Mr Brian Lenihan TD, Minister for Justice, Equality and Law Reform, today announced the publication of the Immigration, Residence and Protection Bill 2008.
The Bill replaces all of the present legislation on immigration, some of which dates back to 1935, and puts in place an integrated statutory framework for the development and implementation of Government immigration policies into the future.
The Bill lays the foundation for meeting the Agreed Programme for Government commitments relating to immigration and asylum. When enacted, it will put in place transparent statutory processes for each of the phases in the immigration cycle and will facilitate, for example, the implementation of family reunification schemes as they are developed to meet the prevailing migration needs of the State.
Publishing the Bill, Minister Lenihan said: "This is landmark legislation. It gives us a unified code of immigration law that will enable us to manage non-EU inward migration and complements the existing law governing the free movement of EU citizens. It brings together into one process the business of determining whether a person who claims refugee status will be permitted to stay in the State. It also puts on a statutory footing a new status of long-term residence, as an acknowledgment of the contribution that many migrants make to their adopted society."
"There is a prevalent view in some quarters," said the Minister, "that most immigrants are here either unlawfully or on some spurious basis: but nothing could be further from the truth. Most of our migrant population has come here in a proper and regular fashion. This legislation will give us improved tools for developing regular migration as well as dealing with illegal immigration."
The Bill contains detailed provisions setting out for the first time in statute form the procedures for applying for a visa, and a process for reviews of negative visa decisions. The Bill also spells out the processes for admission to the State, for obtaining and renewing residence permissions, and for termination renewable residence permits. "The clarity and transparency this Bill brings to the whole area of immigration will benefit the State as well as those who want to come to this country and possibly settle here."
The Bill breaks new ground by creating in statute the status of "long-term resident", setting out the qualifying conditions and listing the benefits and privileges to which the holders are entitled.
"For too long," said Minister Lenihan, "the Irish immigration system has operated on the concept of temporary migration on a year-to-year basis until one has sufficient residence in the State to be able to make an application for naturalisation. It is time we acknowledged the fact that many migrants make an important contribution to the Irish economy and to Irish society generally. The status of long-term resident will give holders similar access to that of Irish citizens to State-funded services and other entitlements." This will enable the State to develop more migration programmes designed to attract people with skill-sets or other qualities that Ireland needs for its economic or social development.
The Bill provides an effective response to the problem of illegal migration by provided a more streamlined deportation process and greatly restricted access to State services by illegal migrants. "We need to send out a consistent message that the State is committed to helping the legal migrant who respects Ireland’s laws and its sovereignty while at the same time taking firm but fair measures against those who flout our laws", said the Minister.
A total of 3,985 asylum applications were received in 2007 which represents the lowest annual total since 1997 and is a decrease of 66% on the 2002 figure. "This reduction results from the implementation of strategies aimed at combating, across the spectrum, abuses of the asylum process where 90% of asylum applications are unfounded. This Bill will underpin that strategy by ensuring more efficient and streamlined processing and removals arrangements."
Among the innovative features of the Bill are provisions to prevent the misuse of the judicial process by a foreign national solely for the purposes of frustrating their removal from the State.
The Bill also provides for a recovery and reflection period for victims of the new offence of trafficking that is provided in the Criminal Law (Human Trafficking) Bill 2007, which is at present at Report Stage in the Dáil. The complementary provisions of these two Bills will facilitate Ireland’s ratification of the Council of Europe Convention on Action Against Trafficking in Human Beings.
"This Bill is part of a strategy of change management in the operation of the Irish Naturalisation and Immigration Service (INIS)", Minister Lenihan said. "The overall strategy involves not only legislative change but major organisational improvements, including a substantial IT development programme, so as to improve the delivery of service to our client base, whether visa applicants throughout the world or migrants resident in the State."
The Bill now goes before the Dáil for debate. "I look forward to a constructive debate both inside and outside the Oireachtas on this Bill," said the Minister. "I am open to suggestions for improvement that are consonant with the general thrust of the Bill." On the question of future developments in immigration legislation, the Minister indicated his view that there might well be a need for regular Bills on an almost annual basis to take account of changes in migration patterns or otherwise to keep the legislation up to date, analogous to, but without the same frequency as, the annual social welfare and finance legislation.
The text of the Immigration, Residence and Protection Bill 2008 and the accompanying Explanatory Memorandum are available on the Oireachtas website www.oireachtas.ie.
29 January 2008
Notes for Editors
During 2001 and 2002 preparations began for the drafting of the Immigration and Residence Bill. The steps undertaken were:
- A consultancy study of international legislation and practice in the field of migration – this study was undertaken by the International Organization for Migration (IOM) and published in April 2002. This is valuable as an independently-prepared and factual compilation of the issues that face modern immigration systems across the world and the variety of approaches adopted towards dealing with them in different countries.
- A public consultation document on immigration policy was launched in June 2001, inviting responses, and 66 submissions were received. A summary report was produced and published.
- A cross-Departmental Group on Immigration was established with representatives of the main Departments dealing with issues affecting immigrants or immigration. At the time the Group dealt with the consultancy study and the consultation process.
In summary, this work, in furtherance of a commitment in the Programme for Government of June 2002 to "… prepare a new Immigration and Residence Bill which will consolidate legislation in the area and provide for future developments," attempted to set out a broad framework for determining what should be included in the legislation. In April 2005, a discussion document was published which invited comment on the form that the legislation might take, but also focused on the development of immigration policies to meet the challenges facing Ireland as a country of net inward migration with a thriving and dynamic market economy. This document elicited a sizeable and generally positive public response.
In September 2006 the Minister for Justice, Equality and Law Reform published the Scheme of a Bill and invited suggestions and comments on the proposals contained in it. The Bill replaces the previous Bill which was published in April 2007 and which was reviewed as part of the Agreed Programme for Government.
Power of State to manage migration
It is a fundamental principle of immigration law that a foreign national has no right, as such, to enter or be in Ireland. There is considerable jurisprudential authority which makes clear that the State has not only the power (a power exercised mainly by the Minister for Justice, Equality and Law Reform) to manage the entry to, presence in and removal from the State of non-nationals, but has a duty to do so in protection of the interests of Irish society. This Bill sets out a legislative framework for the management of inward migration to Ireland. It lays down a number of important principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa, for entry to the State, for residence in the State and for being required, when necessary, to leave.
The responsibilities of the State, as executive functions vested in the Government, to operate immigration controls in the interest of the common good have been recently restated by the Supreme Court (Denham J) in Bode (A Minor) -v- Minister for Justice, Equality & Law Reform & Ors  IESC 62 (20 December 2007) as follows:
"In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland  I.L.R.M. 593 at 599 as:
"In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State."
The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland  I.R. 733 at 746. He stated at p.746:-
"That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution."
I would affirm and adopt this description. While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals - as a gift, in effect."
This restatement continues a line of Supreme Court judgments, including those in Article 26 Referral of the Illegal Immigrants (Trafficking) Bill 1999 ( 2 IR 360), FP v. Minister for Justice ( 1 IR 164) and AO and DL v. Minister for Justice, Equality and Law Reform ( 1 IR 1).
Provisions of the Bill
The Immigration, Residence and Protection Bill is divided into nine parts as follows.
Part 1: preliminary
This Part (sections 1 to 3) contains a number of standard provisions dealing with matters such as commencement, expenses and interpretation.
Part 2: General
Part 2 (sections 4 to 7) sets out general provisions dealing with: lawful and unlawful presence in the State and the restricted entitlement to State services of foreign nationals unlawfully present in the State.
This Part lays down core principles that guide the remaining provisions of the Bill. One of these principles is that a foreign national will be lawfully present in the State only if he or she has a current valid residence permit or permission to be in the State. If a person is unlawfully in the State, the obligation will be on himself or herself to leave, and a refusal to leave may result in removal of the person from the State, if necessary against the person’s will and if necessary with arrest and detention for that purpose.
It is important to note that, in general, a foreign national will only become unlawfully present in the State either by consciously putting himself or herself in that position (e.g. by overstaying a non-renewable residence permission) or by having a permission terminated after a procedure in which there were opportunities to make representations as to why it should not be terminated.
Part 2 sets out the classes of persons who are deemed to have permission to be present in the State and makes it clear that the Bill does not affect any EU-related obligations of the State affecting immigration matters e.g. obligations arising from the Council Directive on Free Movement of Persons which are given effect in Irish law by the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006).
The Part also provides that a foreign national unlawfully present in the State will not, as a general rule, be entitled to enter into employment, engage in other economic activity or avail of any state-funded benefits or services. There are a number of exceptions to this general rule in relation to certain essential services, including medical services and other emergency provisions that may be prescribed by the Minister. However the essence of this provision is that persons here illegally should receive no encouragement from the State in doing so. The remedy for illegal presence will be to remove oneself from the jurisdiction.
Part 3: Visas
This part of the Scheme sets out a statutory basis (not hitherto in statute) for making and determining visa applications. A visa is not the same as a residence permit; it is a permission to present at the frontier looking for permission to enter the State. The visa process offers to immigration authorities the opportunity to pre-clear an intending visitor or migrant, and a person to whom a visa has been issued can be reasonably confident of being allowed to enter the State on arrival. At present, the nationals of some countries are exempted from the requirement to have a visa before arrival at an Irish point of entry. The Bill will facilitate the possibility that in the future, visa exemption will be available for nationals of those countries only for short-duration visits, and that where a person from a "visa-free" country wishes to migrate to Ireland or come for a long (over 3 months) visit, he or she will have to get pre-clearance by applying for a visa in advance. The Scheme provides a process for reviewing negative decisions at the request of an applicant. The intention is that the processes will be consistent and transparent.
Part 4: Entry into the State
This part substantially restates present law compiled from a number of existing Acts. It sets out what is to happen when a foreign national arrives at the frontiers of the State and other aspects of frontier operations (including carrier liability for ensuring that their passengers have a passport and, where necessary, a visa).
Part 5: Residence
Part 5 of the Bill sets out a framework for the granting of residence permission to be the basis for lawful residence in the State. The intention is that there will be a variety of classes of residence permissions to suit different categories of foreign nationals. Residence permissions will be subject to conditions as to the duration of the permit, whether it is renewable, whether the holder can access public funds or seek employment, etc. It is envisaged that regulations drawn up under section 127 of the Bill, in consultation with other relevant Government Departments, will set out the various categories of permissions which will be issued and the conditions attaching to each category along with the entitlements to state services where applicable. A residence permit issued to a person to whom a residence permission has been granted will evidence the immigration status of that person in the State and thereby his or her entitlement to benefits, etc.
An important innovation in the Bill will be the introduction of a statutory long-term resident status. This status will be available for those who have at least 5 years’ satisfactory residence in the State (periods as an asylum-seeker or short-term student will not be reckoned) and will bring with it access to the employment market and State-funded services and benefits generally on a par with Irish citizens. The benefits of this special status are an acknowledgement that over time, those who migrate to Ireland contribute increasingly to Irish society and the Irish economy and have earned this status and the stability that it brings. There will be provision for shorter qualifying periods where, the Minister determines that this would be desirable in order to attract particularly sought-after migrants. This should be seen in tandem with the Employment Permits Act 2006 and the "Green Card" type employment permits, the holders of which will qualify for the accelerated process for becoming a long-term resident.
Short-term permission, either an entry permission (valid for up to 90 days) or a non-renewable residence permission (valid for up to a year), will be issued on arrival to foreign nationals coming for a visit, a short courses of study or other purpose. Persons to whom such permissions are granted will be expected to leave on or before expiry of the permission, and there will be no obstacle to prevent a person who has been granted such a permission from applying again for a subsequent visit.
Another special type of permission (a protection application entry permission) will be given to a person who has claimed the protection of the State. Part 7 of the Bill deals with all aspect of protection.
Part 6: Removal from the State
This is the part that deals with the process of removing a person who is unlawfully in the State. Under the Bill, a person will be unlawfully in the State where he or she has entered illegally; has had his or her residence permission revoked or not renewed for stated reasons or has remained in the State following the expiry of his or her entry or residence permission. Unlawful presence will generally either result from an act or omission on the part of the person concerned, or will come about as the conclusion of a fair procedure in which the person will have had the opportunity to make representations as to why the permission should not be terminated.
Such a person will be under an obligation to remove himself or herself from the State or, failing this, can be removed, if necessary following arrest and detention of the person for this purpose. There is provision for the imposition by an immigration officer of a residence and reporting requirement on a foreign national instead of that person being arrested and detained. The existing legal obligations of carriers in relation to foreign nationals being removed are being maintained in the Bill.
The Bill has full regard to the State’s international obligations to respect the non-refoulement principle (i.e. not to return a person to a place where he or she could be harmed).
Part 7: Protection
The Bill transposes into national law the EU Asylum Procedures Directive Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. OJ L326 of 13 December 2005. The preparation of the Bill has also provided an opportunity to re-consider, in the light of the experience of the last decade, how best to deal with protection claims in the State. That experience shows that the principal question that most protection claimants want answered is not "Will you recognise me as a refugee?" but "Can I stay?". That issue is addressed at present in each case by a multi-stage process whereby the first question examined is whether the applicant is a refugee; and only when that has been answered in the negative by the independent Refugee Applications Commissioner and, in most cases, again by the Refugee Appeals Tribunal (also independent) the question whether the person is eligible for subsidiary protection and whether there are other reasons why the person should be let stay is addressed in a lengthy consideration of representations by the Minister. This inevitably delays the final decision, and delay itself can affect what the final decision is to be.
The Bill introduces a single procedure wherein the protection applicant will be required to set out all of the grounds (including protection grounds under the Geneva Convention and the EU Council Directive 2004/83/EC laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection. OJ L 304 of 30.9.2004Qualification Directive) on which he or she wishes to remain in the State. Those grounds will be investigated by the Minister and the outcome of the investigation could be that the person is—
· allowed to remain in the State on refugee grounds or subsidiary protection grounds and is granted a protection declaration,
· allowed to remain in the State on other discretionary grounds and is granted a residence permit on that basis, or
· not allowed to remain in the State and is thus required to leave or be removed.
The introduction of the single procedure will bring the State into line with processes in many other EU States. Under the Bill, the functions currently carried out by the Office of the Refugee Applications Commissioner will be subsumed into the Irish Nationality and Immigration Service (INIS), the administrative agency of the Minister’s Department. The present statutory provisions for UNHCR to have access to information about cases and to be present if it wishes at individual interviews are restated, and the Minister’s intention is to continue the co-operation that has existed with UNHCR, in particular in that body’s signal contribution so far to training of staff in refugee decision-making.
The Refugee Appeals Tribunal will be replaced by the Protection Review Tribunal, which will be statutorily independent and will deal with appeals against a refusal to grant refugee status or subsidiary protection under the EU Qualification Directive. This expanded remit for the appeals body underpins the State’s commitment to those in need of protection. Other differences provided for in the Bill include provisions to increase consistency of decision-making and the possibility of full-time members of the Tribunal.
The new approach to protection applications will result in a more streamlined and efficient process which will ensure that a protection applicant receives a quick and comprehensive answer to the whole question "Can I stay". In this fashion it ensures that the State’s obligations under the Geneva Convention on Refugees and other international instruments designed to offer protection from persecution and other dangers will continue to be fully respected and enshrined in law, while reducing the scope for abuses of the arrangements.
Part 8: General
This part of the Scheme contains provisions dealing with matters such as:
· Prohibition of false information etc;
· Exchange of information;
· Exchange of information: further provisions;
· Requirements on foreign nationals as to production of documents;
· Requirements on persons embarking to provide documents and information when requested; and requirement in relation to the provision by carriers of date in relation to persons embarking from the State;
· Powers of immigration officers;
· Special provisions relating to judicial review;
· Offences and penalty provisions;
· Regulation-making powers;
Of particular interest are provisions dealing with:
· Provision of biometric data by foreign nationals (Section 108) – this provision will require such nationals to provide biometric data (e.g. fingerprints, photographs, etc.) to an immigration officer or Garda;
· Judicial Review (Section 118) – this provision builds on the existing provisions at section 5 of the Illegal Immigrants (Trafficking) Act 2000. The intention is to prevent the misuse of the judicial process by a foreign national solely for the purposes of frustrating his or her removal from the State;
· Marriage of foreign nationals in the State (Section 123) – this provision is intended to provide a mechanism to combat marriages of convenience which are being increasingly availed of to avoid removal from the State. Foreign nationals who wish to contract a marriage in the State will be required to be lawfully resident in the State at the time of the marriage and notify the Minister of the intended marriage;
· Victims of trafficking (Section 124) – this provision sets out the arrangements which will apply in circumstances where a foreign national is identified as a person suspected of being a victim of human trafficking and the Minister is required to consider their immigration status in the State. In particular, the section provides for the arrangements whereby a suspected victim may be granted a period of recovery and reflection in the State and may also, in certain circumstances, be granted one or more periods of temporary residence in the State.
Part 9 contains necessary transitional provisions.
The Asylum Qualification Directive
The Directive, which entered into force on the 29th April 2004, sets out the two separate but complementary statuses of international protection, namely refugee status and subsidiary protection status. It provides a definition of a refugee that is consistent with the Refugee Convention. It affirms the concept of a refugee as someone who has a well-founded fear of being persecuted for one or more of five defined reasons: race, religion, nationality, membership of a particular social group and political opinion. The fear must be such that it makes the applicant unwilling or unable to avail him or herself of the protection of the country of nationality.
The definition of subsidiary protection employed in the Directive is based largely on international human rights instruments relevant to subsidiary protection. The most pertinent of them are Article 3 of the European Convention on Human Rights, Article 3 of the UN Convention against Torture, and Article 7 of the International Covenant on Civil and Political Rights. The Directive also includes provisions on the minimum rights and benefits to be enjoyed by the beneficiaries of both refugee and subsidiary protection status.
The Asylum Procedures Directive
The EU Asylum Procedures Directive (Council Directive 2005/85/EC) deals with minimum standards on procedures in EU Member States for granting and withdrawing refugee status. The Directive provides that where Member States introduce a single procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for subsidiary protection they shall apply the Directive throughout the procedure. Irish law and practice is already substantially in compliance with the terms of the Directive. The Bill includes provisions to restate the law on refugee and other protection procedures with some amendments. This restatement is in compliance with Ireland's obligations under the Directive and applies the provisions of the Directive throughout the single procedure for the examination of protection applications which is being introduced by the Bill.