Irish Nationality and Citizenship Bill 2004: Second Stage (Resumed).

Tuesday, 9 November 2004

Dáil Eireann Debate
Vol. 592 No. 1

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Question again proposed: “That the Bill be now read a Second Time.”

Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  In his opening remarks in the debate, the Minister referred to the 11,000 people in legal limbo since the L & O decision, saying that this number proves that he was right all along in accusing non-nationals of coming here solely for the purpose of exploiting our immigration laws. In saying so he ignored a fact of which he is surely aware and which has been mentioned in the course of contributions on the Bill, namely, that a significant proportion of those 11,000 people were advised by statutory agencies after they arrived that they should have a child to be guaranteed residency.

  5 o’clock

The policies in place at the time had no bearing on their decision to come to Ireland and it is disgraceful to cast such aspersions on the motivations of so many people. While it may have been true for a small number among that greater number, as a result of that contribution and others, everybody has been lumped together and so accused.

The Minister’s statement epitomises one of the most deplorable aspects of the State’s approach to immigration, namely, the disregard, suspicion and, at times, outright contempt with which it treats immigrants from the moment they arrive or, in the case of these applicants, they make known their desire to enter this State. Non-nationals, particularly those from African or certain eastern European countries, are looked upon and often portrayed as spongers, scroungers and criminals, trying to exploit every so-called loophole available to leech off the State.

The Government, particularly the Minister for Justice, Equality and Law Reform, Deputy McDowell, has encouraged this view time and again, certainly during the recent referendum campaign, and the Minister in his opening contri[51]bution to this debate further fuelled that view. It is reflected in the way the immigration authorities, not always but sadly all too often, treat those seeking to come to Ireland. Visa applications are routinely denied with no reason given. The applicant is told to call a number that is only accessible, at least theoretically, for seven and a half hours a week. That is the only way they attempt to establish the reason for denial of the application. In my experience it is virtually impossible to get through during those seven and a half hours. The system is so overburdened that telephone calls are — I repeat the view I expressed — automatically disconnected. The Minister denied that claim in a recent reply to a parliamentary question that I submitted. I ask him or his associates to check this, to undertake an examination of how this works, and he will find that what I am saying is the actuality of people’s experience.

Of course, the fact that the denial letters do not give a reason for denial has much to do with why the telephone lines are overburdened. The Department should provide the reason for denial in those letters. That would certainly address many of the inquiries and lessen the burden of telephonic inquiry on the applicant who has been denied and the officials in the system.

Naturalisation applicants are also routinely turned down without being told why. If they want a reason they must file a freedom of information request. This beggars belief. The system should be open and transparent, and people should be given the information.

The position is even worse for non-nationals seeking employment under the work permit system. There is no one for these people to contact. The Department of Enterprise, Trade and Employment will only accept queries from employers. Much has been said about the opportunities that exist within the work permit system for the exploitation of those workers. The Department’s refusal to speak to them only facilitates this and fuels the distrust, not only among those applying but also among many of our own population who are concerned about these matters.

The Government’s dim view of non-nationals is reflected in its reasons for refusals. Several months ago, in a highly publicised case, a Cuban grandmother was denied a holiday visa although she had been granted two previous holiday visas without incident. That case was reversed after an outcry, but the experience from my constituency is that there are many other such cases. On one occasion a worker in my office managed to get through to the visa section of the Department of Justice, Equality and Law Reform and was told: “We do not issue visas to widows because they are only coming here to baby-sit.” That is exactly what was said to my staff member, who noted it very carefully during the course of the exchange. This happened twice, both times involving Indian [52]nationals seeking to visit their sons, their Irish wives and their grandchildren. If there is a policy to prevent widows who are mothers and grandmothers from coming here because they are only coming to baby-sit their grandchildren, the Minister should be honest and tell us about it. I assure him that is exactly what was said to my staff member. It is a contemptible attitude for any Department to take and I am deeply offended by it.

The Government has refused to issue new work permits in certain categories deemed ineligible. The purpose of this policy, allegedly, is to protect jobs in categories where the Government believes there is no shortage of EU workers. This refusal extends even to those non-nationals who are already working in those categories. There will be no net loss of EU jobs if these workers are allowed to change employers. This senseless policy serves only to bind those workers to their employers. The Government denies this is the case on the grounds that those workers can find jobs in so-called eligible categories, but this argument is specious. The reality is — this is so widely acknowledged that one suspects the Government is in denial about it — that many of these workers are shackled to their employers and are unable to change jobs. I would welcome statistics that prove me wrong but, unfortunately, when my colleague. Deputy Morgan, attempted in the previous Dáil session to obtain these statistics from the Tánaiste, he was met with the incredible reply that they are not kept.

I was flabbergasted to hear the Minister say in his opening remarks that this State “wholeheartedly subscribes” to the UN Convention on the Rights of the Child. Article 7 of that convention states that the child shall have “as far as possible, the right to know and be cared for by his or her parents”. Article 9 states: “a child shall not be separated from his or her parents against their will except when ... such separation is necessary for the best interests of the child”. The Government is in blatant contravention of these articles with its policy of not granting reunification visas to the children of those parents who were granted leave to remain in Ireland prior to the L & O decision.

The Minister is familiar with the detail of a specific case on which we have exchanged correspondence and about which I feel passionately upset. It has been a most disturbing experience dealing with that case, but, alarmingly, there are many other such cases. I appeal to the Minister. It gives me no pleasure to point constantly to what I see as flawed and wrong in the system. I would be far happier commending the Minister and I look forward to the day when perhaps he will listen to some of our concerns and address them within the system. The reunification of children in all those cases that apply prior to the L & O case would be a statement of the compassion of the people of this island for those who are most in need globally. I urge the Minister, even in the [53]spirit of the upcoming Christmas period, to take such a bold step. He will certainly earn the applause and the appreciation of this Deputy, and I will not be slow to express it.

If I had more time, I could highlight a number of other serious flaws in our immigration system which are long overdue for reform and in much greater need of urgent action than the issue addressed in this Bill. Perhaps I will get another opportunity to cover them, although I would probably need to go through the detail of them with great care.

Sinn Féin will oppose this Bill as it has opposed all the other anti-immigration Bills, as I view them, brought before this House. It is not my penchant always to oppose. I genuinely and sincerely hope legislation will be brought before this House which represents the real and caring disposition of the overwhelming majority of the people and which I will be able to happily support. However, this is not such an occasion. It is time for legislation to protect our immigrants rather than demonise them.

Dr. Cowley: Information on Jerry Cowley  Zoom on Jerry Cowley  We have a greater responsibility now that there are increased numbers of non-nationals coming to our country. The number of non-nationals working here has more than doubled since 2000. Some 18,000 people received work permits to work here in 2000, a figure which rose to 47,551 in 2003. As a result of a need for more workers in our economy, many more non-nationals are coming to this country and we have responded by giving them the necessary work permits. That gives us a greater responsibility to ensure that we are all-embracing and inclusive, which we have not been. Our laws need to be amended to give a level of fairness.

This Bill was introduced for a particular purpose but it also should have introduced greater fairness into the system. There has been a call for an amnesty for Irish citizens born before the referendum and the Supreme Court decision of January 2003. These people should be taken into consideration. The way we treat non-nationals is unfair.

The situation in respect of asylum is predicated on one-to-one interviews. It is the individual’s responsibility to prove his or her case. The burden of proof is on the asylum seeker who often does not have any documentation to back up his or her story. His or her credibility is tested at every turn in an interrogation process which can be very harrowing and frightening for people, especially for those who do not have a full command of the English language and for those who have suffered great trauma in their own countries. This system is not entirely fair and is not one over which we can stand. We are known as the Irish of the welcomes, but is our welcome is wearing out when it comes to non-nationals? It works both ways in that we need non-nationals to help us to drive our economy. As I said, we have a responsibility in that regard.

[54]I brought to the Minister’s attention the unfair system which allowed a Burundi national to be deported from this country to which she had fled because she had exhausted the appeals systems in the UK where she had first entered the system. She had made an application in the UK and under the Dublin Convention, she was obliged to be returned to London to where she was deported in the dead of night by the immigration unit. She was given one hour’s notice and was taken away by strangers to travel on a long lonely road to Dublin with her two daughters aged seven and five. They had been resident in Kiltimagh, County Mayo, and had, I suppose, been adopted by the community there. The community appreciated this woman’s fear of deportation to Burundi where she had been treated very badly. The transfer under the Dublin Convention was an administrative matter as she had made her original application for asylum in the UK, her original point of entry. The fact the Garda immigration unit left Dublin at 6 p.m. implies that this was very much a calculated plan to steal this unfortunate woman and her family away under the cover of darkness to avoid the public outcry which would have resulted if the people of Kiltimagh had realised what was going on.

The treatment of this woman raises serious questions about how we look after people who are less fortunate than ourselves. It also raises serious questions about the system which needs to be reviewed. I would like to see a review of the system in legislation rather than what is before us. We cannot think about bureaucratic efficiency over people’s feelings. The system should have consideration for people and their feelings, particularly as in the case of this woman who was so traumatised having witnessed the murder of family members, having been the subject of rape and having seen members of her family treated very badly. This is a matter about which I feel strongly.

In the case of asylum seekers, there is a presumption of guilt and they must try to prove their case. The more horrific their circumstances, the greater the task they have to try to prove their case. Often good medical evidence is not taken into account which should be. I have major problems with the system. Will the Minister re-examine this matter? It may be too late for this Burundian lady who has been deported to the UK and who may be deported to Burundi in due course, but will the Minister re-examine this case which has been through our system? This lady has been treated very badly. The Minister has many matters on his plate but this case is important. People from Kiltimagh followed this lady to London and have kept vigil with her as she goes through various traumas in the UK from which she is under threat of deportation. I hope the Minister will reconsider her situation.

Minister for Justice, Equality and Law Reform (Mr. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  I thank Deputies who contributed to the debate which has been fairly wide-[55]ranging. I acknowledge and state my appreciation for the support signalled by Fine Gael for the proposals which reflect Ireland’s welcome and high regard for those who come to Ireland from aboard to establish themselves and share in and contribute to Irish society. Contributions on all sides ranged across many issues and concerns in the area of asylum and immigration. In so far as possible, I propose to address the main points and queries raised in the debate. Other matters raised which are of direct relevance to the detail of the Bill can be teased out on Committee Stage.

A number of Deputies referred to the history of the investment-based naturalisation scheme, which this Bill seeks to put beyond possibility for good and all. Deputy Jim O’Keeffe specifically referred to the history of the scheme in the period 1988-94. I will address this matter in some detail.

Section 15 of the Irish Nationality and Citizenship Act 1956 set out five conditions which must be fulfilled prior to the grant of a certification of naturalisation. The decision to nationalise is at the absolute discretion of the Minister for Justice of the day. Therefore, the Act of 1956 empowers the Minister to refuse a certificate even where all the conditions are fulfilled. There may be cases where previous Ministers for Justice have refused, at their absolute discretion, to grant a certificate of naturalisation and where I, or another Minister for Justice, might have taken the opposite view and granted the application. Conversely, the Minister can waive statutory conditions for naturalisation in the case of certain categories of person, even if one or all of those conditions remain unfulfilled. My predecessors and I have considerable powers of discretion in these matters under the Act of 1956. It is not a power vested in the Government but in the Minister, personally, as a corporation sole.

Again, there may be cases where previous Ministers for Justice would or would not have waived any or all of the conditions for naturalisation and where I might have taken a contrary view. It is important to recognise, therefore, that the exercise of absolute discretion by the Minister of the day is a central element of the naturalisation process. The fact that I or any other Minister for Justice, Equality and Law Reform, with the benefit of hindsight, might disagree with a decision cannot be construed as an assertion that the certificate in question was improperly issued, in terms of its legality.

The Act of 1956 gave no guidance on the precise meaning of the term “Irish associations”. As was stated in this House at the time, various Deputies queried whether having a drink in a bar in Cairo might qualify for Irish association.

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Of Irish whiskey.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Exactly. The rules of the investment-based naturalisation scheme were administrative——

[56]Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  Does the Minister have a script?

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am using reply notes, which I do not normally have in advance. I will make them available to the Deputy afterwards.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I thank the Minister.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Act of 1956 gave no guidance as to the precise meaning of the term “Irish association”. The rules of the investment-based naturalisation scheme were administrative in character and form no part of the legislative regime underpinning the naturalisation process. I am on record as having described the scheme that operated as being dependent on a very loose, questionable interpretation of the 1956 Act. The possibility of that interpretation ever being availed of in the future will be put to bed as a result of the contents of this Bill. However, the fact that I hold that view cannot be construed as implying that naturalisation certificates were, by that very fact, not issued in good faith, or that they were automatically unlawful. To revoke a naturalisation certificate on the basis of my view of the law now would be fraught with legal difficulty.

In terms of an inquest of what happened during the scheme’s lifespan, I remind Deputies of two things. The first is that that files relating to the naturalisation of 128 persons as a consequence of the scheme were sent to the Moriarty tribunal on 18 November 1998, on foot of an order dated 11 November 1998. These included all of the cases to which Deputy Jim O’Keeffe referred, which were dealt with in the first five years of the scheme’s operation. Four policy files were sent on foot of the same order and in addition, files relating to a further 15 applications for naturalisation, which were not part of the scheme, were sent to the Moriarty tribunal on 15 March 1999, on foot of an order dated 3 March 1999. My Department continues to co-operate with the tribunal. That co-operation is recent and ongoing.

In addition, one of the first things I did on assuming office was to publish the report of the review group on investment-based naturalisation. A number of copies were placed at the time in the Oireachtas Library. I also issued a press statement, which was widely reported in the media and I ensured the report would be available on the Department’s website. That report shows that the whole focus of activity after September 1996 was on the processing of applications that were pending or outstanding at that time. My immediate predecessor as Minister for Justice, Equality and Law Reform, Deputy O’Donoghue, accepted no new applications from investors as regards the scheme. However, once a scheme is in place a Minister must operate it fairly and bring it to an orderly conclusion. That was a difficulty faced by successive Ministers for Justice in the context of the winding up operation which went on from that period.

[57]Several Deputies criticised our immigration policies and procedures, some going so far as to claim, mistakenly, that there is no immigration policy. I acknowledge that there is a need for comprehensive immigration and residence legislation and there is a commitment within An Agreed Programme for Government to that effect. I have already stated that I intend to launch a discussion document on that legislation in the near future and I am also committed to bringing forward proposals in this regard in 2005. I also point out that my predecessor as Minister, Deputy O’Donoghue, on 13 June 2001, launched a public consultation document on immigration policy. It is interesting to note that no party in this House and many of the commentators who criticised immigration policy, provided observations on Deputy O’Donoghue’s document. The result of that consultation process are available for all to see on the Department’s website.

I do not accept, however, that the absence of such legislation is the major difficulty facing our immigration services or our immigrant community. New legislation is not a prerequisite for building on the policies already in place. I consider it important to draw a distinction between immigration policies, which are the prerogative of the Government of the day, on the one hand, and the legislative framework through which such policies are implemented, on the other. New immigration laws do not necessarily mean new policies and the converse applies, new immigration policies do not necessarily mean new laws. Neither is it true that immigration policy cannot develop in the absence of new legislation. An interesting case in point is the Refugee Act, which was enacted in its original form in 1996, but could not be commenced until a further amendment four years later. The reason was that the reality on the ground and the policies necessary to cope with this had changed and the Act as originally passed was unworkable. Postponing the commencement of that Act until it could be suitably amended did not prevent the implementation, in the meantime, of an administrative scheme to give effect to the Government’s proactive policy in the area.

The Government believes that immigration and citizenship policy should be an expression of Ireland’s national values both at home and throughout the world. Our policies in these areas are a significant part of the dynamic process of shaping Ireland’s future. If managed properly inward migration can bring very considerable benefits to the State, as we have seen in recent years, including improvements in economic growth and productivity, as well as cultural enrichment and diversity. However, the proper management of these matters includes having an orderly, organised and enforceable system of entry. I do not accept the proposition that there is no immigration policy. In one sense, this is a [58]charge that is easy to make and difficult to counter. The fact is, however, that people come to Ireland from a wide variety of social and economic backgrounds, for different purposes and various lengths of time. I do not accept that all such persons may be neatly pigeon-holed or that they can be treated as a separate generic group. In many instances their needs have more in common with Irish citizens of a similar socio-economic background than with other categories of non-national. It is not possible to have a definitive policy which is tailored precisely to each individual situation, but it is essential to have a coherent overview of the whole system. All too often, however, many people take the unique circumstances of an unusual individual case, and without knowing all the facts use it as evidence of the lack of coherence in the overall scheme.

Here is an example of the reality on the ground. In 2003 there were more than 127,000 non-European economic area nationals registered with the Garda Síochána as legally resident in the State. This figure covers those who were legally resident for more than three months at any time during that year. It excludes asylum applicants and children under 16, as well as the female spouses of Irish nationals, although that anachronism has since been amended. It also represents a fourfold increase over the corresponding period in 1999. Therefore, the number of people registered in this State from the non-EEA countries had grown by four times in the period 1999-2003.

This large increase posed significant challenges for the immigration administrative system and for the Department of Justice, Equality and Law Reform in particular. However, the sheer scale of the numbers is hardly evidence of the absence of a policy on immigration or of one that ignores the benefits that immigrants bring to a country such as ours, rather the contrary. For example, more than 34,000 of those were entitled by virtue of their immigration conditions to work without any employment permit. A further 28,000 were students who were entitled to work part-time without an employment permit. In fact 62,000 of those non-EEA nationals were entitled to work without any formal employment permit. Despite this, there is a mistaken perception that every non-EEA national working in the State is, in fact, subject to the employment permit scheme.

These exemptions are not accidental. They are there because it is part of Government’s immigration policy that those categories should not have to have employment permits. In addition, the admission of ten new member states to the European Union removed the employment permit requirement for their nationals with effect from 1 May 2004. This approach, another aspect of this Government’s immigration policy, is far more generous than in some of the other member states of the European Union. It was an example [59]of policy being worked out in practice. We said, “No permits, on you go”. It is liberal in absolute terms as well as in comparison to the approach of some of our European neighbours. As a result of the policy, over 15,000 people who were the subject of employment permits in 2003, or one third of the total, were exempt from the requirement from 1 May onwards.

I acknowledge the need for infrastructural development within our immigration service in terms of computerisation and the like. A great deal of rapid progress has been made in recent years. All major Garda registration offices have been computerised and the standard of service provision improved dramatically in the last two years. The long queues which were once a feature of the Garda registration office in Harcourt Street are now a thing of the past. Some 650 civil servants are employed by the Department of Justice, Equality and Law Reform to deal with immigration related matters. It must be borne in mind that 70% of these staff members are engaged in the processing of asylum claims or in the provision of accommodation for the small minority of non-nationals in the State who are asylum applicants.

The major reduction in the number of asylum applicants has provided me with some elbow room and the opportunity to refocus some of these significant public resources on areas of service provision for non-nationals which are under-resourced at this point in time. The freeing up of resources will benefit further the provision of services to the remainder of our immigrant community and, perhaps, help to alleviate the false perception that a policy lacuna exists. There can be no question of the Government doing other than honour its commitments to the 1951 convention as a fundamental expression of our humanitarian ideals notwithstanding the fact that to do so costs the taxpayer approximately €350 million per annum.

It is in the nature of our work as Deputies that people come to us whenever they have problems. There is, accordingly, a danger that our perception of immigration matters, to name but one aspect of the Government’s many functions, may be coloured by the fact that these are all we see. While people come to us about visa matters only when there is a refusal, we should also be aware of the many thousands of visas issued every year in contrast to those which are refused. The House should bear in mind that in 2003, 122,000 visa applications were granted and 21,000 refused. This is a six to one ratio. Likewise, while public representatives know all about those cases which involve a proposal to deport, we must also be aware of the many thousands whose permissions to be in the State are granted or renewed as a matter of course. Each of these represents the [60]implementation of a Government immigration policy.

It is easy to make the college debating society crack that the Immigration Act 1999 was a deportation rather than an immigration measure. While this cheap jibe may form the basis for a sound bite which receives media coverage, every instance of immigration policy is characterised by rules in accordance with which some people are permitted to remain in the State and others are not. This is true in every state in every part of the world. The absence of deportation divisions would mean there was no immigration policy at all. Deportation is therefore one of the core essentials of any immigration policy. If one does not have deportation at the heart of an immigration policy, one will have chaos.

Undoubtedly, there are inadequacies in current immigration law. It is because I accept this fact that I will issue the discussion document and bring forward the comprehensive immigration and residence Bill next year. I do not accept, however, that a consequence of this Bill’s absence has been a failure to develop immigration policy. Among other things, Deputy Costello suggested in his contribution that there is no Government policy on asylum, which is a rather odd suggestion given the evidence at every hand’s turn of a proactive one. The policy has been in place and evolving ever since my predecessor, Deputy O’Donoghue, was in office. Its first element is the overarching principle of firm commitment to protecting those who need the State’s protection and to the 1951 convention on refugees. In keeping with that principle, we aim to ensure that every person who comes to Ireland in genuine need of the State’s protection from state prosecution is recognised as a refugee at the earliest possible stage.

The practical out-working dictated by this commitment means a number of features are now in place. There is a workable statutory framework for dealing objectively and independently with claims for protection which was not provided for in the original incarnation of the Refugee Act 1996. In fact, the structures originally provided for in the Act could not have coped with the volume of asylum claims which were experienced within a few short months of its enactment. There has been significant investment in staff and other resources to ensure the Refugee Act works. Staff have been provided for the independent bodies themselves as have staff and funding for legal aid services to assist asylum seekers in making their claims. Staff have been provided in my Department to deal with the decisions of the independent bodies on asylum claims. There has been significant State investment in the provision of services to asylum seekers while their cases are being investigated and determined by the independent bodies. The Reception and Integration Agency of my Department has a network of [61]facilities which provide a wide range of services for this cohort of persons throughout the country.

It would be a cause of considerable personal satisfaction if the results of the work of the independent bodies involved the processing of a high proportion of valid claims as this would indicate that most claims for protection were well founded. I do not worry about large numbers of genuine refugees as we have committed to protecting those who need protection and will deliver willingly on the commitment. However, the House must acknowledge that what is dismaying about asylum numbers is not the volume of well founded claims or even claims themselves but the high proportion which turn out not to be well founded. More than nine out of ten fall into this latter category after independent investigation and appeal. Among other things, this statistic means the resources the State invests in the asylum process turn out in large measure to be wasted when they could be used to improve access to more efficient and productive aspects of the immigration and citizenship processes.

This leads me to the next leg of asylum policy which is an equal commitment to remove from the State those who claim protection whose claims turn out to be groundless. Without this policy our commitment to protecting those in genuine need would be wide open to abuse and we might as well not bother with our asylum policy’s other core elements. It must be acknowledged that false claims for asylum and those who make them have a number of adverse effects apart altogether from merely financial ones. Most seriously, a high incidence of false claims brings the precious institution of refugee status into disrepute particularly when coupled with sloppy journalistic or non-governmental organisation language which seeks to equate all asylum seekers with refugees. False claims diminish public awareness of the fact that most non-nationals in Ireland are people who have come here in compliance with normal immigration requirements, have nothing to do with the asylum process and ensure their stay is lawful.

I have noted a tendency to accept uncritically as true every charge against the decisions of the refugee process. The result is pickets outside my Department and the office of my party while people say I am engaged in racist deportations. While I do not want to get involved in discussions of individual examples, when one considers some of these cases, one finds there is no truth whatsoever in the underlying allegations made by those who say I acted appallingly in refusing their claims. It is not I who assess their claims. Claims are assessed in a two way process carried out by independent people. I ask the House to accept the proposition that those involved in the Refugee Applications Commissioner and Refugee Appeals Tribunal legs of the asylum process do their best to distinguish between true and untrue [62]claims of persecution. While it may be that where an appeal is rejected two mistakes have been made, it is much more likely that both objective processes have reached the correct conclusion that the continued claim of persecution is unfounded. I have found it disturbing, to put it no stronger, that a number of public personages have sided with someone who has made wild and unfounded claims against the asylum process which have evaporated completely when tested in detail.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  How does that equate with the fact that a great proportion of appeals by applicants are successful?

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The point was made that it was somehow unfair to place the onus on the applicant. Of course, the onus must lie on the applicant as Ireland cannot prove or disprove claims which are simply suggested as possibilities to be shot down. The fact that there is a significant rate of success on appeal cuts both ways. If almost every appeal was rejected I would be told it was a rubber stamp process by a group of people who were inhumane and not doing their job. That charge is made fairly frequently. The success or non-success rate, at first instance, of an appeal is what good well-intentioned people, who try to be objective, bring about as the outcome of their work. Given the broad range of people involved in the process, the truth is, as Deputy Costello knows, there have been many cases where there has been a colossal hullabaloo about a particular person. Afterwards it turns out that there was no truth whatsoever in the underlining allegations that had been made.

The deportation process which follows is described as racist. By implication, the Department and all the independent institutions which arrived at that decision are, at least, branded as uncaring and cruel. On many of these occasions people have been found to be telling gross untruths to willing listeners who have not had any respect for the fact that two separate processes have looked at whether the complaint was true or false.

We have a very generous system of appeals that allows the appellant to introduce new evidence on the appeal which he or she did not introduce at first instance. That would explain different decisions. We could run a system whereby if it was not mentioned on the first day, one should not bother to mention it later. We have a system that allows a person to put any information they have on the table on the second day even if they did not put it on the table on the first day. That explains the reason there is a difference in outcome.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  To a degree.

[63]Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Most Deputies referred to the situations of persons awaiting decisions on applications for residence on the basis of an Irish-born child. These cases comprise approximately 11,000 persons who made application prior to 19 February 2003 to remain in the State on that basis. Of course, there are thousands of others who made no application prior to that date but who are here now. To put some context on the response to this point it is necessary to refer back to the Government’s decision to hold a referendum on citizenship rights of Irish-born children, a decision which was pilloried in some quarters. One reason advanced by those who opposed the referendum was that the numbers involved were exaggerated and that I was creating a big row about a handful of cases. It is ironic that the focus of debate is on the position of approximately 11,000 non-nationals who asked to remain in the State on the basis of having an Irish-born child. Such a figure is not a handful in anybody’s arithmetic.

It is wrong to say that the policy of the Government following the outcome of the L & O judgment by the Supreme Court was to deport the parents of Irish-born children as a matter of administrative routine. The Supreme Court judgment specifically forbids such an approach. The position in regard to these cases was set out by Mr. Justice Hardiman in the Supreme Court in the L & O case. I shall quote his words, because sometimes they appear to be forgotten in the heat of battle. He stated:

Recently at Question Time, in the cut and thrust of debate, I used the phrase “the number of occasions where I have directed a parent to bring his or her child out of Ireland is infinitesimal as a percentage of the figures” and some adverse construction has been put on it. I want to correct that. I have never directed the parents of an Irish-born child to take their child out of Ireland with them, nor could I because that is a choice which the Irish law confers on them and on them alone. I cannot direct the parents of an Irish-born child, who is an Irish citizen, to take that child out of Ireland. What I can do is direct that the parents themselves be deported and then they have a choice. What I meant to say, and I want to make this clear now in case anybody is drawing some other conclusion, was that the number of occasions on which I have directed parents, who are the parents of an Irish-born child, to leave the country is infinitesimal by comparison with the number of cases where deportation has taken place.

[64]Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Is that in regard to the 37 Irish-born babies?

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  In the case of 37 Irish-born children I gave a direction that the parents should leave. I believe that in those 37 cases, the great majority of those parents did the natural thing and brought their children with them. I am not in a position, as I said on the last occasion, to say whether any of them decided it was in the interest of their child to leave the child behind them in Ireland and to go abroad. I cannot give figures on that. What I am saying is that the number of occasions, since coming to office, on which I have directed parents who are the parents of an Irish-born child to leave the country — in the great majority of cases they have taken their child with them — has been 37, which is infinitesimal compared with——

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  The Minister is correcting the record in regard to Irish-born children.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I notice that Deputy Costello——

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  They are no longer breaking the law.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I ask the Deputy to let me finish. I notice that Deputy Costello leapt on my suggestion that I was directing people to bring their Irish-born children out of Ireland. I have never directed any parents to bring an Irish-born child, who is an Irish citizen, out of Ireland.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  We thought that because the Minister——

Mr. J. O’Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  We accept that.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am correcting that now. It is clear from what Mr. Justice Hardiman said that each of these cases must receive a rigorous and intensive scrutiny with a view to ensuring the principles set out in the Supreme Court’s judgment are complied with. As a consequence, this is necessarily more consuming than if the child was not an Irish citizen. The constitutional rights of the child within the family unit must be taken into account.

The issue of refoulement as set out in section 5 of the Refugee Act 1996 must also be taken into account, as must 11 separate considerations which are set out in statutory form in section 3(6) of the Immigration Act 1999. These grounds include duration of residence in the State, humanitarian considerations and consideration of the common good. Every case is brought to my office and each receives a personal decision by me. The ultimate decision in any case where deportation is contemplated is made by me. While I rely on advice I receive and I do not reopen the whole case in its [65]entirety, it is not some process in which the decision is made by others entirely.

We are faced with the outcome of the Chen judgment and we now know that the European Court of Justice has determined in the Chen case and ruled in favour of Mrs. Chen. The European Court of Justice upheld the right of Mrs. Chen to deliberately engineer a situation in which her child would acquire Irish citizenship through birth in Northern Ireland in order to secure long-term residence for both herself and her child in the United Kingdom. During the course of this debate Deputy Costello has identified the contrast with the situation of non-national parents of Irish-born children who are entitled, as a result of the Chen judgment, to reside as of right in the United Kingdom but are not entitled to reside in Ireland. That is an issue to which I drew the attention of the public shortly after the Advocate General’s opinion was published. At that time I said this had some long-term consequences. At that time also, Deputy Costello took the opposite view stating that the effects of Chen judgment on the Irish situation were minimal.

The implications of the Chen judgment are being studied by my officials in consultation with the Office of the Attorney General and today I have received advice from the Attorney General on them. I will need some time to absorb that advice. Those who accused me of rushing to judgment on the referendum issue would do well to heed their own advice in this instance given that the judgment was handed down only a couple of weeks ago. The Chen case outcome underlines the necessity for the referendum and of this Bill. When the Bill is enacted and implemented the issue that the Chen case typified will not arise again.

I intend to table a number of amendments on Committee Stage which will include a provision to standardise the form of declaration required under the Act and to create an offence for deliberately or recklessly making a false declaration; a provision to apply the criteria for reckonable residence in section 4 to section 16(a) of the 1956 Act, which deals with reckonable residence for naturalisation purposes, in order to provide a uniform approach to the calculation of periods of reckonable residence under our citizenship law; and a provision to broaden the scope of section 11 of the 1956 Act to ensure that foreign adoptions recognised under Irish law will also serve to confer Irish citizenship where one of the adopters is Irish and some other technical amendments.

In addition, the side note to section 11 which does not fully reflect the provisions of the section will be amended. As the note does not form part of the content of the Bill, there is no need to table a formal amendment on Committee Stage, but the next print of the Bill will contain an amended side note.

[66]I will consider with an open mind any amendments Deputies opposite may table with a view to accepting any such amendments that are consistent with the policy of the Government and the understanding created by it in the minds of the people at the time of the referendum debate.

Deputy Gilmore brought to my attention a particular case in the course of this debate. The facts he cited did require an intervention. As a result, a visa will be granted following a review of the case.

As recently as seven or eight years ago, this country had little experience of economic inward migration. It had a small market for immigration and the administrative measures it had in place reflected a paucity of interest therein. The country’s resources were limited in the extent to which they controlled migration and a handful of officials and members of the Garda Síochána dealt with a problem that was of small proportions. In the intervening period circumstances changed dramatically and for the better economically. Consequently, a great number wanted to come here to participate in building our economic wealth and the life of our society and to better their personal fortunes and those of the families they had left behind. I firmly believe Ireland’s success is built in considerable measure on the efforts of these immigrants. Even if we were to approach the issue from an entirely selfish point of view, which I do not, we would conclude that it would be economic folly, to put it at its lowest, to show a cold face towards immigration and resist the interest of those in working in Ireland and participating in its society.

These facts should not blind us to other realities. Our system of protection for refugees has become elaborate and entails the absorption of considerable administrative and economic resources. The flow of asylum seekers into Ireland was substantial but has decreased substantially in recent times because of a number of developments, not least the legislative measures I have put in place since becoming Minister for Justice, Equality and Law Reform. These measures, combined with improved administration, have meant that asylum decisions, especially those pertaining to priority cases, are now frequently available in a matter of weeks and that appeals thereto are determined in a matter of weeks thereafter. What once must have appeared to my predecessor, Deputy O’Donoghue, as a major crisis is now under control. The measures that have been put in place are adequate to deal with the problems asylum seeking has created for Ireland.

Having said this, the House should be aware of some fundamental truths. Those fleeing persecution in some countries — I will not be specific as we are all intelligent people — are not the poor, huddled masses but in the main people with considerable resources at their disposal who are [67]coming to Ireland to jump the queue and effectively establish for themselves residence on the basis of economic migrancy under the guise of asylum seeking. We would be foolish and dishonest intellectually if we were to pretend the asylum seeking route into Ireland has not been used with this in mind by many, but by no means all, considering that our citizenship law meant, even given the L & O case which eventually came to the aid of the State in this matter, that the birth of an Irish child to such migrants created a new set of circumstances that was difficult for the State to handle.

As a people, we have decided by an overwhelming majority in a referendum that we do not believe the mere accident of birth in Ireland should be the sole criterion in determining Irish citizenship. We have decided that there must be a more tangible and long-term link between the parent of the child before citizenship, as of right, becomes available. In this respect, we have decided to revert to the constitutional position before the Good Friday Agreement of 1998. We have decided to restore to the Houses of the Oireachtas the power to judge collectively, by legislation, whether there is a sufficient link between a parent and Ireland as a State and a community to warrant the granting of citizenship to the children of that parent. The people were told at the time of the referendum the broad thrust of the Government policy that was to follow upon the licence to legislate in this area that the passing of that referendum would give. What is being put before this House is a realistic and sensible policy based on the establishment of a real link between parents of children born in Ireland and the State and society.

We could have retained the absolute jus soli principle which obtained on a constitutional rather than a statutory basis from 1999 to 2004. However, we are in a different position from countries that have this system in place. It has been said repeatedly in the course of this debate that the United States has a system of jus soli to this day. However, the United States is not a member of a community of countries that allows people to enter its borders without any immigration formalities. If the United States was part of a common travel area with countries from which people could gain access to it without such formalities, the whole system of jus soli would probably come into sharp focus in American political debate. Whether this is the case, the United States is in a different position. It does not have the jurisprudence enunciated by Mr. Justice Hardiman in the L & O case, to which I made reference. It is not the case that by having a child in the United States the parents of that child can remain in that country according to the same criteria under which they would be entitled to remain in Ireland as a matter of constitutional [68]law. Therefore, comparisons between Ireland and the United States are wide of the mark.

  6 o’clock

Deputy Ó Caoláin stated in his careful speech that what we had done had breached international convenants on the rights of children. In particular, he focused on the rights of access of parents to children and children to their families. He suggested that by having a law in Ireland which denies jus soli citizenship, and which can in some circumstances require parents of Irish born children to leave the country, we are in breach of the provisions of international law. This view was articulated by the Commission on Human Rights in a slightly vague form during the referendum debate. If that were so, the great majority of European Union member states would equally be in the same position, which I reject. I do not accept this is an acceptable point of view. I do not believe that by bringing our law roughly into line with those of other EU member states means we are in breach of any international obligations. I do not believe the argument to that effect, articulated by the Human Rights Commission during the referendum debate, stood up to scrutiny. I regret to say this about the commission’s arguments because I normally pay very close attention to what it says. On this occasion I paid very close attention to its arguments which I found completely unconvincing.

Deputy Michael D. Higgins queried my description of what happened within the Labour Party in regard to this matter. I was relying on the printed word of one journal to the effect that Deputy Rabbitte initially supported the idea of the Government referendum but that he was out-voted by the remainder of his party. I assumed Deputy Higgins was among these members.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  There was no vote.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  If he was not out-voted, he was out-talked, and no better man to out-talk him than the Deputy.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  The Minister was wrong.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  If I characterise the debate within the Labour Party as a narrowly won vote, I withdraw the characterisation and substitute a situation in which Deputy Rabbitte’s doubts were overwhelmed by the logic and force of the rhetoric employed by Deputy Michael D. Higgins.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  The Minister is getting there.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Whatever the case, Deputy Rabbitte was correct and his colleagues were wrong to ignore his advice, as the people of Ireland eventually decided.

Committee Stage will be an interesting occasion in which to tease out some of the more detailed points made by Deputies on all sides of the House. We have a duty to pass the legislation. I welcome the support of Deputies on both sides [69]of the House who indicated their strong support for the approach the Government is taking. I indicate to the Deputies who are not of that view that I will listen carefully to their proposals as to [70]how the Bill can be amended or improved during the remaining Stages.

Question put.

[69]The Dáil divided: Tá, 71; Níl, 32.

Information on Bertie Ahern  Zoom on Bertie Ahern  Ahern, Bertie. Information on Michael Ahern  Zoom on Michael Ahern  Ahern, Michael.
Information on Noel Ahern  Zoom on Noel Ahern  Ahern, Noel. Information on Barry Andrews  Zoom on Barry Andrews  Andrews, Barry.
Information on Seán Ardagh  Zoom on Seán Ardagh  Ardagh, Seán. Information on Niall Blaney  Zoom on Niall Blaney  Blaney, Niall.
Information on Johnny Brady  Zoom on Johnny Brady  Brady, Johnny. Information on Martin Brady  Zoom on Martin Brady  Brady, Martin.
Information on John Browne  Zoom on John Browne  Browne, John. Information on Joe Callanan  Zoom on Joe Callanan  Callanan, Joe.
Information on Pat Carey  Zoom on Pat Carey  Carey, Pat. Information on John Carty  Zoom on John Carty  Carty, John.
Information on Mary Coughlan  Zoom on Mary Coughlan  Coughlan, Mary. Information on Brian Cowen  Zoom on Brian Cowen  Cowen, Brian.
Information on John Cregan  Zoom on John Cregan  Cregan, John. Information on Martin Cullen  Zoom on Martin Cullen  Cullen, Martin.
Information on John Curran  Zoom on John Curran  Curran, John. Information on Noel Davern  Zoom on Noel Davern  Davern, Noel.
Information on Síle de Valera  Zoom on Síle de Valera  de Valera, Síle. Information on Noel Dempsey  Zoom on Noel Dempsey  Dempsey, Noel.
Information on Tony Dempsey  Zoom on Tony Dempsey  Dempsey, Tony. Information on John Dennehy  Zoom on John Dennehy  Dennehy, John.
Information on Jimmy Devins  Zoom on Jimmy Devins  Devins, Jimmy. Information on Frank Fahey  Zoom on Frank Fahey  Fahey, Frank.
Information on Michael Finneran  Zoom on Michael Finneran  Finneran, Michael. Information on Dermot Fitzpatrick  Zoom on Dermot Fitzpatrick  Fitzpatrick, Dermot.
Information on Pat the Cope Gallagher  Zoom on Pat the Cope Gallagher  Gallagher, Pat The Cope. Information on Jim Glennon  Zoom on Jim Glennon  Glennon, Jim.
Information on Mary Hanafin  Zoom on Mary Hanafin  Hanafin, Mary. Information on Mary Harney  Zoom on Mary Harney  Harney, Mary.
Information on Seán Haughey  Zoom on Seán Haughey  Haughey, Seán. Information on Máire Hoctor  Zoom on Máire Hoctor  Hoctor, Máire.
Information on Cecilia Keaveney  Zoom on Cecilia Keaveney  Keaveney, Cecilia. Information on Billy Kelleher  Zoom on Billy Kelleher  Kelleher, Billy.
Information on Peter Kelly  Zoom on Peter Kelly  Kelly, Peter. Information on Tony Killeen  Zoom on Tony Killeen  Killeen, Tony.
Information on Seamus Kirk  Zoom on Seamus Kirk  Kirk, Seamus. Information on Tom Kitt  Zoom on Tom Kitt  Kitt, Tom.
Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Lenihan, Brian. Information on Conor Lenihan  Zoom on Conor Lenihan  Lenihan, Conor.
Information on Tom McEllistrim  Zoom on Tom McEllistrim  McEllistrim, Thomas. Information on John McGuinness  Zoom on John McGuinness  McGuinness, John.
Information on John Moloney  Zoom on John Moloney  Moloney, John. Information on Donal Moynihan  Zoom on Donal Moynihan  Moynihan, Donal.
Information on Michael Moynihan  Zoom on Michael Moynihan  Moynihan, Michael. Information on Michael Mulcahy  Zoom on Michael Mulcahy  Mulcahy, Michael.
Information on M. J. Nolan  Zoom on M. J. Nolan  Nolan, M.J. Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  Ó Cuív, Éamon.
Information on Seán Ó Fearghaíl  Zoom on Seán Ó Fearghaíl  Ó Fearghaíl, Seán. Information on Charlie O'Connor  Zoom on Charlie O'Connor  O’Connor, Charlie.
Information on Willie O'Dea  Zoom on Willie O'Dea  O’Dea, Willie. Information on Liz O'Donnell  Zoom on Liz O'Donnell  O’Donnell, Liz.
Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  O’Donovan, Denis. Information on Noel O'Flynn  Zoom on Noel O'Flynn  O’Flynn, Noel.
Information on Batt O'Keeffe  Zoom on Batt O'Keeffe  O’Keeffe, Batt. Information on Ned O'Keeffe  Zoom on Ned O'Keeffe  O’Keeffe, Ned.
Information on Fiona O'Malley  Zoom on Fiona O'Malley  O’Malley, Fiona. Information on Tim O'Malley  Zoom on Tim O'Malley  O’Malley, Tim.
Information on Peter Power  Zoom on Peter Power  Power, Peter. Information on Seán Power  Zoom on Seán Power  Power, Seán.
Information on Dick Roche  Zoom on Dick Roche  Roche, Dick. Information on Mae Sexton  Zoom on Mae Sexton  Sexton, Mae.
Information on Brendan Smith  Zoom on Brendan Smith  Smith, Brendan. Information on Michael Smith  Zoom on Michael Smith  Smith, Michael.
Information on Noel Treacy  Zoom on Noel Treacy  Treacy, Noel. Information on Dan Wallace  Zoom on Dan Wallace  Wallace, Dan.
Information on Mary Wallace  Zoom on Mary Wallace  Wallace, Mary. Information on Joe Walsh  Zoom on Joe Walsh  Walsh, Joe.
Information on Ollie Wilkinson  Zoom on Ollie Wilkinson  Wilkinson, Ollie. Information on Michael J. Woods  Zoom on Michael J. Woods  Woods, Michael.
Information on G. V. Wright  Zoom on G. V. Wright  Wright, G.V.  

Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  Broughan, Thomas P. Information on Joan Burton  Zoom on Joan Burton  Burton, Joan.
Information on Paudge Connolly  Zoom on Paudge Connolly  Connolly, Paudge Information on Joe Costello  Zoom on Joe Costello  Costello, Joe.
Information on Sean Crowe  Zoom on Sean Crowe  Crowe, Seán. Information on Ciaran Cuffe  Zoom on Ciaran Cuffe  Cuffe, Ciarán.
Information on Martin Ferris  Zoom on Martin Ferris  Ferris, Martin. Information on Eamon Gilmore  Zoom on Eamon Gilmore  Gilmore, Eamon.
Information on Tony Gregory  Zoom on Tony Gregory  Gregory, Tony Information on John Gormley  Zoom on John Gormley  Gormley, John.
Information on Joe Higgins  Zoom on Joe Higgins  Higgins, Joe. Information on Michael D. Higgins  Zoom on Michael D. Higgins  Higgins, Michael D.
Information on Brendan Howlin  Zoom on Brendan Howlin  Howlin, Brendan. Information on Kathleen Lynch  Zoom on Kathleen Lynch  Lynch, Kathleen.
Information on Finian McGrath  Zoom on Finian McGrath  McGrath, Finian. Information on Liz McManus  Zoom on Liz McManus  McManus, Liz.
Information on Arthur Morgan  Zoom on Arthur Morgan  Morgan, Arthur. Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  Ó Caoláin, Caoimhghín.
Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Ó Snodaigh, Aengus. Information on Brian O'Shea  Zoom on Brian O'Shea  O’Shea, Brian.
Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  O’Sullivan, Jan. Information on Séamus Pattison  Zoom on Séamus Pattison  Pattison, Seamus.
Information on Willie Penrose  Zoom on Willie Penrose  Penrose, Willie. Information on Ruairí Quinn  Zoom on Ruairí Quinn  Quinn, Ruairi.
Information on Pat Rabbitte  Zoom on Pat Rabbitte  Rabbitte, Pat. Information on Seán Ryan  Zoom on Seán Ryan  Ryan, Seán.
Information on Trevor Sargent  Zoom on Trevor Sargent  Sargent, Trevor. Information on Joe Sherlock  Zoom on Joe Sherlock  Sherlock, Joe.
Information on Róisín Shortall  Zoom on Róisín Shortall  Shortall, Róisín. Information on Emmet Stagg  Zoom on Emmet Stagg  Stagg, Emmet.
Information on Mary Upton  Zoom on Mary Upton  Upton, Mary. Information on Jack Wall  Zoom on Jack Wall  Wall, Jack.

[69]Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Stagg and Ó Snodaigh.

[69]Question declared carried.

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