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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
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
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
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
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
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
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
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
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…