On Justice, Equality, Defence and Women S Rights

Presentation

Oireachtas Joint-Committee

on Justice, Equality, Defence and Women’s Rights

IHRC’s Observations on Immigration, Residence and Protection Bill

Wednesday 2nd April 2008

Introduction

The Irish Human Rights Commission (IHRC) is pleased to have this opportunity to make this presentation to the Oireachtas Joint-Committee on Justice, Equality, Defence and Women’s Rights on our observations on the Immigration, Residence and Protection Bill 2008.

The IHRC is an independent statutory body established under the Human Rights Commission Act 2000, to ensure that the human rights of all people in Ireland are promoted and protected in law, policy and practice.One of the roles of the IHRC is to review the adequacy and effectiveness of law and policy in the State in relation to Constitutional and international human rights standards deriving from the Irish Constitution and international treaties to which Ireland is a party. Having made such an assessment, the IHRC makes recommendations to the Government concerning the measures that should be taken to strengthen, protect and uphold human rights in Ireland, in line with Ireland’s Constitutional and international obligations.

The IHRC welcomes the initiative to consolidate the law on immigration and asylum/protection into a single comprehensive statute. We have set out our Observations on this Bill at some length because we believe that it is of great significance in our shrinking world where immigration is going to be a permanent and significant feature for the foreseeable future and where immigrants bring great benefits to our economy and society.

It is important to get this right and to develop a fair, humane and transparent system that offers protection to those fleeing fear and persecution and welcomes and seeks to integrate immigrants into our society so that they may make the same sort of valued contribution that Irish emigrants made to so many other countries in the 19th and 20th centuries.

In that context we are concerned, however, that the tone of the Bill is less positive than that outlined in the Preamble to the Scheme for the Bill published in 2006 where it referred to the social, cultural and economic benefits of immigration, and proposed to facilitate family reunification and integration and comply with our international obligations in relation to refugees.

In particular, we are disappointed that the Bill does not set out clearly that one of its objectives is to preserve and protect the human rights of people coming to our shores whether as potential immigrants or asylum seekers. We would recommend that the Long Title of the Bill should be amended to include the objective of fulfilling the State’s obligations as set out in the Convention on Refugees, the European Convention on Human Rights and the other international human rights treaties to which we are a party.

We have made a total of 59 key recommendations in 24 areas. These are set out in the Executive Summary of the Commission’s Observations. In this presentation we will limit ourselves to sketching out some areas of particular concern.

Ministerial Discretion and Regulations

Much of the detail of the provisions in the Bill is left to be set out in Regulations to be made under Sections 125 and 127. These Regulations will set out the criteria in relation to which residence may be granted to foreign nationals and for how long and under what conditions. As these matters are crucial to the effect of the Bill, we suggest that the draft Regulations should be published and debated by the Oireachtas before being adopted.

Throughout the Bill, the Minister and his officials are given power to make key decisions in the interests of ‘public security, public policy or public order’. These categories are not defined, leaving the law uncertain and allowing for the possibility of arbitrary and inconsistent decisions contrary to the requirements of the European Convention on Human Rights. We recommend that these categories should be specifically defined in the body of the Bill.

Removal from the State

The Bill provides that foreign nationals can be removed from the State without prior notice of the intention to remove them. International human rights law and Section 53(1) of the Bill prohibit ‘refoulement’, i.e. sending persons back to a territory where they face real danger. But the Bill’s provisions on removal provide less protection than the Immigration Act, 1999 where it was necessary to give 15 days notice of the intention to deport, the deportee could make written representations and the Minister had to consider 11 separate factors before deciding to make the deportation order.

Where persons to be removed are not given advance warning, it may be difficult or impossible for them to instruct lawyers and challenge their removal. As a result some people may be returned to situations where they are in genuine danger. No pressing need has been shown for these changes. We recommend that the existing provisions should be retained.

Detention

The Bill provides that a protection applicant can be arrested and detained at an entry point where it is not ‘practicable’ to issue a protection entry permit on the spot. It also provides that protection applicants who are in the State may be detained for a variety of reasons and remanded in custody for a succession of 21-day periods. In both cases they may be held in Garda stations or prisons.

The United Nations High Commissioner for Refugees (UNHCR) recommends against detention of asylum-seekers except in very limited circumstances. We suggest that the Bill should make clear that detention should be used only as a last resort, and that where it is found necessary, there should be strict time limits so that persons cannot be detained for long periods when they are not suspected of the commission of an offence.

The Council of Europe European Committee for the Prevention of Torture has repeatedly criticised the holding of immigrants and asylum-seekers in prisons here. We strongly recommend that detention of such persons should be permissible only in non-penal detention centres which are quite separate from prisons and where the regime is suitable for persons who have not committed and are not accused of any offence.

Victims of Trafficking

The IHRC welcomes the inclusion of protection for victims of trafficking in the Bill. However, trafficking victims are not always foreign nationals and we suggest that this issue be dealt with in a separate chapter of the Bill so as to emphasise that this does not just concern foreign nationals and because we believe it warrants more detailed provisions than are contained in a single section of the Bill. We believe the Bill should contain more specific provision for the protection and assistance of victims and that the welcome six-month temporary permission to remain for some victims should not be conditional on their assisting in prosecutions.

We would also take the opportunity to call on the Government to ratify a number of international treaties providing for protection of victims of trafficking, especially child victims. In particular, we consider that the Bill represents an important opportunity to bring Irish legislation into line with the Council of Europe Convention on Trafficking and so speed up its ratification.

Appeals and Judicial Review

While the Bill establishes a Review Tribunal for protection applicants, it does not provide for any independent review of immigration decisions, i.e. in relation to visas, residency etc. We believe that such a body is essential to avoid arbitrary and inconsistent decisions and protect the rights of would-be immigrants. It would also be cheaper and speedier than having to resort to Judicial Review in all such cases.

In relation to the Protection Review Tribunal, we are concerned that the provisions on publication of Tribunal decisions are unnecessarily restrictive and cumbersome. In the interest of transparency and consistency, we recommend that all Tribunal decisions should be published, subject only to editing to protect the identity of the applicants. Other common law jurisdictions do this, so why can’t we?

The Bill further tightens the time limits for taking Judicial Review of immigration and protection decisions. We are concerned that this may prevent some foreign nationals from making Judicial Review applications in an area that can be of the utmost seriousness for them and so deprive them of their right under the ECHR to an effective remedy.

We are also concerned that the Bill envisages that Judicial Review applications will not necessarily or generally suspend the removal of foreign nationals. This is vitally important in this area as if a protection applicant is returned to a situation where s/he is at risk, the consequences may be irreversible.

Family Reunification

While the Bill contains provisions for family reunification for protection applicants, it does not make similar provision for non-protection immigrants, who form a growing and valued section of our population and workforce. This should not be left to be dealt with by Regulations as seems to be envisaged.

Marriage

Section 123 of the Bill provides that the marriage of foreign nationals who are protection applicants or have non-renewable residence permits will not be valid unless they obtain exemptions from the Minister. This is a serious interference with the right to marry as protected by the European Convention and the Constitution. No pressing need has been shown for such a serious interference with a fundamental right in relation to a whole category of people. We recommend that this section be seriously reconsidered.

Social Services

Section 6 of the Bill provides that foreign nationals who are unlawfully present in the State shall not be entitled to avail of public benefits or services other than essential medical treatment, limited emergency social welfare payments and legal aid. People can become unlawfully present for many reasons not of their own making such as migrant workers exploited by their employers or persons whose permission to remain is dependent upon their spouses and who become victims of family violence.

We are concerned that this provision could result in vulnerable persons becoming homeless and destitute or unable to access basic services in breach of their rights under the European Convention.

Unaccompanied Minors

Given the vulnerability of children in the immigration and protection process, we recommend that a general provision be inserted in the Bill that in all decisions affecting children the best interests of the child should be a primary consideration. We also recommend that the Bill should provide that unaccompanied or separated children should never be refused entry to the State so that their position can be properly considered. We also suggest that a guardian or advisor should be appointed to assist and support all unaccompanied and separated children and that where a child is accompanied by an adult who is not her/his parent, there should be more rigorous scrutiny to prevent the possibility of trafficking.

Biometric Information

We are concerned that the provisions in the Bill on the collection and sharing of biometric information are too broad and do not contain sufficient safeguards against abuse. We recommend that the data to be routinely collected should be confined to facial images and fingerprints as required by EU Regulations and that this data should be used solely for the purposes of this Bill. We suggest that there should be clear time limits for the retention of this data and that there should be clear safeguards and limitations on the purposes for which data can be exchanged with other countries.

Conclusion

There are many other important sections of the Bill upon which we have commented in our detailed Observations and we have endeavoured in each case to set out the relevant international human rights standards that we believe should be taken into account.

We believe that this is a crucial piece of legislation that will help to shape our society in future years and that it is important to get it right at this stage. We are grateful to the Committee for giving us the opportunity to explain our concerns and for the seriousness with which the Committee is treating this issue.

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