Tuesday, 16 November 2010
Select Committee on Justice, Defence and Women's Rights DebatePage of 4
Chairman: The meeting has been convened to resume consideration of the Immigration, Residence and Protection Bill 2010. Apologies have been received from Deputy Brian O’Shea. I welcome the Minister for Justice and Law Reform, Deputy Dermot Ahern, and his officials to the meeting. A list of correspondence and submissions have been circulated as well as the groupings list. We are in public session and I require that all mobile telephones be switched off.
Minister for Justice and Law Reform (Deputy Dermot Ahern): I do not propose to insert an age qualifier for an offence provision of being unlawfully present in the State as sought by the amendment. The question of criminal liability of a young person is already dealt with generally and appropriately in Part 5 of the Children Act 2005. There is no reason a rule different from the general rule should apply to this specific offence. That would make it impossible to deal with 16 or 17 year olds who choose to travel independently of their parents and in the process flout Irish immigration law.
Deputy Lucinda Creighton: This goes back to a previous amendment tabled by Deputy Rabbitte on prioritising the protection of children. It is clear we cannot allow minors to be treated in the same way as illegal immigrants who have reached the age of majority. I am not sure the Minister will be inclined to accept that logic but clearly stating there is a difference in terms of how we deal with children under the age of 18 would be a constructive step.
Deputy Dermot Ahern: We are applying the normal law in regard to under 18 year olds. For example, section 64(1) provides that a foreign national under the age of 18 will not normally be detained for the purposes of securing departure from the State. The only circumstance where such detention can arise is where the person concerned does not comply with the requirement under sections 61(1)(a ) or (c ) or under sections 62(1)(a ) to (d ). These requirements are an alternative to detention and include that he or she reside in a particular place, report to the Garda Síochána or the immigration office at stated intervals and surrender any travel document he or she holds. As far as we are concerned there is a reasonable balance in the Bill in respect of this issue. If I were to accept this amendment it would cause a difficulty specifically for 16 and 17 year olds who travel independently of their parents.
The objective pursued by section 6(4) is laudable and I do not disagree with it from the perspective of immigration control and obviously that must be high on the agenda of priorities. However, the obligation imposed by section 6(4) is capable of violating the principle where a foreign national is unlawfully present in the State having not yet applied for asylum but, nevertheless, has a well-founded fear of persecution in his or her country of origin. Obviously there are international obligations and basic issues in terms of human rights which are reflected in our Constitution. I note that Article 4.5(d ) of Council Directive 2004/83/EC permits member states to have regard to a protection applicant’s failure to apply for asylum at the earliest opportunity in assessing their credibility and Article 23.4(i) of Council Directive 2005/85/EC permits such applications to be accelerated or prioritised but neither directive permits an application to be refused solely on that basis. It can be taken into account but it does not give any legitimate grounds in and of itself for refusal on that basis and Article 8.1 of Council Directive 2005/85/EC expressly prohibits this practice. The amendment makes it clear that the State will continue to observe the guarantees of the Geneva Convention as well as the European Court of Human Rights and the United Nations Convention Against Torture. The amendment supplements the general prohibition of refoulement laid down in section 58 of the Bill. It is about ensuring the Bill is not in contravention of our international obligations and it lends clarity to the text.
The effect of amendment No. 16 would be to link the obligation of the foreign national to voluntarily leave the State to the State’s obligation not to refoule. This does not make sense. Nor does amendment No. 19 which seeks to link the obligation of the foreign national not to enter the State or, if he or she has already done so, to leave, to the State’s obligation not to refoule. Amendment No. 92 seeks to insert text at section 58 which is already comprehended by the definition of refoulement at section 2.
If steps were being taken to remove the foreign national, the State’s non-refoulement obligations are engaged by section 58. However, if the person leaves voluntarily in compliance with the obligation to do so or if he or she, of his or her own volition, does not enter the State illegally, the question of refoulement does not arise.
These definitions clearly engage the State’s obligations under, among other instruments, the ECHR and the UN Convention Against Torture. The Deputy referred to a number of directives which are fully transposed into our law and would have to be taken into account as they are part of our law.
It is important to stress that, at all times, it is open to a foreign national, whether he or she is lawfully or unlawfully in the State, to make a protection claim if he or she considers that his or her removal from the State will give rise to a refoulement. Once a protection claim is made, the person must be granted a protection application entry permission, which allows him or her to remain in the State, and the claim must be dealt with under the protection process set out in Part 7. I draw attention to two enactments relevant to the matters under discussion. The European Convention on Human Rights Act 2003 enables further effect to be given in the State, subject to the Constitution, to certain provisions of the European Convention on Human Rights and the Criminal Justice (United Nations Convention Against Torture) Act 2000 which gives effect in domestic law to the UN Convention Against Torture. Section 4 of that Act contains the statutory prohibition on expulsion or refoulement of a person to another state where he or she may be tortured. During my time as Minister, there have been several cases where people have not been sent back to the country on the basis of refoulement.
Deputy Pat Rabbitte: Chairman, may I raise a point before Deputy Creighton comes back to comment on refoulement? Is the Minister satisfied that section 6(4) which states “A foreign national whose presence in the State is unlawful is under an immediate and continuing obligation to leave the State.” is compatible with section 81 (1) which states “Subject to section 29 (4), a foreign national, whether lawfully or unlawfully in the State, may make a protection application to the Minister? What is the point of making a protection application to the Minister if the person concerned is under an immediate and ongoing obligation to leave the State? I am not sure how it would work in practice.
Deputy Dermot Ahern: Section 81(1) overrides section 6(4) which is a general principle, that anyone who is unlawfully in the State has an obligation to leave, but obviously if the person makes a protection application to the Minister, that must be dealt with, whether the person is lawfully or unlawfully in the State. Once a person makes a protection application, he or she is entitled to permission to remain in the State while -----
Deputy Lucinda Creighton: The contradiction between sections 6(4) and 81(1), which was pointed out by Deputy Rabbitte, is very real. The Minister’s response does not address it fully because unless it is stated clearly in section 6 that there are exceptions to the rule, it is very difficult to see how section 81(1) can sit comfortably in tandem with it, because the sections clearly contradict each other. That can lead to confusion in terms of the interpretation of the legislation. Our proposal in amendment No. 16 is to insert “Subject to the principle of non-refoulement, as well as the obligation of the State under the European Convention on Human Rights and the United Nations Convention Against Torture.” before “A foreign national whose presence in the State is unlawful is under an immediate and continuing obligation to leave the State.” at least makes it clear that the obligation to leave the State is not an overwhelming obligation without exception, because there are exceptions. The Minister has accepted that there are exceptions. Deputy Shatter and I have tabled an amendment which is clear and comprehensive and ensures there is no confusion or contradiction. I am confused as to why the Minister has ruled it out completely.
Deputy Dermot Ahern: As I stated earlier section 6 deals with foreign nationals who are lawfully and unlawfully present. Section 6(4) is specific to persons whose presence is unlawful and he or she is “under an immediate and continuing obligation to leave the State.” Obviously, if the person has made an application under the legislation to avail of other procedures, that takes precedence. Section 81(1) is one such case and section 75, as I stated earlier, indicates that a person who has made a protection application is granted a mandatory permission to remain in the State. At that stage section 6(4) would not apply.
Deputy Alan Shatter: I simply do not get the Minister’s point. What Deputy Creighton and I have proposed sets out a qualification to what appears to be an obligation imposed under section 6(4). The qualification complies with our international obligations and is consistent with what the Minister is saying. It makes no sense for the Minister not to support the amendment tabled.
Deputy Dermot Ahern: Section 58 (1) states: “A foreign national being removed from the State under this Act shall not be sent to a territory if to do so would be a refoulement.” In effect refoulement is not negotiable. It is set out in section 58 and we do not need to repeat it at every hand’s turn everywhere else in the Bill. It is an overriding principle.
Deputy Dermot Ahern: We can look to see if we can clarify it more. The point was raised with the Office of the Parliamentary Counsel and it has assured us that section 6(4) is subject to the exceptions that are laid out in the legislation.
Deputy Alan Shatter: This is very complex legislation and those who operate it on behalf of the State must understand its intricacies and the interaction between different sections. Taken on its face, the bald provisions in section 6 could result in people being removed from the State in circumstances that other parts of the legislation do not envisage occurring or in circumstances which violate international obligations. The amendment tabled lays down a legislative marker and sets out clearly that there are specific issues to which regard must be had in circumstances where a person appears to be unlawfully in the State. I missed a few minutes of this exchange and I do not wish to delay members unduly. I do not know whether the Minister is saying the amendment is in some way flawed or is simply unnecessary. My understanding is that he states it is unnecessary because of the advice of the Parliamentary Counsel. Our perspective is that it is necessary to ensure that there is a comprehensive understanding of the legislation by those operating it once it is enacted. That is very important. The Minister is well aware as is the Parliamentary Counsel that there is no unique and perfect way of drafting legislation. All sorts of words and phrases can be used in sections that ultimately have a similar intent but it is important that in complex legislation the true interaction of different aspects of it is clearly visible and misunderstanding is not created. I suggest to the Minister that is the benefit of the proposed amendment. Like Deputy Creighton, I have no great difficulty if the Minister will agree to revisit this issue on Report Stage. I do not wish to delay the committee further on this issue but I do not understand why the Minister is so obstinate about a provision which, according to what he stated, seems to accord with the policy he wishes to implement.
Deputy Dermot Ahern: It is no coincidence that section 58 is the first section of that part of the Bill which deals with removal from the State. Sections within any piece of legislation cannot stand in isolation; all are subject to interlinking. As I stated, the amendments proposed by the Deputy are not logical. If a person voluntarily leaves the State there is no question of refoulement. The Deputy is trying to link the two which does not make sense. However, the overriding principle in all issues relating to removal from the State is that the principle of refoulement must apply in every case. I reiterate it seems logical that section 6(4) is a general principle unless the person is entitled under permissions to remain in the State. Section 75 makes it obligatory on the State to give such persons permission to remain if they make a protection application. I cannot say any more about that. The Deputy is linking amendment No. 16, the obligation of a person to leave the State voluntarily, to the State’s obligation to engage in refoulement. It does not make sense.
The purpose of both amendments is to insert a greater degree of protection for foreign nationals in regard to the use of force under section 6(7) proposing the addition of the word “absolutely” to “necessary” concerning when it is considered reasonable to use force. In addition, amendment No. 18 proposes the insertion of a self-explanatory provision at the end of section 6(7) using the phrase: “but shall at all times be proportionate and shall take due regard for the physical condition of the foreign national and shall in any event, only be used in circumstances where other means of removal have been exhausted”.
There is an objective element to this in that it seeks to introduce a test or standard of proportionality to the type of force that would be used but there is also a subjective test in terms of an obligation to take into account the physical condition of a foreign national when force is employed in order to remove such a person. The amendment also seeks to make clear that the use of force should be a last resort and only used in the event that other means of removal have been exhausted. It is important that these amendments be accepted because it is important that the bodily integrity of all human beings, irrespective of whether they are citizens, is protected within our legislation. The current wording of the Bill is much too vague and allows far too much discretion on the part of an individual or individuals who may apply force. This is an attempt to make clear that such force must be proportionate and must also take into account the condition of the person subject to that force.
Deputy Dermot Ahern: Section 6 makes clear that reasonable force may be used, if necessary, to secure the removal of a foreign national from the State. To seek to confine the possibility for the use of reasonable force in such absolute terms would hinder the effective operation of the removal provisions of the Bill. Whether force is necessary to remove a person from the State is a matter of skill and judgment on the part of the immigration officer effecting that removal. The Bill provides that such force must be reasonable. I remind Deputies there already exist rules, obligations and regulations which provide that the treatment of persons arrested and detained at least provide adequate safeguards for such persons. There is no need to amend section 6 in the manner proposed. This subsection as currently drafted provides a proportionate and balanced power to immigration officers that would facilitate the removal from the State of persons who should not be or should no longer be present in the State, and at the same time ensure that unreasonable force is not used.
I reiterate it is best left to the people involved to use their judgment in regard to specific issues. To put it in such absolute terms would offer somewhat of a playground for lawyers in regard to specific instances. For the past two years I have been aware of some of the circumstances in which people try to prevent being removed from the State. Ultimately, in fairness to the GNIB, it has acted reasonably and proportionately and fairly in the way in which people are removed from the State. Therefore, I ask the Deputy not to press the amendment.
Deputy Lucinda Creighton: The Minister’s choice of words is interesting. He spoke about the risk of the legislation becoming a playground for lawyers. On the other hand, however, leaving the standard so wide and open by using the term “reasonable force” without any attempt to hone or narrow down that definition is a sure recipe for it becoming a playground for lawyers. I acknowledge the guidelines to which the Minister referred but regarding the circumstance to which subsection(5) would apply in the first place there is no guarantee, for example, that the person in question would be under arrest. There would not necessarily be clear conditions by virtue of which a person might be detained under the provisions of the Act. Therefore, it is important that in the actual legislation, namely, section 6, the provision under which the potential set of circumstances would arise, there should be a reference as to how reasonable force can or should be defined or interpreted. To insert an obligation of proportionality would narrow it down and offer a more defined responsibility than simply stating “reasonable force”. There are 100 ways of interpreting that. An obligation to establish proportionality in the application of force would, at least, enhance the legislation and the protection afforded to people who might be the subject of such force. I am open to negotiation or discussion in terms of the exact wording. The proposed wording put forward by me and Deputy Shatter comprises an objective and subjective type of test and while that may not be acceptable to the Minister, it is advisable to include a reference to proportionality. It is also advisable that the reference be contained within section 6 and that the section should not simply refer or advert to guidelines which were created under secondary legislation. It is important the provision is included in the primary legislation. If the Minister is unwilling to accept the wording we proposed, I urge him to consider a wording acceptable to him and his officials that would include reference to proportionality.
Deputy Dermot Ahern: My advice is that the proposed amendment would alter the accepted legal standard which is based on the circumstances that pertain in the particular instance. Changing that would tie the hands of people and might lead to more legal dispute with regard to what was or was not reasonable. The Garda Síochána and the Garda National Immigration Bureau, GNIB, are obliged to comply with the regulations which have the force of law, irrespective of whether they are set out in primary or secondary legislation. This is a common reference to the way in which force can be used; it must be reasonable and used only if necessary. That is what is in the legislation and it provides the proportionality necessary.
Deputy Dermot Ahern: The standard laid down in the regulations, with which all members of the Garda Síochána are required to comply, relating to the treatment of persons in custody. The regulation refers to accepting such reasonable force as is necessary and so on.
Deputy Lucinda Creighton: There are different legal interpretations and standards with regard to the definition of “reasonable”. The interpretation depends on the legislation, the guidelines and the statutory instruments. The inclusion of a standard of proportionality would bolster subsection (7) and ensure there is an obligation on the Garda, or whoever else, to ensure that the treatment of a foreign national in respect of the use of force will be at the highest possible standard. I do not accept the Minister’s response that the standards apply already so we should move on. It is important that section 6 of this Bill, as the primary legislation, provides clarity as to what constitutes reasonable force. It is not unreasonable to expect that some reference to proportionality be included in the Bill.
Deputy Dermot Ahern: My problem is that the more prescriptive we become in this regard, the more it could become a lawyer’s playground. It is a reasonable and commonly used formula that reasonable force may be used if necessary, but, obviously, no legislation can determine what is not reasonable in any specific circumstance. That is a matter for a judge if there is a dispute with regard to reasonable force. The Garda is subject to very stringent conditions under the treatment of persons in custody regulations and that is why I am loath to move away from the time-honoured formula used in legislation in such circumstances, that reasonable force may be used if necessary.
|Carey, Joe.||Creighton, Lucinda.|
|O’Keeffe, Jim.||Rabbitte, Pat.|
|Ahern, Dermot.||Andrews, Chris.|
|Kenneally, Brendan.||Mulcahy, Michael.|
|Nolan, M. J.||O’Brien, Darragh.|
|Carey, Joe.||Creighton, Lucinda.|
|O’Keeffe, Jim.||Rabbitte, Pat.|
|Shatter, Alan.||Tuffy, Joanna.|
|Ahern, Dermot.||Andrews, Chris.|
|Blaney, Niall.||Kenneally, Brendan.|
|Kitt, Michael.||Nolan, M. J.|
|O’Brien, Darragh.||Sargent, Trevor.|
Deputy Alan Shatter: Section 7 is interesting. It starts off with the words “for the avoidance of doubt”. Despite the fact that provisions contained in this section are dealt with in other sections, the Minister still feels the need to ensure there is no doubt as to the section’s intent. It is rather odd when one considers the amendments we sought for section 6(4) about refoulement or the use of violence only when absolutely necessary. The Minister’s argument was that none of it was necessary because it was already addressed in the legislation or by regulations concerning the Garda Síochána.
Here we have a “for the avoidance of doubt” section. What doubt is it that he wishes to avoid? The Minister wants there to be no doubt that “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.”
The reason behind this section stems from the perspective of sham marriages, a matter discussed in great detail previously. The amendment the Minister just got his colleagues to vote down would have essentially criminalised sham marriages. The Minister wants to ensure there is no doubt that if one engages in not just a sham marriage but any sort of marriage with a foreign national, it does not give one the right to have one’s spouse live with one in the State. Will the Minister confirm the term “foreign national” here refers to non-EU citizens?
The difficulty with this will be the approach taken to determine the circumstances in which a marriage is real or a sham. I am aware of one case affecting a constituent who for the best part of a year has been trying to get his real wife a right of residence in Ireland. She has been denied it because she is Nigerian and there is an assumption the marriage is a sham. At one stage, the problem was that the section dealing with this in the Department was not satisfied with the marriage certificate. It has been now authenticated by the Nigerian embassy and my constituent is trying to ensure his wife can join him in Ireland. He has been visiting her in Nigeria, not something someone would do in a sham marriage.
My concern about the “sure to be sure” provision is that it will create substantial difficulties in the manner in which it will be administered for Irish citizens, genuinely and properly married to non-EU nationals, to have the entitlement to be joined by their real spouses in this country. This provision makes it absolutely clear one has no such right. With the constitutional provisions for the protection of marriage, I wonder if this section will be revisited in our courts. A different view may then be taken to how the State should approach these issues and to the constitutionality of the section. I am concerned that insidiously built within the section is a racial prejudice. I doubt if too many Irish people married to Canadians or Australians will have any difficulty getting their spouses into Ireland, but if one is married to a person from an African country or a Third World country outside Africa, will this provision result in an assumption that it is a sham marriage and that one’s spouse should not be allowed into Ireland? I am uneasy about this provision. It is like a headline provision designed to copperfasten an ethos that may not be particularly desirable. I would much prefer if we dealt with this in an open way by ensuring that those engaging in sham marriages to falsely come to this State are regarded as committing a criminal offence and that the gangs responsible for arranging such marriages, and essentially trafficking women to Ireland, are guilty of criminal offences, but that those who enter into proper, valid and genuine marriages should not have a difficulty in their spouses joining them. Instead we are dealing with this matter on an upside-down basis. We will make it difficult for any Irish person married to a non-EU spouse to get their spouse a resident’s right in Ireland, particularly if they come from certain parts of the world, because unfortunately that is the unspoken ethos that rears its head on occasion in these areas but we will not criminalise the gangs who traffick women into Ireland to engage in sham marriages for their financial gain. I recognise that on some occasions women come to Ireland to engage in a sham marriage for their own personal financial gain. It is the wrong way to go about this. I would like a provision in the legislation which eased the path of Irish citizens, who are parties to genuine marriages to non-EU nationals, to have their spouses reside with them in Ireland and that where there are real marriages that we do not create unnecessary barriers.
Deputy Pat Rabbitte: The way to deal with this section and expedite the Bill is for the Minister to assent to this section being removed. It is an entirely unnecessary belt and braces provision. I do not want to retrace the arguments just advanced but this Bill has been so long in gestation that on the last occasion we considered it, or its original incarnation, we did not know the extent to which sham marriages was an issue that would have to be confronted. The Department has considerably firmed up its position since then and there are now arrangements, by agreement, to deal with the phenomenon of sham marriages. Therefore, why must we include a belt and braces provision to the effect that just in case we want to be sure? The best way to proceed with the Bill is for the Minster to agree to the excision of this section and to the proposed amendment, which would mean the deletion of section 7, as it does not represent any improvement on it.
Deputy Dermot Ahern: The key words here are that the “marriage ... of itself, [does not] create any entitlement”. Basically this section seeks to clearly show that a foreign national cannot claim any entitlement based on marriage. We are not discounting the issue of marriage. Clearly, marriage is a big influence in any immigration decision. The way the section is phrased, particularly the use of the words “of itself, create any entitlement” clearly states that somebody has to prove, under the legislation, his or her entitlement to be here in the first place.
Deputy Dermot Ahern: I do not disagree with the issues Deputy Shatter raised to ensure that genuine cases are upheld. The use of the words “marriage ... of itself, create any entitlement” in effect upholds the type of standard about which Deputy Shatter spoke and with which I believe we would all agree. Obviously, we want genuine cases to get through and those that are not genuine not to get through.
Deputy Pat Rabbitte: If we draw into the equation the issue of subjective judgment where subjective judgment has proved a problem in the past, there will be circumstances where a resident of this State will want to bring his or her Canadian spouse to this country, as Deputy Shatter has suggested, and that should be facilitated, but the same should apply if a resident’s spouse is Angolan. We are agreed on the position as to sham marriages and we are providing for that in terms of being against it, therefore, why we need a belt and braces provision to the effect that marriage of itself is not good enough to get one into the State escapes me.
Deputy Dermot Ahern: What if the spouse in Ireland did not want his or her spouse to come here? I have said in regard to the issue of family reunification that I would bring forward regulations based on consultation that we plan to roll out in the near future. This section is necessary and the advice I have from the Attorney General’s office is that it is necessary as a statement of principle. Marriage of itself does not create an entitlement and there are circumstances where one cannot be absolutist in regard to this.
Deputy Lucinda Creighton: No, what the amendment proposes is very straightforward. The amendment proposes specifically to include mental health services in the provision. It places emphasis on the protection of mental health in addition to the general services already provided for so as to ensure the mental health of persons governed by the legislation is taken into account.
Deputy Dermot Ahern: Although I agree that mental health services should be available, where does one stop if one specifies a particular type of service? One could equally include cardiac, gynaecological or other services to emphasise that they are necessary. The advice available to me is that the term “medical treatment and services” covers everything that is required, including mental health services.
Deputy Lucinda Creighton: If it was not necessary to distinguish between mental health services and other medical services, we would not have legislation dealing specifically with mental health. While physical requirements are clear and understood by the legislation, making particular provision for mental health services would show the State is willing to go above and beyond what may otherwise be anticipated and gives particular priority to mental health services. The proposal is appropriate, particularly given that many of those covered by the legislation have been through extremely traumatic experiences in their country of origin or as a result of the processes by which they have arrived in the State, for instance, human trafficking. It is appropriate that this be reflected through a specific reference to mental health services.
Deputy Dermot Ahern: My advice is that the term “medical treatment and services” encapsulates mental health services and the Deputy’s proposal is therefore covered. The services in question are being provided to people who come within the immigration heading.
The Deputy noted there is separate legislation on mental health, child care, and so on. The legislation in question is specific to those issues whereas this refers to the type of services. I understand the term “medical treatment and services” is regarded as a catch all provision in that it refers to all of the services that are possible.
Deputy Alan Shatter: One of the difficulties in practice is that some of those who have come here seeking asylum, having been through very difficult times, are genuine applicants who do not always have access to the type of mental health services they clearly require. This has been a real problem in recent years. There is a benefit in expressly referring to mental health services in the legislation. If the Minister states the wording used already incorporates reference to mental health services, why not accede to the proposal that the words “including mental health services” be contained in the section? It would not do any damage to the section in light of the Minister’s contention that mental health services are covered in any case. The amendment would make explicit what the Minister says is implicit. It does not create a difficulty in practical terms because we are told by the Minister that he has no difficulty with the provision of such services under the rubric in the legislation of the reference to medical treatment.
In the context of the way in which it may be defined, the term “medical treatment” is something different from the term “mental health services”. The former can be narrowly defined if one wishes. For example, it can be confined to meaning the services of general practitioners and surgical interventions, where required, and may not necessarily extend to mental health services. If, as the Minister argues, it is the intention to include mental health services within the ambit of section 9(3)(a), he should accept the amendment on the basis that it would not cause any problems to do so.
On a point of clarification, the section does not apply to asylum seekers but to those people who are unlawfully present in the State. These are the exceptions in terms of the type of treatment to which such persons are entitled under the legislation.
Deputy Alan Shatter: The position of someone who is regarded as being unlawfully in the State could evolve and change pending the decision making process in a number of areas. If someone is simply unlawfully in the State and clearly has mental health issues, he or she equally cannot be ignored. If it is intended that medical treatment should cover mental health services, I do not understand the reason the Minister refuses to accept the amendment. I will not delay the meeting further on the issue.
Deputy Alan Shatter: Section 11(1) states: “Subject to subsection (4), the Minister may, in writing, delegate any of his or her functions under this Act to a named person or to a specified category of persons, who is or are not officers of the Minister.” I ask the Minister to explain what he has in mind with regard to persons to whom he may delegate functions who are not officers of the Minister.
Deputy Alan Shatter: Does the Minister envisage that functions which are essentially the functions of Government officials or public servants may be subcontracted to a private agency under the provisions of the Bill?
Deputy Dermot Ahern: No, the inclusion of the delegation function is considered necessary to allow for the proper functioning of the immigration system. It is envisaged that this function would be used primarily in the visa area. An example of where the provision could be applied is in the area of visas issued abroad. The ministerial function relating to acceptance of visa applications, issuing of visas of certain classes and reviews of negative decisions in certain circumstances can be delegated, for example, to officials of the Minister for Foreign Affairs or certain consular staff.
Deputy Alan Shatter: Will the Minister explain how this provision works in conjunction with subsection (3)? It states: “Every function delegated under this section shall be performed subject to the general supervision and control of the Minister and to such limitations (if any) as may be specified in the delegation and different limitations may be specified in regard to different persons or categories of persons.” How would someone who is not an officer of the Minister perform these functions subject to the general supervision of the Minister? In particular, how would this be done if the Minister was in Ireland and the person performing the function was in a foreign state? How would the Minister generally supervise the manner in which the functions were being exercised?
Deputy Dermot Ahern: This is a standard provision on matters of this nature. There are other examples of delegation powers on the Statute Book. For example, section 12 of the Public Service Management Act enables the Minister to jointly share functions, while section 289 of the Social Welfare (Consolidation) Act 2005 allows the Minister to delegate “to those persons that may be prescribed, any function in relation to the administration of any benefit that may be prescribed”. Section 36(4) of the Civil Defence Act 2002 provides that: “The Minister may delegate to the director general the powers exercisable by him or her under the Civil Service Commissioners Act, 1956 and the Civil Service Regulation Acts 1956 to 1996”. Section 236 of the Local Government Act 2001 also provides that: “The Minister may delegate any of his or her functions”. Obviously, it is a delegation to certain persons who must comply with and be aware of the law.
Deputy Alan Shatter: I understand the Minister can delegate functions and there are many statutes, including those he has mentioned, that allow for the delegation of ministerial functions. The oddity in this respect is that having delegated the functions to someone who may be outside the State, that person may only exercise them under the Minister’s supervision. Everything the Minister has read out has been about delegation and not about supervision. I suggest to the Minister that in this context, section 11(3) is defective or inoperable. How will the people to whom the Minister has delegated functions under section 11(1) exercise their functions under the supervision of someone who is in a different country?
Deputy Pat Rabbitte: I can see the reason the Minister would want to include this section in respect of his freedom to delegate a specific function. As he noted, it happens in some areas, such as with the deciding officer in the Department of Social Protection. I am puzzled, however, as to the reason the provision states: “the Minister may, in writing, delegate any of his or her functions”. Surely, to judge from the explanation provided to Deputy Shatter, it should state “may, in writing, delegate certain of his or her functions”. How is it that the Minister can delegate any of his or her functions to someone who is not an officer of his or her Department? This suggests one could take a pen and stick it in the Bill and any particular function that came up could be delegated by the Minister. An embassy is a rather esoteric explanation for this section because they would not be too widely used and whereas they may not be officers of the Department of Justice and Law Reform, they are officers of the State. The provision states “any function”. Why is the term “certain functions” not used?
Deputy Dermot Ahern: Section 11(3) states “as may be specified in the delegation”. As for the question Deputy Shatter raised about supervision, the Department would have staff seconded to those embassies. On the last day of debate, I listed out the embassies in which we have staff seconded to take in applications. Obviously, other staff there, who are not necessarily staff of the Minister for Justice and Law Reform but who are officials of the Department of Foreign Affairs, take part in the receipt of visa applications. Consequently, this is a standard provision that-----
Deputy Pat Rabbitte: With respect, the Minister drew my attention to the phrase “as may be specified in the delegation” as an answer to the point I have raised. I note that phrase relates to the particular function the Minister is delegating. For example, the Minister might limit it and can specify in the delegation that limitations exist. It does not raise the point about the reason any function under the Bill can be delegated to outside persons. Section 11(1) refers to any function.
Deputy Pat Rabbitte: All that is controlled under section 11(3) is the particular function that the Minister delegated. While that particular function might be limited, that does not deal with the question of the-----
Deputy Dermot Ahern: Again, everything is subject to section 11(4) with regard to any function but, again, this gives the Minister the entitlement to delegate functions to those who are not necessarily members of the Department of Justice and Law Reform. I cannot discern any difficulty in this regard.
Deputy Dermot Ahern: Not in every embassy. Most embassies in which the Department has officials are those in which the Department has a large volume of work. I provided the figures during the previous day’s debate that showed that approximately six of them carry approximately 80% of the work.
Deputy Alan Shatter: In those embassies that do not have an official from the Department of Justice and Law Reform, how could these delegated functions be exercised under the Minister’s supervision when there is not even a nominee of the aforementioned Department present?
Deputy Alan Shatter: No supervision is being provided. I merely am raising the point that I believe the Minister has a difficulty with section 11(3). I absolutely accept there is nothing untoward in delegating certain functions, particularly visa functions, that clearly must be exercised by embassies around the world. However, I simply raise the technical issue that because of this requirement that all of these delegated functions be exercised under supervision, if they are being exercised by an official of the Department of Foreign Affairs, clearly what they are doing is not being supervised by the Minister or someone representing the Minister as a public servant in the Department of Justice and Law Reform. Without delaying proceedings further I suggest that for Report Stage, section 11(3) needs to be revisited. I will not put it any further than that.
Deputy Dermot Ahern: Section 11(2) states: “Where the person or category of persons referred to in subsection (1) is a person or category of persons who is or are agents, officers or employees of another Minister of the Government, the Minister shall not delegate the functions concerned without first obtaining the consent of that other Minister.” Again, section 11(3) states “Every function delegated ... shall be performed subject to the general supervision and control of the Minister”. Obviously, these people would report to the Minister with regard to the work carried out as per the delegation order.
Deputy Alan Shatter: The Minister’s suggestion regarding section 11(2) does not help him at all. It is simply about when the Minister delegates something to an official. For example, in the Department of Foreign Affairs, the Minister must get the consent of the Minister for Foreign Affairs but that does not then make any provision for those officials to be supervised and nor can they supervise themselves in the exercise of the delegated function.
Deputy Dermot Ahern: I move amendment No. 26:
Amendment agreed to.
Section 14, as amended, agreed to.
Section 15 agreed to.
Chairman: Amendments Nos. 27 to 29, inclusive, are related and may be discussed together.
Deputy Lucinda Creighton: I move amendment No. 27:
These amendments provide for some degree of flexibility in the application form process pertaining to visa applications. Flexibility is required, for example, regarding filling in a birthday when similar cultural references do not exist in the applicant’s country of origin. In sub-Saharan African countries the same references do not apply as in our legal and cultural framework. The amendment is designed to reflect that.
Amendment No. 29 proposes that where the circumstances relating to a visa application do not fall within the circumstances provided for in any prescribed form, the visa applicant or any person applying on his or her behalf may make such variation to the prescribed form or may provide such additional information as is appropriate in the particular circumstances. This provision would reflect the reality that not all applicants will be in a position to comply in full with the standard application requirements.
Deputy Alan Shatter: The section appears to be extraordinarily rigid. If one is making a visa application, subsection 16(2) states the visa application shall be in the prescribed form, if any. An application that is not in the prescribed form will become like one of the 12,000 or so citizenship applications to which I have referred. Someone will tick off the boxes and if the form is not filled in in the prescribed manner, it will be sent back to the applicant without anyone examining it further.
I believe there is a substantial need for flexibility. I will give the Minister an example of this which, to the credit of officials dealing with visas, was dealt with with speed, flexibility and insight but which, following the enactment of this legislation, could not be. I am aware of circumstances where a foreign non-EU national, who has been a doctor in this country for many years and whose wife is also a doctor working in this country for many years, suffered a family tragedy in his country of origin. His sister gave birth to a baby and she died in childbirth. He and his wife were granted custody of this child in the foreign court, following the death of the child’s mother. There was no contest over this judgment and it was done by family agreement. They had the capacity to bring up a young baby in Ireland and they were granted custody.
Their next step was to get permission from this State to bring the baby to Ireland. They got a court order, also in the foreign state, granting that permission. However, no appropriate visa application form was provided online. The forms were based on individuals applying for visas on their own behalf. As the baby was only a few months old, he could not apply on his own behalf. The people concerned came to me and I assisted them. We went through the forms as best we could and filled them out, but there was no way this application could be made properly, based on the current form. A substantial amount of additional information had to be furnished, which was extraneous to the form. With reasonable speed, humanity and understanding, the application was dealt with, the visa issued and the young baby came to this country, as it should be.
The section, as now drafted, seems to make it an imperative that visa applications are made in the prescribed form. I am not sure what the words, “if any” mean. Does this mean an application must be made on the prescribed form or if one’s circumstances do not fall within the prescribed form can one make up a form as one goes along? This is not clear. However, I am conscious that more than 12,000 citizenship application forms were returned in the space of one year because it was perceived that they were not filled in properly. There was no issue as to whether people qualified or did not qualify for citizenship.
I ask the Minister to consider the following circumstance. In a year's time, when this legislation is in being and there is not a prescribed form, this couple, who have suffered an unfortunate family tragedy, are trying to get a baby into Ireland. They are trying to fill in a form but a prescribed form does not exist. Someone in the relevant section of the Department is ticking the boxes, sees that the application does not fit the prescribed form and sends it back.
Amendment No. 29, proposed by Deputy Creighton and myself, is a commonsense amendment to ensure a degree of flexibility. Amendments Nos. 27 and 28 are technical amendments which interact with the substance of amendment No. 29. It is a straightforward amendment. It proposed to insert the following subsection:
I urge the Minister to accept this amendment. I would be surprised if the Minister accepted any amendment but there is no technical reason he should not accept amendments Nos. 27, 28 and 29.
Deputy Dermot Ahern: The effect of the amendments would be to allow a visa applicant to make an application in any format he or she considered appropriate, notwithstanding the fact that the Minister may have prescribed the form in which the visa applications are to be made.
Deputy Alan Shatter: The Minister is wrong. It only applies-----
Deputy Dermot Ahern: Subsection 16(2) states that a visa application shall be made “in the prescribed form, if any”. Subsection 16(3) says the Minister may prescribe the form in which visa applications are to be made. If no regulations are made the forms can come in any shape or form applicants decide.
It would be the intention of the Minister to make regulations so that there is a standard form of application. In 2009, there were 134,000 applications and 123,000 visas were issued. Applications are made in many offices around the country. It is only fair and reasonable that there be a standard form to be filled in, which would be available at the embassy or on the Irish Naturalisation and Immigration Service, INIS, website. It is only reasonable, given the volume of applications, the number of offices and the heavy investment by the taxpayer in the embassies where most of this business is done, that a standard form be used by applicants. If an applicant wishes to include additional information it can be included with the application form.
Deputy Alan Shatter: The Minister has, predictably, utterly failed to address the issue I raised. We are wasting our time in this committee.
The Committee divided: Tá, 5; Níl, 8.
|Carey, Joe.||Creighton, Lucinda.|
|Rabbitte, Pat.||Shatter, Alan.|
|Ahern, Dermot.||Andrews, Chris.|
|Blaney, Niall.||Kenneally, Brendan.|
|Kitt, Michael.||Nolan, M. J.|
|O’Brien, Darragh.||Sargent, Trevor.|
Amendment declared lost:
Deputy Dermot Ahern: I move amendment No. 28:
Amendment agreed to.
Amendment No. 29 not moved.
Section 16, as amended, agreed to.
Chairman: Amendments Nos. 30 and 51 are related and are to be discussed together.
Deputy Lucinda Creighton: I move amendment No. 30:
The idea that an individual - be it a non-Irish national or anyone else living here - might be treated or dealt with by the State on the basis of the conduct of a member of his or her family rather than on the basis of his or her own conduct is inappropriate, unfair, unreasonable and runs contrary to any human being’s basic rights. I can only assume that the relevant provision in the Bill is drafted as it is on foot of an oversight or a mistake. I strongly urge the Minister to accept this extremely straightforward amendment. I also urge him to acknowledge that any individual’s visa application should, when being dealt with by the State, be considered on the basis of its merits and on foot of that person’s conduct and history rather than on the basis of the conduct of a member of his or her family or any other individual, be he or she present in the State or elsewhere.
Deputy Dermot Ahern: Amendments Nos. 30 and 51 would exclude from consideration of a visa application or an application for a residence permission the conduct of members of an applicant’s family. These exclusions would prevent the Minister for Justice and Law Reform of the day taking into account, for example, the fact that a visa applicant was seeking to visit a member of his or her family living here who had a history of breaches of immigration conditions or who might even be unlawfully present in the State. Amendment No. 51 would prevent me from considering the immigration conduct of a parent living here as a matter relevant to the question as to whether the residence permission of that parent’s child should be renewed.
The intention behind sections 17(5)(g)(i) and 38(h) is to allow the Minister to take into account any conduct of an applicant for a visa or a residence permission or any member of his or her family in connection with immigration in determining whether to grant a visa or, as the case may be, a residence permission to the applicant. This is clearly a relevant consideration and I am satisfied that it should remain in the Bill. Let us consider if one or more members of an applicant’s family might have a significant number of criminal convictions. The amendments propose that we would be obliged to exclude any consideration of that fact. I do not believe it would be possible to achieve this.
Deputy Lucinda Creighton: That is precisely what I propose. As it stands, the section is fundamentally contrary to the entire concept of natural justice and to the basic procedures which everyone in this State takes for granted. If a citizen of this State was on trial, would the conduct of his or her mother, brother or cousin be taken into account by the courts? It would not. It is completely implausible to say that someone - be he or she a non-Irish national or a citizen or a resident of this State - should stand indicted simply on the basis that a family member with whom he or she might not have any contact might have breached conditions of residency, have a criminal conviction or whatever. This provision is completely contrary to the basic concept of natural justice enshrined in the Constitution and which we consider to be sacrosanct within our justice system.
I genuinely believed that the way the section is drafted was as a result of some oversight. Applications should not be considered on anything other than their merits and on whether those making them comply with the conditions set down in the legislation. Applications should be considered in the context of those who make them rather than on the merits or otherwise of particular members of their families or certain associates. It is bizarre that a provision of this nature is included in the Bill. I hope the Minister will reconsider the position in respect of it.
Deputy Dermot Ahern: The Deputy is not comparing like with like in the context of criminal charges. The conduct of members of a family would never be taken into account unless such members were involved in a particular incident. We are dealing with an immigration issue which relates to the right and duty of the State to protect its borders. As the courts have indicated on numerous occasions, we are concerned here with granting by the State what is not a right but rather a gift. The State is entitled to take into account any circumstances it believes may suggest that the granting of a visa may not be in its best interests.
Section 17(5)(g) states that the Minister may refuse to grant a visa if he or she considers its refusal to be justified for any reason, including that, in his or her opinion:
Making the exclusion suggested by the Deputy would have the potential to tie the hands of those responsible for deciding on visa applications. That a member of an applicant’s family had previously flouted the immigration laws is surely something which must be taken into account, particularly in the context of possible family reunification at a later stage.
Deputy Lucinda Creighton: The Minister stated that I am not comparing like with like. I accept his refusal to consider the issue of, for example, criminal trial. Let us consider then a similar scenario relating to an Irish person who worked in construction in the United States in the 1970s, who remained there illegally for perhaps one year or two without a visa and who was clearly in breach of that country’s immigration laws. Would it be acceptable if the authorities in the United States decided that the son or daughter of the person to whom I refer could not be considered for a green card or for a visa on the basis that he or she is related to someone who had breached that country’s immigration laws 20 or 30 years previously?
There are no time limits, criteria or qualifications set out in the provision in section 17. It is a blanket provision which allows officials in the Department to make broad determinations on the basis of something which is completely unwarranted and which has the potential to be totally unfair. I do not believe the provision is appropriate and I will press amendment No. 30.
Chairman: Does Deputy Rabbitte wish to comment?
Deputy Pat Rabbitte: No. Deputy Creighton has made her point well.
Deputy Dermot Ahern: The Bill refers to a criminal conviction of the applicant or the conduct of the applicant or any member of his or her family that indicates that the applicant would be unlikely to comply with the condition of permission to enter or remain in the State. The criminal conviction or the conduct of a member of the family is not of itself a killer in the context of the application. It is only if it gives an indication, in the opinion of the person deciding, that the person is unlikely to comply with the conditions upon which he or she is present in the State. It is the fact that there is a conviction previously, or, the conduct of the family that may be detrimental. It is only if it indicates that the applicant would be unlikely to comply.
Deputy Lucinda Creighton: I have made the point. It is much too broad, much too vague and vests far too much discretion in the hands of the deciding officers.
Amendment put and declared lost.
Section 17 agreed to.
Progress reported; committee to sit again.
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