The proposed immigration law fails key tests on human rights and fairness and is alarming, argues Steven Loyal.
During the 18th century when mercantilist economics correlated a large population with economic growth, European monarchs were often more concerned about who was leaving their territory than who was entering. Nowadays the opposite is the case with states regulating their borders in order to maintain sovereignty and to control the type and flow of non-national migrants into their territory.
The Immigration, Residence and Protection Bill 2008 was launched this week by Minister for Justice Brian Lenihan. His department, which has historically been anti-foreigner and largely concerned with security, has produced a piece of legislation that lacks a rights-based framework, coherence, and a vision of migration in Ireland as a long-term reality.
With a reach that is paradoxically both too wide and too narrow, the Bill aims to replace all previous legislation on immigration, residence and asylum, as well as dealing with areas such as entry into the State, residence permits, visas, removal from the State, and the protection of asylum seekers and refugees.
Despite the Minister's claim that "this legislation will give us improved tools for developing regular migration as well as dealing with illegal migration", the emphasis of the Bill is very much on the regulation of the State's borders and national security.
Considerable text has been devoted to augmenting the Garda National Immigration Bureau's powers and developing accelerated procedures for the removal and deportation of irregular migrants and failed asylum seekers.
In some ways the Bill's failures stem from what is absent as well as what is present. As a result it fails to safeguard basic human rights through primary legislation; it fails to provide an independent appeals mechanism for immigration decisions; it fails to discuss integration issues including language provision; it fails to stipulate the underlying criteria on which ministerial authority is based, allowing excessive discretion rather than the desired flexibility; and it fails to acknowledge immigration as a permanent feature of Irish society despite discussing a long-term residence policy that allows immigrants to stay in Ireland for five years.
However, there are three areas that are particularly alarming not just for non-Irish immigrants, but for Irish society generally. Firstly, the right of foreign nationals to marry in the State will be severely curtailed. All foreign nationals will be required to give the Minister notice of their intention to marry. Equally, Irish nationals who intend to marry a non-Irish national will also need to notify the Minister.
The Irish Human Rights Commission has suggested these provisions amount to a serious restriction of the right to marry contained in Article 12 of the European Convention on Human Rights and recognised in the Irish Constitution. The Minister's claim that this is to cut down on "marriages of convenience" is not backed by evidence.
Secondly, the Bill proposes that biometric information will be included in residence permits that non-EU citizens will be required to carry at all times. If they do not, and cannot prove their identity, they are likely to be arrested.
It is argued that this measure is part of a general EU policy, largely pushed by the US following the 9/11 attacks, to introduce ID cards and therefore that it is not only being imposed on immigrants. But there has been very little discussion on introducing ID cards into Irish society generally, and there will be obvious effects in imposing them on immigrants only. ID cards not only infringe the right to privacy, but there are also serious issues relating to the storage of data, the loss of cards, and the abuse of information.
Thirdly, the legislation makes no clear mention of the issue of family reunification for non-EU migrant workers. Migrants have no legislative guarantee that their families will be allowed to live and work in Ireland with them.
The current situation - whereby non-EU migrant workers must apply to the Minister for permission to have their families reside with them in Ireland - will continue to be dependent on the discretion of the Minister, whose decision is final.
The public consultation preceding the publication of the Bill was by any measure tokenistic. Although submissions were requested, few if any of the resultant suggestions were taken on board.
Until recently the Irish State lacked a coherent or planned immigration policy. It has now attempted to amend this lacuna by introducing two major pieces of legislation.
The Employment Permits Bill 2006 came into effect in February of last year. It was based largely on the recommendations of a business-dominated and unaccountable Expert Group on Future Skills Needs. The policy framework underpinning it was concerned with economic maximisation and with restricting non-EU migration.
The new Bill compounds these economic restrictions with security considerations. As a result, the legislation may dissuade many immigrants from entering the country, or simply encourage them to leave the country if already here. If so, given the massive social, cultural, and economic contribution migrants have made, and continue to make, it may also force the Irish State to rethink who is leaving the country.
Dr Steven Loyal is a senior lecturer in the school of sociology at University College Dublin