Address by the Minister for Justice, Equality and Law Reform at the launch of the Immigration, Residence and Protection Bill 2008

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Ladies and Gentlemen,

Today marks a most important development in the area of migration into the State. The publication of this Bill is a significant step along the road towards modernising the way we deal with inward migration.

For centuries, this island was synonymous with emigration. Even before the disastrous famines of the middle 19th century, there was a steady outward flow of Irish men and women, mainly to the new worlds being opened up by exploration and colonial expansion. That flow became a flood from the 1840s on, abating a little with the economic pick-up of the 1960s but resuming thereafter. There was of course always some inward migration, but the net figures over the years showed overwhelmingly outward movement of people.

Then came the 90s, and with them a major upturn for the Irish economy. Ireland started to become an attractive place not only for elements of our own diaspora, who began to return home, but also for many others around the world who saw in this country a place where they could either make enough in a short time to give themselves starting capital for projects back home, or else an economy and a society in which they could settle permanently. This influx is testament to the success of the economic policies adopted in the late 1980s and early 1990s. And it was a change that, among other things, our legislation was not best suited to handling.

The second half of the 1990s and the first years of the current decade saw a number of legislative measures brought forward in the areas of immigration and asylum. The Immigration Acts of 1999, 2003 and 2004 were acknowledged by their promoters as primarily stopgap measures designed to address particular aspects of the matter; but plans were even then being made to bring forward a unified code that would eliminate the anachronisms of the Aliens Act 1935. That legislation was very much a product of its time, and by the turn of the century was recognised as being unsatisfactory from the point of view of those who wished to migrate to Ireland as well as limited in the extent to which it provided Government with the tools needed to manage migration in the interests of the Irish economy and society.

So we come to the Bill published today, which represents the fruits not only of lengthy thought and research in my department and elsewhere, but of a consultation process that has sought to draw out the views of interested people and bodies in this area. The Bill’s development has been informed by our experience of immigration matters built up over recent years.

An important element of that experience has been the business of dealing with claims for the protection of the State made by asylum-seekers. In parallel with the increases in regular migration since the middle 90s, Ireland experienced a remarkable growth in the numbers of people applying for refugee protection. In common with many developed countries, the numbers looking for asylum here increased exponentially up to about 2002, but have been falling off in recent years. As a proportion of inward migration generally, in the State’s experience, asylum-seekers have been at most around 10% of the total numbers of non-EU nationals coming here; but the nature of asylum is such that the application process is resource-intensive.

Each case must be looked at in great depth and with great care in case a refusal will result in a person being sent back to personal danger and fear of persecution. Also in common with other developed countries, it has been the Irish experience that a high proportion of claims turn out following investigation not to be based on well-founded fear of persecution back home. Very many of those applying for refugee status are in reality, economic migrants.

While Ireland’s asylum determination system has been the subject of favourable comment by a former UNHCR Representative to Ireland, our present processes are not optimally organised, and have been open to abuses over the years. At present, the case of an applicant seeking refugee status is considered, in the first instance by the (statutorily independent) Refugee Applications Commissioner. A negative decision at that stage is appealable to another independent body. It is only when both of those bodies have given a negative response that other elements of the application for leave to remain can be looked at.

This method of looking in series at different aspects of the same case means, that for some applicants at least, the process can be protracted. Delays lead to uncertainties on the part of the applicants and also to greater public expenditure in the provision of lodgings and sustenance. However, delays in finalising cases can occur for a variety of reasons, including giving applicants and appellants the fullest opportunity possible to present their cases and the determination of Judicial Review proceedings, where appellants pursue such a course of action. In order to address this structural problem, the Bill will put in place a system which will allow all aspects of the applicant’s wish to remain in Ireland to be looked at in a unified way. In this way, applicant will get, at the end of the first instance process, a complete determination of their case. This is a very important feature of the Bill, providing the necessary speed and clarity for applicants, while ensuring that their human rights are fully respected.

The Bill contains important innovations too for those who seek to migrate in a regular fashion to the State, by availing themselves of the standard immigration processes, applying in advance for a visa, ensuring that they have proper travel documentation and so forth. As well as setting out these processes in statutory form— for the first time, in the case of the visa process—the Bill contains express provisions governing review procedures for many of the points at which decisions can be made.

A significant innovation contained in the Bill is the establishment on a statutory footing of the status of long-term residence. It is unusual, by international comparisons, that the Irish immigration system has for many years been based on the notion of temporary migration to Ireland for a year at a time. Unlike many continental countries, we have not had a formal status of long-term residence. For too long, the Irish immigration system has operated on the concept of temporary migration on a year-to-year basis until one has sufficient residence in the State to be able to make an application for naturalisation.

While many migrants were content to do this, because that was all that was available, it is time we acknowledged in a formal, statutory way the fact that many migrants make an important contribution to the Irish economy and to Irish society generally. In circumstances where, increasingly, Ireland is in competition with other countries for people with sought-after skills and qualifications, we need this status, statutorily guaranteed, in order to be able to tailor immigration packages that make Ireland an even more attractive destination for medium-term and long-term migration. The status of long-term resident will put its holders in a position similar to that of Irish citizens in respect of access to State-funded services and other entitlements. The conditions governing the attainment of this status are designed to ensure that those who qualify are well on the road to integration in their adopted society.

This Bill aims to bring clarity to many aspects of immigration that are at present unclear. One of those aspects of the present law is the question of lawfulness in the State. The Bill addresses this in a manner that means that no foreign national will be in any doubt as to whether he or she is lawfully in the State. If you have a permission from the Minister, you will be lawfully in the State; but if you have not, you will be unlawfully in the State; and unlawful presence brings with it the obligation on the person to leave the State. A person found unlawfully in the State will be liable to be removed without notice, and may be detained for the purpose of ensuring removal from the State.

People will not find themselves in that position unless either they consciously put themselves in that position or else, following a fair process where there was an opportunity to make representations and have those representations carefully considered, their residence permission has been terminated.

Thus, if a foreign national has been given a non-renewable permission to enter the State for, say, eight weeks and doesn’t leave on or before that period expires, that person will have put himself or herself in the position of being unlawfully present, and the consequences of that action or omission will follow inexorably. By contrast, a foreign national who is here on a renewable permission will remain lawfully present unless there is a decision to terminate or not to renew the permission. Any such decision will be notified in advance to the permission-holder, and there will be an opportunity for the person to make representations as to why the permission should not be discontinued. The permission will remain in force, and the person will be lawfully present in the State, until the final decision is made at the end of that fair process and notified to the person in question.

The business of managing migration to the State is about making choices. It cannot be the case that we say to everyone who wants to migrate here: "Come on in." I owe a duty to Irish society, which—remember—is made up not just of Irish people living here but also of EU nationals, non-EU nationals and every-one else who is lawfully living here. The duty that I owe is to continue to ensure to the greatest extent possible that Ireland is a safe place to live, with an economy that continues to thrive, and that it is not used as a base for criminality. In the immigration context, I fulfil that duty by making choices about which foreign nationals can come in, which ones can stay and, ultimately, which ones must leave. If legislation did not provide me with effective powers to make those choices and to ensure that they are enforced efficiently, then no management of migration could happen.

I make no apologies for the elements of this Bill that might appear harsh to some. But I challenge those who take that view to come up with better ways of providing for effective and efficient management of migration.

It is worth pointing out that, contrary to popular perceptions, the discretionary powers that rest with the Minister for Justice, Equality and Law Reform in migration matters are used most frequently not to refuse people admission to the State or to require people to leave, but in order to accommodate people who find themselves in difficult positions for one reason or another. I am aware that there are many foreign nationals at present in the State whose situation is irregular, whose papers are for whatever reason not in conformity with present immigration requirements. Many of you will recall the judgment of the Supreme Court delivered just before Christmas relating to persons who did not come within the IBC/05 administrative scheme. That was a scheme designed to deal in a favourable way with a defined category of people who were the parents of Irish citizen children, people whose cases would otherwise have fallen to be dealt with under the deportation provisions of the Immigration Act 1999. In that case, the Supreme Court upheld the right of the government to put such schemes in place.

This Bill meets many of the commitments in the Agreed Programme for Government, and lays the foundation for us to meet them all within the lifetime of this government. In particular, within the framework of this Bill, once enacted, I will be able to give effect to policies on family reunification that will be designed to cater for people in a wide variety of immigration situations in Ireland. It is not the case that, in this matter, one policy fits all; and this is an important fact that commentators need to appreciate. But I am working on the development of different policies in this area, and with a view ultimately to providing a transparent system for all categories of migrants, mindful of their interests and those of the rest of society.

One area that I haven’t dealt with in this Bill is citizenship. I intend to address this through separate legislation following a review of our current laws, taking into account also the new provisions in this Bill with regard to long-term residence.

I am looking forward now to the parliamentary process that will lead to enactment of this Bill. I have no doubt that the Bill will provoke both debate inside and outside the Houses of the Oireachtas, and I will be glad to consider suggestions for amendments that will improve the Bill’s operation.