Proposed Immigration and Residence Bill
Introduction
Citizens Information Centres (CICs) (See Note) which are supported by Comhairle have reported a significant increase in the number of queries from immigrants and in relation to immigration in recent years. For example, a recent Survey of CIC Queries (See Note) found that 11 per cent of queries related to nationality and immigration issues. Comhairle also supports the Refugee Information Service and many people who are asylum seekers or who have been granted refugee status also have to deal with general immigration issues.
The major issues which arise in CIC queries
include:
- the continuation or non continuation of residence rights,
- problems with immigration control procedures,
- problems with visas,
- the employment rights of work permit holders,
- the rights of immigrants to social services generally,
- the right of family members of holders of visas and/or work permits/authorisations to visit or reside in Ireland and their rights to work here,
- problems associated with the requirements to register frequently.
While immigration policy and immigration rules may well be determined at EU level, there is a clear need to facilitate a debate in Ireland about these developments. Comhairle provides comprehensive information on EU developments in this and other areas on its Citizens' Information Database (www.cidb.ie). This is updated monthly. We also provide quarterly EU updates as Supplements to our monthly information bulletin Relate.
Immigration Policy and Immigrants' Rights
We consider that a new Immigration and Residence Bill is essential in order to set out a clear framework of rights both for applicants to enter Ireland and for non-EU nationals who take up residence here. The absence of a coherent immigration policy and a proper statutory framework for visas, residence, etc., contributes to the numbers of people applying for refugee status as it is sometimes the only way in which they can have their cases heard.
Immigration policy may change from time to time as economic circumstances change. The Government has a clear right to control immigration, to determine the policy, set numbers if appropriate, decide on the “qualities” of immigrants - i.e. exercise choices about skills, countries of origin etc. This clear right must be exercised fairly and transparently and with due regard for the rights of the individuals involved. The legislation does not need to, and, in our view, should not deal with policy issues such as numbers, quotas etc but should rather deal with the rights of immigrants.
Primary legislation
The status of individuals is of such fundamental importance that it requires total legislative clarity. People need to know exactly what their rights are in relation to residence and have absolute clarity about their status in the country.
The issues, including the significant procedural issues, should be dealt with in primary legislation. Secondary legislation should only be used for very minor details. The current legislative arrangements - the Aliens Acts and the numerous statutory instruments - are unsatisfactory in many respects. The proliferation of secondary legislation is one unsatisfactory aspect. Some of the statutory instruments have been found to be unconstitutional or ultra vires the primary legislation.
People who are nationals of countries outside the European Economic Area (EEA) do not have an automatic right to enter Ireland or to live here. It is not suggested that they should have. They should, however, have the right to apply and to have their application dealt with in accordance with due process, natural justice, Irish Constitutional rights and the rights set out in the European Convention on Human Rights and other international human rights conventions to which Ireland is a party. If they are granted the right to live in Ireland whether on a long or short term basis, they should have broadly the same rights as Irish nationals (with the exception of voting rights in national elections). There should be complete clarity as to their rights to remain in Ireland. All of these issues should be dealt with in primary legislation.
The legislation should also cover the rights of EEA nationals, their spouses and families. At present, the implementation of these rights is dealt with by statutory instrument (The European Communities Rights of Residence Regulations). The legislation should reflect the current EU proposal for a Directive streamlining the rules governing free movement of EU citizens and provide for their speedy implementation.
Visas
The granting of visas to enter the country is not covered by legislation at present. We consider that it should be.
Countries whose nationals require visas
The countries whose nationals require visas are set out in Statutory Instruments; changes are made from time to time. There is no parliamentary debate on these changes and they generally go unnoticed. The basis for deciding which country's nationals need visas and which do not is not clear. At present, a number of African countries' nationals do not need visas (e.g. Zimbabwe, South Africa) while others do need them (e.g. Ethiopia, Tanzania). There may be a good reason for this but it is not stated and is not obvious. The two visa requiring countries are priority countries for Ireland Aid from whom they receive significant development funding so their ties with Ireland are at least as close as the other two countries. None of the countries mentioned requires Irish citizens to have visas.
The legislation should set out the general principles on which the need to have visas will be based. It is accepted that change may be necessary from time to time and that this can be done by Statutory Instrument but there should be a Dail discussion on each change.
Granting and refusal of visas
The basis on which visas may be granted or refused is not set out in legislation. While application for visas is usually made to embassies and consulates abroad, the decision on whether or not to grant a visa is made by the Department of Justice, Equality and Law Reform. Reasons for refusal are not given. In practice, it is not clear to applicants whether it is to the Department of Foreign Affairs or to the Department of Justice, Equality and Law Reform that they should make enquiries about refusals.
We consider that the legislation should set out the different kinds of visas available: visitors' visas, student visas, working visas of various duration, family reunification visas etc. It should also set out the broad principles on which visas may be granted, the conditions which may be attached (e.g. ability to maintain oneself in the case of a visitor visa) and the reasons for which visas may be refused (e.g. criminal convictions).
It should set out how the decision is made and by whom and it should provide for an appeal system for those who are refused visas or have conditions attached.
Multiple entry visas
People whose right to visit and live in Ireland is not in question, e.g., the non-national spouses of Irish citizens, should be automatically granted multiple entry visas and this right should be included in the proposed Bill. At present, multiple entry visas seem to be only granted to Irish residents in this situation. We have come across cases where foreign resident spouses of Irish nationals were not informed of the possibility of getting multiple entry visas and so were put to the inconvenience and expense of getting a separate visa for each visit.
Rights conferred by visas
At present, a visa only confers the right to “present for entry” into Ireland. It would, however, seem reasonable that a visa should confer the right to enter the State. The granting of a visa could be made conditional on the person having enough resources to maintain themselves while in the country but they should not be subjected to a second hurdle on arrival in the country. As far as possible, compliance with the conditions should be verified before the visa is granted.
Immigration controls at entry
Immigration control measures can be effective while also being subject to proper procedures and being implemented fairly and humanely. Immigration procedures do have to ensure protection for the State but this is not inconsistent with proper treatment for applicants.
Immigration controls at entry for visa holders should only involve checking the validity of the visa and compliance with any conditions attached if such compliance was not already checked before the visa was awarded. The legislation should set out the procedures to be followed in the event of an invalid visa being held or conditions not being met. It should similarly set out the rules which apply if entry is refused to people who do not need visas. These procedures should include the right to appeal against a refusal of entry.
Right toinformation
There should be an obligation on Government to produce accessible and comprehensive information on the legal framework which applies to immigrants and asylum seekers and on various rights and entitlements and procedures for accessing these. Such information should be available at points of entry.
Right to social services
While immigrants have many of the same rights to social services as citizens, there is a need for more clarity on such rights in relation to, for example, families of people with work permits, housing assistance and employment protection legislation. There is also some evidence of excessive delays in processing applications by third country nationals to services to which they are entitled.
Work Permits/Authorisations
The work permit/work authorisation scheme should be put on a statutory basis. The legislation should deal with the procedures for getting permits, the rights of permit holders etc. The policy in relation to numbers needs to be decided from time to time.
Work permit holders should not be tied to one employer. Procedures may be necessary to ensure that the holders do not breach the terms of the permit but we consider that work permit holders are considerably less likely to be able to avail of their entitlements if they are tied to the one employer. We acknowledge the efforts that have been made by the Department of Enterprise, Trade and Employment to inform work permit holders of their rights but problems will continue unless holders have genuine freedom of movement.
We agree with the policy which allows students who are living in Ireland on student visas to take up casual/holiday work. However, we consider that this needs to be very
carefully policed as the scope for exploitation is considerable.
Long Term Residents
Long term non EEA nationals resident in Ireland have an unsatisfactory legal status. They should not be left in a situation where there is doubt about their long term rights. In general, they are not deported but they should have a positive right to remain and a new legal status of long-term resident should be provided for in the legislation. The administrative arrangements whereby people who have lived here for 10 years get an unlimited stay permit are not adequate as this is not a legislative right. The only way in which they can get positive rights is by becoming citizens. There is no automatic right to become a citizen - nor is it suggested that there should be - and it is an option that many may not wish to exercise. It is not clear whether people apply for citizenship because they genuinely want that or because it is the only way to ensure security of stay in the country. There are considerable delays in making decisions on citizenship. Citizenship should not be the only avenue available to non nationals to establish permanent residence rights.
The legislation should set out when and how a permanent right of residence can be established. The Draft EU Directive on the status of third country nationals who are long term residents provides a blueprint for the sort of legislation which is required.
Status of people granted leave to remain
People who apply for refugee status and are refused but are given leave to remain should also be covered by the proposed legislation. Leave to remain (or humanitarian leave to remain as it is sometimes called) is granted largely on an administrative basis at present and may be subject to conditions. The legislation should provide a legal basis for the present arrangements and set out the range of conditions which may be applied. We agree with the view of the UNHCR Representative in Ireland that an application for leave to remain should be heard as part of the refugee application process.
Registration of Third Country Nationals
The registration arrangements for foreign nationals who are legally resident are clearly unsatisfactory as is evidenced by queues of people waiting to have their papers processed. It is not clear why there is always a requirement for frequent registration in person. For example, people who are awarded work permits should be able to fulfil the registration requirements as part of their application process for a work permit. If further information is required it should be possible to transmit this by mail or e-mail.
People who have a right of residence on the basis that they have Irish born children should not need to register frequently nor in person. They do not need work permits under the present system so it is difficult to justify the requirement for frequent registration.
The justification for frequent registration needs to be examined. It should be confined to non nationals who are on short term stay and should be streamlined so that the necessity to register in person is reduced.
Family Rights
In the light of the Irish Constitution's statements on marriage and the family, it is unacceptable, and possibly unconstitutional, to prevent family reunification. It is arguable that there is a positive requirement to promote it. People who come to Ireland on short term visas - for example, students or people coming on short term work permits, should be allowed to have their spouses join them for visits.
We are aware of cases where spouses have been refused visas to visit people here on a short term basis (e.g. students). The right to a visitor's visa for spouses and families of people with short term stay rights should be enshrined in the proposed legislation. There should be a similar right of entry for people from countries whose nationals do not require visas.
The spouses of non-nationals who have work permits should also be allowed work permits/authorisations for the same period.
The parents of Irish born children are usually given the right to remain. Their rights when their children become adults or if a minor child dies are unclear. They should qualify for the long term resident status suggested above.
Third country national spouses of Irish nationals
The legislation should clarify the rights of third country national spouses of Irish
nationals to reside in Ireland. It should also deal with their rights in the event of divorce or separation or death.
Which Department is responsible
We have already referred to the problems visa applicants have in identifying responsibility as between the Department of Foreign Affairs and the Department of Justice, Equality and Law Reform. We do not have a view on which Department should have responsibility but that responsibility should be very clear.
Applicants for and holders of work permits/work authorisations should deal with the Department of Enterprise, Trade and Employment which should liaise with the Department of Justice, Equality and Law Reform accordingly. The legislation should deal with the question of data sharing between the relevant departments in order to make it easier for the individual immigrant to establish rights.
Developments in the EU
The European Commission has published a Discussion Document, Communication on a Community Immigration Policy (COM(2000)757), which was designed to start a debate throughout the EU on the issue of immigration. There has been no effort in Ireland to generate such a debate. Ireland has a choice as to whether or not to be involved in a common immigration regime. This choice should be debated. Since it is likely that significant decisions will be made on some of these issues in the second half of 2001, this debate should be started immediately.
The EU Commission has already issued proposals in a number of areas (including, for example a proposed Directive on the status of third country nationals who are long term residents) but there has been no parliamentary or public debate on the issues in Ireland. (Information on all the relevant proposals is available on the Citizens Information Database - www.cidb.ie)
Some EU countries, notably Italy and Germany, have accepted that they cannot sustain their labour market or their pensions systems without significant immigration. Ireland does not face the same problems of declining indigenous population and population ageing, while occurring in Ireland, is not as acute a problem as it is in other EU countries. Immigration policies which are required by other EU countries may not be necessary or appropriate here. At the same time, we may wish to be involved in common EU rules in this area just as we are in many other areas.
Regularisation of current immigrants
Many EU countries (including the UK) are engaging in a policy of regularisation of illegal immigrants. While there are obvious difficulties with a regularisation policy, nevertheless, it should be considered in Ireland before the new Immigration and Residence Bill becomes law.
