Racial Stereotypes in Family Reunification Law: the case of Biao v. Denmark before the European Court of Human Rights

Dr Fulvia Staiano, former Irish Research Council Post-Doctoral fellow, CCJHR, School of Law, University College Cork

On 24 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) identified an instance of indirect discrimination in the case of Biao v. Denmark. The case concerned the exclusion from family reunification of the applicants – a Danish citizen of Togolese origin and his Ghanaian citizen wife – on the grounds that they satisfied neither the so-called “attachment requirement” nor they fell within the scope of the “28-year rule”. As to the first, pursuant the 2000 Dutch Aliens Act only couples whose aggregate ties with Denmark are stronger than those with any other country may obtain a residence permit for the purpose of family reunification. The 28-year rule, however, exempts from such a requirement couples where one of the partners has been a Danish national for at least 28 years, or is a non-Danish citizen who was born and/or raised in Denmark and has lawfully resided there for at least 28 years.

Before the ECtHR, the applicants argued that the Danish family reunification regime generated indirect discrimination on the grounds of race and ethnic origin. They submitted that the majority of people who have been Danish citizens since birth are ethnically Danish, while those who acquire Danish citizenship later in life are more likely to be of other ethnic origin. Therefore, in their view the 28-year rule did not pursue a legitimate aim, and in any case it lacked a legitimate justification. The second section of the Chamber had not been receptive to this line of argumentation, choosing to frame the case merely as one of differential treatment between persons who had been Danish nationals for more than 28 years and persons who had been so for less than 28 years. The Grand Chamber, on the other hand, established that the core question posed by Biao was whether the 28-years rule amounted to indirect discrimination on the grounds of race and ethnic origin.

The ECtHR first assessed the existence of a disparate impact of the rules at issue on Danish citizens of non-Danish ethnic origin. Despite the unavailability of statistics on the allegedly disproportional prejudicial effect of the 28-year rule on this group, it established that it could be reasonably assumed that Danish citizens born and raised in Denmark would be of Danish ethnic origin – while those who acquired citizenship later in life would be of foreign ethnic origin. Thus, the 28-year rule indirectly favoured the former.

The ECtHR then moved on to consider the existence of a legitimate aim, considering that the burden of proof had shifted to the Government and that very weighty reasons would have to be put forward to justify the identified indirect discrimination. The ECtHR observed that the aim of the 28-year rule – as emerging from its preparatory works – was to allow Danish expatriates to return to Denmark and obtain family reunification there. Moreover, the extension of the attachment requirement to Danish citizens was justified in the preparatory works as a way to foster the integration of those among them who were originally of foreign extraction. In the Government’s view, indeed, the latter showed a tendency to marry persons from their country of origin, and this in turn allegedly hampered their integration. Recalling its landmark judgment of Konstantin Markin v. Russia, the ECtHR rejected such justifications as stereotypical. These biased assumptions therefore could not justify the difference in treatment at the disadvantaged of naturalised Danish citizens. Since it was not possible to identify other very weighty reasons unrelated to race and ethnic origin, the ECtHR recognised a breach of Art. 14 in conjunction with Art. 8 ECHR.

The Biao judgment constitutes an important deviation from the traditional reticence of the ECtHR to identify and reject stereotypical justification on the grounds of race and ethnicity within migration law. This feature was already observable in Abdulaziz, Cabales and Balkandali v. the United Kingdom, where the imposition of stricter conditions to obtain leave to remain in the United Kingdom exclusively to non-patrials was considered not “racist in character”. In the ECtHR’s view, the disparate impact of such norms on certain ethnic groups was simply due to the fact that “among those wishing to immigrate, some ethnic groups outnumbered others”.

In the case at issue, on the other hand, the ECtHR recognised the discriminatory character of racial stereotypes, arguing that the latter may not justify differential treatment. This type of reasoning is well established in the ECtHR jurisprudence in respect to gender stereotypes and sex discrimination (Marckx v. Belgium, the abovementioned Konstantin Markin, Vrountou v. Cyprus), but its application to race discrimination is a welcome novelty.

The effects of the Biao judgment on the Danish 28-years rule remain to be seen. Both concurring and dissenting opinions accompanying the decision highlighted the risk that the exemption from the general attachment requirement will be eliminated altogether. The possibility of further restrictions to the right to family reunification in Danish law in response to this judgment appears plausible. However, the principles established in Biao constitute an important limitation to the discretionary power of Council of Europe State Parties to grant preferential treatment to those born on their territory (as outlined from Abdulaziz onwards). The newly found awareness of the ECtHR that such differentiations can produce a disparate impact on the grounds of race and ethnic origin is a significant dent to this tenet.

Dr Fulvia Staiano’s recent book is now available: The Human Rights of Migrant Women in International and European Law (2016)


The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.

Migration and Regularisation in Poland by Alan Desmond

CCJHR blog is pleased to be able to cross post this blog by Alan Desmond with Human Rights in Ireland.  Alan is writing a PhD here at UCC, under the supervision of Professor Siobhán Mullally, on the regularisation of undocumented migrants in international and European Human Rights Law. Alan is a Government of Ireland Research Scholar in the Humanities and Social Sciences.

The immigration to Poland from the east which followed the collapse of communism in 1989 and the fall of the Soviet Union in 1991, coupled with EU accession negotiations in the 1990s, forced Poland to try to put in place a framework to deal with immigration. One of the methods employed in the field of irregular immigration was to implement regularisation or legalisation programmes, a process whereby unlawfully present non-EU citizens can apply for a legal status.

 Despite the dim view of regularisation taken by the Council of the European Union and the European Commission which emphasise instead enhancing border control and returning irregular immigrants to their countries of origin or transit, most EU Member States have implemented regularisation measures of one sort or another. Poland’s third regularisation programme, underway since 1 January, looks set to succeed where the country’s first two attempts at regularisation failed.

The 2003 and 2007 Regularisations

Poland’s first attempt at regularisation was carried out in 2003 in anticipation of its accession to the EU in May 2004, with the second regularisation programme coming in 2007 ahead of Polish membership of the Schengen zone.

Both attempts were abjectly ineffective. This was due to overly-restrictive eligibility criteria, failure to publicise the programmes amongst the target group and the understandable reluctance of immigrants without a legal status to present themselves to the authorities.

In order to successfully apply for regularisation in 2003 the Polish authorities had to be satisfied that applicants did not pose a threat to national security or public order, with irregular immigrants having to submit proof of, amongst other things, almost 7 years’ continuous residence in Poland; medical coverage and sufficient resources to support themselves without recourse to social welfare; a promise of work; and legal title to residential accommodation. The 2007 regularisation programme was even more restrictive.

While the 2003 programme facilitated regularisation of about 2000 immigrants, the 2007 programme yielded less than 1000 successful applications.

Those who acquired a legal status under both programmes were given a one-year residence permit and were drawn primarily from the most well-organised immigrant groups in Poland, namely the Armenian and Vietnamese communities. While Ukrainians constitute the largest irregular immigrant community in Poland, they ranked third in terms of successful applications.

Given that Poland’s irregular population is estimated by the government to be between 40, 000 and 100, 000, with NGOs putting the figure at 100, 000 – 500, 000, Poland’s first two attempts at regularisation were wholly unsuccessful.

The 2012 Regularisation

It is perhaps unsurprising, then, that a third regularisation programme was deemed necessary. Providing a legal status to immigrants allows them to emerge from the shadows of illegality where exploitation is rife. Freed from the fear of deportation which blights the lives of irregular immigrants the world over, regularisation empowers them to demand respect for their rights. Indeed States will sometimes be required to provide a legal status to irregular immigrants so as to comply with their human rights obligations. The right to respect for private and family life recognised in Article 8 of the European Convention on Human Rights is one example of a human right which has been found to oblige a State to regularise the status of an irregular immigrant.

While agitation by civil society and immigrants themselves played an important part in the introduction of a third regularisation programme in Poland, politicians seem to have proposed the relevant legislation not so much out of an awareness of human rights obligations as out of a realisation that the country’s dynamic economy, coupled with large-scale emigration of Polish citizens, has produced a demand for labour.

Thus from 1 January until 2 July an application for regularisation may be lodged by unlawfully present immigrants who have been continuously resident in Poland since 20 December 2007 and by asylum-seekers whose application for refugee status was refused prior to 1 January 2010.

Successful applicants will be granted a two-year residence permit which will also entitle them to work without a work permit, though the legislation provides that these two years may not be counted as part of the period of continuous legal residence which is required before an immigrant can apply for EU long-term residence status.

In contrast to the stringent requirements of the first two regularisation programmes, the current programme precludes regularisation only where applicants are found to be a threat to national security or public order; to have submitted false documents or information as part of their applications; to have been entered into the Schengen Information System by another Schengen country for the purposes of refusing entry.

The current regularisation programme is thus far more applicant-friendly than the earlier ones and its less restrictive eligibility criteria mean that it is open to a far wider pool of Poland’s irregular immigrant population than was the case in 2003 and 2007.

Little surprise, then, that the first eight weeks of the programme have seen 3377 applications submitted to the regional authorities in each of Poland’s 16 administrative regions, more than half of the combined total of applications submitted during the 2003 and 2007 botched attempts at regularisation. A negative decision at the regional level may be appealed to the Office for Foreigners.

The scale of the response no doubt reflects the government information campaign and media coverage, but with just 303 positive decisions issued so far it remains to be seen whether increased awareness and more favourable eligibility criteria will in fact translate into an appreciably larger number of regularised immigrants than Poland’s previous efforts to provide legal status for unlawfully present non-EU citizens.

Furthermore, despite the comparative generosity of the current regularisation programme, it fails to deal with irregular immigrants who arrived in Poland after the magic date of 20 December 2007. Are they to await the country’s fourth regularisation programme four years from now? Would the implementation of such a regularisation programme be contingent on propitious economic circumstances? To avoid uncertainty and unfairness it might be wise to follow the advice of people such as Joseph Carens who has argued that rather than having recourse to one-off amnesties, liberal democratic States should institutionalise an automatic transition to legal status for irregular immigrants who have been settled for a specified minimum length of time. Just how much time should have to pass before an irregular immigrant gains legal status is of course fertile ground for disagreement and, as Carens admits, a question whose answer inevitably involves an element of arbitrariness.

Detailed, regularly updated information on Poland’s third regularisation programme is provided in a number of languages at http://abolicja.gov.pl

Irregular migration in the EU

This blog post was submitted by PhD candidate Alan Desmond, who is reading for a PhD under the supervision of Dr. Siobhán Mullally

A number of recent studies throw new light on the phenomenon of irregular migration in the EU. Project Clandestino – Undocumented Migration: Counting the Uncountable Data and Trends Across Europe, funded by the European Commission, has found that there are fewer irregular migrants in the EU than previously assumed. While the European Commission had estimated that up to 8 million foreign nationals were residing in its territory without a right to legal residence, a detailed review of the situation in the Member States has led Clandestino researchers to estimate that the range is more likely between 2.8 and 6 million. Both figures were calculated for the year 2005. Flow trends indicate that irregular residence has since declined further. Clandestino makes the important distinction between irregular residence and irregular work with the phenomenon of irregular work by regular residents becoming more relevant in recent years with the growth of the EU and the rise in the number of EU citizens with the right to travel but not to work.

Project Clandestino includes a database which provides an inventory and a critical appraisal of data and estimates on irregular migration in the EU and in selected Member States as well as three transit countries (Morocco, Turkey and Ukraine).

In a series of research briefs and country reports, Project Clandestino highlights the pathways into and out of irregular status for migrants in the selected Member States. Ireland is not one of the countries included in the project but on the basis of Life in the Shadows, the excellent 2007 publication on irregular migration in Ireland from the Migrant Rights Centre Ireland (MRCI), it would seem that most irregular migrants in Ireland enter the country legally but subsequently become undocumented for a variety of reasons eg. overstaying visas.

Regularisation of Undocumented Migrants

One of the pathways out of irregularity identified by Project Clandestino is regularisation, a practice which is analysed in REGINE – Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU, also funded by the European Commission and conducted by the International Centre for Migration Policy Development (ICPMD).

The study, commissioned by the European Commission subsequent to its
Communication on policy priorities in the fight against illegal immigration of third-country nationals (2006), examines policies and attitudes to regularisation in all 27 Member States. It defines regularisation broadly as “any state procedure by which illegally staying third country nationals are awarded a legal status” but it recognises that actual practices are more complex than such a neat definition would suggest: not all procedures that have regularising effects are explicitly designed as regularisation measures.

The study found that some 5 million applications for regularisations were recorded between 1996 and 2008, while the actual number may be significantly larger and may lie at up to 6 million. Some 3.5 million persons have been regularised over the same period.

The analysis of regularisation measures in the 27 EU Member States reveals that the great majority of EU Member States currently use, or have used, some sort of regularisation measure in the recent past. This is interesting in light of growing EU opposition to regularisation which culminated in an effort to commit the EU to a ban on mass regularisations of irregular immigrants in the European Pact on Immigration and Asylum agreed in 2008 during the French Presidency of the EU. Inclusion of the proposed ban was dropped from the final draft at the insistence of the Spanish government with the Pact now committing the European Council “to use only case-by-case regularisation, rather than generalised regularisation, under national law, for humanitarian or economic reasons.”

Two Types of Regularisation identified by REGINE

The study distinguishes between two types of regularisation, namely, regularisation programmes and regularisation mechanisms.

Programmes are not part of the regular policy framework but rather are specific measures which run for a limited period of time and typically target specific categories of non-nationals in an irregular situation. They usually involve larger numbers of persons and frequently target employed irregular migrants, often in an attempt to clamp down on irregular employment more generally. Criteria for regularisations through programmes are on the whole relatively transparent and clearly defined. Among the most frequent criteria used are: residence in the country before a certain date, length of residence, proof of employment.

Mechanisms on the other hand are part of the regular migratory policy framework and are thus permanent measures. Criteria and procedures are often less well defined, leaving substantial room for administrative discretion. In contrast to programmes, permanent mechanisms typically are small-scale measures, regularising only relatively small numbers of irregular migrants and are focused largely on humanitarian cases. Over time, however, the number of persons regularised through mechanisms can be substantial and comparable with the number of persons regularised through programmes.

Regularisation in Ireland

In its profile of Ireland the REGINE study categorises as a regularisation programme the Irish Born Child Scheme (IBC/05 scheme) which was carried out in 2005 to deal with the many parents of Irish citizen children who were undocumented and who faced the prospect of being deported. The scheme allowed such parents to apply for permission to remain on the basis of their parentage of an Irish child born in the State before 1 January 2005, subject to certain criteria.

The study notes that “there was no clear legislative basis for the introduction of the “IBC/05” scheme – it forms part of the general provisions of Section 3 of the Immigration Act 1999.” The number of applicants was 17,900 of whom 16,693 were granted the status, which status was a temporary, renewable, permission to remain in Ireland with the right to work. 14, 101 persons applied for renewal with13,838 persons granted renewal.

On the basis of submissions made by the Immigrant Council of Ireland (ICI), the study categorises as a regularisation mechanism the practice in Ireland between 1996 and 2003 of granting non-national parents of Irish citizen children permission to remain in the State. This policy ended in February 2003 with 11,500 applications outstanding. It was in response to such applications that the IBC/05 scheme was introduced; the scheme also dealt with applications from persons who entered after February 2003 and before the Constitution was amended in 2005 to preclude the acquisition of citizenship by virtue of birth in the State alone.

Also categorisable as a regularisation mechanism according to the study is section 4 of the Immigration Act, 2004. It provides the Minister for Justice, Equality & Law Reform, or an immigration officer on his behalf, statutory discretion to give a non-Irish national permission to be in the State and to impose conditions on such permission in relation to engagement in employment or duration of stay as he deems fit. Section 4 vests the Minister with particular statutory functions that must be exercised by him or her. The exercise of these functions must be governed by the requirements of administrative law in relation to the exercise of discretionary powers. However, despite the clarity of this legislation, the Minister claims that he is not obliged to consider applications for residency made pursuant to section 4 in a situation where a person is in the country without permission and/or has made an unsuccessful application for refugee status. While the Minister claims not to be bound by section 4 of the 2004 Act there are many instances where the Minister has regularised migrants by granting them permission to remain, for example, based on marriage to an Irish national or being the parent of an Irish child.

A further regularisation mechanism provided for in Irish law is leave to remain pursuant to section 3 of the Immigration Act, 1999. This section provides that an immigrant in respect of whom a deportation order has been issued must be notified in writing of the Minister’s proposal to deport them and the reasons for their proposed deportation. Within fifteen working days from the date of the notification letter, these persons may make representations in writing to the Minister setting out the reasons why they should be allowed to remain in the State. The Minister then has the discretion not to deport a person but to offer him or her leave to remain.

REGINE’s identification of existing regularisation mechanisms in Irish law is timely given the forthcoming Immigration, Residence and Protection Bill (IRP Bill) which sets out a legislative framework for the management of inward migration to Ireland and lays down a number of principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa, for entry to the State, for residence in the State and for being required, when necessary, to leave.

The IRP Bill does not, however, include any regularisation mechanism. The ICI, in its Analysis of the IRP Bill 2008, expresses concern that the Bill effectively abolishes the regularisation mechanism provided for in the aforementioned section 3 of the Immigration Act, 1999 whereby the deportation of an immigrant must be notified to him or her and he or she must be given 15 working days to make submissions as to why he or she should not be removed from the State. On the basis of such submissions the Minister may grant leave to remain. Section 4(5) of the IRP Bill, however, allows for the summary deportation of unlawfully present immigrants as it provides that they “need not be given notice of a proposal to remove” them from the State.

The ICI expresses grave concern that the repeal of section 3 of the 1999 Act “may lead to the summary deportation of vulnerable migrants who may have become unlawfully resident in the State through no fault of their own.” It calls for an avenue to deal with and provide for persons in exceptional circumstances. Currently, the Bill allows the Minister no flexibility to deal with persons whose residence permits are non-renewable; who were not able to apply for a modification of their existing residence permit; who did not manage to apply for the renewal of their permit within the specified time period. Once classified as ‘unlawfully present’ a foreign national no longer has any possibility of regularising his or her status in the State.

The ICI believes that the Bill needs to make clear that discretion can be exercised to allow account to be taken of exceptional cases and provides the example of a woman resident in Ireland on the basis of a marriage to an Irish national who, as a result of domestic violence, no longer lives in the same household with her husband. In such circumstances she would need to apply for the modification of her residence permit in order to remain in the State. Where she has not done so within three months from the expiry of her current permit, the legislation as drafted does not allow for the renewal of her permit even if the reason for her failure to apply are threats made by her husband to have her deported if she went near the Gardaí.

Despite, or perhaps because of, the fact that the IRP Bill does not provide for an unlawfully resident non-national to regularise his or her status in the State, the Government agreed in September 2008 as part of the social partnership talks to set up a programme to regularise the status of undocumented migrant workers in Ireland who previously held work permits.

The move was characterised by the Irish Times as a significant U-turn by the Government, which previously signalled that any such move could provide an incentive for illegal immigration. It would appear now, however, that the U-turn manoeuvre may not be executed given reports earlier this year that the Government will not be introducing a “bridging visa” for migrants who had become undocumented through no fault of their own. This U-turn upon a U-turn is presumably due to the failure of social partnership talks in February. But whatever the reason, the result is the same: no possibility for unlawfully present non-nationals to regularise their status.

Finally, it is worth noting that one of the methods of data-gathering employed as part of the REGINE study was the distribution of a questionnaire to EU Member States. In relation to common EU actions and a standardised approach to regularisation, the official position of the Department of Justice, Equality and Law Reform (DJELR) is that the ministry has ‘no views’ on the subject. One hopes that this is not the official position of the DJELR on all common EU actions in the area of immigration.

Reactions to the Immigration, Residence and Protection Bill 2008

Yesterday, the Minister for Justice, Equality and Law Reform, Mr. Brian Lenihan T.D., introduced the Immigration, Residence and Protection Bill 2008. This Bill aims to consolidate Irish immigration and asylum legislation. In a press release explaining the rationale behind the Bill, Minister Lenihan stated that the aims of the Bill are inter alia to streamline the consideration of refugee and subsidiary protection applications; to prevent the abuse of the protection system by limiting appeal opportunities and restricting the right to judicial review. The Minister further noted that the Bill aims to regulate ‘regular migration’ into the State and to provide for a long term residence status to certain categories of migrants. Further to this, the Bill contains provisions on the removal of those who are not lawfully present in the State.

The 2008 Bill may be broken into nine Parts. Part 1 of the 2008 Bill deals with preliminary issues of commencement, interpretation and enforcement. Part 2 gives a definition of those who can be considered lawfully and unlawfully present, and prohibits those unlawfully within the State from accessing state services, unless there are exceptional circumstances. Part 3 of the Bill deals with issues relating to visas. Provisions dealing with entry into the State (Part 4), residence (Part 5) and removal from the State (Part 6) are also present in this Bill. Part 7 outlines the new procedures in place for the assessment of refugee and subsidiary protection applications are also in place. Further matters relating to the grant of refugee, subsidiary or other discretionary protection status are also outlined in the Bill. Part 7 further provides for the detention of certain protection applications, the issuing of protection permits and allows the Minister, after certain considerations are taken into account, to classify a country of origin or any other third country as ‘safe’. Part 8 makes further provisions, including allowing victims of trafficking a period of ‘reflection and recovery’, the extent of the powers of An Garda Siochána and Immigration Officers. The Bill also seeks to place restrictions on marriage for those who are foreign nationals. In addition, there are special and strict limits on judicial review including making legal representatives liable for costs where claims are regarded as ‘frivolous or vexatious’ by the High Court. Part 9 of the Bill deals with transitional provisions.

The reaction of political parties to the Bill is somewhat mixed. Coalition government partners, the Green Party welcomed the Bill. Fine Gael welcomed proposals to speed up the asylum process but were concerned with the continuing discriminatory effect the Bill would have in making it harder for Irish citizens to reside in Ireland with their non EU spouses. The Labour Party has criticised the large degree of discretion which the Bill places in the hands of the Minister for Justice. Sinn Fein raised concerns regarding the broad ministerial discretion within the Bill, family reunification and lack of regard to victims of trafficking.

The reaction of a number of relevant NGOs has been reported in the Irish Times [subscription required]. Denise Charlton of the Immigrant Council of Ireland has stated that the Bill fails to deal with the “delays in decision-making, inconsistent decisions [and] lack of clarity.” Such concerns were also raised by the Migrant Rights Centre Ireland. Both the ICI and MRCI also criticised the Bill for failing to provide a clear right of family reunion for migrants. Ken Murphy, Director General of the Law Society of Ireland has voiced concern over the provisions regarding the possible financial liability of legal representatives who bring immigration cases before the courts. Mr. Murphy noted how “Such a provision already exists in the rules of court. Its inclusion here is unnecessary and unjustified. It seems designed to discourage vulnerable people from fully exercising their right to the protection of the law.” Noeline Blackwell, Director of the Free Legal Advice Centres (FLAC), has criticised the emphasis on speed within the Bill and has stated that “[w]hile the Minister quite naturally wants to set up a fast, efficient immigration system, our concern is that a fair balance must be maintained between efficiency and rights”. FLAC further expressed concern for the restriction of access to the Courts and have highlighted the danger that “lawyers will be discouraged by the sheer weight of obstacles that impede access to the courts for immigrants.”

This post was submitted by PhD candidate, Liam Thornton.

President McAleese on Immigration

President Mary McAleese has delivered a speech to the Immigrant Council of Ireland, which highlights the need for integration of new communities while respecting cultural and ethnic diversity. In the speech the President notes the historical parallels with Irish emigration. She speaks of the need for inclusiveness and interaction with those immigrants who come to our shores, and for the need to break down the ‘us’ and ‘them’ mentality. The full speech by President McAleese may be accessed here.

This speech is particularly interesting in the context of the reform of our immigration laws by the Department of Justice, Equality and Law Reform. The Immigration, Residence and Protection Bill 2007, which lapsed upon the calling of the 2007 General Election outlined 21st century Ireland’s approach to the issue of migration and asylum. A new Bill seems likely to be brought forward within the New Year. There were a number of criticisms of the Scheme to the 2007 Bill from the Irish Refugee Council, Irish Human Rights Commission, CADIC and the CCJHR.

This post was contributed by PhD candidate, Liam Thornton