McDowell's heads of bill

national | racism & migration related issues | opinion/analysis Wednesday September 27, 2006 11:46 by Kimmage Red - not affiliated kimmagered at gmail dot com Kimmage, Dublin

Michael McDowell, not content with criminalising children, turns to discretionary power and biometrics

In another vainglorious attempt to misuse electronics to exclude, the newly-erected Tánaiste intends to make it an offence of the State to be a non-EU national without good reason to be in Ireland. Non-EU nationals, including one might assume North Americans, New Zealanders and those sexy Brazilian dancers - you know, good migrants? - will be asked to prove that they have good reason to be shopping in Carroll's O'Connell Bridge. In other words, the burden of proof that one is not a ‘foreign national’ lies on the individual.

The Department on Justice has published a Scheme for an Immigration, Residence and Protection Bill, with the assent of the cabinet (who thereby have collective responsibility for its content) and it contains 84 Heads. IThe published text has not yet been placed in the form of a Bill before the Oireachtas. It is Mick's intention to bring this file forward with all speed. The document must have received Cabinet assent last week and can assume that it will have been the subject of a Memorandum to the Government. All relevant Government departments presumably have given their preliminary observations.

The 84 heads are organised into eight sections

1. Preliminary
2. General principles
3. Visas
4. Entry into the State
5. Residence permits and registration requirements
6. Removal from the State
7. Protection
8. General

This legislation is proposed to replace all existing legislation on immigration, residence, and asylum and refugee matters. There is, however, no section on integration, although it is referred to in passing.

Briefly, Head 2 preserves the Government’s discretionary executive authority to make any decision it chooses in any matter, more or less irrespective of the provisions of the text. .

In Head 4 a foreign national can only be in the State if s/he has permission to be there. Not to have such permission is an offence and s/he must remove themselves or be removed. The burden of proof that one is not a ‘foreign national’ lies on the individual. This raises the spectre of identity checks based on skin colour and a de facto requirement that anyone who is, say, Irish and Black, would have to carry ID to prove that they were not ‘foreign nationals’. (Kevin Myers (yes, I know) has observed that in order to prove that one is not a 'foreign national' one would also have to carry ID, i.e. the rest of 'the protected'.)

In Head 5 statements of policy from time to time (‘immigration policy statements’) are provided for, but the Government’s right to made discretionary executive decisions, irrespective of the terms of such general policy statements, is again preserved.

In Head 6 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.

In Head 13, the Minister may revoke a visa if he is satisfied that the presence of the person to whom the visa was issued would not, in the opinion of the Minister, be conducive to the common good. Moreover, the Minister may withhold relevant information in the interests of public security, public policy or public health or where such information has come from another government. If US Intelligence, for instance, was to identify a named individual as a threat to security, would the Irish Government simply follow suit?

In Head 17 provision is made for an unaccompanied minor to be referred to the HSE. The HSE is also given the power of decision as to whether an unaccompanied minor may or may not apply for asylum. Provision is made for the taking of biometric data and any refusal to cooperate with Garda and immigration authorities is an offence.

Head 18 provides, inter alia, that a person applying for asylum may be detained or required to live in a particular place where it is not ‘practicable’ for the immigration officer to issue a protection temporary residence permit. Let's see, Thornton Hall anyone?

Head 25 concerns a category entitled ‘long-term residence’ but it is clear from the text that this will normally be for only 5 years (renewable). There is no provision for permanent residence (other than citizenship). Moreover, criteria include ‘such other requirements as may be prescribed [including a requirement that the person is fully tax compliant, can demonstrate a reasonable competence for communicating in the English/Irish language, has made reasonable efforts to integrate into Irish society etc]’. Again, no definition of integration is offered, nor are ‘reasonable efforts’ defined.

Head 31 sets out details of the appeal procedure against a decision taken under the previous head. Only 15 working days are allowed and considerations of public policy and public security as well as the ‘common good’ may be regarded as relevant by the Minister.

Head 32 provides, among other things, that a long-term resident refugee whose residence permit is being revoked may have up to 3 months to put their affairs in the State in order. However, where ‘in the opinion of the Minister, it would not be in the interest of public security or public policy (“ordre public”) to allow the person concerned an additional period of three months’ this will not apply.

That's enough for now, read more at: http://www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6TDJ3...V-en/$File/Scheme.pdf#search=%22immigration%20residency%20protection%20bill%22