On 20 January 2003 the joint committee decided to hold a meeting to discuss the practical implications of the Supreme Court decision of 23 January in connection with the cases of "L" and "O" concerning the residency rights of non-EU parents of Irish-born children. A decision of the High Court last Thursday, 8 May found that the detention of a Nigerian asylum seeker was illegal and the refusal of her application for residency was unfair. At the last meeting of the joint committee on Tuesday, 13 May we held discussions with Amnesty International, the ICCL and others on the implications of the judgment for refugees and applicants for asylum status. I am pleased to welcome to today's meeting Sister Stanislaus Kennedy of the Immigrant Council of Ireland, along with Mr. Fidéle Mutwarasibo, to outline the views of the council on this matter.
Immigrant Council of Ireland: Presentation.
Sr. Stanislaus Kennedy
I express my gratitude to the committee for seeing us; we are very glad to be here. We will be as brief as we can. We are here representing the Immigrant Council of Ireland, which was set up last year to provide advice, information and legal assistance and advocacy for immigrants, excluding asylum seekers, because there are many NGOs and Departments dealing with them.
Today we are here to talk about the Supreme Court decision on Irish citizen children and how this impacts on immigrants. Following the Supreme Court's decision that non-national parents of Irish children do not have an automatic entitlement to residency in the State, the Department of Justice, Equality and Law Reform ceased accepting applications for residency from such parents. The Immigrant Council of Ireland believes the decision by the Government, announced by press release by the immigration division of the Department of Justice, Equality and Reform on 19 February 2003, "not [to] accept, consider, acknowledge or process in any way applications [on the basis of a person's parentage of an Irish citizen child] made in advance of the initiation of the deportation process, irrespective of the manner in which such applications are made," was not a necessary consequence of the Supreme Court decision. In fact, the Supreme Court decision was very specific to the facts of the individual cases concerned and many of the judgments stated that other cases would have to be decided on their individual merits. We believe that what the Department did was not in keeping with the spirit of the decision by the Supreme Court.
According to our Constitution, "it is the entitlement and birthright of every person born in the island of Ireland . . . to be part of the Irish Nation." All Irish citizens, regardless of the nationality of their parents, are entitled to be treated equally to and afforded the same rights as all other citizens. The Immigrant Council of Ireland is concerned, however, that the current situation may lead to the creation of a second-class Irish citizen, that is, those with non-national parents. We argue that the deportation of their parents, on whom they depend, could amount to the effective denial of some Irish children's rights to remain in the State. This in turn amounts to the denial of fundamental constitutional rights.
We appreciate the State's need to protect the integrity of this island's immigration systems and fully accept that the State has a right to control the entry and residence of non-nationals. The number of applications received by the Department of Justice, Equality and Law Reform for permission to remain in the State on the basis of parentage of Irish citizen children has certainly increased in recent years, from 1,428 in 1999 to 2,879 in 2002. However, it is not clear that this constitutes a new, real threat to public order or to the authority of the State. In particular, the Immigrant Council of Ireland is concerned about the lack of transparency about the criteria that will be used to decide the pending applications for residency of non-national parents of Irish children. The council received queries from people every day who have already been granted permission to remain on the basis that they are parents of Irish citizen children and who are now applying for other dependants to join them in Ireland. Such people are now in limbo as they do not know when they can expect a decision on their applications and how they will be assessed.
Mr. and Mrs. A came to Ireland in 1999. They were granted permission to remain on the basis of their parentage of an Irish citizen in May 2001. They have three other minor children, one of whom had to be left behind when they left their country of origin in 1999. This is a 15 year old child, who has been without parental care for nearly four years. Her application for permission to join her parents and younger siblings in Ireland has been pending since November of last year and her parents have recently been informed that visa applications such as this are not currently being processed. We find that quite extraordinary.
The council feels that certain matters need urgent clarification. How does the Government propose to deal with people who have been legally resident in Ireland for a number of years and now wish to transfer their residency status to that of parents of Irish national children? Are individuals in such positions required to let their work or other permits expire, rendering themselves illegal and reliant on public funds, wait to be notified of the intention to deport them and only then make a representation outlining why, in the interest of the Irish citizen children, they should be allowed to remain in the State?
We know of a case of this type. Doctor B is a temporary registered doctor whose family have been legally resident in the State for more than six years on the basis of the work visa issued to him. They own a house and have one Irish citizen child. Doctor B's wife would like to transfer their status from that of a temporary worker and his dependants to that of long-term residents on the basis that one of their minor children is an Irish citizen. The family is anxious not to become illegal. However, this now seems to be the only way in which they can even make an application for long-term residency. Such a step would involve the father ceasing his employment and the entire family, which has up to now been entirely self-sufficient, having to rely on public funds while awaiting a decision on their applications. We find that extraordinary also. I will now ask my colleague Fidéle to continue with the submission.
Mr. Fidéle Mutwarasibo
What is the situation with regard to the parents of an Irish citizen child where one parent is not an Irish citizen? Is the non-national parent required to expose himself or herself to the chance of deportation even though it is clear that it is the child's right to have the care and company of both parents and that the non-national parent will in fact be allowed to remain? Particularly as the situation of the non-national parents so far has been for them to legally reside in the state, this situation seems most undesirable. I have a case study to illustrate the point I am making. Miss C is pregnant and expecting a child in May. Her former boyfriend and father of her child, Mr. D, is an Irish national. He is supportive of her and wants to be involved in the upbringing of his child. Even though he is no longer in a relationship with the woman, should Miss C be deported? If this were to happen Mr. D and the child would be deprived of contact with each other. This would affect the father as well as the child's rights under the Constitution and other national and international human rights instruments.
The Immigrant Council of Ireland further submits that it would be in the interests of both the State and the individual non-national parents concerned to make the requirement for granting permission to remain here as transparent as possible. If a person knows exactly how long he or she has to be in the State, whether legally or without permission, and how old and established in the State his or her child needs to be before he or she has a reasonable chance of being granted permission to remain in the State, he or she would be in a position to make an informed decision on whether to apply for permission to remain or leave the State voluntarily. This would be particularly important where a person can only apply for permission to remain in the State pursuant to subsection (3), paragraph 6 of the Immigration Act 1999 as amended, as a negative decision on such applications results in the immediate issuing of a deportation order and the exclusion of that person from entry to this State in the future. The voluntary departure of the person who clearly will not be granted permission to remain has at least two advantages. The State will not have to arrest and deport the person, thus alleviating the current pressure on public funds. The individuals concerned will not be barred from entering Ireland in the future, as visitors to their children for example.
Of additional concern to the Immigrant Council of Ireland are individuals that have withdrawn from the asylum process with the legitimate expectation that they would be granted residency here on the basis of having an Irish child but are now facing an uncertain future. The recent decision of the Supreme Court has caused worry, confusion and fear among this group. I have a case to illustrate the point I am making. Mr. E came to Ireland in April 2001 fleeing persecution in his country of origin. He had been separated from his pregnant wife who been granted refugee status in another EU state in the meantime. The couple managed to establish contact and Mrs. E came to Ireland to visit her husband. She was seven months pregnant at the time and the child was born prematurely in September 2001. Having been advised to do so by an official of the Department of Justice, Equality and Law Reform, Mr. E applied for permission to remain here on the basis of being the parent of an Irish citizen. He withdrew his asylum application even though, judging by the case of his wife, his application would have been likely to succeed. The couple now face an uncertain future. Mrs. E's refugee status is not transferable to Ireland and the application for residency has been suspended.
In light of these examples, the Immigrant Council of Ireland asks that clear, transparent and non-discriminatory decisions be made when deciding whether or not to grant individual residency. In particular, no person should be expelled from the State or returned to territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group, or political opinion.
I am delighted to welcome the Immigrant Council of Ireland, Sister Stan and Mr. Mutwarasibo. The presentation further compounds the confused circumstances that now exist arising from the decision of the Supreme Court. It appears that there are many anomalies in the system. Do we have access to a database other than that held by the Department of Justice, Equality and Law Reform? While the Supreme Court decision was made in relation to parentage, it has left a large number of issues regarding the children. There are no easy answers to these questions. Matters are left hanging, as the Department is not considering any further applications pending the outcome of its considerations. If the assessment is done after a deportation order has been served, the merits of the case are obviously not being dealt with in an open and transparent manner. The Department seems to propose putting the cart before the horse. As I understand it, it originally stated that it would look at individual cases on their merits prior to making any decision. It now looks as though it will go through the deportation process first. This seems to be unsatisfactory.
Do we have any idea of the number of anomalous cases? Does the council have any model or criteria that it could put forward that would be of assistance to us in dealing with the matter? We are talking about thousands of cases. What proposals would the council put to the Department that would see a non-discriminatory approach that would give a fair hearing to everyone? Everything seems to be happening outside the public arena. We have no idea of any decisions that are about to be taken. We expect the Department will give us its view on the matter. We would like to have an agreed approach towards dealing with this thorny issue.
I echo what Deputy Costello has said and join him in welcoming the two representatives from the immigrant council and thank them for the case they have made. For us as a committee the objective should be to move towards making a series of recommendations at which we can arrive unanimously. To that end, it is important that as well as hearing the submissions we get definite recommendations from the council as to how it sees the system being organised in the future. The public at large may view this as a problem that afflicts or affects the larger urban areas or the cities. I represent a rural constituency and at every weekly clinic somebody raises the difficulties that the council so effectively set out in its four case studies. The issue arises right across the country and the 10,000 people mentioned at our last meeting are also well dispersed across the country, living and taking active part in communities which very often want them to stay and integrate.
When one looks at the challenge before us, the question, as the council said, of protecting the integrity of the asylum and the immigration system while at the same time recognising the constitutional rights of the child is a dilemma to resolve which one would require the wisdom of Solomon. We need to hear something more definite from the council as to how it might move forward. We all agree that whatever is done needs to be transparent and non-discriminatory but what specific steps would the council recommend to us at this stage?
I welcome Sister Kennedy and Mr. Mutawarsibo's presentation on this important matter. They have raised pressing questions to which, as my colleagues have said, we have not found the real solution. I certainly have not. They have put them well to us and I, and other colleagues sharing this view, wonder where the State stands on the deportation of children who are Irish citizens now. Where does the protection of the State extend to them when they are deported? We have many questions and unfortunately we have not come to the solutions that we need in order to address this issue. As Deputy Ó Fearghaíll says this applies particularly in the cities. I live in Nenagh in Tipperary, a provincial town where it is a different matter but it will affect the whole country. It is an issue on which we have heard many of the questions, and the real cases which have been well outlined to us today but we need to come up with some way in which to address this and iron it out with the Minister.
A number of interesting questions have arisen. I am sure the witnesses do not have all of the answers. If they did, they probably would not need to be here. However, I invite them to respond and make any comments they wish. That would be helpful.
Sr. Kennedy
These questions are important and it is important that they are answered. We do not have all the answers but our biggest concern in dealing with immigrants is that there is no immigration policy. I know the committee is also taking submissions on the Immigration Bill at the moment. That says nothing about immigrants. The majority of foreign nationals in this country are people who come in to work or study - 40,000 permits were issued last year. Permits are issued to employers who hold and control them. Workers come in to this country and get work if there is an employer who has a permit for them. This is done on a year-by-year basis and they can reside in the State only for as long as they have a work permit. The two are tied leaving them no right to reside otherwise, which is open to all kinds of exploitation. Unless that is put right we will always have problems around immigrants. I am not moving away from the question; this is part of a whole policy.
Looking beyond that to the rights of a family of immigrants, an immigrant worker does not have the right to bring his or her family into the country. He or she has to leave the family in suspense. The family may apply a year after he or she is in this country when they may or may not be granted permission. It is a very cumbersome operation: if they lose one document they have to apply again and again. When the spouse and children come in they are totally dependent on the worker, they have no rights whatsoever: they may not work and if anything happens in the home, such as violence or abuse, they cannot leave the home and if they do they will be deported. This creates a problem for a family which has no security, certainty or support that a family needs.
On top of that, if the couple have a child in Ireland and want to get any security of residency they have to declare themselves illegal and then apply for long-term residency as parents of the Irish-born child. That is an outrageous situation. If we as Irish people were treated like that when we went to other countries we would be outraged. We were never treated like that yet that is how we are treating people whom we are welcoming in here to work. That is part of the issue.
The Immigrant Council of Ireland is in the process of developing a policy document which we will have completed by September. We would like to bring that here to the committee because it ranges much wider than the Irish-born child question. This is important now, not so much because of the Supreme Court decision but more because of the decision of the Department of Justice, Equality and Law Reform to cease taking applications. That was not a necessary consequence. It was an improper way of proceeding because the Supreme Court was very clear that this was one particular case and the other many judgments said other cases should be seen on merit. The Department made this decision to refuse to take applications which leaves people in a precarious situation. The issue has to be seen in the broader context. If we are inviting people in here to work we must ensure that they have the right to have a family, that our society is family friendly, not anti-family, and that has to be taken into account when we look at the children who are born here.
Mr. Mutwarasibo
In terms of statistics, the Department of Enterprise, Trade and Employment publishes on a regular basis the number of work permits issued so the information is available on the website. In regard to the Immigration Bill the Department has statistics of students who have come here to study and we have statistics of people who have registered with the Department. On the question of the number of cases of people who have applied for permission to stay on the basis of being parents of Irish-born children I have the number of 6,500 applications last year. This does not say whether these people were asylum seekers or people who were working here or students and so on.
In terms of what has to happen on a long-term basis, I agree with Sr. Kennedy, we need an immigration policy but, meanwhile, before the immigration policy is implemented, we may need to go back to what we had before. Why should people have to wait? Why do we not do what we used to do and examine the files on an individual basis? We have procedures and people know basically what their rights are. Before the Supreme Court ruling one made the application and if it was successful one had permission to stay. Today they do not even accept new applications.
As for a model, we do not have one, but that is something on which we hope to work. Different countries have different ways of looking at the rights entitlements of children born in the country but we can come back to that at some stage. I would not want to say too much unless I was very sure of what the systems are, but there are systems in place and we can learn from the United States, Canada, and so on.
Sr. Kennedy
That is what we are doing. We are looking at other countries in developing our policy document. I strongly recommend to the committee that there would be an immigration policy. It is crucial as more and more immigrants continue to come to Ireland. Otherwise, we will leave them in a precarious and insecure position.
I take Sr. Kennedy's point. I thank both her and Mr. Mutwarasibo for attending the committee and adding to our knowledge of the issue. As I have explained we have had a number of groups in already to discuss it. Certainly today's presentation will also help. We will meet the Irish Human Rights Commission after this and we will discuss this in greater detail with them.