FF has turned us from country seeking labour abroad to one again exporting its people

Published: Wednesday, October 06, 2010

For more than a decade now it has been generally acknowledged that we need a landmark statute to govern migration into the State. Not many people disagreed with the former Minister Liz O'Donnell in the Fianna Fail/PD Government when she said that her own Government's policy on asylum was "a shambles". Yet all these years later we have still not managed to put a rational, comprehensive consistent Immigration Act in place. The present Bill is in its third incarnation over more than eight years.

Against that background the Labour Party is not minded to obstruct the early passage of this Bill. We intend on this occasion to focus on a small number of important issues in respect of which we will endeavour to change the Minister's mind.

The Immigration Residence and Protection Bill 2010 is a reheat of the similarly titled Bill published in January 2008. After some 18 days in Committee the Minister for Justice felt that the 2008 Bill warranted such extensive amendment, that it would be more appropriate to publish a new Bill. The Opposition Spokespersons agreed since so much had been covered in Committee and so many new amendments were contemplated that processing of the old Bill would be administratively confusing.

Unfortunately that has meant some additional weeks of delay. The Minister in his customary conciliatory and cooperative manner has put it out there that the Bill has been delayed because there were so many Opposition amendments. The truth, of course, is that the Minister's own reconstruction of the Bill is the principal cause of delay. There have been improvements deriving from Committee Stage discussion but some of the well-canvassed defects of the earlier legislation remain.

I don't object to delay if it means producing a better and fairer piece of legislation; which is not to absolve Government over the past dozen years for not dealing with this issue. It is also difficult to settle on legislation when the ground keeps changing and the new Bill is not entirely, it seems to me, uninfluenced by the new economic environment.

I suppose it is an irony that when the authors of the original legislation set out to design an Immigration Bill, inward migration was being swollen by the economic boom. So long has it taken us to enact the legislation that we are back in familiar territory i.e. outward migration. Few analysts would have forecast that the same bunch of Ministers could have transformed Ireland from a country that was scouring the world for labour to a country that has again started to export our own people. It is a shameful legacy that warrants those responsible crawling off into the night and maintaining a dignified silence.

Nobody disputes that there is a need to establish a legislative framework for the management of inward migration. The Minister will have up to date figures. We know that between 2002 and 2006 there was net inward migration of 191,331 persons. According to the 2006 Census there were 413,223 non-Irish nations usually resident in the State, or 10% of the population. Of these 271,974 or 66% are EU citizens; 6% are from the rest of Europe; 34,564 or 9% are African; 46,064 or 11% are Asian and 5% are from the Americas.

Therefore it is apparent that the Aliens Act of 1935 is no longer up to the challenge. Various ad hoc or interim measures since then are not adequate for purpose. Therefore I hope we can enact this Bill before the Government collapses because of the objective need out there.

When Minister Brian Lenihan introduced the 2008 Bill, I adverted to the remarks of the then Chief Justice, Mr Justice Keane, in the Osayande and Lobe cases:

"Many would wish to see the development in Ireland of a tolerant and pluralist society, capable of accommodating immigrants from diverse ethnic and cultural backgrounds, because that is a desirable objective in itself, recognises the openness and generosity with which Irish emigrants in times past were received in other countries and, on a purely economic level, remedies serious shortages in the skilled and unskilled labour market. At the same time, the legislature and executive cannot be expected to disregard the problems which an increased volume of immigration inevitably creates, because of the strains it places on the infrastructure of social services and, human nature being what it is, the difficulty of integrating people from very different ethnic and cultural backgrounds into the fabric of society. The resolution of these complex political, social and economic issues which, it need hardly be said, are not in any sense unique to Ireland, is entirely a matter for the Oireachtas and the executive. The function of the courts is to ensure that the constitutional and legal rights of all the person affected by the legislation in question are protected and vindicated."

The Labour Party is comfortable with that perspective. If these complex issues are "entirely a matter for the Oireachtas and the Executive," this Bill will test how well we meet that challenge. The new Bill does incorporate some improvements. Long-term residence will now be on a statutory basis, although the eligibility criteria may still be disputed. On the topical and important matter of human trafficking, the new Bill has extended the recovery and reflection period from 45 days to 60 days and perhaps longer for child victims of trafficking. The marriage ban is gone although the Minister is empowered to disregard a particular marriage where he determines it to be a marriage of convenience. A person may not be disqualified for a residence permit where he has been convicted of an offence unless the offence committed would constitute an offence in Ireland. There are other welcome changes. However the Minister will know that there remains concerns about the summary deportation provision. The lack of clarity governing rights to family re-unification remain. Where regulations are to be made we asked at Committee Stage for a broad outline of such regulations by the Minister before enacting the primary legislation. The Government commitment in the 2007 Programme for Government to introduce a "visibly independent appeals process" is not honoured in this Bill.

At the moment there is frequent resort to the High Court for Judicial Review. I am advised that in 2009 almost 60% of all judicial review cases had to do with asylum and immigration applications. 749 immigration and asylum applications were received by the High Court in 2009. NGOs working in this area believe that the independent appeals mechanism promised by Government would greatly reduce congestion in the Courts and would provide a less costly and more efficient system. The question that arises is whether we can simply broaden the remit of the Protection Review Tribunal so as to deal with both Protection and Immigration. In the UK, for example, as I understand it, appeals on all immigration and asylum decisions are dealt with by a wholly independent Tribunal Service. They have I understand recently reverted to a two-tier system. Appeals of decisions from the UK Border Agency are made to the Asylum and Immigration Chamber of the First Tier Tribunal. Further appeals are made to the Upper Tier Tribunal, before reaching the Court of Appeal. Appeals are heard by Immigration Judges and practicing lawyers who may be accompanied by "non-legal members" who are selected for their experience in the area.

The Minister will well know that several organisation with coalface experience are not just opposed to summary deportation as being unjust but that it constitute a breach of Ireland's international human rights obligations. The Immigrant Council of Ireland, for example, has argued and continues to argue that particular sections of the Bill [S.65 (5) S.59 (1) and S.60 (1)] may be in conflict with recent judgements of the Supreme Court. It would appear that where an Immigration Officer is satisfied that a person is unlawfully in the State, that person may be summarily ejected without any regard to either Constitutional or Convention rights. It is, of course, the case that as the law now stands a person my be the subject of a deportation order but only after notice and after the person concerned is given 15 working days to say why he contests the order.

The latest incarnation of the Bill fails to clear up the critical issue of family reunification a matter that comprises a big proportion of T.D.'s constituency workload as it relates to asylum and immigration caseload. Again we are asked to put our faith in promised regulations after this law is enacted. So that with the exception of recognised refugees, migrants don't know where they stand. There is again an irony that in a country that places such a high premium on the family, the Government can't be explicit about the family reunification rights of legal residents or the conditions under which family reunification may be granted. At the moment it can take forever to even process an application although the applicant may be an essential worker in the health service on a fixed-term contract. The Irish Human Rights Commission has highlighted the fact that Ireland is out of step with the EU Free Movement Directive.

Within certain conditions, the Labour Party will seek to amend the Bill to address this central issue of the right to Family Reunification.

I would ask the Minister when responding to outline to the House the implications for the direct provision system of the passing of this Bill. The current system whereby asylum seekers are detained in direct provision accommodation for unconscionably prolonged duration is simply indefensible. People who find themselves in this accommodation are not allowed to work or study. It is a dispiriting and demoralising experience as people are left to languish in such conditions for years. This gives rise to health and psychological problems. As one participant put it: "At least as a prisoner you know when you are getting out - not when you are an asylum seeker."

The Direct Provision system gives rise to particular difficulties for women so detained. I take it that the Minister has had it drawn to his attention that an organisation called AKIDWA has produced and authoritative Report on the experiences of women seeking asylum in Ireland. It should make very uncomfortable reading for any member of this House. One woman in Direct Provision sums up the thoughts of many women in these circumstances: "Men feel frustrated because they can't provide and they take it out on women. It means that women get abuse from inside the home and from outside. Men feel pressure, but women feel more." In the small everyday experiences one finds the best insights: "when you have a problem with someone, you don't have space to get away from the problem. Little things get blown out of proportion. It's like mental torture."

According to the AKiDwA Report:

"As of December 2009, there were 6,482 people living in direct provision accommodation awaiting decisions on their asylum, protection and leave to remain cases. Of this number, there were 1,859 women and 987 girls, with 50 per cent of all residents in direct provision being families. Over half of all residents have lived in centres for two years or more, and almost a third have lived in centres for three years or more."

I want the Minister to tell the House how precisely he expects this Bill when enacted to impact on this system.

Speech by Pat Rabbitte TD
Issued : Wednesday 6 October, 2010
Spokesperson on Justice
Dáil Candidate for Dublin South West