision for the exchange of information on foreign nationals.
I am considering the possibility of introducing an amendment to section 106 to provide greater clarity as to the nature of the information that can be exchanged and the purpose for which such exchange can take place. Therefore, I am satisfied there are adequate protections in place for the data on the register and that the proposed amendment is unnecessary. We can discuss the issue of the exchange of information when we deal with sections 106 and 107.
In the light of the Minister's comments, I am satisfied to await the outcome of our discussion on those sections.
Amendment, by leave, withdrawn.
Section 38, as amended, agreed to.
SECTION 39.
Amendments Nos. 230 to 232, inclusive, are related and may be discussed together.
I move amendment No. 230:
In page 46, subsection (1)(b), line 40, after “apply,” to insert “or”.
The purpose of amendments Nos. 230 and 232 is to delete paragraph (d) from subsection (1). Paragraph (d) is unnecessary, given the provisions of paragraphs (a) to (c), inclusive, which comprehensively set out the grounds for renewal of a residence permission. Amendment No. 231 is required for consistency of terminology in paragraph (c).
Amendment agreed to.
I move amendment No. 231:
In page 47, subsection (1)(c), line 3, to delete “new” and substitute “changed”.
Amendment agreed to.
I move amendment No. 232:
In page 47, subsection (1)(c), lines 4 to 6, to delete all words from and including “given,” in line 4 down to and including “permission.” in line 6 and substitute “given.”.
Amendment agreed to.
Amendment No. 233 not moved.
Section 39, as amended, agreed to.
SECTION 40.
Amendment No. 234 not moved.
Amendments Nos. 235, 255 and 255 are related and may be discussed together.
I move amendment No. 235:
In page 47, subsection (3)(a), line 22, after “by” to insert “or on behalf of”.
Subsection (3)(a) provides that a residence review application complies with the subsection if it is “made by the person whose application for a renewal of permission was refused”. My amendment proposes to insert the words “or on behalf of” after “by”. Section 40 provides that the Minister must notify a foreign national of a decision not to renew a residence permission in a language that the individual concerned understands. However, section 45 stipulates that foreign nationals must make the renewal application on their own behalf. The amendment is technical in nature but important. If a person is unable to make a renewal application, whether because of language difficulties or he or she is somehow incapacitated, somebody else should be able to do so on his or her behalf.
I accept the principle behind the three amendments and undertake to introduce a suitably worded amendment on Report Stage. The Deputy is correct that a foreign national may want a legal representative or other individual to make an application on his or her behalf.
Amendment, by leave, withdrawn.
I move amendment No. 236:
In page 47, subsection (3)(b), line 24, to delete “5” and substitute “15”.
This amendment seeks to allow a more sensible approach in regard to the review of a decision not to renew a residence permission. I presume these provisions will relate only to a small number of cases. There is generally a presumption that a person applying for the renewal of a residence permission will be successful. The Minister made that presumption in his earlier comments. However, in the case of those whose renewal application is refused, there are only five working days in which to resubmit it. My proposal to increase this to 15 days represents a more reasonable approach, allowing more time for applicants to gather documentation and so on. Moreover, it may not be possible for an applicant to engage a solicitor within five working days. This is a reasonable amendment and I hope the Minister will accept it.
A person is aware from the date of receipt of a residence permission that 21 days before its expiry, he or she will have to renew it. It should, therefore, be no surprise to those concerned that consideration will be given as to whether any of the circumstances set out in section 39 apply at the time of the renewal application. If there are such circumstances, the permission will not be renewed. The period of five working days is not unduly short for a person to make representations as to why the permission should be renewed. Extending that timeframe to 15 working days would be excessive.
Leaving aside this issue, were I, or anyone else present, to seek a solicitor in respect of a legal matter, could the Minister guarantee that we would get one within five working days? For the sake of argument, the solicitor might be on holiday. At present, people would have one week in which to get their case made. One might not be able to track down a solicitor within one week.
Unless one was looking for a mortgage.
Yes. In many such cases, those involved may not even have a solicitor because there was no reason to have one heretofore. However, on suddenly being refused, they will wish to make the best case possible and first will go to a solicitor. However, that solicitor may tell them he or she knows nothing about this process and that they should speak to a Mr. Treacy, who is an expert in this regard. However, Mr. Treacy may be on holiday that week or may be off playing golf. While few solicitors play golf, he may have gone on a golfing trip or something similar for the week. What does one do in such circumstances? I am considering the practicalities in this regard. I ask the Minister--
I would like to think that solicitors' practices are somewhat more efficient than this and were a solicitor to go on holiday or golfing, that a replacement would be available. While I will re-examine this issue, in effect, 15 working days constitutes three weeks. As those affected will be aware within 21 days of the expiry of their permission that they must renew, they will have plenty of notice. However, I will re-examine it.
I will put this another way. In the Minister's old job in the then Department of Social Welfare, would five working days have been reasonable for someone to submit an appeal to that Department in respect of a case in which, following a visit from a social welfare officer, the person's old age pension was reviewed?
Yes, it would. It is a very efficient Department.
In such a case, the individual would have been aware his or her case was being reviewed. I refer to getting the documentation together to make an appeal. Moreover, in such a case, one would not require a solicitor.
It is probably not the best Department to pick because it is one of the most efficient.
Yes, it is. However, 21 days is--
I am prepared to re-examine this issue.
- -the standard within the Department of Social and Family Affairs.
I am prepared to re-examine it. While I may not go to 15 days--
We will split the difference.
- -perhaps we can split the difference.
Seven days.
Amendment, by leave, withdrawn.
Amendment No. 237 has been already discussed with amendment No. 19.
I move amendment No. 237:
In page 47, lines 33 to 36, to delete subsection (4) and substitute the following:
"(4) A residence review shall be carried out by an independent person appointed by the Minister ("a residence review officer").".
I wish to make a point I did not make when this amendment was discussed with amendment No. 19. The point is no one should be a judge in his or her own case. As the residence review officers, or whatever they are called, will be coming into being anyway, the point is this should be independent from the person who made the decision.
How stands the amendment?
I wish to press it. I did not hear the Minister specifically address that point. If the Chairman permits him--
The amendment was debated before I became Minister for Justice, Equality and Law Reform.
The Minister will understand the sense of my point. It simply is not a good principle that the person judging on the renewability review should be the person who made the decision.
I have been blind-sided somewhat, because I did not prepare for this amendment on the basis that it had been discussed previously.
I appreciate that, because until the Chairman stated it already had been discussed, I could not remember it. However, now that I have been reminded, I remember because we were swapping Latinisms about it. Nemo iudex in causa sua. Does the Minister remember that principle in law, to the effect that no one is judge in their own case?
Vaguely, yes.
How stands the amendment?
I was hoping the Minister--
I have a long note to hand that deals with all of the grouped amendments that were dealt with previously. However, it pertains to putting in place an independent appeals process. I suppose it is the same as the social welfare appeals office, which works very well.
Is it the same? In this case the only difference I can discern is that the person shall be of a grade senior to the person who made the decision. I had thought the new animal being created, the residence review officer, would be a separate category of person.
Deputy Rabbitte is suggesting he believes the review should be carried out by an officer who is senior to the officer who took the original decision.
And who is manifestly independent.
A fresh pair of eyes.
I believe the understanding is this would be a progressive step from the original decision to an appeal. Obviously, however, the idea is to have an independent review in so far as is possible. That is what is done in the social welfare process, in which ultimately one goes to the social welfare appeals office, which is a clearly independent system. However, the different reviews that take place in respect of decisions are carried out by officials who are senior to the original deciding officer. I believe that is the intention in this case.
I agree the social welfare system works and accept the Minister's comments in this regard. However, I was not persuaded that subsection (4), as given expression to at present, is the same as the social welfare system. I would appreciate it were the Minister to have a closer look at his predecessor's comments at the time and to revert to this issue on Report Stage.
I can undertake that.
Amendment, by leave, withdrawn.
I move amendment No. 238:
In page 48, lines 1 to 3, to delete subsection (8) and substitute the following:
"(8) The information referred to in subsection (7) includes any information available to any information holder.”.
Amendment agreed to.
Amendments Nos. 239, 242, 247 and 248 are related and will be discussed together.
I move amendment No. 239:
In page 48, subsection (9), line 7, after "determined" to insert "and notified to the foreign national".
These amendments are self-explanatory and propose that the decision should be notified to the foreign national. While they are technical in nature, they add to the legislation.
I agree with the principle. Were the Deputy to withdraw the amendments, I would reintroduce them on Report Stage.
That is fine.
I refer to amendments Nos. 239 and 242.
Amendment, by leave, withdrawn.
Section 40, as amended, agreed to.
SECTION 41.
I move amendment No. 240:
In page 48, subsection (4), lines 23 and 24, to delete all words from and including "public" in line 23 down to and including "public”).” in line 24 and substitute the following:
"national security, public security or public order or would be contrary to public policy ("ordre public”).”.
Amendment agreed to.
Amendment No. 241 not moved.
Question proposed: "That section 41, as amended, stand part of the Bill."
I oppose this in the context of a subsequent amendment tabled by Deputy McGrath. It ties in with it in respect of having an independent immigration appeals process. While the Minister proposes this should be on an administrative basis within the existing system, it is of critical importance that the system should be seen to be clear and transparent. I will not go into it in any great detail because I know we will come to it with the more substantive amendment later and we can go into it in greater detail at that stage.
That is fine by me.
A number of review processes are built into the Bill for different types of decisions that arise at various stages of the immigration process. For example, section 17 deals with visa review applications, section 40 contains a review mechanism for non-renewal of 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 revocation of a protection declaration.
Again, we are discussing it in the context of having a system similar to the social welfare appeals system which is operated by the staff but in a manner which affords people dealing with the system a second look at the merits of the case independent from the original decision maker. That is what we are trying to put in place. Again, those of us who work with social welfare know that people appreciate that it is a system that works at arm's length when decisions go up the line for review and I do not see why it should be any different in this area.
We will deal with it later so we can tease it out at that stage.
Question put and agreed to.
Amendment No. 242 not moved.
Section 42 agreed to.
SECTION 43.
Amendments Nos. 243 and 244 are related and will be discussed together.
I move amendment No. 243:
In page 49, subsection (1)(a), line 3, after “entry” to insert “into”.
Amendment No. 243 deals with drafting required for consistency in the text of the Bill. Amendment No. 244 proposes to delete a provision that has been a part of our immigration laws since 1946. On reviewing this provision, I have come to the view that it is neither necessary nor desirable that a court should have the formal authority to make a removal recommendation regarding a foreign national before the court on a criminal matter but not necessarily convicted.
The court's power to determine the criminal matter is clear but it is for the Executive to decide in any particular case whether a foreign national should be permitted to remain in the State. The provision being deleted is not necessary as it is the responsibility of the Minister for Justice, Equality and Law Reform to make decisions in respect of the revocation of an entry or residence permission. It is not desirable in the sense that a court could be perceived as seeking to influence the executive arm of the State in a potential breach of the separation of powers.
The deletion of this paragraph will not, of course, prevent the Minister from factoring into his or her considerations when determining whether an entry or residence permission should be revoked the fact that a foreign national may have been charged or indicted before a court.
Has this provision ever been used?
Apparently very rarely.
However, it has been used in the past?
Yes.
Does the Minister have any idea of the circumstances under which it has been used in the past?
I am told there was a case in Limerick relating to a prostitute who welcomed the recommendation of the court so that her deportation could be facilitated on the basis that she did not get a conviction.
Amendment agreed to.
I move amendment No. 244:
In page 49, subsection (1), lines 6 to 8, to delete paragraph (c).
Amendment agreed to.
I move amendment No. 245:
In page 49, subsection (1)(e), lines 12 to 18, to delete all words from and including “good,” in line 12 down to and including “permission.” in line 18 and substitute the following:
"good, or
(f) the foreign national obtained his or her permission on the basis of information or documentation which was false or misleading.”.
I would like to hear the Minister's views on the amendment.
I oppose this amendment, the effect of which would be to delete paragraphs (g) and (h) of subsection (1). These paragraphs allow the Minister to revoke an entry or residence permission where the permission was issued in error - paragraph (g) - or where there are other reasons justifying revocation - paragraph (h).
I cannot accept the proposition that a permission issued in error cannot or should not be revoked. It cannot be the case that a foreign national can assert an entitlement to enter or reside in the State on the basis of a permission granted in error. Entry to or residence in this State is not a right but is an aspect of the exercise of the State of its power to control migration. In the words of Ms Justice Denham in the Bode case, it is, in effect, a gift. The proposition that a person who may have a criminal record or a history of infringement of our immigration laws or who was inadvertently granted an entry or residence permission should not be subject to revocation provisions in section 43 is untenable.
In respect of the proposed deletion of paragraph (h), the Minister of the day must have certain discretion when it comes to making a decision to revoke a permission. The paragraph does not give the Minister wide discretion. There must be reasons which justify the proposed revocation. The doctrine of fair procedures requires that these reasons must be put to the foreign national concerned and that the review processes in sections 44 and 45 will ensure that the person has an opportunity to seek a review of the decision so I cannot accept the amendment.
Is the Minister saying in respect of paragraph (h) that it must be put to them?
Yes.
Would it not clarify the matter if that was written into the legislation that this would also be put to them? Reading through the legislation - I had it marked here - it seems a very open-ended definition as it stands in the legislation. I accept what the Minister is saying, that this point will be put to them. As it is drafted here, it seems to be very open-ended. Will the Minister give us an example of what we would be talking about here or instances where it has happened in the past to give us some idea of the issue?
In respect of paragraph (g) and the competencies of the immigration service, I have no doubt whatsoever that no such permissions have been issued in error in the past and I am sure they will not be issued in the future either.
I do not have that information to hand. Section 44 deals with the whole issue of notification. Section 44(1) states that the Minister "shall notify the foreign national to whom the permission was granted, where necessary and practicable in a language that the foreign national understands, of his or her decision", while section 44(2) states:
A notification under subsection (1) shall include—
(a) a statement of the reasons for the decision to revoke the permission, and
(b) if the Minister decides to make a non-return order under section 46 in conjunction with the revocation of the permission,
a statement—
(i) of that decision and of the reasons for it, and
(ii) of the duration of the period (whether of a specified or an indefinite duration) for which the foreign national is required to remain outside the State (in this Act referred to as the "exclusion duration"),
and
(c) a statement of the consequences set out in subsection (3)
and the effect of section 60.
I will withdraw the amendment and rely on the Minister's comments on discretion.
Amendment, by leave, withdrawn.
I move amendment No. 246:
In page 49, subsection (2), lines 21 to 32, to delete all words from and including "if" where it secondly occurs in line 21, down to and including "public”).” in line 32 and substitute the following:
"if satisfied that the foreign national—
(a) obtained his or her permission on the basis of information or documentation which was false or misleading,
(b) has been out of the State for 12 consecutive months,
(c) having been by a final judgment convicted of a particularly serious crime, constitutes a danger to the community of the State, or
(d) the foreign national constitutes an actual and serious threat to national security, public security or public order.”.
Amendment agreed to.
Section 43, as amended, agreed to.
SECTION 44.
I move amendment No. 247:
In page 49, subsection (1), line 35, after "notify" to insert ", in writing,".
Amendment agreed to.
I move amendment No. 248:
In page 50, subsection (4), line 18, to delete "or (if earlier) deemed to have been received under section 121.” and substitute the following:
"or deemed under section 121 to have been received by the foreign national (whichever is the earlier).”.
Amendment agreed to.
Amendments Nos. 249, 357 and 358 are related and will be discussed together.
I move amendment No. 249:
In page 50, subsection (5), line 22, after "revocation" to insert the following:
"and shall be returned to the Minister without delay".
This relates to subsection (5J) where permission is revoked and the permit issued to the foreign national concerned would be returned without delay to the Minister. It could open up problems for employers as well. They will now be subject to potential convictions. If an employer believes a document is genuine, given that it has not passed its expiry date, he or she should not be found to be liable. I thank the Minister for considering my amendment and hope for a positive conclusion.
Amendment, by leave, withdrawn.
Section 44, as amended, agreed to.
SECTION 45.
Amendments Nos. 250 to 252, inclusive, 256, 259, 260, 262, 264, 266, 267, 270, 272 and 279 are related. Amendment No. 265 is related and an alternative to amendment No. 264. Amendment No. 280 is related and an alternative to amendment No. 279. Amendments Nos. 250 to 252, inclusive, 256, 259, 260, 262, 264 to 267, inclusive, 270, 272, 279 and 280 will be discussed together.
I move amendment No. 250:
In page 50, subsection (1), lines 23 and 24, to delete all words from and including "a" in line 23 down to and including "(2)” in line 24 and substitute the following:
"or not to renew a permission to which this section applies ("a permission")".
The Deputy must be worn out.
I am exhausted. This section applies to entry permission, non-renewable and renewable residence permission, including qualified long-term and long-term residence permission. Will the Minister consider the ideas in the amendments, as some are positive and constructive? What is his opinion on them?
With the exception of amendments Nos. 265 and 280, I must oppose the amendments. Their effect would be to apply to the revocation of short-term time-limited permissions a process suitable only for revocation of renewable residence permissions, qualified long-term and long-term residence permissions. They would also apply the process to decisions not to renew renewable residence permissions.
I cannot accept the proposals because they seek to retain many aspects of the current inefficient pre-deportation process that the Bill seeks to replace. Were I to accept them, we would be retaining a system within which a person whose six-week entry permission was revoked after four weeks would be entitled to a three-week period in which he or she could make representations as to why that permission was being revoked. Under the amendments, the period for making and considering representations would often exceed the period of the entry permission. The Bill provides for different processes, one for seeking a review of a decision not to renew a residence permission and another for a decision to revoke a residence permission.
Regarding a renewal, the holder of a renewable residence permission must apply for renewal of that permission not later than 21 days before the permission expires, as outlined in section 32(3). The effect of subsection (3) is that, where the renewable application is made within the time constraint, the permission will, for the most part, routinely be renewed. The Minister may but is not obliged to consider an application for renewal not made in that manner, as outlined in section 32(4). Thus, an application made slightly late may be dealt with. However, failure to apply for renewal of a renewable permission within the generous grace period of three months after the expiry date converts it into a non-renewable permission and, from then on, the person is without permission to be in the State, as outlined in section 32(5). Where the Minister refuses to renew the permission, the holder may, within five working days of being notified of the proposal not to renew, seek a review of the decision, as discussed previously. In seeking a review it is open to the holder to make any relevant representations to the Minister as to why the permission should be renewed. The holder is lawfully present in the State until the review is decided. If the review confirms the non-renewal, the holder is without permission to be in the State from the date of notification.
As revocation of the residence permission arises during its currency as distinct from at the point of renewal, the person is given advance notice of the proposal to revoke and has 15 working days within which to make representations as to why the revocation should not be made, as outlined in section 45. The Minister must consider representations on other matters set out in section 45(8) or 45(9) as the case may be. The holder has permission to remain until the decision is reached, even if the permission in question has expired in the meantime. If the final decision is negative, the holder is without permission to be in the State from the date of notification or deemed notification. If the revocation is at the end of the period of lawful residence for a continuous period of more than five years, there is normally a special further period of three months grace to give the person an opportunity to wind up his or her affairs, as outlined in section 45(15).
These processes have been carefully constructed to ensure necessary decisions can be taken and fair procedures guaranteed without unduly protracting the process. They strike the correct balance.
Government amendment No. 265 is required for consistency of terminology. As with amendments Nos. 249, 357 and 358, I welcome amendment No. 280 in principle and will consult the Parliamentary Counsel before Report Stage.
Which amendments will the Minister accept?
My amendment No. 265 and Deputy Naughten's amendment No. 280.
Amendment, by leave, withdrawn.
Amendments Nos. 251 and 252 not moved.
I move amendment No. 253:
In page 50, subsection (2)(b)(ii), line 37, to delete “in this Act referred to as the”.
Amendment agreed to.
Amendments Nos. 254, 257 and 263 are related and will be discussed together.
I move amendment No. 254:
In page 50, subsection (2)(c), line 39, after “consequences” to insert “of the revocation of a residence permission”.
This amendment is intended to provide greater clarity to section 45(2)(c) by making clear that the statement refers to the consequences of the revocation of a residence permission. Amendment No. 257 corrects a cross-referencing error, while amendment No. 263 is a drafting amendment, as advised by the Parliamentary Counsel.
Amendment agreed to.
Amendments Nos. 255 and 256 not moved.
I move amendment No. 257:
In page 51, subsection (3), line 1, to delete "(3)” and substitute “(2)”.
Amendment agreed to.
Amendments Nos. 258 to 260, inclusive, not moved.
I move amendment No. 261:
In page 51, subsection (6)(b)(ii), line 23, to delete “if he or she does make” and substitute the following:
"in circumstances as prescribed in section 125, the Minister may make”.
The amendment would provide for further transparency, but proper provision must be made in respect of a more significant issue on which the Minister should indicate his opinion. On the duration of non-return orders or exclusion orders, it is important that a clear message be sent to the effect that, in the case of someone who leaves the State voluntarily, restrictions placed on his or her return should be significantly less or non-existent, as the case may be. Based on figures furnished to me by the Department, we are discussing a cost of €3,312 per deportation. Every opportunity should be given to a person to leave the State voluntarily. At present there is that flexibility and people leave the State voluntarily. Many of them disappear. The same flexibility will not exist once this legislation is enacted because summary deportation will apply and the opportunity to voluntarily leave the State may not exist. How great a role the International Organisation for Migration, IOM, will have is difficult to know. People may not have the opportunity to deal with it because they may be immediately deported. I ask that some mechanism be set up so that people are given options rather than being forcibly deported. It is in the interest of the taxpayer and of the individual that these people leave under the auspices of the IOM or their own resources. There must be an incentive for them to leave voluntarily.
Is the average figure €3,348 per deportation?
The figure the Department gave me is €3,312 per deportation.
I wanted to check it. How many people are deported per year?
We can get that figure for the Deputy.
I can give the figures because I have them to hand for 2007. There were 162 self-managed voluntary returns effected in 2007, 255 were assisted by the IOM, 418 deportation orders, including consent orders, were signed and the number of consent deportation orders is 17.
Again, the figures we have are up to date.
I hope they are not more up to date than my figures because these are in reply to a parliamentary question for 2007.
We have figures for the first quarter of 2008. This goes back to whether one makes regulations. It would be better to deal with the situation on a case by case basis. The intention behind section 45(6) (b)(ii) is to provide an incentive to a person to leave the State before the Minister proceeds with the revocation of a residence permission. Deputy Naughten is not characterising it correctly when he refers to summary deportation. The deportation will take place after a process has been followed. People are aware that the process has been followed and there may be a deportation at the end of it. Giving someone an incentive to leave must be considered in the context of the holder of the permission having been given notice of the intention of the Minister to revoke the permission and the reasons for this.
The holder must also be notified of the Minister's intention to make a non-return order. However, notification will also state that if the person leaves the State voluntarily, either no non-return order will be made or such an order will be made but with a lesser exclusion duration attached. Introducing a requirement to spell out all possible scenarios and exclusion durations and regulations would create an unwieldy level of bureaucracy, would lead to inefficiency and would make the provision unworkable.
I see where the Minister is coming from in respect of the logistics. If someone appeals the decision of the Department to refuse to grant a renewal of the residency permit, the person is illegally resident in the State as of that moment and they can be immediately deported from the State at that stage. That does not give the opportunity to contact the IOM.
It does, the Deputy referred to the figures--
That is under the existing law, which is different.
It is exactly the same after this Bill is enacted.
No, because notification is given of the intention to deport whereas that will be removed from the legislation.
The person must be notified of the intention to revoke.
Yes, but if they appeal that intention to revoke, when the decision is upheld the person can immediately be deported.
That is the end of the process.
Yes, but what I am saying is that very few people will leave the country voluntarily in the middle of the process. Most would see it out.
That is not necessarily the case. There have been people who left under the existing terms.
It would not be the norm, most people would await the final decision before deciding what to do. They do not have a window of opportunity to decide.
I am informed that they do.
They do not.
That is why there is provision for the reduced exclusion.
I accept that but the person is illegal in the State and can immediately be deported once they have received that notification. There is no opportunity to go--
They would have had the opportunity to go for the reduced exclusion prior to that, and ultimately the process must come to an end at some stage.
When the process comes to an end, they do not have the opportunity to go down that route.
They had that opportunity previously.
At that stage it falls to the taxpayer to ensure the person is deported from the country.
We have seen a substantial number of cases where people were deported and there were concerns about them when they arrived back. There were a number of cases involving children with disabilities. Once they are gone is there no follow up from the Department? If someone is deported, has the process ended? I refer to protection and people who find themselves in a negative situation with no security. Is there no UN protection?
Not that I am aware of.
A number of families had children with disabilities who were receiving an excellent service in Ireland and then they were gone, end of story.
I ask the Minister to consider this matter. It is in everyone's interest and I ask him to examine this prior to Report Stage.
We can do so but the process must come to an end at some stage.
I accept that.
If we give people an opportunity to continually extend the process--
Rather than take someone to Dublin Airport, a person should be given the opportunity to choose between three options.
Obviously, we would endeavour as much as possible to prevent this.
Amendment, by leave, withdrawn.
Amendment No. 262 not moved.
I move amendment No. 263:
In page 51, subsection (7), line 32, to delete "subject to" and substitute "in accordance with".
Amendment agreed to.
Amendment No. 264 not moved.
I move amendment No. 265:
In page 51, subsection (8), lines 41 and 42, to delete paragraph (c) and substitute the following:
"(c) considerations of national security, public security, public order and public policy (“ordre public”).”.
Amendment agreed to.
Amendments Nos. 266 to 268, inclusive, not moved.
I move amendment No. 269:
In page 52, subsection (9), between lines 14 and 15, to insert the following:
"(h) the efforts made to integrate into Irish society including competency in the Irish or English language.”.
The idea behind this amendment is that recognition should be given to someone who has made efforts to integrate into Irish society. I am singing from the same hymn sheet as the Minister of State, Deputy Conor Lenihan, on this issue. The amendment proposes that when the revocation of residency is being considered recognition would be given to someone who has been involved in voluntary work in his or her community, attended language courses or made an effort to improve his or her competency in the English language. This would make sense and I hope the Minister can accept the amendment. It is important that a clear message is sent to those who make an effort to get involved in their local community and integrate into society. We must encourage this. I know it is difficult in legislation such as this but the Minister of State, Deputy Conor Lenihan, is considering including a similar measure in the citizenship legislation. In the light of this we should examine the issue in the context of immigration legislation in order that people can build up credits which can be taken into consideration.
We have started the debate on integration into Irish society and it is important that it is detailed and comprehensive. I have concerns about the word "integration". There is an element that coercion or force could be used in making people from various cultures--
We are discussing assimilation.
I know but I am discussing forced integration also. We must be respectful of various cultures. By all means include them in Irish society. Take the major debate we had about the Sikh who wanted to join the Garda Reserve and wear his turban. We should have been more flexible on the issue. If he wanted to join the Garda Reserve, his rights should have been respected. He wanted to serve his community but we had a major debate about the clothing he wanted to wear which was not a major issue for me. It is the same with regard to the debate about secondary school students. We can live with people wearing their own clothes and respecting their own cultures. At the same time, we expect them to obey the laws of the land with regard to being active citizens. I would like to see us being a little more flexible and open on this matter. Many immigrants come here and want to get involved in the Irish and English languages and this option is available to them. However, we should not be afraid of other cultures. This republic should be about accommodating difference and enjoying diversity. We are not all the same. People are different and everybody should treat everybody else with respect. This is included in the wider debate. It is important that we keep an open mind on these issues.
Section 43 contains the grounds on which permission can be revoked. They are stringent. Section 45 contains the grounds to which the Minister must have regard. Deputy Naughten mentioned voluntary work which is catered for in catch-all section 45(9)(d) which refers to the nature of the foreign national’s connection with the State, if any. This covers a multitude. It is also true of section 45(9)(g) which refers to the character and conduct of the foreign national both within and outside the State. Representations can be included in this. I am not convinced that showing an ability to speak or integrate should be elevated to a particular status in the Bill. The considerations which the Minister must take into account are well enunciated in section 45(9)(a) to (g). Becoming more prescriptive in the circumstances would mean leaving things out.
I accept that the Minister cannot include the kitchen sink. However, if we are discussing integration into Irish society, these are two fundamental issues and it is important that they are given the status I suggest. In the long term it would be of major assistance to Irish society.
The reasons for revoking include contravening a restriction imposed on entry into the State and serving or having served a term of imprisonment. We have made provision for reasonable grounds in regarding a foreign national to be a danger to the security of the State. These are onerous and stringent reasons for revocation. We should not include too many prescriptive issues for consideration by the Minister.
This would be more appropriate to section 36. I will examine the issue prior to Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 270 not moved.
I thank the Minister and his officials for attending. We will meet next Tuesday, Wednesday and Thursday for further consideration of the Bill.
Progress reported; Committee to sit again.
The select committee adjourned at 5 p.m. sine die.