Amendment No. 7 is in the name of the Minister. Amendments Nos. 169 and 237 are related.
Immigration, Residence and Protection Bill 2010: Committee Stage (Resumed)
SECTION 2
I move amendment No. 7:
In page 17, line 22, after "section 115” to insert “or 125”.
Amendment No. 7 is a technical amendment to include a reference in the definition of "travel document" in section 2 to the proposed new section 125 which makes provision for the granting of a travel document by the Minister.
Amendment No. 169 is related and introduces into the Bill a new section 125 that allows the Minister to issue a travel document to a foreign national. This travel document must be distinguished from the travel document referred to in section 115 which is granted where the applicant is either the holder of a protection declaration, a family member of such a person or a programme refugee. Section 19 of the Immigration Act 2004 envisages the issue of a travel document upon payment of the relevant fee and it is proposed that the Bill should contain a similar power.
Amendment No. 237 is a necessary transitional provision on travel documents issued under section 19 of the Immigration Act 2004. It deems such documents to be travel documents issued under the proposed new section 125.
Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 and 4 agreed to.
SECTION 5
Amendment No. 8 is in the name of the Minister.
I move amendment No. 8:
In page 18, subsection (1), between lines 15 and 16, to insert the following:
"(a) the Aliens Restriction (Amendment) Act 1931;”.
This is merely to include the Aliens Restriction (Amendment) Act 1931 as one of the Acts to be repealed under this Bill.
Amendment agreed to.
Section 5, as amended, agreed to.
NEW SECTIONS
Amendment No. 9, in the name of Deputy Rabbitte, is a new section. It was discussed with amendment No. 6.
I move amendment No. 9:
In page 18, before section 6, but in Part 2, to insert the following new section:
6.—In making any decision under this Act in relation to a child, the Minister shall have due regard to the best interests of the child.".
Amendment put and declared lost.
Amendment No. 10 is in the name of Deputy Rabbitte. Amendments No. 218 and 219 are related. Amendments Nos. 10, 218 and 219 will be discussed together.
I move amendment No. 10:
In page 18, before section 6, but in Part 2, to insert the following new section:
6.—In making any decision under this Act in relation to family reunification, the Minister shall establish transparent procedures and shall deal with any application in a humane and expeditious manner and having due regard to Article 8 of the European Convention on Human Rights.".
The amendment would insert the following new section, "In making any decision under this Act in relation to family reunification, the Minister shall establish transparent procedures and shall deal with any application in a humane and expeditious manner and having due regard to Article 8 of the European Convention on Human Rights.".
We have received a considerable number of submissions from interested parties outside of the House. Some of these are comprehensive and would seek to reopen many areas of this Bill, and make general commentary on the Bill concentrating on areas where the parties concerned are unhappy with the direction of the Bill. I have taken the view in the peculiar circumstances of this legislation that there is little merit, other than to delay the Bill, in sponsoring amendments which, for example, in the previous incarnation of the Bill we either spent a long time dealing with or, had it continued, would have dealt with in more considerable detail. Given the urgency and the long period of gestation of this legislation, my view is that we should seek to enact it in reasonable time.
However, family reunification is an issue that continues to arise and in respect of which representations are continuously made to us by interested parties, and for that reason, it is important that we deal with this particular amendment.
The amendment falls short of the representations we have received. Almost invariably, the representations have recommended enshrining in the primary Act provision for family reunification and the terms in which that would apply. I have sought, in the hope of winning the Minister's agreement, not to go as far as that and to make do with the Minister drafting regulations on reunification, and to establish transparent procedures because in the long debate we had previously nobody denied that there is a lack of transparency and clarity, and in cases, almost invariably, an application can take two years with all of the inconvenience and distress that can cause.
When I seek to enshrine an amendment that states that we deal with it "in a humane and expeditious manner", we certainly do not deal with it in an expeditious manner at present and, just listening to the exchanges of Deputy Shatter and experiences that we all have had, it falls short of meeting the criterion of "humane" in circumstances that we all have encountered. In that sense, I am inserting the requirement to have due regard to Article 8 of the European Convention on Human Rights, which is the article that deals with this question of the rights to family life.
The anomaly here is that Irish citizens are caught up in this situation. Protection applicants are a different consideration, but Irish citizens are caught up. I was struck by the submission we received from Comhlámh on the last occasion. Comhlámh is the organisation that has to do with development workers from this country who are working outside of the State in the developing world. Comhlámh set out in that submission, which was also made to the Minister, the circumstances where development workers who are Irish citizens, who married while abroad, found on returning here that their spouse had no automatic rights to the entitlements they had.
During the course of the debate we dealt with a range of anomalies thrown up by the absence of provision in our law for family reunification. Most member states of the European Union set out precise terms for family reunification in primary legislation, but we do not. However, we all remember that not long ago Ministers toured the world looking for labour and trying to induce workers here. We had to make special arrangements in the health services because we found that after a short time necessary personnel working in the health services were leaving this country to go to Canada, for example, where their enjoyment of family life would not be impeded in the fashion it was in this country.
I do not wish to elaborate at length but the amendment is constructed in a fashion designed to win the approval of the Minister. I am not asking him to put into primary legislation the kind of measure that was represented to us by everybody, from the Irish Congress of Trade Unions to the Immigration Council of Ireland and a number of organisations such as Crosscare, Comhlámh, the Council for Civil Liberties and the Law Society. They have all drawn attention to this situation and the Minister now has an opportunity to deal with some of the anomalies in our system. This is a modest request of the Minister to set down precisely in regulation the terms of a scheme and to have regard to the terms of Article 8 of the European Convention on Human Rights.
Amendments Nos. 218 and 219 are related. Would Deputy Shatter or Deputy Creighton like to comment?
We must sort out the terminology. Deputy Rabbitte has very correctly set out what is an area of difficulty. Our preference would be to spell out in clear terms in this legislation the specific provisions of a guide to family reunification, with some residual ministerial discretionary powers, by way of regulation, resting with the Minister to address circumstances that may not have been considered in the primary legislation. The problem with the Bill as presented, which replicates the problem with previous legislation, is that this whole area is, essentially, left to the making of regulations with no specific factors or criteria delineated in the legislation as to what principles should apply.
We received representations from various organisations and individuals, some of whom have been personally affected by the oddities and inconsistencies of the manner in which current rules are applied, the lack of transparency and by organisations who work with emigrants and others who have been involved in the process, whether by way of providing legal or other assistance. The submission from the Immigrant Council of Ireland summarises in a couple of paragraphs the extent of the difficulty. It states:
Family reunification is a major source of immigration internationally and a major issue of concern to migrants and Irish citizens in Ireland due to the absence of a formal application process, apart from recognised refugees and EU citizens. There is a lack of clarity regarding which family members may be admitted to the State, the conditions under which family reunification may be granted and the length of time it takes to process applications. The wide discretion of the Minister with regard to granting of family reunification has led to inconsistencies and a lack of transparency of the decision making process.
To add to that, there is not merely a lack of transparency; there is no transparency. The submission goes on to indicate that the Bill states that regulations may provide for conditions relating to the extent to which foreign nationals may enjoy family reunification in the State. Further on it points out that Ireland's policy in this regard is out of line with other EU member states which have national rules regarding family reunification enshrined in primary legislation. Ireland has not opted into the EU directive on the right to family reunification. However, Irish rules regarding family reunification should be inspired by international best practice.
I do not want to detain the committee unduly by quoting further from the submission, but there is one further part to which it is worth referring. It states the Bill should provide a clear entitlement for Irish citizens and legal residents to be joined by immediate family members, including spouses or partners and minor children. It then refers to "discretionary provisions" to allow on occasion for the admission of other family members. It also refers to the fact that Irish citizens do not have the statutory right to be joined by non-Irish family members in Ireland as reverse discrimination in comparison to the rights that apply to other EU citizens under the EU freedom of movement directive. This anomaly has been identified by many organisations, including the Irish Human Rights Commission.
We have all come across circumstances in which people lawfully living and working in the State, some of whom were encouraged to come here to work and provide skills we lacked in better economic times, have sought to have family members join them and have experienced difficulty. Last week I referred to an Irish citizen married to a non-EU national who is currently experiencing difficulty in getting a visa for his wife to come and live with him in Ireland. We need transparency and proper rules. Knowing that the Government has turned its back resolutely against spelling out provisions for family reunification in primary legislation, we are anxious to address it in a manner that will at least ensure there is some focus on what regulations might be put in place, some opportunity for members of the Oireachtas and the general public to contribute to their formulation and some transparency to the process. We are also anxious to ensure that we comply with our international obligations. Deputy Rabbitte's amendment is one way of dealing with the matter, but there is not a unique way to address the issue when confronted by the difficulties we have with the Government which has turned its face against dealing with it in primary legislation.
The two amendments tabled by Fine Gael are an alternative approach to dealing with the issue. I have no difficulty with Deputy Rabbitte's amendment as it is in harmony with what we propose. The essential kernel of what we propose is contained in amendment No. 219. It states:
In page 173, between lines 22 and 23, to insert the following subsections:
"(3)(a) The Minister shall before the commencement of this Act publish regulations relating to the extent to which a foreign national may enjoy family reunification in the State.
(b) Regulations made under paragraph (a) shall implement measures consistent with EU standards on the right to family reunification.
(4) Before the Minister makes regulations under this section, he shall:
(a) publish, in such manner as he or she sees fit draft regulations for public consultation;
(b) allow a period of at least two months in which responses to the consultation may be submitted; and
(c) have regard to responses submitted during the period referred to in paragraph (b).
It goes on to state that if there are compelling reasons of public security, public policy or public order, the consultative period in a particular instance of the making of regulations should not be required.
I am not going to pretend this is the best formula for dealing with this. However, under the Bill as presented, there will not be transparency or knowledge as to what new regulations may be made to deal with family reunification. There will be no opportunity for Members or members of the general public to consider draft regulations or suggest any amendments to them.
The regulations will emerge from the Department, land on the Dáil Order Paper and nothing can be done to them. If Opposition Members seek to have them set aside, the Government will use the Whip system to ensure its majority of Members, most of whom will not have read the regulations, vote along the lines demanded by the Government Whip.
It is most regrettable that in a Bill designed to reform the law in this area, the Minister is not prepared to detail the substance of the regulations of the law to be applicable with regard to family reunification in statutory form. This issue has been on the international political and legal agenda for decades. The State, represented at international conferences in the 1970s, participated in discussions seeking to put pressure on the Soviet Union and eastern bloc countries to facilitate family reunification in all sorts of circumstances. These included cases in which people put their lives at risk escaping across the Berlin Wall from East Germany to West Germany and which would have demanded the East German Government to co-operate with facilitating family reunifications without lives being placed at risk. Restrictions were also a huge difficulty for hundreds of thousands of members of the Jewish community in the old Soviet Union who were trying to get out of the country to join spouses in other countries but were restricted in doing so by the Soviet authorities. These produced lengthy international discussions. Ireland has a moral obligation to enshrine in its legislation a value system that on occasions it advocated at international meetings.
The proposals tabled by Fine Gael are not ideal. They are simply designed to ensure the regulations the Minister is intent on producing to address the issue of family reunification have some consultative stage, that there is some transparency in their formulation and we have a remote possibility of contributing to them.
I do not expect a constructive response from the Minister but we felt it was important to raise this issue because there are many people whose lives are greatly affected by this and we need clear rules in this regard.
Deputy Rabbitte referred to Article 8 of the European Convention on Human Rights, the right to family life. There are aspects of our somewhat arbitrary system as it operates that violate that provision. As people nowadays have a greater understanding of their rights under European law, if we do not get this right it is inevitable the State will be taken before the European courts for failing to respect the rights of an individual in this area. A classical instance in which this may occur is where an Irish citizen is married to a non-EU national and the State, for no identifiable or transparent reason, refuses to sanction the non-EU national spouse residency in the State. We need transparency, fairness and a different approach from that contained in this Bill.
I am laughing to myself listening to Deputy Shatter about the Whip system, suggesting he and his party never used it themselves. In my time in Leinster House, the most flagrant abuse of the system was by his party. He was probably a Member when the then Fine Gael Minister, Deputy Lowry, lost a Bill in the House by six votes. The next day, Fine Gael republished it as the Transport (No. 2) Bill and whipped their six missing Deputies into the Chamber to defeat the Opposition. I will not take any lectures about the Whip system from Deputy Shatter.
Has the Minister been living in a nunnery? Here we are trying to deal with a Bill after seven years and the Minister has taken up the time of the meeting today on two issues that are not on the agenda.
I was going to throw a laurel at Deputy Rabbitte.
Please, do not.
At least Deputy Rabbitte is dealing with this Bill in a non-political way. Will Deputy Shatter refrain from politicising it because it does him no justice?
This Parliament deals with politics.
Allow the Minister to reply.
Deputy Shatter should not be getting up on his high moral ground as he always does.
This is about politics.
Deputy Shatter, the Minister is replying.
This is a matter which should be enshrined in legislation.
Will Deputy Shatter obey the Chair, please?
Deputy Shatter and his party use the Whip system as well as any other party. I will take no lectures from him on this.
The Government has destroyed the economy of the State. If I were the Minister I would have a little more modesty.
Regarding these amendments, we are not very far away from the whole portent of Deputy Shatter's amendment. I am prepared to come back to it on Report Stage. We intend to publish regulations in this area to outline clearly the position on this. It is not usual to refer to having due regard to Article 8 of the European Convention on Human Rights even though it is relevant to every case with which I must deal. Highlighting it by accepting this amendment would suggest there are no other issues that need to be taken into account.
It would be far preferable if it were done in a structured way by regulation which we intend to publish rather than through primary legislation. I am prepared to examine it again on Report Stage.
I welcome the Minister constructing a formula for Report Stage to deal with this important issue. I have not laboured the point about why family reunification is important because it is apparent to everyone.
When the Minister says he is contemplating something constructive in this area and questions the necessity of including reference to Article 8 of the European Convention on Human Rights, he may be suggesting that the alternative he might introduce will not be very meaningful because if the reference to imposing a duty to take into account Article 8 is taken away, the entire value system on which the amendment is built is taken away. Without Article 8 it is about transparency, speed, processing applications expeditiously and so on, but the phrase "having due regard to Article 8 of the European Convention on Human Rights" puts it on a different plain.
Other than that I am not being prescriptive. I do not seek to write the regulation for the Minister, nevertheless while a great many people are not trying to circumvent our laws on immigration, from the point of view of common humanity, people want to see us take the opportunity of this Bill, the subject matter of which, I hope, we are not likely to revisit again, to tidy up some of the more blatant anomalies in the system. If the Minister did not have an opportunity to read all the submissions we received, I am sure his officials and advisers have given him the gist of them.
We have received submissions from parties such as Fr. Bobby Gilmore. People working in the developing world, whom I admire greatly, and who go out and give of their skills and training may marry a non-EU national and find that the person they marry is treated like an alien in this country when they return here, which is unconscionable. There is also the dimension we debated in the earlier segment about minors and separated children. This Bill gives us the opportunity to tidy up some of that.
Deputy Shatter drew attention to a reference in one of the submissions. The Immigration Council of Ireland stated that given the fundamental importance of family life to all society, the Bill should provide a clear entitlement to Irish citizens and legal residents to be joined by immediate family members, including spouses and minor children. That is a moderate statement and a modest aspiration to have in a civilised democracy. I welcome the Minister saying that he is constructively examining responding to this, but I am concerned that the excision of any reference to Article 8 would neuter the import of the amendment.
Removing any reference to Article 8 would not, in any way, diminish its importance and relevance because section 3 of the European Convention on Human Rights Act 2003 states, "Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions." Article 8 is not absolute in that Article 8.2 states:
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
To remove it would not in any way diminish the State's obligations. Putting it up in highlights would tend to suggest there are other issues that should not be taken into account. I will ask the Parliamentary Counsel to review the matter because we are not that far apart in our approach.
Over the coming months we intend to issue a series of policies on family reunification which will largely be carried over into regulation that will ultimately form part of the Bill on its enactment. The initial instalment of these policies will be to set out in detail the family reunification regime of spouses, civil partners, people in de facto relationships, children, and parents of Irish nationals. In some cases it will codify what is already in operation and in others it will provide guidance where none currently exists. This will be published by the end of the year and in the first quarter of 2011 a second set of proposals dealing with the families of non-EEA persons will be produced. These will be open to public consultation.
The difficulty with the other amendments is that while we will always aspire to having consultation, there may be occasions when regulations need to be changed very quickly because of circumstances and the main difficulty here is that a long two-month period of consultation would be difficult in circumstances in which changes might need to be made quickly to address a situation that arises suddenly.
On the last issue, I draw the Minister's attention to amendment No. 219 and the proposed new subsection on the consultative process which states: "Subsection (4) shall not apply where there are compelling reasons of public security, public policy or public order why this would not be appropriate.” Based on what the Minister said his sole objection to amendment No. 219 is a concern that as draft regulations would have to be published there would be a consideration period of at least two months and if he needed to introduce legislation swiftly to address some specific urgent difficulty, that would create a barrier problem, but we anticipated that specific valid issue that could arise. I suggest that subsection (5) fully addresses that matter.
I do not accept it. Subsection (5) would potentially lead to a lawyers' paradise in that they would be able to claim on judicial review the regulations made by the Minister of the day did not have proper consultation. This would not be a protection in that respect and would lead to potential judicial reviews on the issue. I believe the Deputy has already accepted that the terminology used by Deputy Rabbitte is acceptable to him. That is a more acceptable amendment to us and I am prepared to reconsider a revision for Report Stage. However, the inclusion of the reference to Article 8 causes us some difficulty.
While there is a difference between the amendments we are proposing, our proposal is in harmony with what Deputy Rabbitte is proposing. We agree with his proposal that transparent procedures should be used when decisions are being made during the family reunification process. His amendment does not relate to the regulations to be made, the need to ensure there is a consultative process, or the opportunity to consider and amend the regulations before they are adopted. We are dealing with two different, although related, issues.
I was interested to hear the Minister's response on subsection (5) in amendment No. 219. I am used to the Minister and his colleagues always finding a reason to oppose the specific wording of any amendment tabled by the Opposition. It is obvious that whoever prepared the script for the Minister on this occasion did not study the content of subsection (5) which addresses the objection outlined by the Minister. Of course, subsection (5) could be phrased in a different way - rather than saying the consultative process "shall not apply where there are compelling reasons of public security, public policy or public order why this would not be appropriate", we could refer to "serious reasons" or "the national interest". Broad phraseology could be used.
Is the Minister's only concern with regard to amendment No. 219 to ensure the Minister of the day will have discretion to make a regulation with speed in important situations? I refer to a regulation that might apply to a specific problem, as opposed to a general regulation that would apply to all aspects of the decision-making process in cases of family reunification. If my proposal does not meet the Minister's concern, does he have a formula in mind that would do so? I have no theological attachment to the words "compelling reasons". I am sure my colleague, Deputy Creighton, will not be stressed if we refer instead to other phraseology that would allow for the proper and transparent creation of regulations, something that does not happen.
The importance of the family reunification issue is starkly illustrated by the content of the next section. I assume the amendment tabled by Deputy Rabbitte would apply between the existing sections 6 and 7 because of its relationship with section 7 which we will discuss shortly. Section 7 is directly relevant to the issue of family reunification. Although it is superfluous, it gives us an insight into a mindset that is a source of concern and which we discussed at great length and to which I hate to come back. I refer to the mindset that rightly wants to address the problem of sham marriages but in doing so creates a huge problem for the type of individual to whom Deputy Rabbitte referred.
I refer to the case of an Irish citizen who is entitled to live in the State or a long-term non-citizen lawful resident who is entitled to live in the State who enters into a genuine loving marriage with a non-EU national. In this classic situation where there is no possibility that the marriage is a sham and no reason for anyone to believe it could be the person and his or her spouse should have the right to live in the State as a married couple. However, we do not recognise any such right in any circumstances. There should be such a right, subject to a proviso that gives the State a get-out clause to address the problem of sham marriages. Instead, we are making it clear that if one marries someone who is a non-EU national, one has no right of any description in Irish domestic law to be joined by one's spouse in the State. Some parts of the State apparatus would be ideologically more comfortable if an Irish person married to a non-EU spouse resided outside the State.
I wish to elaborate on the mindset to which I referred. Section 7 states:
For the avoidance of doubt, the fact that a foreign national seeking to enter into or be present or remain in the State is married, or related by marriage, to a particular person does not, of itself, create any entitlement for that foreign national to be granted a visa, entry permission or residence permission, or have a residence permission renewed under this Act.
As a minimum, where there is a valid and genuine marriage between an Irish citizen and a non-EU national, this legislation should recognise and confer a right on the Irish citizen to be joined by his or her spouse in the State. The mindset to which I refer is more interested in creating barriers than facilitating. In the past this mindset has resulted in the State tragically making wrong decisions with regard to rights of entry, visas and residence in the State. Lives were lost a number of decades ago as a consequence of the manner in which the State had exercised its discretion in these areas.
There is a need to recognise by statute some rights in the context of family reunification. If the Minister will not do this by statute, at least, he should produce regulations that would be the subject of public discussion before they were adopted and would be open to public criticism. They should not be placed before the Houses of the Oireachtas on the basis that all wisdom in this area rests in the mind of the Minister of the day, whoever he or she is, or within the walls of the Department of Justice and Law Reform.
I do not accept what the Deputy said about ministerial diktats. We put the recent proposals in respect of student immigration reform, for example, out to consultation. It is obvious that changes will be made depending on the outcome of that process. Similarly, in the coming months we intend to issue general policies which will be subject to consultation and ultimately feed into the drafting of the regulations. The amendment in the names of Deputies Shatter and Creighton would tie the hands of a future Minister in dealing with an emergency. I do not accept that subsection (5) in the proposed amendment would take care of this. Any regulation placed before the Houses of the Oireachtas is entitled to be discussed by them before it is passed. I do not accept there is an absolute diktat by the Minister. As I said, I am prepared to return on Report Stage with an amendment that is closer to Deputy Rabbitte's. However, the time period specified in the amendment tabled by Deputies Shatter and Creighton causes a difficulty. The exception provided for in subsection (5) would not deal with that problem.
It is not for the want of discussion on the amendment, or on this topic, that we have not made more progress, especially in the light of the discussion we had on a previous incarnation of the Bill. If the Minister is committing himself to come back with something constructive in advance of Report Stage, perhaps I would be best advised not to look a gift horse in the mouth. Having read section 7 again, I agree with Deputy Shatter that it is difficult to see the point of such a belt and braces provision which we will consider later in this debate. There is no disagreement among the members of the committee on the question of sham marriages. No one is advocating that there ought to be a facility to avail of fake marriages to gain entry into, or residence in, the State. We are all agreed on that point.
On the previous occasion we outlined more graphically and in more detail genuine marriages of Irish citizens or people genuinely resident in Ireland to non-EU nationals who are falling victim of the current regulation. That has created embarrassment and humiliation, including for people in senior positions in this country, not that I am advocating that it should be different for senior people. However, some people who are working at the top of industry and education have encountered the same difficulty in terms of their spouses or partners. The Minister has given his response. I look forward to what he comes back with on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 11, and 189 to 214, inclusive, are related and may be discussed together.
I move amendment No. 11:
In page 18, before section 6, but in Part 2, to insert the following new section:
6.—The Minister shall promulgate a code of victim's rights in respect of victims of trafficking which shall address the following issues:
(a) Protection of private life of victims;
(b) Appropriate medical assistance to victims;
(c) Secure accommodation;
(d) Recovery and reflection period (minimum 30 days);
(e) Temporary Residence permit (minimum 6 months);
(f) Translation and interpretation facilities where necessary;
(g) Access to counselling and information services, in particular, as regards legal rights, in a language that can be understood;
(h) Access to legal aid;
(i) Right of access to education for children;
(j) Right to access social welfare benefits as necessary;
(k) Voluntary repatriation and return of victims;
(l) Facilitating access to the asylum process;
(m) Special protection measures for child victims;
(n) Family reunification;
(o) Right to work;
(p) Right to access vocational training and education;
(q) Compensation and facilitating legal redress against traffickers.”.
This is a long amendment which has to do with the protection of victims of trafficking. Again, it is territory that we have traced before in some detail. Everybody on both sides of the House understands why there should be a necessity to promulgate a code of victims' rights in respect of victims of trafficking. The phenomenon, unfortunately, is not something we can say goes on in other countries but does not happen in this country. It does. We have become more aware in recent years of the extent to which human trafficking into this jurisdiction and through this jurisdiction is more prevalent than we thought.
The purpose of the amendment is to point to some of the areas that would need to be included in any code of victims' rights in this area. In terms of the recovery and reflection period, which is an amendment I sponsored to the Criminal Law (Human Trafficking) Act when it was going through the House. There is an error in the reference to a minimum of 30 days. I presume the error is mine rather than the Bills Office, as it ought to be 60 days. Some of the submissions we have had from organisations working at the coalface with victims of human trafficking say that 60 days is inadequate. I am minded to take that on board.
One of the difficulties in this regard is that people feel that the purpose of the breathing space for victims of trafficking is in order to assist any criminal prosecution that might be under way, whereas people working with such victims advocate that there is a need for a code of rights to protect victims in their own right and on the basis of common humanity, irrespective of co-operation with any Garda investigation. I refer to such basic provisions as access to legal aid, the formalising of a temporary residence permit and secure accommodation. Some of the victims of trafficking are left in absolutely distraught circumstances. They are usually young women. For all we know they may even be minors. They may be alone in a new country where they may not even speak the language. They may have no friends. They may be fearful of even talking to the authorities. They have been brought here under false pretences. They have been thrust into prostitution in some circumstances. They are fearful for their lives. In those circumstances the requirements I have set out from paragraphs (a) to (q) are basic protections on the grounds of common humanity that we should be prepared to afford such people.
The reflection and recovery period is very important because a person in those circumstances needs time to get her head around being in a strange country and in appalling circumstances. It is usually a female. I will not go down through each category in turn as we have done that previously. The impression formed by organisations such as Ruhama who work with victims of human trafficking and those sucked into the so-called sex industry is that what we have done already in the Criminal Law (Human Trafficking) Act is used more to persuade the victim to co-operate with a Garda investigation than it is to restore the victim's sense of individuality, humanity and normality in society. Notwithstanding the welcome decision by the Minister to establish a human trafficking unit in the Department, it is not working as well as we had all hoped. That is not a comment on the conscientiousness or commitment of the people who are trying to make it work.
We are discussing a series of amendments taken together tabled by me and Deputy Creighton to deal with the issue of trafficking and the victims of human trafficking. Like Deputy Rabbitte I will not recite each of the amendments. They apply at a later stage in the Bill but they are designed to ensure that in circumstances where someone is a victim of human trafficking that there is a guarantee that the person is given appropriate notice by the Minister of their entitlement to be present in the State for what the Bill describes as a recovery and reflection period in circumstances in which a superintendent of the Garda Síochána believes there are reasonable grounds that someone is a victim of trafficking. Currently, the legislation simply says that such notice may be given to a victim of human trafficking not shall be given.
We are jumping between different parts of the Bill because of the grouping of related amendments with those applying to section 139. We are saying there should be an obligation to properly inform an alleged victim of human trafficking of their entitlements and rights not just a discretion to do so which may not be exercised. That is a fundamentally different thing.
We have tabled a series of technical and phraseological amendments that are being discussed together and which in our view improve the Bill and its language. A couple of amendments seek to ensure that the Bill deals with something it does not currently address. I refer to circumstances in which a victim of human trafficking may wish, provided she receives adequate protection, to assist the Garda in investigating what has occurred, provide a statement and give evidence in a criminal trial that may result in the prosecution of those responsible for her being trafficked into the State, essentially to be used and abused in a brothel established in the State. Let us get real about what we are talking about and not use euphemisms. There are criminal gangs engaged in this activity which should be put behind bars. Legislation has been enacted in recent years to deal with this issue, but the huge concern is to ensure that when a victim is discovered, one must, while bearing in mind that it is important that she assist the Garda, understand that she has suffered trauma and must be given time and space to come to terms with her ordeal and, perhaps, gain confidence among those engaged with her on the State's behalf who are seeking her co-operation.
As well as facilitating the taking of court proceedings, a victim of human trafficking can take civil proceedings. This may be thought unlikely, but if the members of a criminal gang located in the State who have substantial assets from their illegal activities are successfully prosecuted and put behind bars, it may well be that a victim could take civil action and recover damages successfully in the courts in circumstances in which he or she would not feel threatened and could in small measure be compensated for the trauma he or she has suffered. One of our amendments is to ensure that if someone is taking a civil action, he or she would be allowed to remain in the State to process that civil action and pursue it appropriately and that the State would not present any difficulty or put an obstruction in his or her way either by requiring that he or she leave the State peremptorily or creating difficulties with regard to his or her visiting the State. Our amendment seeks to ensure that it would be regarded as unreasonable to compel a non-EU national who was the victim of human trafficking to leave the State where that person's safety could be placed at risk by being required to leave, where that person was a minor in respect of whom enforcing an order to leave might not be appropriate, or where there were health or family difficulties, or other factors such as those related to medical needs that could be better catered for in the State.
We are talking about victims of an activity that we all condemn absolutely and ensuring that when the whereabouts and predicament of those victims are discovered, we treat them in a humanitarian and appropriate fashion and give them the protection and encouragement required to facilitate the State in taking appropriate criminal prosecutions and trying to bring this activity to an end. That is the general intent of the amendments tabled, some of which are of a technical nature. We are obviously interested in the Minister's response.
In regard to amendment No. 11, as I pointed out on Second Stage, the Bill's measures represent just one strand of the overall strategy the Government is adopting to address the awful problem of human trafficking. The Criminal Law (Human Trafficking) Act 2008 which came into force in June that year provides the legislative framework for the prosecution of traffickers of human beings for the purpose of sexual exploitation, labour exploitation or the removal of their organs. The national action plan to prevent and combat trafficking of human beings in Ireland 2009 to 2012, published in June 2009, seeks to develop an holistic approach to the treatment of suspected and potential victims. It sets out the services required and how they can be accessed by persons identified as suspected victims of trafficking. The interdepartmental high level group, the anti-human trafficking unit established in my Department in February 2008, the Garda Síochána and various Departments and Government agencies have already begun implementing many of the measures outlined in the plan and the work carried out to date will be expanded upon and developed during its lifetime. The Civil Law (Miscellaneous Provisions) Bill 2010 which is before the House provides for amendments to the Civil Legal Aid Act 1995 to permit the Legal Aid Board to provide legal advice in respect of criminal matters for alleged victims of trafficking offences.
Let us consider amendments Nos. 189, 191, 192, 194 to 198, inclusive, 200 to 204, inclusive, 206, 209 to 211, inclusive, and 214. In departing from the designation of "foreign national" the amendments in this group seek to apply the provisions of section 139 to EU nationals. That would confuse matters. We need to be clear on what we are looking at. The intention of section 139 is very specific. It deals with one aspect of trafficking, that is, the provision of immigration status for non-EEA nationals, in respect of whom there are grounds to believe they may have been the victims of trafficking. EU nationals do not need permission to be in the State; they have a right to free movement. Seeking to remove an EU national, even if it were attempted - it would not be - would not survive a legal challenge. Therefore, the amendments would add nothing to the de facto position.
The Deputies will be aware that EU citizens are not subject to the same registration or permit requirements as third country nationals. If we were to propose such a possibility within section 139, we might place EU citizens in a less advantageous position as regards their immigration status. That is not to say a victim of human trafficking who is an EU national will be treated any less favourably than any other victim. Certain administrative arrangements may be required to achieve this aim, but these will be put in place. Such arrangements would be without prejudice to the individual's right to free movement.
With regard to amendment 190 which seeks to substitute the word "shall" for "may" in section 139(1), if an unfortunate person falls into the category described, it is my intention that he or she will be allowed to remain in Ireland, at least for the recovery and reflection period. However, the person concerned may already have permission to be in the State and that permission could be more advantageous to him than what is envisaged by the proposed insertion of the word "shall" in the amendment. Similarly, he or she could be involved in the protection process. Since a person should have only one immigration permission at any time, making the granting of this period compulsory would create unnecessary complications.
Amendment No. 193 seeks to add another method by which a foreign national could be comprehended by section 139, namely, the Minister forming an opinion that this is the case whether following an application by the person concerned. The process outlined in subsection (2) is the most appropriate method by which the section can be invoked because it is the Garda Síochána, not my Department or other body, which has the necessary expertise in determining whether the crime of trafficking has been or may have been committed in a particular case. Where instances of trafficking are drawn to the attention of my Department independently of the Garda, the matter will invariably be referred to the Garda for investigation.
Amendment No. 199 seeks to amend paragraph (b) of subsection (5) with a text that, to some extent, would restate the prohibition on refoulement. No person will be removed from the State if doing so would amount to refoulement. This is stated in section 58 in an unambiguous and universal way and does not need to be said time and again. Paragraph (b) is in line with Article 8 of the EU directive.
Amendments 205 and 207 seek to expand on the purposes for which a temporary residence permission will be granted. Subsection (9) provides, in essence, that any decision to revoke the permission will trigger the application of sections 51 and 52. These sections provide for the making of representations catering for the point made by Deputy Shatter on the taking of a civil action which, as he would acknowledge, may be unlikely. Under sections 51 and 52 regarding the revocation of permission, a foreign national may make representations to the Minister which could include the case that a person needs to remain in the State to prosecute his or her civil action.
Amendments Nos. 208, 212 and 213 are technical amendments. Amendment No. 208 inserts the correct cross-reference in section 139(9). Amendment No. 212 inserts the definite article after the word "from" in line 21 on page 171. Amendment No. 213 is a drafting amendment recommended by the Parliamentary Counsel.
The Criminal Law (Human Trafficking) Act 2008 is in place. If one goes back to the debate on the legislation several years ago, the level of knowledge, even in the Department, about the extent of human trafficking was not high. It is an international criminal conspiracy but the view then was that the thousands of people being abused were in countries far from the civilised polity we claim to be. We have since learned there are people in this jurisdiction, usually vulnerable young women, who have been trafficked here and are being used in the sex industry.
My advice is that the provisions in the human trafficking Act are not always as effective as they were envisaged. This Bill is the basis of new landmark immigration legislation. It is entirely proper that protection for victims of trafficking ought to be separately enshrined in this legislation for obvious reasons.
The Minister is correct that EU nationals have a right to be in Ireland. However, victims of trafficking are more likely to come from the EU accession member states than from the African continent, presumably because it is a better commercial proposition. The existing legislation and this Bill do not expressly provide for their protection in the manner I would like. I am not saying we do not have trafficking victims from the African continent. There is no doubt, due to the arrangements for direct provision and length of time for processing their applications, that some young African women here have been seduced into the sex industry.
My amendment seeks to address, without any distinction, giving protection to victims of trafficking and to spell out some of the elements I would like to see promulgated in a code of victims' rights that the Minister might be minded to establish.
The Minister drew attention to the Civil Law (Miscellaneous Provisions) Bill 2010, which has just completed Second Stage, which makes provision for legal advice for persons who might find themselves in these circumstances. While I welcome this, it is important to draw attention to the fact that what is being provided is legal advice and not legal representation. It is necessary to expressly provide for legal representation in this legislation if we are serious about protecting vulnerable human beings trafficked into this jurisdiction.
To reiterate Deputy Shatter's point on the distinction being drawn between foreign nationals and EU-EEA citizens, predominantly women, trafficked into the State, I am not convinced by the Minister's argument that there could be a diminution of the rights, entitlements and protections of EU and EEA citizens if they were covered by the provisions of section 139.
Amendment No. 193 gives some latitude to the Minister which I urge him to consider again. While in normal circumstances it is reasonable to seek a minimum threshold that notice be given to the Minister by a member of the Garda Síochána in providing a statement for a victim of trafficking, that may not always be possible. I do not accept the legislation cannot provide for circumstances outside of the normal procedures. Our amendment proposes giving the Minister wider latitude in this respect. For example, another agency, say one dealing with the victims of trafficking, could bring a case to the Minister's attention. If it were coming to a point close to the expiry of the 60-day period that Deputy Rabbitte alluded to, it may not be possible to go through formal complaint procedures and the Garda may not be able to acquire a written statement to furnish to the Minister.
Our amendment is reasonable and provides an objective standard. I do not agree with the Minister's position on this and it should be reflected on again.
For the purpose of legal clarity, amendment No. 199 provides for incorporating a particular reference to pursuing or assisting a civil action. It is not stated clearly in the current wording of subsection (5)(b) and it would lend greater clarity. The intention is similar to the amendment being tabled by the Labour Party to the effect that there should be clear provision as regards humanitarian grounds including the victim’s safety, age, state of health, family situation and other factors being incorporated in the consideration of the granting of a temporary residence permission for a foreign national. Again, it is a simple question of basic justice and the basic level of humanitarian rights that a victim of trafficking could and should expect. I have not heard a clear reason why that should be excluded or why it cannot be considered by the Minister either now or on Report Stage.
What amendment is that?
It is amendment No. 199, on the proposed addition of a new subsection (5)(c).
It is a civil action. I thought the Deputy was talking about something else.
There is also the bit about reasons for granting temporary residence to a victim of trafficking on the basis of age or humanitarian medical grounds. As both Deputies Shatter and Rabbitte pointed out, it is a very important and very sensitive issue, one which in my view was not comprehensively covered by the trafficking Bill that went through the Houses last year and was ultimately enacted. I recall at the time that the response from the Minister on Second Stage on a regular basis was to the effect that many of those provisions would be dealt with in the immigration Bill. That is what we were told in relation to the reflection period and so on.
Now we are dealing with the immigration Bill and it is very important that there is clear provision, protection and reference to the rights of victims of human trafficking and that we make a clear demarcation between immigrants applying for residency, generally, and those who are trafficked against their will into this State by criminal gangs for the purposes of sexual exploitation. These are very vulnerable women predominantly, who have been abused in the most horrendous manner and who have had no protection in this State until very recently, and still have limited protection. If we can achieve one thing in this Bill to afford them proper and greater protection than heretofore, that would be a very worthwhile and successful outcome.
As regards Deputy Rabbitte's amendment, a very significant anti-human trafficking unit is headed up by very active people within my Department. I shall ask them to, perhaps, do a report on the experience to date as regards the issues listed in the Deputy's amendment. Perhaps they might respond to him directly. It might be no harm at some stage if the head of the human trafficking unit came before the justice committee. I do not know whether she has been before the committee before to appraise members on how that is progressing. In fairness, I believe this multidisciplinary unit, which includes members of the Garda Síochána and various State agencies, is doing wonderful work in that area.
It might be no harm to give some figures in relation to the whole issue of human trafficking in 2009. The numbers encountered were 68 incidents, involving a total of 66 cases of alleged trafficking. Of the 66 alleged victims, eight were male and 58 were female. Some 49 were adults and 17 were minors. The largest group came from Africa, predominantly Nigeria - 46 individuals. Persons from Asia, predominantly the Philippines, constituted the second largest group, with 12. Six persons were from the EU, one was from a European country outside the EU, while another person was from the Caucasus.
At the end of 2009, of the alleged 66 victims, some 40 were in the asylum process, with 15 requiring the immigration permission, the majority of whom were granted residence permission under the administrative arrangements for the protection of victims of trafficking. All were granted other permissions. Five were minors in the care of the HSE, four were EU citizens and did not require permission to remain in the State, and two EU citizens voluntarily left Ireland. The figures for the first six months of 2010 are being finalised. On the last point in relation to EU nationals, they do not require permission and so do not need to have the period of recovery and reflection with all that this entails.
We are satisfied that section 139(5) deals with all the types of circumstances that could be envisaged, including the taking of civil proceedings. The problem is that if one starts listing out one particular issue, there will always be others that perhaps we should have in primary legislation that might have been taken care of and specifically mentioned. The section says:
The Minister shall, either during the recovery and reflection period or following its expiration as the Minister considers appropriate, grant a temporary residence permission to a foreign national to remain in the State for a period not exceeding 6 months, where the Minister is satisfied that—
(a) the foreign national has severed all of his or her relevant connections with the alleged perpetrators of the trafficking, and
(b) the permission is necessary for the purposes of allowing the foreign national to continue to assist the Garda Síochána or other relevant authorities in relation to any investigation or prosecution arising in relation to the trafficking.
That complies with and is somewhat analogous to the provisions of the directive and the protocol. Section 52 on the issue of revocation provides for representations to be made to the Minister and that could involve somebody taking civil proceedings which might entail proper compensation for the person involved against the perpetrators.
One issue raised by Deputy Creighton was in relation to when the process of the period of 60 days commences. It commences after the certification by the Garda Síochána to the effect that the person is subject to human trafficking, so there could be a much greater extended period for the person in question. As I have said previously, the 60-day period is at the higher end of the scale in comparison with other EU member states.
I welcome the fact that a report is forthcoming from the trafficking unit. The Minister is correct in saying it may be valuable to have the head of that unit present before the committee. Undoubtedly the unit is applying itself assiduously to the tasks in hand, but I repeat the advice I have received from organisations working in this area is that we are not coping as effectively as we might. I do not wish to go into detail as it would be fairer to so do and talk it through in the presence of the person who heads that unit. I am also surprised by the figures that of the 66 cases, six involve nationals of the European Union, a figure dramatically out of kilter with the advice I receive from organisations such as Ruhama, for example. I understand the exploitation of labour in the sex industry in this jurisdiction significantly involves people from the new accession states. Consequently, when the Minister states they have a right to be here and that, therefore, there is no need to make special provision for their welfare in a number of respects, I wonder whether the reason they are not being picked up in the figures is they are EU nationals. Those who work at the coalface and know a great deal about this area are clear that young EU nationals are included.
In common with Deputies Creighton and Shatter, I am also puzzled as to how there would be a diminution of rights were members to seek to enshrine in the Bill something on the lines I have advocated in the amendment. Deputy Creighton is absolutely correct in her memory of the passage through the House of the Criminal Law (Human Trafficking) Bill because the response at the time was that Members should wait until the passage of the immigration Bill when the rest of the outstanding issues in this regard would be dealt with. While I welcome the Minister's remarks, I still do not quite know where members stand in respect of his taking on board of the amendments.
On the information the Minister has provided, he has not yet made reference to any prosecutions taken against individuals organising trafficking in the sex industry in Ireland. In this context, does he have information as to whether any prosecutions are pending or whether convictions have been obtained specifically for offences relating to trafficking? I share some of the concerns expressed by Deputy Rabbitte and wonder whether EU nationals who are being exploited in the sex industry, essentially having been trafficked here, are less visible and not on the radar as much as those who come from outside the European Union. I would have expected the statistics to have been somewhat different. It is also important for the committee not to be naive, as some individuals are engaged in the sex industry as volunteers and not every woman engaged in the sex industry has been trafficked. While it occasionally upsets some women's organisations when one makes this point, it is a reality of life. Not everyone engaged in the industry has been a victim of trafficking but too many are and there is real concern about young women from some of the more recent and poorer accession states of the European Union. I await the Minister's response to Deputy Rabbitte's query with interest.
On the issue of civil litigation, the problem with the Bill throughout is that there is such broad ministerial discretion that on occasion it is unclear whether the substance of issues will be dealt with in an appropriate manner under the scheme of the Bill. If the Bill contains an express provision based on the views of a Garda superintendent to facilitate a victim of trafficking in remaining in the State, presumably to assist in the taking of a prosecution, I do not understand the reason there cannot be an express provision to allow someone who takes a civil action to so do. I have stated previously, as the Minister has recognised, that I am unsure whether too many victims will ever do so. However, I note the perception in respect of domestic violence, sexual assault and rape was that in general they did not result in civil actions. However, those who engage in such behaviour are not always impoverished individuals, as some have substantial sums of money and assets. Women are now beginning to take compensation claims in these areas and should have done so in the past. There should be an express recognition that where someone has sought the assistance of the courts and is engaged in a civil action to seek compensation from individuals, at the very least, they have the right to be in the State for the period required to facilitate them in processing that civil action.
In respect of the number of prosecutions taken, I do not have the figures to hand because my officials do not work in the area of human trafficking. However, I understand a number of prosecutions have taken place since the 2008 Act came into force. I recall a substantial and successful prosecution was taken in respect of human trafficking into Ireland in Romania and another in Wales. However, were the human trafficking unit asked to appear before the committee at some stage, members would receive more information on this issue. A number of files have been sent to the Director of Public Prosecutions and the Act has only been in place since June 2008. While some may be surprised by the figures supplied, they pertain to the cases reported to the Garda Síochána and only six entail people from within the European Union. However, more information could be elicited from the human trafficking unit on the cases with which it is dealing. This is not to suggest it is aware of all the cases involved, as it may not be, but these are cases in which the Garda is involved, although there may well be others.
One point about human trafficking is that while I can understand Deputies endeavouring to make provision whereby someone could take civil proceedings and remain in the State during those proceedings, the experience regarding those who have been trafficked is they wish to get out of the country as quickly as possible to return to their families and homes. This is the reason provision has been made regarding recovery and reflection and in respect of the permission provided for under section 139 to encourage them to be co-operative in order that the real perpetrators of the crime and those who have orchestrated it will be brought to justice, either in Ireland or elsewhere. If that is not forthcoming, they will return home. If they do not meet the criteria and the recovery period exceeds six months, it is always possible for a temporary permission to be given on an individual basis if they want to continue with civil proceedings.
Regarding the distinction between a foreign national and an EU citizen, the Bill is concerned with immigration and the word "immigration" does not apply to EU citizens. Were we to adopt the suggested change, we would be foisting onto EU citizens provisions that were unnecessary from an immigration point of view. We would be giving an EU citizen a temporary residence permission when he or she did not need one. Under the free movement directive, EU citizens are entitled to be in Ireland irrespective of any immigration matter. This is a question of immigration status and I see no need for a change as the status of EU citizens is that they can be present in the State. The provisions of the human trafficking Act apply in their case.
We will place the meeting with the head of the trafficking unit on our work programme, although I do not know when we will get around to it. Does Deputy Rabbitte wish to press the amendment?
I do. When we dealt with the human trafficking Bill, there was an awareness that we needed to become compliant with our international obligations and so on, but there was also a mood that this was a case of fog in the Channel and the Continent was cut off, that is, the obligations did not apply much to us. We were told that there was no necessity to include certain safeguards because we would be dealing with them in the immigration Bill. We are dealing with the immigration Bill now, but I am still puzzled as to how the inclusion in the Bill of this type of protection for victims of trafficking would diminish the rights of any EU citizen.
Amendment put and declared lost.
I move amendment No. 12:
In page 18, before section 6, but in Part 2, to insert the following new section:
6.---The Minister shall have due regard to the need to afford every separated child, as a child temporarily or permanently deprived of his or her family environment, such special protection and assistance as is appropriate.".
Amendment put and declared lost.
I move amendment No. 13:
In page 18, before section 6, but in Part 2, to insert the following new section:
6.---The Minister shall establish a website and telephone service, subject to the use of a password or security measure by an applicant for a permission including a visa under this Act, or his or her representative (including a public representative), which will allow any applicant or his or her representative to have ready access to information on the progress of his or her application.".
This is a straightforward request to the Minister to use modern technology to inform applicants of the progress of their applications. It is one of the great frustrations of the current system that applicants and those representing them find establishing progress difficult. Members of the House are able to get a speedy response from the Irish Naturalisation and Immigration Service, INIS, but that response is likely to cite standard provisions, for example, nothing can be done with the application until a two-year backlog is cleared. In this sense, one is left without the essential information. Some Deputies still exercise their right to table parliamentary questions. These colleagues have a number of applicants for residency, even for asylum and so on, who attend their clinics, so they use the parliamentary question system, much to the irritation of the Minister's staff. It takes up a great deal of time and some of us do not use the system unless we are in extremis, but we should not be in this situation and there is no reason the Minister cannot establish a modern website to provide the information in real time to applicants and organisations representing them.
I refer the Deputy to sections 18(1)(c), 19(3), 20(2), 22(3) and 23(6) of the Bill, which provide for notification of certain visa decisions to a visa applicant by means of a secure Internet process. This procedure is being operated by my Department on an administrative basis. It provides quick access to decisions for applicants worldwide and is working well. Decisions are listed by visa application number only and no biographical details are shown.
While such a system makes sense for visa decisions, which most often must be applied for from abroad, I am not satisfied at this time as to the utility of a similar system for applications for residence permissions. I am quite sure that whatever system is put in place to keep the clientele of the immigration service informed does not need legislative backing. Under the Bill, only a person who has been granted a relevant entry permission will be able to apply for a residence permission. Such a permission must be sought in person. In the majority of cases, the permission is given on the spot, in other words, across the counter. In these circumstances, this amendment is not proper.
I agree with the Deputy, however, on the general issue of making information readily available through electronic means, if possible, to people who interact with the immigration and citizenship services. That system works well in a number of areas and the Deputy is correct in that most Deputies use the INIS system well, with some exceptions. There are a number of pressure points, such as in terms of the citizenship applications, because of a large backlog, but that is being dealt with as quickly as possible.
As much as possible, I would be in favour of making information available online in real time to people who interact with the Department, but the area in question does not warrant it because applications for permissions are granted on the spot and must be made in person.
If the Bill is enacted, does the Minister expect the process to be accelerated? Will the formal implementation of the legislation have an impact on current waiting periods?
In a nutshell, absolutely. The intention is to make decisions more quickly.
Can the Minister put a quantum on the matter? What is his advice in terms of organisations working with applicants and so on? What kind of an improvement can we expect?
People who apply will have in one Act, the bible, as it were, of what is required. Once the Bill is passed, people will have a good idea of what is required so there will not be messages to applicants saying their applications are deficient in whatever way. The idea of this legislation is to have an application process rather than a multiplicity of applications and hurdles that must be crossed. It will bring consistency in the decisions made and that is why Opposition Deputies have been supportive in trying to get the legislation passed as quickly as possible.
What are the updated figures? Are the numbers still falling?
For what?
For all applications outside of asylum.
Immigration figures are the same as last year. The asylum figures have dropped, obviously. I can provide more detail. Approximately 134,000 visa applications were received worldwide and 123,100 were issued. Of these, approximately 57,400 were re-entry visas issued in Dublin and 21,700 were entry visas issued by the Department of Foreign Affairs missions abroad. The remaining 43,900 were entry visas issued by and on foot of decisions made by the Department of Justice and Law Reform offices abroad and the visa section in Dublin. Some 28,000 applications for naturalisation were received, representing an increase of 155% over 2008 levels. Some 25,500 applications were processed in 2009 and of those, 12,000 were deemed invalid, approximately 5,800 were granted and 4,500 certificates of naturalisation were issued, while 1,500 were refused and 6,011 were ineligible. At the end of December 2009, approximately 1,900 applications for naturalisation are on hand.
Is there an obvious reason the figures for applications for naturalisation were 150% higher than the previous year?
People are in the country longer with permission and they are qualifying under the law on citizenship. This will increase exponentially for a couple of years because more people are here on long-term permission and other type of provision. Once they fulfil the criteria laid down in legislation after the constitutional change whereby someone must be present for five years out of nine, they will ultimately be entitled to citizenship.
I do not want to cause the Minister any more upset than I normally cause. I like the analogy that the legislation he has produced is a bible. The problem is that it does not bring the certainty he describes. Apparently there will be a series of gospels in the context of regulations that will be less than transparent in their preparation until they are finalised. I refer to the issue raised by Deputy Rabbitte, a theme that runs through the area and will remain the position when the Bill is enacted. There is an appalling lack of transparency about the process. Individuals seeking visas or citizenship feel dependent on the goodwill of the State and the discretion nominally exercised by the Minister but in reality exercised by officials in his Department or agencies for which his Department is responsible. They do not want to upset people and they fear that if they upset people seeking information they may in some way be victimised. I am not saying they will be but people have that fear.
It is outrageous that it takes more than two years for a citizenship application to be processed. Only in a seriously dysfunctional system could that be the case. One gets no information on what is happening or about delays in the process of applying for citizenship. A standardised letter is sent to the applicant or to Deputies who inquire about the matter. Deputy Rabbitte referred to being told about the number of waiting applications. Leaving aside the complexities of asylum and immigration, in no system of citizenship, except in exceptional circumstances where there is a particular difficulty relating to an individual, should an application take more than six months to process to finality. Many of those awaiting decisions on citizenship cause the taxpayer unnecessary expense because of the inefficiency of the system by having to apply for residential extension permissions after having applied for citizenship. Issues that should be dealt with speedily clog up another area of bureaucracy.
The Minister provided me with the following figures in response to a Dáil question. The Minister can correct the figures if I am wrong about the year. In 2009, 12,000 citizenship applications were invalid or were not progressed. There are standardised forms to be filled in for citizenship applications. To me, 12,000 invalid applications does not suggest that people filling out forms are illiterate or unintelligent, it suggests there is something seriously wrong with the documentation presented to them or the instructions that accompany it. These must be creating confusion. Many of those who send in the 12,000 returned applications send in a new application. That is a wasteful, dysfunctional system. It is costing taxpayers money. The nature of the forms used to make these applications needs to be substantially changed or the information that accompanies them needs to be clarified. There is something seriously wrong there. What is being done to examine this problem? Would it save the Department money if individuals whose forms were returned were invited to sit down with an official to correct forms and fill in information gaps? Are we shuffling paper backwards and forwards between individuals? How many of those 12,000 invalid applications are application forms submitted two or three times by the same individual? If that is happening, there is something seriously wrong.
Regarding transparency, if one is applying for a visa or a citizenship or an immigration application is being processed it should be possible to access what is happening online and know the stage matters have reached. The State may consider matters of State security that will not be put on a website or of which the applicant may not be aware but in the vast majority of cases the information will relate to factual statements on how applications are progressing. Having this information online may be of some assistance. From representations I have made over the years, there has been the odd occasion when files and information disappeared or files were left sitting on people's desks because the relevant official was on maternity leave, unwell or on vacation. Having this information online means there is a way of monitoring progress and seeing whether a file is truly being dealt with. There is a great deal of merit in establishing an appropriate online system where people have access to real-time information and those supervising the administration of the service have access to real-time information to ensure the service is operating efficiently. It should be efficient in the context of providing a reasonable service to those who make applications and efficient in the context of the taxpayers so it is not financially wasteful. Having more transparency and readily accessible information would substantially contribute to that.
To a certain extent, the Deputies are mixing up two issues. There is the citizenship issue, where it is accepted there are backlogs. This is because of the volume of people coming through due to the influx over the past decade or so of people into the country who now qualify under various criteria, mainly because they have been legally present in the State for five years out of nine and therefore are entitled to citizenship. We have a new dedicated office in Tipperary with an increased level of staff dealing with the backlog in citizenship applications. I understand the criteria and application forms are now well known to people. Apart from the fact that there is a backlog, and one can deal with only so many cases in any given year, it is-----
Has there been any examination as to why there is such a large number - the Minister mentioned 12,000 - of what are clearly invalid applications?
I do not have any information with me on that. The Deputy could ask that in a parliamentary question and we will get him the information.
When granting citizenship we have to be sure of the record, particularly the criminal record, of people who apply. Much of this would entail checking back with the countries from where they came with regard to a criminal record. Equally, we have to check with the Department of Social Protection and other State agencies to ensure that if we grant citizenship the person being granted citizenship will not be a burden on the State. A significant level of paperwork must be done in this respect.
To look at the figures, in 1997, 22 people in the Department of Justice, Equality and Law Reform dealt with all aspects of immigration and asylum; today, more than 650 staff work on this. This illustrates how dramatically changed the landscape is. Today, the budget is €132 million, which includes a figure of more than €8 million for refugee legal service under the auspices of the civil Legal Aid Board.
In 2007, the Department opened visa processing offices. The visa granting and decision-making process has a relatively quick turnover in comparison with the citizenship issue. These processing offices are in London, Abuja and Cairo. They are staffed by INIS personnel on secondment to the Department of Foreign Affairs. These complemented the offices already operating in Delhi, Moscow and Beijing. The Cairo office is being replaced by a new office in Abu Dhabi. These offices alone account for 60% of all of visa applications made annually; the vast majority of the applications are made outside the State in the location where the person applying is resident. Obviously, there are then re-entry offices here.
On the technology front generally, it is accepted that the system heretofore is not what we would like but a major programme of work is being implemented to introduce new technology platforms, including new visa, fingerprinting and case management systems replacing 40 existing disparate systems. These new systems will deliver better customer service and enable speedier decisions to be made on applications throughout the service.
I accept the principle of what Deputy Rabbitte is trying to do in his amendment and there is a major programme, but on the specific issue on visas we do not see the need for it. Most of these permissions are granted on the spot.
This is a complex area and I accept that. However, most colleagues in the House find it very frustrating and difficult to understand that, for example, one can have an entire category presenting to one's clinic on leave to remain. Surely, it ought to be possible for the progress of such applications to be monitored by the people or organisations representing them and be easily accessible on a website constructed for that purpose.
On the citizenship issue, I do not know whether international norms exist. Occasionally, one comes across cases where the most trivial offences of which we are all guilty, such as parking on a double yellow line when one runs into a shop or forgetting to turn off one's mobile phone and being found by a passing garda to have the phone in one's hand while driving, are used as a reason to reject applications. If somebody is resident in the State for sufficiently long to be eligible for citizenship under the five years out of nine rule, is the Ministers stating that it is in accord with best practice internationally that in addition to establishing from the authorities here, including social welfare authorities, that the person has been of good conduct and good character during the period in this State that we have to go back to the country of origin and make similar detailed inquiries? If this is the case, it seems to me that nothing in the Bill will expedite that process.
It would not be the case in every citizenship application that information would have to be gleaned from the country from where the person came but in some instances that is the case. Most of the inquiries would be on the period or periods over which the person was resident here in the State and obviously the Garda PULSE system is the one available in this respect.
With regard to people being refused citizenship for parking on double yellow lines, it has not come to my notice that people have been refused for this and I am the Minister who signs the approval. By and large, any refusal due to a criminal record is because the person has committed reasonably serious criminal offences, such as serious road traffic accidents and upwards. Ultimately, the whole point of the examination with social welfare authorities and other agencies is to ensure these people will not become a burden on the State. It is due to a combination of the checks that have to be made in individual cases and the large increase in the applications in recent years, particularly since the change in the Constitution. We are endeavouring to change the entire IT platform. It is proposed that ultimately, the website will have customised forms and it will be much more user-friendly for people applying. However, it is not really relevant in respect of this because the information is clearly available on what is required. With regard to visa applications, some examination of a person's status in his or her country of origin is required because he or she is making the application from that country. Some 60% come from the various offices we have around the world.
Given the setting up of the new office in Tipperary, is the Minister to reassess the targets for processing applications? Some take between 24 and 36 months to process. Is there a plan to reduce processing times?
As I have said, we have beefed up the office in Tipperary. It is dealing with more cases per month than this time last year. Large numbers of applications are initially rejected as invalid due to issues relating to the completion of the application forms, or ineligible applicants do not have the required lawful residency status. Nine per cent of valid applications were refused a certificate of naturalisation in 2008. The main reasons for refusal are the failure to meet good character requirements and the failure to be self-supporting.
Amendment, by leave, withdrawn.
SECTION 6
Amendments Nos. 34 and 80 are related and Nos. 35 and 36 are alternatives to No. 34. They may all be discussed together, by agreement.
I move amendment No. 14:
In page 18, between lines 31 and 32, to insert the following subsection:
"(2) Where a foreign national applies for and is refused a permission referred to in subsection (1), he or she may appeal that refusal (other than a refusal of a protection decision which may be appealed under Part 7) in accordance with regulations made by the Minister, which regulations shall provide for a visibly independent appeals process to review the decision at first instance.”.
This amendment is designed to implement the commitment in the programme for Government to introduce a visibly independent appeals process for negative immigration decisions. I do not know whether this was a Green Party demand or whether it was shared by Fianna Fáil but, in any event, it represents a commitment in the programme for Government. It is one with which I agree considering the necessity for an independent appeals process pertaining to negative decisions. Such decisions, as the Bill stands, become considerably less transparent by reason of the abolition of the deportation order procedure. Where a foreign national makes an application and is refused, I ask that the Minister make regulations to provide for an independent appeals mechanism apart from the protection provision for applicants in the Bill. I look forward to hearing the Minister because the commitment was made by the Government.
I draw the attention of Deputies to the extensive review processes in the Bill for the different types of decisions that arise at various stages in the immigration process. For example, section 21 deals with visa review applications and section 53 contains review mechanisms for the non-renewal of residence permissions and a revocation of entry or residence permission. Sections 51 and 52 contain processes for making representations as to why permissions should not be revoked. Section 111 sets out the processes for the revocation of a protection declaration. Foreign nationals affected by any decisions giving rise to such reviews have the option to seek judicial reviews of those decisions by the courts where they consider there has been a procedural irregularity.
I want to be sure, before we commit ourselves to a legislative solution to this matter, that what we are legislating for will work, and will have been proven to work well in the interests of potential migrants and of the State equally. That is why I have indicated my intention to appoint on an interim basis initially, following the commencement of the Bill, a person to act as chief review officer, with the function of ensuring consistency of decision-making under the Bill. My intention is that, in the first instance, this will apply to visa decisions.
This way of introducing an element of independence may prove satisfactory, and if it does it can be rolled out to other aspects of the immigration process, and in time put on a statutory footing. If it does not prove satisfactory, and the experience gained with this model shows it either needs adjustment or a complete rethink, we will be able to do that without having enshrined in legislation a model that does not work, or that does not work well. By taking this incremental approach, I am satisfied we can not only fulfil the Government's commitment to provide independent reviews on immigration matters but also do so in a manner that will prove efficient and lasting.
In terms of what an appeals process would look like when completed, the closest model would be the social welfare appeals office, with which we are all familiar. What people need is consistency in decision-making and the possibility of a second pair of eyes looking at applications to make sure that they were considered in accordance with the rules. This does not in any way remove the right of the applicant to a judicial review.
We must be clear that an appeals officer, appeals office or chief review officer does not take on the role proper to the Minister in setting out policy on how different categories of migration are to be managed. The role of the appeals office will be to ensure that the guidelines laid down by the Minister and Oireachtas are followed correctly and that applications are considered in a fair and consistent manner. This can be supplemented by access to judicial review.
Amendments Nos. 35 and 36 in my name are technical amendments recommended by the Parliamentary Counsel and substitute "that decision" for "the decision concerned" in subsections (4)(b)(i) and (4)(b) (ii).
The entire thrust of what the Minister has said before now suggests he is trying to reduce the need to resort to judicial review. Most of us would agree with him but that is not to say that, in any given case, a person would not have the right to a judicial review. That is not the way to deal with immigration decisions. I had hoped that if the visibly independent appeals process envisaged in the programme for Government were in place, it would be likely to diminish the extent to which one would have to resort to judicial review. With regard to the disposal of cases at that level, people could feel that their applications, having been refused, were subject to a mechanism such as the deciding officer mechanism in the Department of Social Protection, which operates very well. Its importation into the immigration system would be useful. I do not know what has changed the mind of the Minister in deciding on the incremental approach he advocates as opposed to the approach nominated here. It is a fairly big decision.
In section 6(1), the Minister sets down his cardinal principle that the presence in the State of a foreign national is lawful if and only if it is in accordance with permission given or deemed to be given to him or her in accordance with this Act. That is the original statement. What happens in a case in which permission is refused or in a system that has been accustomed to the deportation order process, under section 3 of the Immigration Act, which has operated up to now? It is a complete change. Organisations and persons campaigning for the excision from the Bill of summary deportation may well be mollified if there is an independent appeals mechanism.
It seems there is general agreement on the requirement for an independent appeals mechanism, which is the entitlement and right of any person under the European Court of Human Rights. We can all agree that it is desirable from the point of view of the functioning of our courts system and our immigration system. Whether one believes that the propensity of people to resort to judicial review is, by and large, an attempt to vindicate legitimate rights, or, in exceptional circumstances, an attempt to delay the process and buy time, it would be desirable to have a disincentive to go down the road of a costly judicial review process and to have a much more transparent and fair system for those who wish to contest decisions.
The amendment as proposed is perfectly reasonable. In fact, it affords the Minister considerable discretion in the introduction of regulations. The concept of a sort of halfway house or, as Deputy Rabbitte described it, an incremental mechanism does not provide clarity. The point behind the demand for the immigration Bill in the first place was the need for clarity in this area. There is no clarity if the Minister is saying that a person responsible is to be appointed as an interim measure followed by some sort of procedure along the lines of the social welfare appeals mechanism. What is necessary is a proper appeals tribunal which would allow for fully transparent decisions to be made and published in writing. Such a procedure would clearly speed up the process, avoid the type of judicial review proceedings that we have seen to date, and afford much more clarity in terms of the legitimate expectations of immigrants who wish to go down the road of an appeal. It is disappointing that the Minister is not more willing to see the need for this and go some way towards addressing the concerns of those of us who support the introduction of such a procedure.
One of the major gaps in this Bill is the lack of express provision for a transparent appeals system. The current lack of a transparent appeals system is at the root of the problems which are resulting in so many judicial reviews. The Minister has described this Bill as the bible of immigration law, but I would have thought a bible would have within it the provisions required to address the current problems. There is no transparency in what the Minister is proposing as a review system.
A substantial number of amendments to this Bill were tabled by me and Deputy Creighton with the intention of providing for the setting up of an immigration appeals tribunal by way of an Act of this Parliament, as opposed to the back-door way of a ministerial regulation. The amendments, which reflect the views expressed by many people who have considered this Bill and its predecessors and been critical of them, would have provided for an appropriate transparent appeals system on which people could rely and which would ultimately have provided a body of precedence which would give an indication of the decision-making process and of whether any particular appeal was likely to succeed. It would also have provided guidance to those dealing with initial applications. The series of amendments we tabled have been ruled out of order, I presume on the basis that they would entail a cost to the Exchequer. At far greater cost to the State, however, there are hundreds of applications awaiting consideration by way of judicial review. I know that this legislation, as drafted, is designed to reduce the number of judicial reviews, but we need a fair and transparent system. If the UK can have a formal appeals system to deal with issues of this nature, I do not understand why, in this jurisdiction, we should have something that is a poor relation and will not adequately address the difficulty.
We cannot put our proposals to a vote because they have been ruled out of order. Deputy Rabbitte's amendments, which seek to provide a little more formality to the review system to be prescribed by way of regulation, are a convenient vehicle for discussing this issue. While I am supportive of what is proposed by Deputy Rabbitte, it does not adequately address the matter. However, at least he has managed to do something that is within Standing Orders. Deputy Rabbitte is absolutely right. My recollection is that this was an issue on which the Green Party had some sort of committed view. I do not recall that party being represented last Friday, but if I am doing Deputy Sargent any wrong by saying that, I know he will correct me.
I was listening to the Deputy and I was here.
Deputy Sargent is here today.
I was here last Friday as well.
There are all sorts of issues with the provision of an appeals system, but it is a matter of principle to ensure the protection of rights and that the State does its business in an open, transparent and fair way. I do not know the view of the Green Party. This was part of the programme for Government but apparently it has been quietly jettisoned without a whimper. I would be interested in hearing the views of its members. This is a serious issue. It is a matter of ensuring a fair and transparent system is in place, which it is to be hoped will result in a substantial reduction in the number of applications coming before the High Court, although this must be achieved in an appropriate way. What the Minister is proposing is a seriously flawed approach which does not address the necessity of an independent appeals system. In the context of the types of decision that will be made and that are of fundamental importance to people's lives, we should deal with this in a manner different from that the Minister suggests.
The Government has a commitment to establish an independent appeals process. The question is how this can be established. I am interested in hearing the views of people who deal with this area and fear that the repeal of section 3 of the Immigration Act will result in further recourse to judicial review and more clogging up of the courts with additional costs to the State. That belief has been presented to me. I am interested in following up the Minister's point about a model of an appeals office but I wonder whether we can move from referring people to the social welfare appeals office to referring them to an office that is fit to take on the requirement of having an independent appeals mechanism. When Deputy Rabbitte tabled his amendment the Minister spoke about a review process. I am not legally qualified to distinguish between appealing and reviewing but they do not appear to be the same. Will the Minister focus on the appeal issue, given that it is referred to in the programme? Perhaps we could put in place a model that would be as independent as the social welfare appeals office. We need to consider immigration functions rather than those of social welfare when we discuss this matter.
This legislation was referred to as the bible - I hope when it is passed it will be the bible but I would not second-guess the wit of-----
What about the election literature? The Minister will be presented as Moses.
I would not doubt the wit of the profession to which the Deputy and I belong to drive holes through it considering that we have independent appeals processes built into the existing system in the Office of the Refugee Applications Commissioner, ORAC, and the Refugee Appeals Tribunal, RAT, with significant judicial reviews, JRs, made in regard to their decisions. There currently are 990 JRs, 190 from ORAC, and 550 from RAT, with 250 relating to repatriation. I do not believe we will ever get rid of-----
On a very brief point of order, I am somewhat concerned that some of the people who hear refugee appeals may not be so enthused to hear themselves referred to as RAT. It is not happy terminology.
I gave a commitment to review this issue. The commitment in the programme for Government was based on this Bill being passed. Members will recall the then Minister, Michael McDowell, produced the bones of this Bill prior to the formation of the present Government and, in negotiations during that formation process, it was taken into account that the Bill would be resurrected, as it has been. For that reason, my predecessor, Deputy Brian Lenihan, indicated on many occasions that this Bill would contain a complete ramping up of review processes in regard to the procedures that pertained heretofore. Therefore, it would be incorrect to say there has not been a step-change given the way in which every decision built into this report is subject to a substantial review.
It was I who indicated that, to assuage the views of Members about the perception that this process would not be as transparent, independent or fair to people, I was prepared to look at the social welfare appeals model. I believe all Members of the House will agree that model works well in regard to appeals on decisions made in the social welfare code, which is an administrative code based on legislation. It works well and, once made, the decisions are accepted and by and large are not appealed to the courts.
Immigration is different from social welfare in that the latter is a right people have based on legislation. The State has a duty and a right to protect itself in regard to people coming into the country. This was articulated by Gannon J. in a case in 1986 that puts into perspective what we are discussing, namely, having on the one hand a fair and transparent process and, on the other, the right of the State to be in charge of who comes into and goes out of the country. In that case he stated:
That it is in the interest of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been regarded universally and from the earliest times. There are fundamental rights of the State itself as well as the fundamental rights of an individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other Nations in accordance with the objectives declared in the preamble to the Constitution.
He continued to affirm and adopt that description and stated that, "when steps taken by a State are often restrictive of the movement of foreign nationals the State may also exercise its powers as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals as a gift, in effect".
Subjecting that to an independent appeals process in effect would be taking it out of the hands of the State, which is a principle of law in this country, and it is universally accepted throughout the world that a state has such a right. Using the word "gift" might grate for some people but that it how it is referred to. The granting of permission to be in a state or the granting of citizenship is, in effect, a gift of the state and not of any independent body.
Deputy Creighton, who has left, raised the issue of compliance with the European Convention on Human Rights. The only reference I can find in the convention to remedies is in Article 13, which states: "Everyone whose rights and freedoms are set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." It does not state anything about an independent process. As I understand it, this has always been the case and there has been no change in the thought processes on reviewing decisions to ensure consistency or on us putting in place a system similar to the social welfare appeals office.
I do not want to follow the Minister down the political road but I am satisfied the commitment made in the programme for Government is not reflected in this Bill. I am not sure what point is made by quoting Gannon J. to us because the Minister's party and his colleagues in Government did not have much regard for Gannon J. when they recommended a visible independent appeals process. No one brought the Gannon J. case to the Minister's attention when that was being drafted. Be that as it may, it is plain where the Minister has arrived. I did not hear him respond to amendments Nos. 34 and 80 where the net point, not to labour it, is that rather than have a Department of Justice and Law Reform official review the decision of an underling, also in the Department of Justice and Law Reform, it would be preferable to have an independent visa review officer. I have no wish to elaborate but I wish to hear what the Minister has to say and then we will bring it to an end for today.
Originally, we were to finish at 1 p.m. and I am conscious that we should finish but I wish to raise two issues. I was interested in the Minister's concept of the State. He seems to believe the State is either embodied in himself or his Department. It reminds me of the late Charles de Gaulle who when asked about the French Republic replied, "L'Etat, c'est moi". Naturally, the courts form part of the State and its apparatus. If an immigrant appeals tribunal such as that proposed by Fine Gael were established, it would form part of the State. It would be a decision of an organ of the State as to whether someone would be granted the status he or she sought. The embodiment of the State does not reside in an individual Minister, his Department or the Government. The State goes well beyond the Government, albeit Fianna Fáil may believe it is the embodiment of the State as well. People who are in power too long tend to become somewhat delusional.
The issue is transparency and the need for a proper appeals system and colleagues in one Department of State not determining appeals on matters decided by their own colleagues. The review system proposed by the Minister is not by any stretch of the imagination an independent appeals system. Having an independent appeals system does no damage to the State's right to protect itself from non-nationals who pose a threat to it. If the legislation proscribes the grounds on which people are entitled to live and work here and if they do not comply with those grounds appropriately, correct judgments are made about them. An independent appeals system poses no threat to that. It would provide a safety valve to ensure there is a uniform approach that is understood, that complies with the legislation and that individuals, who believe they have been wronged by the decision made, have a sense that they can appeal and correct determinations which are incorrect and have an opportunity to be heard in an independent manner. The idea of officials or an executive agency within the Department of Justice and Law Reform who decide something and can then have a colleague with the same agency decide on it a second time does not amount to an appeals system.
One does not go from a District Court judge to another District Court judge to have a case appealed. No one would suggest that is a sane system but that is what is being proposed here. This is not about making political points or embarrassing Deputy Sargent because what is in the programme for Government and advocated by the Green Party is being entirely ignored in the Bill, which is the truth of the position. It is about doing what is right. It was agreed in the programme for Government to do what is right on this issue and the intent was signalled that what was right would be done. Now, that is not happening. I do not care how the Minister spins it, a review system is not an independent appeals system. There is a public policy interest in having such a system. It does no damage to the State in the context of the State being protected against non-nationals who might in some way by their residency in the State pose a threat to the public well-being or the safety or security of the State.
I hazard a guess that if Deputies Rabbitte and Shatter ever get into Government they would not change this in any shape or form. It is hypocritical of them or else they do not understand the duties of a Minister derived from the Constitution. The Constitution states, "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government".
The Minister put this into the programme for Government, not Deputy Shatter or me.
I did not interrupt Deputy Rabbitte. In the Bode case it was stated by Ms Justice Denham that:
In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State.
This was also described by Mr. Justice Costello in 1986. Anyone who suggests that someone other than the Minister of the day should make such decisions totally misunderstands the legal position on the issue of immigration. It is different from any other. As I have stated before-----
If that were correct we could not have a Refugee Appeals Tribunal.
Allow the Minister a chance. Deputy Shatter can come back in later if he wishes.
Deputy Shatter is correct to say that the Judiciary forms part of this arm of the State. With regard to immigration, the Judiciary and the courts may point out that the Minister made an erroneous decision based on the existing law. The separation of powers dictates that, ultimately, the Minister makes the decision, not the courts. This is why we have a difficulty.
In his last contribution, Deputy Shatter glossed over or did not even mention the word "independent" because he knows in his heart and soul that it is the case. One cannot have an independent process in the context of the decision making of the State. As much as possible and with the checks and balances allowed in the Constitution, that is, the Judiciary and the courts, we have endeavoured to determine whether the Minister made a correct decision based on the law.
We have put in place an interim process. When the Bill was brought forward by my two predecessors it was originally envisaged that there would be a review process built into the legislation. We have gone further since then and suggested that it should be done by more senior people in the Department. A reviewer similar to the chief appeals officer of the social welfare appeals office is envisaged such that those decisions would, in effect, be final, other than in the case of an appeal on a point of law.
Chairman, I constructed the amendment to bring the Bill into compliance with the programme for Government. It would appear the Minister is resisting that from happening. For this reason I will withdraw the amendment and I will consider my options for Report Stage.
Amendment, by leave, withdrawn.
Do Members wish to continue or adjourn?
I am here to serve.
We are all here to serve.
My understanding was that we would sit on Fridays to deal with this Bill.
During the last meeting the Minister raised this question. My office was advised that the Minister was not available on 12 November.
That was incorrect.
I changed my schedule today to be here on 12 November because the Minister changed it. I have no objection to sitting on Friday but I have to be in Galway by 5 p.m. In any event, three and a half hours on Committee Stage is sufficient, in fairness to everybody concerned. I am happy to sit on Friday between now and Christmas.
The problem is we were told Deputy Creighton is not available next week. We all agree this Bill should be passed as expeditiously as possible. Friday is probably the best day to deal with it and get work done on it, rather than having two hour sessions every now and again.
Obviously we are not going to make progress today. The clerk has been able to arrange a room for next Wednesday between 6 p.m and 8 p.m. Could we continue consideration of the Bill then?
I have a medical appointment next Wednesday.
We will go into private session to discuss this.
Progress reported; Committee to sit again.
The select committee went into private session at 1.20 p.m. and adjourned at 1.30 p.m. until 2 p.m. on Tuesday, 16 November 2010.