Private Members Immigration (Reform) (Regularisation of Residency Status) Bill 2016

Seanad Éireann, Second Stage, 29 June 2016


I am pleased to have the opportunity to address the House to respond on behalf of the Government to the Immigration (Reform) (Regularisation of Residency Status) Bill 2016, which has been introduced by Senator David Norris. Unfortunately, due to other unavoidable commitments, An Tánaiste and Minister for Justice and Equality, is not in a position to attend today. I am grateful to the Leader of the House for his amendment which will ensure it does not have wide ranging unintended consequences and to allow time for due consideration to be given to the important matters this Bill seeks to address.

I want to thank the Senator for outlining the objective of the Bill and the rationale for re-introducing this Bill at this time. The Bill seeks to address the position of persons who entered the State’s international protection system and who after four years are awaiting a final decision on their request to remain in the State. This Bill was previously discussed by Seanad Eireann in 2014 and in line with the commitments given during that debate, I can report significant developments on the matters raised in this Bill and indeed that have been substantially addressed in the intervening years, significantly altering the context in which this Bill would operate today.

Before I get into the specifics on this, I want to set out for the House the context of the amendment which seeks to allow for the necessary time to carefully consider the wider impact of any legal changes and its impact on the evolving scenario between Ireland and the UK arising from its decision to leave the European Union.

In an ever changing scenario it is vital that there are no serious or unintended consequences arising from the re-introduction of this unchanged Bill at this time. We intend to carefully examine the provisions as set out by the Leader, to ensure that, in accordance with national public policy, changes are not implemented that would impact the continuation of the Common Travel Area thus ensuring that Ireland’s negotiation position with the United Kingdom on the Common Travel Area is not compromised in upcoming negotiations following the outcome of their referendum to leave the European Union. A similar situation arises in relation to any negotiations with the EU on the future of the Common Travel Area. In public policy terms, it is of the most profound national importance that we do not create wider difficulties for the future of the CTA that could have the most far reaching implications.

In that regard, Senators should be aware that in agreeing the European Pact on Immigration and Asylum at the European Council in October 2008, Member States made specific commitments "to use only case-by-case regularisation, rather than generalised regularisation, under national law, for humanitarian or economic reasons". The political commitment among Member States, then and now, is clearly against any form of process that would in any way legitimise the status of persons present in the State without first examining the merits of their individual cases. To do anything that would weaken our position in the EU in any upcoming negotiations must be avoided.

As Senators will know, the situation that prompted this Bill is one that the Government is very alive to as reflected in our responses to date to addressing the delays in the protection system raised in 2014. There is no doubt that it was taking far too long for applicants to work their way through the protection system in Ireland and for a final determination to be reached on their application. However this is a complex area of law and administration and there can be many reasons for the delays that arise as we balance the efficiency of the system with the rights of the individual applicant to seek recourse by appeal or through the Courts.

Since Frances Fitzgerald became Minister for Justice and Equality, a number of radical actions have been taken to address the difficulties that have arisen in this area over the years, so I think it would be helpful to the debate if I first set out what has been achieved since 2014 and the plans for the future.

At the time this Bill was first introduced in 2014, there were approximately 3,700 persons with asylum or subsidiary protection application decisions pending. In terms of the number of people who it is intended to bring within the ambit of the Senator’s Bill, in 2014 48% of those persons were in the system for 4 years or more. Following a concerted effort by the Department in the intervening period, I am pleased to confirm to the house this number has been very substantially reduced by a minimum of two thirds and the process is ongoing to address the remainder.

Under the current law, there is a very cumbersome process for investigating such applications. The current system is multi-layered and sequential. It requires that the investigation and decision relating to the refugee application, including any appeal that may be taken in that regard, be completed first. Only then may a person who is refused refugee protection, have their application for subsidiary protection investigated and decided upon at and appealed thereafter in the event of a negative decision. A person who is refused international protection is then liable to deportation from the State. However, as part of that process, such persons may seek permission to remain in the State under immigration law.

Senators recognised the unwieldiness of such a system and the need for a simpler and more streamlined and efficient procedure by passing the International Protection Act last December which allows for a new single application process. This will replace the current system where each stage of an application is decided and then if a negative decision issues, it can be appealed in a sequential time consuming process. Overlaying all of what I have just described, is the opportunity for applicants for international protection to seek leave from the High Court to judicially review each stage of the process; that is every decision made on their application, as they make their way through the process.

While recognising the entitlement of everyone to seek redress from the Courts, in very many instances the delay in finalising cases is often due to applicants challenging negative decisions by initiating judicial reviews at various stages of the process simply in order to delay the date of arrival at a final decision in their case and their departure from the State. The initiation of judicial review proceedings on any one decision can add some years to the time it takes to reach a decision in respect of that application and each stage of it. In 2014 it was estimated that approximately 2,000 applications could not be finalised because of such legal challenges. This has now been reduced to 337 current judicial reviews, with only 19 at first instance, against the Department. This is real and significant progress.

We all agreed in 2014 that there was a need for an efficient and resourced single application procedure. The shared acknowledgement for the existing arrangements to be changed was reflected in the introduction of a single application procedure contained in the International Protection Act 2015 which was passed by both Houses last December. The implementation of this radical reform of the complex applications process is already being actively prepared in the Department and I am confident that An Tánaiste will be in a position to commence this Act before the end of the year.

This is the approach adopted in every other European Union Member State.

In addition, the Government established an independent Working Group to report to Government on improvements to the protection process, including Direct Provision and other supports for asylum seekers. The Working Group concentrated on the length of time persons spend in the protection applications system, the non-execution of deportation orders and the impacts that court proceedings have on the finalisation of decisions. These matters were discussed in great detail by the expert group and an effective way forward was found and has been delivered. This did not involve an amnesty as proposed by this Bill.

Before going any further and for the avoidance of doubt, Ireland is not closed to or seeks to put bureaucratic barriers in the way of immigrants or protection applicants. Over 123,000 immigrants have granted Irish citizenship since 2000 and 117 citizenship ceremonies have been held since 2011.

Turning to the Bill before us today, while it is well intentioned and motivated by a concern, which I share, in relation to the length of time people spend in the protection system, it has been superseded by the radical initiatives undertaken by the Department since our original discussion here in 2014. Therefore in this new and changed context, we must take time to examine the wider impacts of this Bill as outlined as it could have serious negative consequences for the State. .

While sharing and acting upon the length of time issue raised then, as the House was informed in 2014, the core concern is that the Bill essentially amounts to a standing amnesty for those who would seek to make false protection claims in the knowledge that if they can hold out for 4 years they will gain residence status. This is a potential magnet for false protection claims, and irregular migration, putting further pressure on existing resources, not least in that it also confers potential benefits in respect of family members.

Senators should be aware that in some cases outlined in the provisions before us, these exceed those available to persons who use legal migration channels. False protection claims, and any signals that would encourage them, also delay the efficient processing of genuine protection applications.

The Bill also actively incentivises the evasion of deportation orders. Fundamentally, the Bill fails to appreciate the distinction between the delays arising from the construct of the protection system, itself addressed by recent reforms, and those generated by the actions of the foreign national, including for example Judicial Reviews. A similar situation arises in respect of deportation orders where the individual is obliged to remove themselves from the State. This Bill would alter that core obligation of the law, encourage delay and break down the system.

It would ensure that failing to comply with a deportation order would be rewarded by an automatic grant of permission to remain. Such a system would completely undermine Ireland’s ability to enforce deportation orders, which would be a further pull-factor and incentive for unfounded applications to be made. The State is currently in the Courts defending a decision to deport a senior ISIS member, who has been identified as the foremost recruiter and facilitator of travel to contact zones for ISIS in this State. He would have benefitted automatically had the Senator’s Bill become law in 2014.

The application of the proposed regularisation framework to persons seeking international protection as compared with persons whose presence in the State is “irregular” is considered to be inappropriate. Persons seeking international protection status are not irregularly present in the State, as such persons are legally present until such time as their protection application is finalised, at which point their temporary permission to reside in the State ceases to be valid. The State has a legal obligation under national and EU law to properly and fairly investigate all protection applications made in this jurisdiction. Applications must be examined individually and decisions based on the specific merits of each case.

It must also be emphasised that broad regularisation programmes are problematic, in particular as they could give rise to unpredictable and potentially very costly impacts across the full range of public and social services.

The Senator’s Bill wishes to replace the existing Executive discretion for those with assessed and failed protection application, to be subject to a fair individual assessment of their humanitarian needs. I do not believe that automaticity is a higher standard than fair humanitarian consideration on a case by case basis.

The new Single Application Procedure and the continued examination by an International Protection Officer, as underpinned by the International Protection Act, in a system supported by UNHCR standards, is considered the way forward. It is the effective functioning of that new system which will reassure our UK and EU counterparts in the negotiations ahead and not a ‘standing amnesty’ as this Bill proposes.

Without going into the detail, the Bill needs to be examined to ensure that it does not give rise to a number of significant questions:

  • the lack of clarity therein in relation to what happens to extant protection applications in circumstances where the applicant stands to gain the automatic residency provided for in section 6;
  • the automaticity with which residence must be granted without any prior consideration of exclusion grounds of the type set out in section 8 of the Bill; at a minimum national security and criminal background checks would have to be considered:
  • the potential legal difficulty arising from section 5 which would require the revocation of deportation orders lawfully made, thus calling into the question the basis on which the order was made in the first place.

Accordingly, and for the reasons and the substantial change in context, which I have already set out, the Government has tabled a motion to reflect the consideration needed before the House passes such a Bill.

Our key concerns to be examined are summarised as follows:

  1. In the light of Ireland’s commitments in the European Pact on Immigration and Asylum at the European Council where there is a specific commitment “to use only case by case regularisation, rather than generalised regularisation under national law, for humanitarian or economic reasons”, to ensure that our negotiations position with the EU on retaining the Common Travel Area is not weakened in the context of the UK’s decision to leave the European Union;
  2. To allow for the commencement of the International Protection Act which replaces the time consuming, multi-layered sequential applications system with a new single applications procedure in compliance with international standards, designed to address the issue of the length of time people spend in the protection system and to deliver determinations of applications within a shorter time frame:
  3. To provide for the completion of the implementation of the recommendations of the “Working Group Report to the Government on Improvements to the Protection Process, including Direct Provision and other supports” which already addresses the position of international protection applicants who are the subject of this Bill;
  4. In order to consider in detail any discrimination resulting from the different treatment of categories of applicants prescribed by the Bill which would have to be justified by objectively sustainable, and not arbitrary, reasons in order to be constitutionally complaint.

Such a careful consideration can only result in better law. I hope that the Senators will acknowledge the significant efforts made by the Government to address longstanding and difficult issues in relation to Ireland’s protection system since this Bill was first tabled in 2014. The radical actions taken to address the length of time have had a hugely positive impact on those people whose interests are addressed in this Bill. The original context in which this Bill was introduced is no longer the case, as our actions have ensured the length of time landscape has been radically changed.

In summary, I have outlined the key policy concerns, particularly in relation to the upcoming negotiations on the Common Travel Area, why it is essential that the House agrees to the amendment to defer deliberation on this Bill at this time. In addition, the deferral will allow time for the commencement of the Single Protection procedure and to continue the ongoing process of the case by case determination of those longest in the system.

I wish to make it clear that during this period, the Senator and the House can be assured that the Government intends to proceed with its planned course of action on the implementation of the new single applications procedure and to maintaining our commitment to implementing the remaining recommendations of the Working Group on the improvements that can be made to the current protection system. I urge you to support the amended motion taking into account the major policy implications for the operation of the Common Travel Area and in the best interests of our protection process in a time of great reform and change.