Residents and Protection Bill 2008 published

[pauriceenjack]

Are the measures too harsh?[/b]

[pauriceenjack]

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.

[Aindriu]

Not heard of using links then?

[pauriceenjack]

I am 73 years of age. I am doing very well to use internet

[ivnryn]

So, in summary, what are the potentially controversial elements?

[jmcc]

So, in summary, what are the potentially controversial elements?

· 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;

This would probably cut down significantly on the money that solicitors make from such scams.

Regards...jmcc

[FutureTaoiseach]

The fact that non-EU nationals will have to ask the govt for permission to marry Irish citizens is an excellent decision in terms of ending marriages of convenience. The fact that FG are opposed to it confirms they are just as soft on immigration as Labour and SF. The fact that illegals will no longer be tipped-off by the State of their impending deportations is also welcome in terms of ending the situation where illegals go underground after being notified of their deportation-date. The measures against frivolous abuse of the judicial-review mechanism is also long overdue. I'm starting to feel Lenihan may be a better justice minister than McDowell. I hope he stands up to the dogooders in the Green party who will try to stop this.

[MichaelR]

The marriage provision *may* be over the top but more detail is needed. (I am generally very wary of the state controlling who can marry - this was a source of much abuse in the past, i.e. prohibiting interracial or interreligious marriage). I believe that the state's decision should come on whether to grant a residence permit to the spouse - not whether the marriage itself can proceed; pre-marriage residence clearance should be encouraged, effectively the same process but without the state making a decision on marriage as such.

However the rest of the description seems fine. Nothing scary, and some good stuff for the foreigners legally present in the country. Notably, long term residence for those who came as spouses of work permit holders and stayed legally for 5 years will, by the description, include employment - the present version does not.

Also, a clear and transparent visa process is a very welcome development.

[certain_people]

I'm starting to feel Lenihan may be a better justice minister than McDowell.

It would be hard not to be!

[FutureTaoiseach]

The marriage-proposals are needed in order to prevent marriages of convenience whereby people marry Irish citizens in order to get residency or to be more likely to, MichaelR.