The Immigration, Residence and Protection Bill a critical overview Presentation by: Hilkka Becker, Senior Solicitor, Immigrant Council of Ireland – Independent Law Centre 8 th Annual Human Rights Conference of the Law Society of Ireland and Irish Human Rights Commission Dublin, 20 th November 2010

Overview of Irish Immigration Reform to Date Current legislation outdated 2001 public consultation document on immigration policy Immigration Act 2004 – missed opportunity 2005 a review of Immigration and Residence Policy Immigration, Residence and Protection Bill 2007 – lapsed Immigration, Residence and Protection Bill 2008 – withdrawn Immigration, Residence and Protection Bill 2010 – Committee Stage since 5 th Nov 2010

Summary of Concerns Introduction of summary deportation Limitation of access to justice for migrants Insufficient protection for victims of human trafficking Failure to provide permanent immigration status Lack of right to family reunification Failure to set out clear immigration rules in primary legislation Administrative fees

Summary Deportation Removal without notice of persons who are ‘unlawfully present’ in the State Abolition of ‘Section 3 Process’ Ministerial discretion to extend time for the renewal of RP and possibility to consider ‘exceptional circumstances’

2 nd Stage Dáil Debate Deputy Dermot Ahern, MJELR: “As far as the [Section 3] process goes, it is self-evidently fair to the person involved. However, since it must be used not only for the removal of persons who have the residence permission but also for people who are already unlawfully present in the State, it is to that extent inefficient and cumbersome”. “Where a person has entered the State clandestinely, having made no attempt to seek permission or have any contact with the immigration authorities of the State, that person knows what is the position. Staying in the State covertly is unlawful and while the individual may not be fully aware in precise detail of Irish law on this point, it can come as no surprise when the authorities find out and put in train steps to remove that person forthwith”.

Limitation of Access to Justice for Migrants Lack of an independent appeals mechanism for immigration related decisions Limited internal review only Review regarding non-renewal or revocation of certain types of permits by officer of a senior grade ‘where practicable’ Limited access to the High Court: - 14-day time limit - no ‘equality of arms’

2 nd Stage Dáil Debate Deputy Dermot Ahern, MJLR: “We need to distinguish between the type of decision being made in a protection case and those that arise in respect of an immigration permission. Protection matters are governed by our international commitments and are determined by reference to international standards in a rigorous manner. This is as it must be, given the issues involved. On the other hand, immigration decisions are at the discretion of the State. The State sets out how it proposes to dispense its discretion in legislation. Fundamentally, immigration is not a right. Rather, it is granted by the State. Deputies drew attention to the fact that the UK has a tribunal hearing immigration and asylum cases. However, this is not the best fit for Ireland”.

Insufficient Protection for Victims of Human Trafficking Failure to provide avenue for adult victims to remain on ‘humanitarian grounds’ other than through the protection process Lack of legal safeguards in case of non- renewal of temporary residence permits granted to victims Increased protection of child victims Increased length of Recovery & Reflection Period (45  60 days)

2 nd Stage Dáil Debate Deputy Dermot Ahern, MJLR: “Some debate has taken place on the position of a potential victim of trafficking in that situation. The position is, to some extent, analogous to that of a potential protection claimant. If, when the person comes to immigration authority notice, there is an indication, whether from that person or otherwise, that he or she is a victim of trafficking then in the normal way a garda has a duty to follow up that indication that the offence has been or is being committed. The provisions of section 139 of the Bill will then activate themselves in those appropriate circumstances.”

Failure to provide permanent immigration status Right to long-term residence if standard eligibility criteria met but status not permanent Eligibility criteria unclear – definition of ‘reasonable efforts to socially integrate’? No provisions regarding the processing times of applications for long-term residence No access to reasons for refusal – no access to review refusal to grant long-term residence EU policies on long-term residence

Lack of Right to Family Reunification Regulations ‘may’ provide for conditions relating to ‘the extent to which foreign nationals may enjoy family reunification in the State’ EU policies on family reunification Reverse discrimination

2 nd Stage Dáil Debate Deputy Dermot Ahern, MJLR: “Dealing with family reunification for all migrants in primary legislation has a number of difficulties. Family reunification will not apply equally to all types of migration, nor should it. Other countries seek to exercise discretion over which migrants they wish to attract. Ireland is no different in this regard. Experience shows that the largest ongoing source of migration is from family members. It does not make sense to attempt to deal with such a large proportion of our likely future migration in a way that denies the State the capacity to adjust its systems as it needs to do. Such an approach would be inconsistent with what is done in regard to primary migrants who will be governed by regulations and schemes precisely for the reason that the system needs to retain the flexibility it has to manage their cases. There are many people in our system who obtained some form of status here, not necessarily in accordance with any intention of the State that they should be here. It does not follow that the State should now look at bringing in families as a further reward for that behaviour.”

Failure to set out Immigration Rules in Primary Legislation Who gets to be in Ireland, for how long, on what basis and on what conditions? No provision for consultation on or publication of ‘Regulations Governing Grant of Permission etc.’ – resolution approving draft regulations on certain eligibility criteria for long-term residence has to be passed by both houses of the Oireachtas Exessive ministerial discretion

Administrative Fees Regime of creeping charges Introduction of fees applying to a ‘particular class’ No fee waivers

Rights of the Child not adequately protected Deputy Dermot Ahern, MJLR: “The advice available to me is that an amendment of the Bill along the lines that have been suggested would create a risk that the child could be used effectively as a means to secure the presence in the State of an accompanying adult, notwithstanding that the child would not ordinarily be allowed to enter or be present in the State. I believe this potential outcome is undesirable, detrimental to the best interests of the child and could indirectly encourage and facilitate child trafficking. Upon being granted an entry or residence permission, the person will be aware of the conditions attaching to that permission, including its expiry date. If he or she remains in the State beyond that date, his or her presence will be unlawful. Unlawful presence in the State is an arrestable offence.

IRP Bill 2010 – an improvement? Access to services for foreign nationals unlawfully present less restrictive Avenue for regularisation of status of persons who previously held a renewable residence permit and provision for foreign national children born in the State to apply for residence permission Introduction of right to long-term residence where eligibility criteria are met Restriction of the right to marry removed Foreign convictions – only relevant where offence committed would constitute offence in the State and committed by the applicant

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