Submission to the Department of Justice, Equality and
Law Reform:
Immigration and Residence in Ireland
August 2005
Introduction
Comhairle has a statutory remit to support the provision of information, advice and advocacy services for all citizens. To this end, Comhairle is involved in the development of Citizens Information Services, including the development and support of the nation-wide network of Citizen Information Services (CISs), the Citizens Information Phone Service (CIPS) and the Oasis Website (www.oasis.gov.ie).
One of Comhairle's statutory functions is to promote and develop the provision of information on the effectiveness of current social policy and services and to highlight issues that are of concern to users of those services. In carrying out this function, Comhairle relies heavily on feedback from CISs based on the needs and experiences of users of the CIS service.
It is clear from an analysis of queries to CISs and the CIPS that issues relating to immigration and residence arise for a significant number of people. During 2004, CISs registered 648,484 queries and the CIPS 72,975. CISs have reported a significant increase in the number of queries from immigrants and in relation to immigration in recent years. A 2003 Survey of Citizens Information Centre queries, (Nua 2004), shows that issues concerned with law and justice constituted 6% of queries and that a quarter of these dealt with non-national, citizenship, refugee and asylum issues. Thus, it can be inferred that a total of approximately 9,000 queries from the public during 2003 referred to these issues.
Also, preliminary data from a Survey of CIC Queries carried out in July 2005 suggest that 8% of 4,000 queries surveyed came from clients identified as being members of an ethnic minority (excluding travellers). 38% of these had a query about citizenship, 38% about refugee and asylum seeker issues, 15% about non-national issues and 13% about equality issues. In the area of housing, 12% had a query about direct provision, 5% about employer provided housing and 3% about emergency / hostel accommodation.
In the category of employment rights, 4% of clients identified as being members of an ethnic minority (excluding travellers) had a query about work permits and 8% about other employment rights issues.
CISs also identify queries with a social policy dimension and return social policy records [1] to Comhairle accordingly. In the 18 month period January 2004 to June 2005, 7.4% of social policy records from CISs related to issues of migration including concerns around residency rights, family reunification, citizenship, voting and entitlements for asylum seekers.During this 18 month period 27 % of social policy records related to employment and 14.60% of these referred to issues for migrant workers mostly related to work permits. Also, CISs reported that during this period migrant workers and other immigrants regularly reported difficulties with the Habitual Residence Condition (HRC). These included issues for Irish citizens returning home after working abroad, people resident in the common travel area all their lives having to fill out Habitual Residence forms (creating major delays in the application process for benefits), migrant workers with no social welfare safety net when a problem arises within the two year period, issues around entitlement to Child Benefit and lack of clarity and consistency in relation to the guidelines. In 2004, just over 3% of all social policy records related to the HRC. In the first half of 2005 this had risen to almost 5%.
Immigration and Residence in Ireland Discussion Document
Comhairle welcomes the publication of the discussion document, Immigration and Residence in Ireland and the current debate on the topic. While recognising that some immigration policy will be determined at EU level, there is a clear need for Ireland to have comprehensive and transparent immigration and residence policies and an appropriate legislative framework in place. In this regard the Government commitment to engaging in a “root-and-branch replacement of the present law with a view to putting in place a modern legislative framework” is most welcome.
Immigration policy may change from time to time as economic circumstances change and the Government needs to set numbers as appropriate and decide on the ‘qualities' of immigrants – i.e., exercise choices about skills, countries of origin etc. As stated in the discussion document, this process needs to be carried out fairly and transparently and with due regard for the rights of the individuals involved. The Immigration and Residence Bill should, therefore, set out a clear framework of rights both for applicants to enter Ireland and for non-EU nationals who take up residence here.
Primary Legislation
The proposed legislation should set out a core set of provisions in primary legislation, including the entry, residency, work, welfare and social rights of immigrants. This primary legislation needs to include provision for the significant procedural issues around these rights and should deal with residence rights as well as with entry rights. The amount of secondary legislation is one unsatisfactory aspect of the current system and such secondary legislation should only be used for the more minor policy details.
The primary legislation needs to ensure that people who are non-EU nationals and who do not have an automatic right to enter Ireland or to live here should have the right to apply and to have their application dealt with in accordance with due process, 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 people 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 clarity as to their right to remain in Ireland. All of these issues should be dealt with in primary legislation.
Immigration and Residence Issues
The observations below relating to the different sections of the Immigration and Residence in Ireland discussion document reflect the experience and perspectives of Citizens Information Service and Citizens Information Phone Service users as reported by CISs and CIPS to Comhairle.
- visas
- border controls
- admission for purposes of work
- admission for the purpose of family re-unification
- residence status
- administration and delivery of services.
Visas
Comhairle notes that the broad principles on which visas may be granted, the conditions that may be attached and the reasons for which visas may be refused are to be set out in the 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.
The basis for deciding which country's nationals need visas and which do not is not clear. 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 changes can be made by Statutory Instrument but there should be a Dail discussion on each change.
Comhairle does not agree that the “reviews or appeals of refusals should be limited, for example, to cases involving those seeking to join family members who are long term residents in the State and those seeking to enter for more than 3 months”, as suggested in the discussion document.
Border Controls
Comhairle recognises that border control is a key element of any immigration system and welcomes the proposal to review current border/entry control legislative provisions.
Border control measures can be effective while at the same time being subject to proper procedures and implemented fairly and humanely.
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 and that people should not generally 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 and immigration controls at entry for visa holders should only involve checking the validity of the visa and compliance with any conditions attached.
The legislation should also 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.
Admission for Purposes of Work
A constant theme of international human rights standards is that migrant workers should receive effective equality of treatment with nationals of the State in which they are employed in relation to employment, economic and social rights, including the rights to housing, health care, and education.
The practice in Ireland has been that temporary migrant workers are opting to renew their residency status but must be here for ten years before they can apply for permission to remain without conditions as to time. Permission to remain is granted on a purely discretionary basis.
CISs report abuse of the work permit system by employers with many people here on work permits being paid less than the statutory minimum wage and frequent breaches of other aspects of employment protection legislation. Excessive charges are being imposed by some employers in respect of work permit fees, accommodation and meal charges. CISs also report difficulties in accessing the Work Permits section of the Department of Enterprise, Trade and Employment and the fact that frequently migrant workers have difficulty opening bank accounts and cashing cheques.
Admission for the Purpose of Family Reunification
The rights of immigrants to reunite with their family under certain conditions are established in international and European law. The European Social Charter (Article 19(6)) requires States to “facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory”. Furthermore, the Convention on the Rights of the Child (Article 10) provides that applications by a child or his or her parents to enter or leave a State for the purpose of family reunification shall be dealt with in a positive, humane and expeditious manner.
The general principle, as outlined in the discussion document, that a non-national entitled to live in Ireland on a long term and permanent basis should be entitled to apply to be joined by his/her spouse and minor unmarried children is a centrally important one. However, this principle may be undermined by the requirement that the family be economically viable in the State.
Many people on work permits and other migrant workers invited to take up employment in Ireland work in poorly paid jobs in the service sector, hotel and catering, agriculture and food processing. At the moment, because of this, their right to family reunification is greatly restricted. The cost of living and in particular of housing in Ireland makes it very difficult for families in these circumstances to be economically viable without provision for the right of spouses to work. Provision for the right of spouses of all legal immigrants to work on arrival in Ireland should be actively considered. For example, the spouses of non-nationals who have work permits should also be allowed work permits/authorisations for the same period.
Under current arrangements, work authorisations / working visas are valid for two years and, generally, spouses and dependent children may join workers after a three-month period once a worker can show that s/he is in employment. However, CISs have noted that in many instances people find that the level of earnings required to be considered by the State to be “capable of supporting the family members in question without the need for them to have recourse to public funds or paid employment”, is out of their reach.
CISs report that some immigrants who are in a position to apply for family reunification experience severe difficulties with the process and procedures involved. Problems arise in relation to the bureaucratic nature of making such applications, the fact that it often takes over a year to get a decision and that there is no independent appeals mechanism for applications that are turned down.
CISs have also reported cases where spouses have been refused visas to visit people here on a short-term basis (e.g. students).
The parents of Irish citizen children are currently given two years residency. After this period their situation is revisited to ensure that they are not claiming Social Welfare benefits or allowances. While people who have residency for five years can apply for citizenship and long-term residency, the rights of parents of Irish citizen children are not entirely clear, e.g., in cases where a minor child dies.
The current administrative arrangements for considering family reunification applications are less than satisfactory because considerations are generally based on the nuclear model of the family. The intention to examine the issue of non-marital partnerships and same sex relationships noted in the discussion document is to be welcomed as is the suggestion for a sponsorship scheme to allow unmarried children over 18 to join family members in Ireland.
Family reunification rights need to be clearly established at the time of initial immigrant admission. The legislation should ensure:
- the right to a family life as an over-riding consideration in respect of all migrant workers
- the right to work of spouses of legal immigrants to Ireland
- an effective appeals system for family members who are refused permission to visit or to remain on a longer - term basis.
Residence Status
Long-Term Residents
Currently, many long-term non-EU nationals resident in Ireland have an unsatisfactory legal status. Comhairle welcomes the intention to make provision in the legislation for a new legal status for long-term residents as the only way to ensure security of stay in the country. This is important because citizenship is not an automatic right, it is an option that many people may not wish to pursue and there are considerable delays in making decisions on citizenship.
The legislation should set out when and how a permanent right of residence can be established. Grounds for refusing or revoking residency need to be set out clearly and people should not be required to leave the country pending a decision.
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 a discretionary basis at present. The legislation should provide a legal basis for the present arrangements and set out clearly the range of conditions which may be applied.
Administration and Delivery of Services
Visa Applications
The problems experienced by CIS clients with regard to visa applications include difficulties in accessing the services of the Immigration Asylum & Citizenship Division at the Department of Justice, Equality and Law Reform by telephone, inadequate opening hours as well as inadequate appeals procedures and mechanisms for redress for those whose applications are refused.
CISs report a difficulty in getting clear and specific information about entitlement to visas and the protocols for visa applications and note that sometimes government departments are unclear about entitlements for different categories of people. The reasons for refusal of visas for family members coming to live in Ireland or visit relatives living in Ireland are not always readily available to applicants.
Comhairle welcomes the decision of the Government in March 2005 to establish the Irish Naturalisation and Immigration Service. This has the potential to deal more effectively with many of the problems encountered. However, it will of course be dependent on the resources available and on the co-operation of existing agencies.
The Immigration Asylum & Citizenship Division at the Department of Justice, Equality and Law Reform should be properly staffed and resourced so that all applications and queries are dealt with promptly and efficiently.
Information
The Government needs to produce accessible and comprehensive information on the legal framework which applies to the whole range of immigrants and asylum seekers and on various rights and entitlements and procedures for accessing these. Such information should be available and easily accessible from all relevant government agencies and at points of entry to the country.
This information should be available in a variety of languages and take cognisance of various levels of literacy.
[1] This submission was compiled on the basis of these social policy records and on a Focus Group discussion of the issues arising with personnel from Citizens Information Services in Dublin (City Centre), Westmeath, Longford and South Kildare and Shannon CIC.
