The current body of immigration and protection legislation is contained in a number of pieces of legislation, both primary and secondary, including:
The Aliens Act 1935;
The Aliens Order 1946 with its many amendments by subsequent Aliens orders;
The Refugee Act 1996 (significantly amended by the Immigration Acts 1999 and 2003);
The Immigration Act 1999;
The Illegal Immigrants (Trafficking) Act 2000;
The Immigration Act 2003;
The Immigration Act 2004.
It has been clear for some time that the basis for immigration law in Ireland, the Aliens Act 1935, is not suitable for the needs of the modern Ireland, now a country of net inward migration. Recent legislation has gone some way towards modernising certain aspects of immigration law, but these have of necessity been stop-gap measures generally, brought forward to address specific aspects of immigration that needed an urgent legislative response. The Government is now embarked on a root-and-branch replacement of the present law with a view to putting in place a modern legislative framework for managing migration that will:
enable policies to be made and modified as needs require;
provide a fair and transparent set of procedures for the day-to-day implementation of those policies; and
ensure that the State’s immigration system complies with our international obligations in this area.
B – STATEMENT OF OBJECTIVES
The approach taken in the development of the draft Scheme to date has been to produce a legislative framework which is forward-looking and which will provide flexibility for the Minister in managing migration to Ireland in the future. Key objectives underpinning the Scheme include:
replacement of a pre-Constitution statute and several recent, and in some cases much amended, Acts since 1996 with one comprehensive and integrated statutory framework for dealing with the entry to and residence in the State of non-nationals;
provision of a fair, transparent and flexible statutory framework for managing Ireland’s expected need for large-scale inward migration for the foreseeable future;
setting out of clear processes for dealing with all aspects of immigration and residence, from visas to long-term residence permits or removal from the State, and including protection applications;
provision of a new framework for consideration of applications for protection wherein applicants for protection in the State will have all aspects of their desire to remain in the State considered in a single procedure;
provision of a means for clear and accessible statements of the policy framework against which individual applications are decided;
maximization of the efficiency and flexibility of the resources currently available to deal with migration issues in the Department;
overcoming the significant deficiencies in the current legislative framework (e.g. in the lengthy and duplicative asylum process).
C – IDENTIFICATION OF OPTIONS/CHOICES
Option 1: Do nothing. The “do nothing” option is primarily being included for benchmarking purposes. To take no action would mean the retention of a statutory framework which is clearly unsuitable.
Option 2: Amend the existing legislation to make it more suitable for the needs of the State. This option is not being pursued as it would further complicate the existing body of legislation and, by retaining legislation which pre-dates the Constitution on the statute books, would not be in line with the process of regulatory reform to which the Government committed itself in the 2004 White Paper 'Regulating Better'. Furthermore, it would not provide the coherent and interlocking body of legislation which is required to address the State’s current and future migration management needs.
Option 3: Amend the Refugee Act to provide a separate body of legislation dealing with protection matters. This option is not being pursued as it would be inconsistent with the introduction of a single procedure for considering applications to remain in the State on protection and other grounds. The introduction of such a procedure will necessitate the functions currently carried out by the Refugee Applications Commissioner being re-absorbed into the Department as the discretionary aspects of applications to remain in the State, being Executive powers of the Minister, cannot be delegated to an independent statutory body. In the circumstances, the extent of amendment needed to the Refugee Act is such that it is more sensible to repeal that Act and make provision for protection claims in the Scheme.
Option 4: Repeal all of the existing legislation and replace it with a single comprehensive piece of legislation which will deal with all aspects of migration to the State (including protection). This is the option being pursued.
D – IDENTIFICATION OF COSTS AND BENEFITS
Option 1 entails no direct costs but has no benefits.
Option 2 gives rise to some costs (e.g. staff training; information costs - publicising the new legislation in many languages and costs associated with changes to existing IT systems). It also gives rise to some savings on the amount at present expended on the support and maintenance of asylum-seekers and failed asylum-seekers awaiting decisions on their cases. It would not, however, provide the modern forward-looking body of legislation which is needed to enable the Minister to properly manage migration into the State; nor would it provide the Irish Naturalisation and Immigration Service (INIS) of the Department of Justice, Equality and Law Reform with a basis on which it can operate to its optimum level in terms of provision of services and maximisation of resources.
Option 3 would have the same costs and savings implications as for option 2. However, it would not provide for a coherent body of legislation dealing with all aspects of migration to the State to the same extent as option 4 and, in that context, would not give rise to the same possibilities for efficiencies of process as option 4.
Option 4 would have the same costs as option 2. However, it also gives rise to greater savings than at option 2; provides the modern forward-looking body of legislation which is needed to enable the Minister to properly manage migration into the State; and provides the INIS with a basis on which it can operate to its optimum level in terms of provision of services and maximisation of resources. This option, like options 2 and 3, will result in no additional staffing or funding requirements overall; however, it provides better potential for continuing and enhancing control of costs in the immigration and asylum area than option 2.
E – IMPACTS OF THE SCHEME AS PROPOSED
Impact on national competitiveness
The Scheme will impact positively on national competitiveness. The enhanced tools provided for in the Scheme for the management of lawful migration to the State and of migrants within the State are expected to diminish the scope for “black economy” employment and thus free up opportunities for those lawfully in the State, whether Irish, EU or third-country nationals, to participate in the labour market. In particular, the proposals in the Scheme for long-term residence permits are likely to make Ireland a considerably more attractive destination for skilled, short-supply and specialist workers and their families. The increased attractiveness of Ireland as a destination for skilled workers and their families will be in aid of industry directly in that it will improve recruitment prospects, and indirectly in enhancing the general skill levels of the labour force.
Impact on socially excluded or vulnerable groups
By reducing the scope for illegal immigration and illegal presence of non-nationals in the State, the Scheme will minimise the possibilities for the development of an easily exploitable underclass in the black economy. The enhanced pre-clearance processes envisaged for all longer-term migrants to the State (including those from countries not traditionally subject to a visa pre-clearance process) will help to minimise the admission to the State of those likely to fall into poverty. The shorter periods for processing of protection applications to finality will reduce the duration of presence in the State of protection claimants (generally considered to be persons without means). In addition, the Scheme maintains existing safeguards for certain vulnerable groups, e.g. minors.
Impact on the rights of citizens
There will be no impact on the rights of citizens. The proposals take account of the Common Travel Area arrangements that exist between Ireland and the UK and the expectation that those arrangements will continue for the foreseeable future.
There are no environmental impacts arising from the Scheme.
Significant policy change in an economic market/impact on consumers and competition
A new requirement to maintain registers of non-nationals (Head 71) is being introduced on business and educational establishments. This will give rise to (e.g.) better regulation of service providers in the English language training sector of the economy. This provision will not impose a high compliance burden on the business or educational sector – it is a necessary tool of immigration control arising from (e.g.) large scale abuse of the student visa system to gain entry to the State for economic migration purposes.
Marriage of non-nationals
The Scheme (Head 67) provides a mechanism which is intended to combat marriages of convenience which are being increasingly availed of to avoid removal from the State. ECHR jurisprudence expressly permits the introduction of legislation to prevent marriages of convenience entered into for the purpose of avoiding immigration controls. Notification and residence conditions will be imposed on non-nationals who seek to contract a marriage thereby ensuring that they are lawfully resident in the State at the time of the marriage.
F – CONSULTATION
The development of the Scheme follows the publication of a discussion document – Immigration and Residence in Ireland; outline policy proposals for an Immigration and Residence Bill – in April 2005, to which a sizeable and generally positive public response was received. The discussion document not only invited comment on the form that the legislation might take, but also focused on the development of immigration policies to meet the challenges facing Ireland as a country of net inward migration with a thriving and dynamic market economy.
During the preparation and drafting of the discussion document, Immigration and Residence in Ireland, in the latter half of 2004 and the beginning of 2005, there were extensive consultations with Government Departments. The consultations focused on the general immigration policy proposals being developed for the discussion document as well as the specific implications of immigration for the remit of other Departments. Government Departments were presented with a further opportunity to input into the document and its policy implications when the document was brought before Government for approval in April 2005.
In addition, all Government Departments were consulted in the context of a screening Regulatory Impact Analysis document.
It is also intended that, subject to Government approval, the Scheme will be published and transmitted to the Human Rights Commission for observations.
G – ENFORCEMENT AND COMPLIANCE
The INIS will be responsible for ensuring that the provisions of the Scheme are properly enforced and complied with. It is also developing statements of immigration policy to be introduced in advance of the enactment of the Scheme.
F – REVIEW
The operation of the Scheme will be kept under review by INIS.
Summary paragraph for Memorandum of Government:
“Regulatory Impact Analysis
A screening Regulatory Impact Analysis has been carried out in respect of the proposed Regulations. As no significant costs or adverse impacts arise, it is not proposed to carry out a full RIA“