The Government has badly botched its hastily tabled Immigration Bill, writesSeán Love
The Immigration Bill 2004, published last week, is an extraordinarily misguided and retrograde piece of legislation, both in its provisions and the manner of its enactment. At the time of writing, it remains Amnesty's hope that it will be withdrawn.
Six days ago The Irish Times published the enlightened views of the UN Secretary General, Kofi Annan, on immigration, and their broad endorsement by the Minister for Foreign Affairs, Brian Cowen. Yet, on the domestic front, there has been growing criticism of the absence of any real immigration policy in this country. What policy there is appears to be based on the following assumptions:
- Work permit holders and immigrants must be both mentally and physically perfect.
- Effective implementation of the Dublin Convention would ideally ensure we receive no asylum-seekers whatsoever.
- Work permit holders are welcome so long as they don't bring families or expect full employment rights. And of course they must leave as soon as they are no longer of use to us.
- If you really have to come here, do not expect to be treated with dignity and respect for your basic human rights.
In glaring contrast to the words of Annan and Cowen, we have a Department of Justice Bill reflecting an anti-immigrant position that has no place in a modern immigration system. And there is no doubt its terms go far beyond what can be excused as an interim measure to resolve immediate difficulties.
The Department concedes that the Bill is largely a restatement of the Aliens Order 1946, albeit using slightly more politically correct language. Yet it is astonishing that the Government would see fit to re-enact an Order made in a climate of suspicion of "aliens", and before the adoption of the International Bill of Rights and subsequent international human rights treaties. Most specifically, the order preceded the ratification by Ireland of the European Convention on Human Rights (ECHR) and, not surprisingly, the new Bill is fundamentally flawed in terms of international human rights norms.
The Bill appears to have been drafted on the premise that unsolicited immigration is inherently suspicious, and that "undesirables", such as those with mental illness, should be kept out.
Section 2(2) provides that the application of the Bill will not derogate from the State's obligations, as set out in a number of laws, but it fails to include any reference to the requirements of international human rights law.
Ireland's responsibilities in respect of non-nationals presenting at its borders extend far beyond those mentioned. Human rights principles, humanitarian concerns, and the requirements of equality and non-discrimination are seriously under-respected in its terms. The omission in particular of any reference to the ECHR, or to our recently enacted European Convention on Human Rights Act, is a matter of concern.
Many of the grounds on which a non-national may be denied entry are vague and subjective. Section 4(3)(a) empowers immigration officers to refuse entry to non-nationals if "satisfied" they are not in a position to support themselves or their families, but it fails to outline the criteria by which they should make that assessment.
Section 4(3)(d) permits denial of entry to a person convicted of a crime in their country of origin but whose behaviour is not criminalised in Ireland. That could include human rights defenders and even victims of repressive regimes, such as Aung San Suu Kyi and Vaclav Havel.
The confusion exhibited by the Department of Justice surrounding Section 4(3)(c) is illustrative of our concerns about the manner of the Bill's adoption. The Bill first allowed denial of entry to a non-national "suffering" from "a prescribed . . . disability". The version passed by the Seanad last week provided that a non-national may be denied entry if he/she "suffers from a prescribed . . . mental disorder". The Government then tabled an amendment that the non-national must suffer from a "profound mental disturbance", offering little to redeem this provision.
There is no mention of what medical treatment that person would be afforded. Without such treatment, any proposal to direct someone who meets this definition back on to an airplane or ship would be alarming. Further, an immigration officer need only be "satisfied" that the person is experiencing the "disturbance" in question - there is no requirement of an evaluation by a mental health practitioner. The visitor could be your 16-year-old Australian niece who has a sudden psychotic episode, which can happen to someone with schizophrenia, and immigration officers will be cast in the role of psychiatric experts.
The provision as it stands conveys an outdated, inaccurate and offensive impression of the nature of mental illness.
These are just a few of the serious problems inherent in this Bill. Amnesty International recognises that states are, of course, entitled to control immigration and entry to their territory, but this should always be based on a careful balance of security and control on the one hand and immigrants' rights on the other.
This Bill is no substitute for a reasonable and considered immigration law or policy. It is no answer to the perceived need to enact immediate immigration controls to rush through this piece of outdated and seriously defective legislation.
The parliamentary scrutiny to which this Bill should have been exposed has been injudiciously curtailed. The timeframe for its enactment has precluded proper analysis and input from the Irish Human Rights Commission, NGOs and civil society.
Opposition to the substance and legislative schedule for the Bill has been voiced from many diverse quarters, but the Government has ploughed ahead regardless. Is this an indication of the Immigration and Residency Bill that is to come?