The Law Society's approach to the immigration Bill is based on balancing competing interests, writes Carol Coulter, Legal Affairs Editor
THE LAW Society's 57 recommendations for changes in the Immigration, Residence and Protection Bill represent a proposal for a root-and-branch reworking of the most significant piece of legislation in this area for many decades.
The Bill's aim was to "restate and modify" current law relating both to immigration and refugees, and according to the Law Society the correct balance between the competing interests involved in these two areas of law has not been attained.
Dealing first with the law in relation to immigration, it recommends that there should be provision for irregular foreign nationals to regulate their situation.
This should include a 90-day period to seek permission to remain in Ireland after the expiry of the original authorisation.
It also recommends more balanced and proportionate measures than detention of those illegally present, and for detention to be in specific centres where it is unavoidable.
It states that summary deportation is inconsistent with fair procedures, and calls for the retention of the existing well-established procedures for deportation under the 1999 Immigration Act.
An independent immigration appeals tribunal should be set up to hear appeals from those refused entry, or refused the renewal of residence. The criteria for the refusal of a visa should be laid down in primary legislation, and the discretion of the Minister to refuse entry in non-protection matters should be exercised in a fair and transparent manner, it states.
The right to family reunification should be specified in the primary legislation, and the time taken to process such applications should not be more than six months.
Referring to separated children, it states that the best interests of the child principle should be set out in the legislation. The definition of a separated child should also be spelt out, in accordance with the statement of best practice in the document, Separated Children in Europe. No child under 18 should be detained under any circumstances, and immigration officers should be trained to recognise children at risk.
Referring to refugee law, the Law Society states that this area of law raises very serious human rights considerations, particularly the right to non-refoulement (the non-expulsion of persons who have the right to be recognised as refugees). It also expresses concern about ensuring clarity and easy access to legal provisions for both legal practitioners and the vulnerable groups addressed in the Bill.
Best practice guidelines in relation to the conduct of interviews should be adopted, and all those involved in this adequately trained. The definition of family for family reunification should be extended to include non-marital partners and close family members, with a right to emergency family reunification where the family members are facing danger. The time limits for an appeal of a decision should be extended to at least 20 working days.
It states there should be no need to detain a protection applicant pending the issuing of a protection permit, and the State should ensure there were adequate resources so that it was practicable to issue such a permit at all times.
Referring to the Protection Review Tribunal, it states that its rules, guidelines, procedures and decisions should be available to the public. Rules drawn up by the chairperson relating to its operation should be laid before the Oireachtas, and all its members should be appointed by the Commission for Public Service Appointments.
It proposes that it sit in panels of three, like the Employment Appeals Tribunal, with all members having recognised expertise in protection and human rights law and the conduct of examinations at the time of their appointment.
In dealing with the victims of trafficking, the Law Society states that the Bill should extend the recovery and reflection period to 90 days to allow the victim to make an informed and reasoned choice. Victims should also be given temporary protection irrespective of whether they continue to assist the Garda.
In relation to judicial reviews, it says that time within which they can be brought should be extended to at least 20 working days.