NEW RULES FOR THE NEW IRISH: IMMIGRATION, RESIDENCE AND PROTECTION BILL 2007

1. NEW RULES FOR THE NEW IRISH: IMMIGRATION, RESIDENCE AND PROTECTION BILL 2007 Should we trust the State? Piaras Mac Éinrí DEPARTMENT OF GEOGRAPHY UNIVERSITY COLLEGE CORK

2. should we trust the state? The case for • Laws are draconian but merely reflect terms of existing texts going back to 1935. In reality they have been much modified by custom and practice. There is no reason to believe this will change • Civil servants are reasonable people • Ministers and politicians are reasonable people • Jurisprudence and caselaw have advanced • Human rights protections have been enhanced

3. should we trust the state? The case against? • Peter Berry; Ireland’s attitude to Jews • Hungarians in 1956 • Shannon ‘jumpers’ in the 1980s • The Home Office’s Black Book • The Common Travel Area: how independent is Irish policy? Reality of Common Travel Area Agreement with UK has meant that close, sometimes secretive cooperation with Britain has been a defining feature of Irish policy. Examples: Direct Provision and dispersal; Schengen; habitual residence; treatment of Romanians and Bulgarians • Cover-ups of official policy mistakes, too numerous to mention • A culture (cult?) of secrecy

4. should we trust the state? • Scrutiny and accountability are fundamental tenets of modern good governance • Over the years there have been few far-reaching debates in the Oireachtas on immigration-related matters. By and large management has been through administrative fiat, not generally subject to review by the Oireachtas or courts. Minister and her/his civil servants have been free to act without substantive accountability • Over-riding principle of ministerial discretion maintained in a virtually untramelled form

5. should we trust the state? • Is the proposed Immigration Policy Statement a function of the Executive or the Oireachtas? If the former, why? • Proportionality is a key principle in application of laws designed to catch wrongdoers. Example: proposed ‘marriage bar’ is designed to address a real problem but also deprives everyone else of their rights in so doing • Scrutiny and accountability fundamental to modern good governance

6. a modern ethos? • Earlier texts reflect earlier times. There is now an opportunity to design an immigration policy which is in tune with current ideas about openness, good governance and human rights and which is also a policy of enlightened self-interest for a county which needs immigrants • Other Government departments have adopted a new and more open ethos – Foreign Affairs, Health and Children, Social and Family Affairs… • It is hard to see how some provisions of the text would not lead to de facto ethnic profiling and racialisation of policy e.g. new Irish who belong to ethnic minorities might have to carry ID in order to show that they were not legally obliged to carry an ID – a manifest absurdity

7. a few specific issues • Lack of permanence for all except those who become naturalised citizens. Naturalisation is not open to everyone and is in any event discretionary • The potential criminalisation of individuals accused of helping in the committing of certain offences e.g. arrangements for marriage • No definition of integration although it is referred to • No provisions on family reunification • In the case of minors about to be expelled, parents, guardians and others acting in loco parentis, who are considered to have obstructed or refused to cooperate with officials, will themselves be considered to have committed an offence. Moreover, someone who is suspected of such non-cooperation may be arrested without warrant. • Marriage confers no right of residence

8. a few good things • Consistency in decision making is provided for – reference must be made to relevant immigration policy statements. But individual decisions which rely on ‘public order’ can depart from such statements and the Minister may make such decisions in any particular case where s/he thinks it is in the public interest to do so. • Better protection is afforded to children • The Immigration Policy Statement at least represents a step towards transparency

9. towards good governance • People affected by policy decisions have a right to be consulted and informed about issues and decisions that affect their lives • In civil society we should seek to engage with and empower all members of society • There should be public accountability for decisions and actions in all but the most exceptional and extraordinary circumstances • People should have a right to know of what they are being accused and a right to appeal • Human rights are indivisible; they must not be ‘balanced’ against other principles • Do unto others…