Introduction to the Immigration, Residence and Protection Bill 2008

The Immigration, Residence and Protection Bill 2008 which is presently before the Dail Select Committee on Justice, Equality and Law Reform and not all of the numerous proposed amendments have been considered.  The Bill will replace the Refugee Act, 1996 and the Immigration Acts, 1999-2004. Whereas the Bill is quite comprehensive in its objectives as far as the issues of immigration and residence are concerned, the Bill is much more far reaching and comprehensive than anything contained in the Immigration Acts, 1999-2004.

In relation to the two areas of immigration and residence contained in the Bill and which are dealt with below, the Bill in essence details how and in what manner applications for visas and for permission to enter and remain in the State should be determined, as well as detailing the proposed procedures involved and which are dealt with under the headings below.

Permission to enter the State

In so far as the general position of foreign nationals is concerned this echoes the position of Section 4 of the 2004 Act and provides that a non-national present in the State without the permission of the Minister is for all intents and purposes unlawfully in the State. There are powers in the Bill for the removal of an unlawful foreign national in the State and there is no need to give notice of removal which is quite draconian and possibly open to abuse if implemented in its present form.  In addition such persons are not entitled to State subsidies other that essential medical treatment where there are no means to pay.

Visas:

Generally the provisions in relation to applications for visas are similar to what currently exist. Foreign nationals are obliged to make application for a visa before entering the State. The Minister may also prescribe that a visa application be accompanied by a deposit or a bond by an Irish citizen or a citizen of a Member State of the European Union or the holder of a long term residence permit. In relation to an appeal of the refusal of a visa this is now being put on a statutory basis.

Entry Permission (leave to land)

Part 4 of the Bill is similar to the provisions of Section 4 of the Immigration Act 2004 and seeks to regulate entry of every foreign national into the State with the exception of a national of the United Kingdom who has traveled directly form Great Britain, Northern Ireland, The Channel Islands or the Isle of Man to be in possession of a travel document when landing in the State and to apply for permission to be in the State. An Immigration officer may examine a foreign national for the purposes to determining if they should be given permission to enter the State. A foreign national who indicates he or she wishes to make a protection application in the State must be given permission to enter the State however the Immigration officer is still entitled after examination to come to a decision as to whether or not permission should be granted. The grounds upon which an entry of permission may be refused are set out in Clause 27 of the Bill.

The main differences to the old "leave to land" which was granted under Section 4 of the Immigration Act 2004 is that the entry permission is only a short term permission and must be replaced by a residence permission if the foreign national is to stay longer than the permission obtained on entry. Secondly an entry permit issued to a foreign national must state whether the holder is eligible to apply for a residence permission, and where this permission is silent as to the eligibility to apply for a residence permission, the holder will not be entitled to make such an application.

Residence Permissions

(a). right to apply

Under Part 5 of the Bill there must be a statement on an entry permit that the holder is eligible to apply for permission to reside in the State, and secondly that the application made must be by the applicant in person at an immigration area office for the immigration area in which the applicant's dwelling place is located. In addition there are powers of the immigration officers to attach conditions to refuse or revoke the renewal of residence permission

In determining what matters need to be taken into consideration the Minister can have regard to all of the circumstances of the foreign national which are both known to him or represented to him by the foreign national concerned including his or her  conduct or the conduct of any member of his or her family in connection with immigration and connected with the foreign national's purpose for being in the State that in the opinion of the Minister indicates that any requirement imposed on a foreign national in respect of his or her entry into or presence in the State is unlikely to be complied with.

(b). renewing a residence permission.

The Bill provides that residence permissions cannot be renewed unless the residence permission in the first instance is expressed to be renewable. There are also limits imposed in making an application to renew and which must be made within prescribed time limits and which are prescribed in clause 32(6) of the act. If the application is made on the prescribed form and with the prescribed fee not later that 21 days before the initial residence permission expired the Minister is then obliged to renew it. If the deadline to renew is missed the Minister is not obliged to consider the application to renew but may exercise discretion to renew it. If the application to renew is not renewed before the expiry of three months after the residence permission the application is treated as non-renewable and the holder has then no permission to remain in the State.


(c).
long-term residence permission

Subject to the provisions in clause 36(4) long-term residence permission may be granted to foreign nationals who meet the standard eligibility requirements which are as follows.

a. That the foreign national has been lawfully resident in the State for periods totaling at least 5 out of the 6 years prior to the date of application for a long- term residence permission.

b.
that the foreign national is of good characterc. that the foreign national is: -

(i) in compliance with his or her obligations in relation to the payment or remittance of any taxes, interest or penalties required to be paid or remitted by law and the delivery of any return required to be delivered by law(ii) can demonstrate in such a manner as maybe prescribed a reasonable competence for communicating in the Irish or English language.

(iii) has satisfied the Minister in such a manner as may be prescribed that he or she has made reasonable efforts to integrate into Irish society.

(iv) has, during his or her presence in the State being supporting himself or herself and any dependents without recourse to such publicly funded services as are prescribed.

The importance of the long-term residence is that it gives the person the right of travel into or out of the State as an Irish citizen so that there is not need to apply for entry permission on each entry or re-entry in the State. In addition it allows the holder to enter employment education and training and to avail of medical care services in the same manner as any other Irish citizen and this entitlement applies also to the foreign national's dependents who are lawfully resident in the State.

In some cases a person who does not satisfy the 5 out of 6 year rule can make application for qualified long-term residence permission.

d. review of a refusal to renew.

There is no obligation on the Minister to renew a residence permission which is stated to be renewable, but there is a provision for review of the decision not to review it under clause 56.

e. making non-return orders.

Persons whose permission has been revoked or expired will be required to:

(i) leave the State or, having left it to stay away and
(ii) to remain outside the State for such period as is specified in the non-return order.

Removal

Clause 54 (1) provides that where an immigration officer or member of the Garda Siochana is satisfied that a foreign national in unlawfully present in the State or at a frontier of the State the officer or member may remove the foreign national from the State. Along side this provision clause 55 provides for a general power of arrest and detention for the purposes of removing a foreign national.


Under clause 55(9)

“Where a foreign national detained under this section is a party to any proceedings the High Court may, on application to it and on being satisfied that it is for the purposes of proceedings in the interest of justice that the foreign national continue to be present in the State order the release from detention of the foreign national”

It would appear that this provision is an attempt to restrict the entitlement of a conditional release to circumstances where the proper conduct of the proceedings require the foreign national to be present in the State in circumstances for example where he might have to give evidence.

By way of general conclusion the Immigration, Residence and Protection Bill, 2008 is designed to implement a system to assist applications for only those persons who fall within the framework of the legislation in respect of long-term residence permission.  However the bill as presently drafted is far from being perfect, and there are a lot of proposed features which could operate in an unjust manner, in particular the power of removal without any prior notice to a foreign national, which if implemented as things stand, may result in even more litigation before the Courts, which the Bill has set out to avoid and or restrict.

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