The absolute measure proposed in the amendment cuts both ways. What of the person who has one rather serious blot on his or her criminal record, but where extenuating circumstances exist which would make it perfectly reasonable to treat the person as nonetheless being of good character? A conviction for the manslaughter of a drunken or violent spouse where the court saw fit to impose no sentence or a suspended sentence might be such a case in point.
The thrust of my argument here is that the idea of attempting to give a statutory definition of "good character" is fine in theory, but when it comes to the business of drawing up the detail of that definition, as in the case of so many other well understood but ultimately indefinable legal concepts, the double danger always exists. The words used may exclude cases which should by any objective standard be included and may encompass cases which by the same objective standard should never be included.
As I have said earlier, the question of conferring citizenship on a non-national is ultimately a matter for the Executive arm of Government. The Legislature can quite properly set out guidelines for the exercise of Executive discretion. However, if the guidelines are overly defined they may well serve to bring about the opposite of what is intended to be achieved. The democratic processes involved in the choosing of the Executive arm of Government and the answerability of the Government both individually and collectively to Parliament are sufficient to ensure that discretion will be exercised in the interest of the common good. The determination of good character in the context of naturalisation applications from non-national spouses is best left in the same terms as in other naturalisation applications provided for under section 15 of the Citizenship Act, 1956 as re-stated in 1986, as a matter for the Minister to determine in each case.
Mr. Ryan: It came as no surprise when the Minister said she would not be accepting the amendment. I anticipated the argument about the offence being committed within the State. In that context it is a pity the Minister contradicts that later by citing the case of a person who might be refused citizenship because of a manslaughter charge involving a violent spouse but who might otherwise be entitled to citizenship. As the Minister said, such a person would have to be resident here for three years in any event, which would mean that the worst case scenario would be a delay of two years in a person's application in some cases. Instead of this we have an entirely arbitrary index which we will never be able to test as the Minister has said that the absolute discretion of the Executive means she does not have to tell us why citizenship is refused. The Minister can simply say "no" to an application.
I do not propose pressing the amendment. There are valid arguments in what the Minister said and I will examine the matter before next week.
Amendment, by leave, withdrawn.
Mr. Ryan: I move amendment No. 3b:
In page 6, before section 6, to insert the following new section:
6.--- A person who is the spouse of an Irish citizen or who was residing in the State at the time that he or she was the spouse of an Irish citizen but who is not an Irish citizen shall have the right to reside in the State.".
I am always happy to defer to the collective wisdom of a Department, the Attorney General and the Government on the detail of amendments and the Opposition should not spend time discussing amendments about errors or mistakes of detail. We do a good job in raising issues of policy and principle, and if there is agreement in principle the detail should be left to the parliamentary draftsman.
The Minister answered "yes" when I asked if the spouse of an Irish citizen is entitled as a right to reside in Ireland. If that is so, then let us at least reassure Irish people who marry non-nationals that their spouse has an unconditional right to reside in the State. The reservations which many of us have about this section would be considerably decreased if we were only arguing about citizenship, with an unquestionable right for the spouse of an Irish citizen to live in the State. This amendment states what I have been told is the current situation.
Dr. Henry: I support the amendment.
Ms Hanafin: The amendment is opposed. It seeks to enshrine in legislation an absolute and unqualified statutory right for a non-national to reside in the State simply because he or she is the spouse of an Irish citizen. As Senator Ryan said, there is in practical terms a virtually unqualified right for non-national spouses not just to reside here with their Irish partners, but to come and go more or less as they please because the practice is to issue such spouses with multi-entry visas which ensure that if they leave the State, whether in the company of the Irish spouse, there will be no difficulty about re-entering it. This is analogous to the situation of the non-EU spouse of an EU national working here in pursuance of his or her Treaty rights. I say virtually unqualified because, in the cases of the non-national spouse of the Irish citizens or the non-EU spouse of the EU national, there remains the consideration of national security and public policy. The EU directive covering the position of the non-EU spouse specifically provides for such a limitation on the right of residence in an EU state. The advice available to me is that there is an analogous limitation on the position of the spouse of an Irish national.
I refer to the significant case in this jurisdiction regarding the position of non-national family members of an Irish citizen to remain in the State, the 1991 Supreme Court case of Fajujonu. The parents, both non-nationals, of an Irish-born minor child sought to remain in the State on the basis that their child, as an Irish citizen, was entitled to remain in the State; that they, as parents and guardians of the child, were entitled to make that choice on the child's behalf; and that the child was entitled to enjoy the care and companionship of its parents and guardians. The Supreme Court, in finding in favour of the parents in this case, made it clear that their right to remain in the State was not unqualified. There was a balance to be struck between the undoubted rights of the child on the one hand and considerations of the common good on the other. The court confirmed that the Minister could require the parents in this case to leave the State "...if, after due consideration, he is satisfied that the interests of the common good and the protection of the State and its society justifies an interference with...a constitutional right."
The constitutional right is that of the child to the company and care of its parents not, as the judgment emphasised, any right of the parents to remain in the State. The considerations outlined in that judgment are that the non-national parents have resided for an appreciable time in the State and are members of a family unit containing children who are citizens. The practical effect of the decision is that in most cases the Minister permits the non-national parents of an Irish child to remain because the contra-indications set out by the court are not present.
How do these principles apply in the case of a non-national spouse of an Irish citizen? A family without children is a family within the meaning of the Constitution. It has also been determined by case law - the case of Bouzagou in 1985 - that a non-national estranged from the Irish citizen spouse and the subject of a barring order could not claim Article 41 rights. In consequence, it appears that the right of the non-national spouse to remain in the State with the Irish citizen spouse is not absolute and is subject to the interests of the common good and the protection of the State and its society and considerations as to the nature of the relationship between the spouses. That is a properly tenable position.
I refer back to the example given on an earlier amendment. There would be a strong public policy dimension to the position of a person, such as Arkan, married to an Irish citizen. The fact of marriage should not automatically give an internationally recognised villain the unqualified right to remain here. The same logic applies to less extreme examples where there is an issue of the protection of society and the interests of the common good. These are considerations which apply not just in this but in other jurisdictions.
The Minister previously adverted to the work in hand in the Department on the development of a comprehensive set of legislative proposals to replace the Aliens Act, 1935, with a modern code of immigration and residence law attuned to the needs of today's society and in keeping with best human rights practice. He hopes to bring forward a scheme of proposals for a Bill to Government towards the middle of this year. The proposal in the Senator's amendment is properly a matter for consideration in that context rather than in this Bill, which deals not with immigration and residence matters as such, the acquisition of citizenship.
Mr. Ryan: On this side of the House we listen to the arguments and decide whether we will pursue an issue, but on the other side, unfortunately, Members have their minds made up before we start. I agree with the Minister of State that the amendment would be more appropriately dealt with in progressive immigration legislation. I am aware that the Minister wishes to remove phrases such as "aliens", etc.. Every time my 14 year old son hears a reference to the Aliens Act he draws all sorts of interesting conclusion about his father's interests in it, as he is a fan of "The X-Files", among other programmes.
Mr. O'Donovan: He might be right.
Mr. Ryan: I am quite happy with that but I am tired of constant reference to Arkan. The Department could provide a better and more universally applicable example. The Minister of State said that the exceptions to the norm essentially only occur when the common good and fundamental issues of public policy arise. I look forward to the publication of the Bill to replace the Aliens Act. I do not propose to press the amendment.
Amendment, by leave, withdrawn.
SECTION 6.
Mr. Ryan: I move amendment No. 4:
In page 6, lines 18 to 44, to delete subsection (1).
My intention is to deal with some of the more contentious issues. I do not expect the Minister of State to accept the amendment but I wanted to ensure that we discussed the more mean minded aspect of this proposal. The section deals with the calculation of the period of residence. The more objectionable element is in the proposed section 16A(1)(b) which states:
"...no period shall be reckoned in respect of which the non-national - ...
(ii) had permission to remain under that Act for the purpose of -
(I) study...or,
(II) seeking to be recognised as a refugee..."
An individual goes through our rigorous procedures for evaluating whether people are entitled to refugee status and has it granted. Under the Geneva Convention this individual has a legitimate reason to fear persecution. He or she lives here while his or her case is pursued. He or she is then granted refugee status and the entire rigmarole starts all over again because even if it takes three or four years to process the application, as is currently the case, he or she is told that he or she must start back at year 0 and the years are counted a second time in order to process his or her citizenship application. Why is that the case?
I accept that there is a case to be made for somebody who has been refused refugee status to have it granted on compassionate grounds. However, we are saying that those who are granted refugee status under the terms of the Geneva Convention, which means that we accept that if they were resident in their native country they would be persecuted, will not have the time they were present in the country applying for refugee status included in their citizenship applications. That is the issue which I raise in the amendment.
I do not regard myself to be in competition with the parliamentary draftspeople. I table amendments in order to raise issues and if issues are agreed the legislation can be further refined on Report Stage. I have neither the resources nor the inclination to try to second guess the well-paid lawyers in the Attorney General's office whose job it is to write legislation. The principal point is that, first, it is mean minded in dealing with applicants for refugee status and, second, it excludes study periods. It is a legitimate activity to come here to study. Our universities made quite a tidy sum from people who came here to study medicine in particular; we could discuss that for some time. Some of these people are desperately needed because we cannot persuade Irish hospital doctors to remain in Ireland. If we did not have non-national and indeed non-EU doctors available to work in our hospitals we would have an even more serious crisis in the health services. Even though these people have studied, say, medicine here, we are now telling them that if they apply for citizenship the period during which they lived here as a student will not count.
I know the Minister will say that other countries do it this way and we should do the same, that there is no precedent for doing it the other way and that this is our attempt to define this area. They are insufficient reasons for not doing something. Reasons are put together by examining the arguments for and against, explaining them to us and then putting together a synthesis of those arguments explaining why the Government took a decision in one direction or another. The Minister will note I am saying "Government" because I do not want to fall out with the Department of Justice, Equality and Law Reform any more than I have done already. There is no reason to exclude refugees. Despite the fact that they have been working here we are now saying that does not count. The ethos behind this measure is the same obstructionist ethos that is behind many of our attitudes to immigrants and to non-nationals - to make the process awkward and slow and to retain absolute discretion within a profoundly unaccountable Department.
Dr. Henry: I ask the Minister of State to consider accepting this amendment. The section dealing with those who have applied for and obtained refugee status is niggardly because they now have to start the whole process again. There is something very wrong about recognising a person who came here because of circumstances in their country of birth which made it imperative for their own safety and then, before they can acquire citizenship, asking them to start the residency requirements procedure again.
Regarding the section on study, this is an area in which we are cutting off our nose to spite our face. I speak from the point of view of those who may have come here to study medicine and, in particular, post graduates. Those people will be employed during this time. We are facing a very serious situation in our hospitals. I am sure the Minister of State is aware that some accident and emergency units are 40% undermanned. The circumstances are so bad in some of our rural hospitals that we have to take anybody who applies for a job. We already have a problem in that people who apply to come here are given visas for six years only, but most training courses run for seven years. One of the carrots attracting people to this country is that if a person works here, even in a post graduate capacity, they could be considered for citizenship after seven or eight years, but that will no longer be the case. These people may have taken up positions in our rural hospitals where they are vital to the maintenance of services, yet they will be excluded now from counting that time for residency purposes. This is an area in which we will lose more than the people who apply for citizenship.
Ms Hanafin: Senator Ryan predicted what I am about to say so he will not be surprised when I say the amendment is opposed. Having been very unpredictable as a backbencher, I hope I will not become too predictable as a Minister. The amendment is opposed because it seeks to delete from the Bill the substance of section 6 which deals with what is to be understood by residence in the State for the purposes of meeting the conditions of naturalisation.
Section 6 inserts a new section 16A into the 1956 Act which provides that when periods of residence are being calculated for the purposes of an application for naturalisation, account will be taken only of those periods of residence which were in compliance with immigration laws and regulations and which were not for temporary purposes. The aim of this provision is to clarify for applicants the periods of residence in the State that will and will not be reckoned.
Rather than go through all the details of the section I will refer only to the sections raised by Senators Ryan and Henry, particularly paragraph (b)(ii) of subsection (1) which states that permission to remain, given for certain temporary purposes, will not reckon for naturalisation purposes. These temporary purposes are study, including study periods which involve an element of paid work experience, and temporary permission to enter and stay in the State while awaiting a decision on an asylum claim.
There are good reasons such periods should be excluded. In the case of a person coming to the State to pursue studies, the duration of his or her permission to remain is limited to the length of the study course, taking on board what Senator Henry said about the six or seven years. The person can have no expectation that by coming to the State for a limited period, his or her time here will reckon for naturalisation purposes. A person admitted as a student is, by definition, here for the limited period of duration of the course of study and should not have an expectation of being able to acquire citizenship on the strength of such a stay or of having that stay reckonable towards qualifying for citizenship. A student comes here for the primary purpose of obtaining a qualification, with perhaps an element of work experience, and then to return home where that qualification can be put to good use in his or her own community.
Were periods of study taken into account for naturalisation purposes, it could have a number of undesirable effects. Many students who come here are sponsored by their own governments or by our overseas aid programme; that is particularly so in the case of students from less developed countries. The purpose of their coming here is to develop skills and knowledge which can then be usefully applied to assist in the development of their own countries. It would clearly be a disincentive to many such students to return to their home countries were they in a position to seek citizenship on the basis of their time here as students and clearly contradictory in policy terms.
Senator Ryan spoke particularly about people seeking refugee status. Periods in the State where a person is seeking refugee status will also not reckon for the purposes of naturalisation. Under section 9(3)(a) of the Refugee Act, 1996, due to be implemented shortly, an applicant for refugee status is to be given a temporary residence certificate. Under the current arrangements for dealing with asylum seekers, an applicant is allowed to remain in the State on a temporary basis pending the outcome of the application. In either case, the basis for the stay in the State is temporary only, and an asylum applicant can have no expectation of being able to acquire citizenship on the basis of that temporary stay.
Until the consideration of the asylum claim has been finally completed, whether under the current UNHCR approved procedures or, soon, under the Refugee Act, it is not possible to determine what the applicant's status will be. He or she may be recognised as a refugee, may fail to be recognised as a refugee and be required to leave the State, or may fail to be recognised as a refugee and be permitted to remain on other grounds, including grounds which may have no bearing on the asylum claim.
It is important to stress that an asylum applicant is admitted to the State for the purpose of determining whether he or she qualifies for recognition as a refugee, but the fact that a person is admitted for this purpose cannot guarantee the right to reside indefinitely in the State or to seek citizenship of the State. The person's status is determined by the outcome of his or her application. Where a person is recognised as a refugee, there is power in the existing citizenship laws to provide a waiver from the normal naturalisation provisions for the person concerned. Where a person is recognised as a refugee the Minister may exercise his or her powers under section 16(g) of the 1986 Act to grant a certificate of naturalisation where all the conditions of naturalisation are not met. In practice, this option is often exercised by the Minister in his or her discretion agreeing to accept applications for naturalisation after three years residence in the State rather than the normal residence requirements of one year's continuous residence in the State immediately prior to the application and four years residence in the eight years prior to that period. This is only proper and can greatly assist the integration of refugees into Irish society.
This is the first time that rules for the calculation of periods of residence for meeting the residence requirement have been set out in statute. It will provide clarity for future applicants by removing doubt as to what periods do and do not qualify. In addition, the position regarding residence permits and permission to remain will provide a useful additional incentive to non-nationals to comply with Irish immigration and residence requirements.
Mr. Ryan: Elements of the Minister's reply deserve serious debate. To suggest that one of the reasons for this provision is an altruistic concern for the state of developing countries is pushing credulity a little far. If the Minister wants to pursue this line of argument, then we should say we will not allow them to take up employment here when they are qualified. If we are concerned about such people, sponsored by their Governments to come here to acquire skills and return home, then the logical consequence is to say that they must leave the country when they are qualified, irrespective of labour shortages. We will not do that. Once such people obtain high level qualifications, be they medical, technical etc., pressures will be brought to bear by health boards and multinationals to allow them to remain here because the economy needs them. We will permit them to remain. The argument that we are concerned about the disincentive effect is not real. If we were consistent we would say people who come to Ireland under such conditions must take the first plane home after they qualify. The Minister's argument carries no weight.
The real issue, as the Minister said, is that people come here with no certainty of their future and because this economy needs them they get a job. They are then told they can live here, pay taxes and meet all other conditions, but when it comes to citizenship we will not start counting their period of residence until after they are qualified, even though they are making a contribution to the development of Irish society. Their contribution, based on their studies here, is only measured from the period they took up employment.
In most cases such people are paying full economic fees for their studies. We are not producing large numbers of generous overseas development scholarships. These people pay for their education. It is a commercial arrangement, they pay the full economic cost. The education sector makes money while they are studying here. When they qualify we tell them they cannot go home because we desperately need them to man our accident and emergency services and country hospitals. When they do agree to remain we tell them they cannot apply for citizenship. There is no logic to this argument. We have had up to six years to observe the behaviour of such people. We know they are of good character. The Garda Síochana will know all about them because they will probably have been signing on every month for the past six years. The Garda know more about such people than they do about our citizens because of the degree of routine contact which must be made. We suddenly get mean-minded about our citizenship.
The Minister laid great emphasis on the fact that people who apply for refugee status are given temporary residence. There is nothing else they could be given. Nobody - even I in my liberal position - is suggesting that everybody who applies for political asylum should be given permanent status. The Minister feels the system is very fair, though the former member of the Appeals Board did not share his view. It is a rigorous system which turns down about 80 per cent of applicants on first hearing. A victim of persecution - a fact confirmed by institutions of this State - has an unqualified right to live and work here under the Geneva Convention and has a right not to be discriminated against on any matter. Once afforded refugee status such people must be treated as citizens in all matters, yet we tell them they cannot apply for citizenship. Why? We know all about them. We have given them the right to reside here. We are not dealing with the floodgates argument again. We are talking about people who meet, in my view, the quite narrow criteria of the Geneva Convention, yet we will not give them citizenship. Why? Do we want to maintain discrimination? Ireland is trying to develop a multicultural ethos. We will have to liberalise our immigration laws. A person who comes here from Romania and does not apply for refugee status could, having lived here for a short time, qualify for naturalisation before the victim of persecution. That is turning logic on its head.
I do not propose to pursue the amendment, which is badly drafted. I will return to it when we come to dealing with the section.
Dr. Henry: I hope the Minister of State will take into account my tales of fresh disasters. The Medical Council has decided that some of our rural hospitals' teaching standards are not up to those required for post-graduate teaching. They have decided not to recognise some of these hospitals as places of study for people doing post-graduate surgical or medical work. However, these hospitals are so desperate to recruit people that they will take on people from non-EU countries whom we are most grateful to have. There are advertisements in the medical press for posts which have not been filled since the beginning of January. We have warned of this shortage of staff for about three years. Will those people who take up posts in unrecognised hospitals be in a better position than those who take up posts in recognised ones? Their training and work in recognised hospitals will be considered part of study. Those who are in hospitals of a lower calibre will be in a position to have their residency in the country recognised for naturalisation. This is an extraordinary position. It would be better for hospitals to downgrade. It would be better for them to close their libraries and economise by not taking any more medical journals and have their hospitals downgraded. The people they employ would then have their time recognised for naturalisation. Perhaps the Minister of State would clarify this.
Ms Hanafin: With regard to Senator Henry's point and the shortage of doctors, she will know better than I that the Medical Council insistS on a qualifying examination but issue temporary licences. In this context the immigration authorities offer every facility to people who wish to come here to study medicine. The point she raised about where they do their work experience is a relevant one. It would be grossly unfair if one group of people could qualify while another group would not. I will inquire from the Department of Health and Children about the situation and report back to the Senator.
I hope Senator Ryan will not attach too much significance to the provisions for refugees in the Act. I will repeat what I said earlier and refer to section 16 which provides that the Minister can waive some of the conditions in relation to residency. In practice he does that on a liberal basis. Previous Minister have also done it. That waiver might cover some of the issues raised by the Senator.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill."
Mr. Ryan: There is a strange thing about all of our attitudes to foreigners. I say "our" and include myself in that. We are prepared to provide concessionary rights so that the Minister can apply a waiver. I do not know if he sees what is underlying this provision. He can waive it in some circumstances, and often does, but he does not always waive it. In this section the Minister is attempting to second guess the procedures we have set up to judge whether people are entitled to refugee status and still keep some people waiting because they are not as deserving as others. Therefore, they are not all the same any more. They are all supposed to be refugees under the Geneva Convention but some of them will be allowed a waiver in terms of the time element of qualification to apply for naturalisation. They have all gone through the same procedure and their cases have been adjudicated upon in the same way. What will happen now? The 6 per cent to 10 per cent of people who get through on their first application may be allowed benefit from a shortcut. The people who go through the appeals procedure, which is not under the Department's control and which we have been assured is independent, will have to wait longer because they are not considered to be quite as good as the cases approved by the Department after the initial hearing. I do not know if this will happen but I do know that we now have two peculiar provisions. One section of the 1956 Act provides that the period a person has to wait for their claim to be processed cannot be counted. Yet another section states that if the Minister thinks otherwise it does not have to be like that. What is the logic of legislation like that? It all comes back to a catalogue of provisions that are supposed to be rights or conditions, but most of them are not. They are things we aspire to but if they do not suit us we will not use them. Some of them are positive while others are not. That is not the way to run the law.
The Department has run into trouble with the courts for attempting to make laws without going through the Houses of the Oireachtas. Remember it was the courts which told the Department that it could not keep asylum seekers locked up in jail while it processed their claims. The Department did not understand even that basic principle. One of the refugees fleeing from the consequences of Tiananmen Square spent 18 months in Mountjoy Prison until the courts decided that that was an inhuman way to treat anyone. I thought it was obvious that it was inhuman.
We cannot keep making laws and inserting little sub-clauses which mean that it does not happen like that. The phrase "absolute discretion" riddles our law. We now have a stated condition that a person cannot use the time they had to wait for a decision on refugee status but if the Minister thinks otherwise they can. That is not the way to make law. It is also not the way we should make law.
Question put and agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
Government amendment No. 5:
In page 8, to delete lines 13 to 15, and substitute the following new subsection:
"(3) Section 2(a)(iii) and (d) and section 3 of this Act shall be deemed to have come into operation on the 2nd day of December, 1999, being the day of the making of the declaration by the Government under Article 29.7.3° of the Constitution.".
Amendment agreed to.
Government amendment No. 6:
In page 8, subsection (4), line 16, to delete "section 3" and substitute "section 2(a)(iii) and section 3".
Amendment agreed to.
Section 9, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Acting Chairman (Mr. R. Kiely): When is it proposed to take Report Stage?
Mr. O'Donovan: Next Wednesday.
Acting Chairman: Is that agreed? Agreed.
Sitting suspended at 5.20 p.m. until 6 p.m.
