Immigration and Residency in Ireland

Thanks are due to both Cathryn Costello, Director of the Irish Centre for European Law and especially Hilkka Becker, Rechtsanwältin with Stewart & Co. for their helpful and constructive comments on this paper. Thanks also, to Breda Naughtan from the Reception and Integration Agency for supplying me with information to write this paper.

List of Figures

Suggested Reading

Appendices

Introduction

Historically Ireland has not received any significant migration inflows. This is on account of it being in the past a poor peripheral European State with no traditional colonial ties to countries in the developing world/Majority world. In reality, Ireland is a country that has been scarred by economic deprivation and a long history of emigration that extends back to Famine times. There have been a small number of Jewish refugees who fled to Ireland in the nineteenth and early twentieth century, but their entry and presence was regrettably and severely restricted.[1] Up until recently the only immigration that has been experienced by modern Ireland consisted of small controlled refugee movements, and the settlement of now established minorities such as the Italian and Chinese communities.

The first two refugee groups to arrive in Ireland were the Hungarians and Chileans under unilateral agreements with the UN. In 1956, 530 Hungarians were accommodated in a disused army camp outside Limerick. Life in the camp was grim which resulted in the residents going on hunger strike and leaving for Canada once the opportunity arose.[2] The Chilean exodus of 1973 saw the admission of 120 refugees, many of whom returned home as soon as they got the chance. Then 212 Vietnamese ‘boat people’ came to Ireland in 1979 and it has now become one of the biggest Asian communities with 824.[3]

In 1985, 26 Iranian Baha’is were permitted to settle. Then in 1992, 770 Bosnians soon followed. Many were medical evacuees and were housed in hostels and Cherry Orchard (a former nurses’ home). Certainly the treatment the Bosnians received was considerably better than any of the previous groups. The principal reason for this is that the responsibility for programme refugees moved from the Department of Defence to Department of Foreign Affairs. The latter set up the Refugee Agency in 1991 which was mandated to settle and support programme refugees. The Bosnian population has now expanded through natural increase and family reunification to roughly 1,200.[4]

A very different Ireland has emerged in the 1990s, and with it, the end of large-scale emigration. In the period 1995-2000, approximately a quarter of a million persons migrated to Ireland, of whom about half were returning Irish and the rest, either other Europeans or Americans. The ‘Celtic boom’ together with other factors has brought about this dramatic change. Ireland, while still deeply class-ridden society,[5] enjoys one of the highest GDP growth rates and lowest unemployment ratios in Europe. The creation of more jobs and a higher international profile has meant that this growth has not gone unnoticed.

The asylum seeking phenomenon

MacÉinrí (2001) states that asylum seekers constitute 10% of all foreign immigrants to Ireland since 1995. But what is an asylum seeker? An asylum seeker is a person who arrives independently in the State and asks to be recognised as a refugee under the 1951 Geneva Convention relating to the Status of Refugees and the 1967 Protocol. According to Article 1(2) the Convention and the Protocol, a refugee is a person who:

The Refugee Convention was formally adopted on 28 July 1951, and forms the foundation of the international legal system designed to offer protection to people who have to flee their countries because of persecution or conflict. The Convention also established a framework of basic refugee rights such as the right to identity documents, access to courts, the right to work and to education. It was initially devised to afford protection to refugees uprooted after the Second World War in Europe and was limited historically to events before 1951. The 1967 Protocol removed these limitations to extend protection to refugees outside Europe and uprooted due to events after 1951. It has now become the first global treaty providing protection to refugees and there are currently 141 states that are party to it and/or the 1967 Protocol.

The term asylum seeker is a legal category recognised under international law. Ireland signed and ratified the Geneva Convention in 1956 and the Protocol in 1968. However, neither was enacted into Irish domestic law in full until November 2000. The numbers seeking protection in the early 1990s in Ireland have been negligible.

From the above figure, we can see that in 1992 Ireland only received 39 applications for asylum, this figure steadily rose to 424 in 1995 and then to 1,179 in 1996. However, applications have been either doubling or tripling since then. Last year, Ireland received 10,936 with an average of 1,000 applications being lodged with the Department of Justice, Equality and Law Reform a month. This new occurrence has given rise to much debate in Irish society and has challenged service providers and policy planners from the outset. While these statistics are in stark contrast to Ireland’s previous experience. However, when considered in a European context it is apparent that this growth in numbers is part of an overall trend throughout Western Europe that has been discernible since the 1980s.[6]

This new trend in Europe, the asylum phenomena, is due to a range of interdependent variables. Before the early 1980s the number of asylum-seekers arriving in Western European remained fairly stable at fewer than 100,000 annually. In the late 1970s and the 1980s the demand for labour was diminishing and European countries that had been involved in the importation of cheap labour from outside Europe, no longer required any new workers. Moreover, the Communist bloc collapsed prompting many to believe that massive numbers of people would flood into Europe - this did not happen. Both factors contributed to a period of intergovernmental co-operation and the curtailment of immigration. Economic migrants now had to use other routes to enter Europe, the asylum process being one of them, and they were able to make use of existing social networks to do so. Indeed, in the case of Ireland in the absence of an American-style based transparent immigration policy, has meant in practice that, some proportion of asylum seekers would more correctly be described as economic migrants.[7]

Other factors relate to the features of globalisation. The declining cost of international air travel together with increased accessibility to industrialised nations, their promotion abroad and the dissemination of information technology. In addition, the tightening of immigration controls in Europe has given rise to an extremely lucrative business – professional human trafficking. Trafficking involves the transit of people through illegal channels with the intention of entering a state and evading its immigration laws. Left with no alternative, refugees and would-be economic migrants alike have used these channels to enter the industrialised nations of the north. Finally, let us not forget that the rising figures are also a reflection of social and political instability in many refugee producing countries and the polarisation and poverty that many are forced to endure.[8]

Clearly we can see that the growth in asylum seeking is just one symptom of the rapid and massive change Irish society is undergoing, and its increasing ‘connectedness’ with the global economy.

Objective of document

The objective of this document is to: (a) outline the different forms of legal residency categories there are in Ireland and types of citizenship there are available to non-European Economic Area nationals in Ireland; (b) delineate the social and economic rights that pertain to each and (c) state what documentation individuals should possess if they belong to one of these categories. Finally, statistics are included where possible.

1. European Union nationals

1.1 Definition

Initially, the free movement of workers was provided for by Article 39 (formerly Art. 48) of the EC Treaty. Thereafter, the Single European Act 1986 ensured a greater awareness of the social needs of workers crossing international European boundaries. However, European Citizenship was finally established with the agreement of the Treaty on European Union (TEU). Article 8(1) affirms that every person holding the nationality of a member state is a citizen of the union. The European Union (EU) consists of the following states: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Ireland, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom.

1.2 Statistics

There are no reliable statistics readily available on the number of EU nationals in the State for two reasons. Firstly, not all EU nationals inform the Department of Justice, Equality and Law Reform of their presence in the State, as they are not obliged to. Secondly, the last census did not ask about nationality or ethnicity. [9]

1.3 Social and economic rights

One of the main guiding principles of the EU system is that rights are provided for and granted primarily to citizens of each member state. Barrett (2000) maintains that the primary beneficiaries of Community law are EU citizens who due to their activities (they have travelled to another Member State in search of work) have brought themselves directly within the scope of Community law. For example, under articles 48-60 of the EU Treaty, individuals who are workers have the right to seek employment and work in any another Member State. Article (7) 2 affirms that they are entitled to the same ‘social and tax advantages’ as national workers i.e. they have the same right to social welfare payments if they have paid PRSI equivalents in their home country. However, they could conceivably be required to return home after a certain period of time, if they have not found employment. In addition, people who have worked and paid PRSI equivalents in their home country would be paid directly by that country on the basis that they are looking for employment here. Again, this would not be allowed for very long periods of time as the freedom of movement generally relates to workers.

Article 7(3) of Regulation 1612/68/EEC assures equal treatment for EU nationals in regard to education and training. Therefore, EU nationals have the right to attend any educational institution in Ireland and be charged the same fee rate as an Irish national. Furthermore, while the area of maintenance grants is less regulated by the Union, EU nationals are entitled to maintenance grants from their local authority or Vocational Educational Committee (VEC) providing they have satisfied certain residency requirements.

Article 9 of the same Regulation guarantees workers equal treatment in regard to housing i.e. they can be put on local authority housing lists.

Workers have the right to have their dependent family members reside with them in another Member State. Entry rights are provided for them by Directive 68/360. Article 10 of Regulation 1612/68 outlines who can join the migrant worker. They include:

The rights of spouses will be discussed in section 9 and the rights of children will be discussed in section 19.

Article 12 provides for equal treatment with respect to general education between the children of EU migrants and the children of EU nationals in the host state.

The free movements of workers can only be prevented through Article 39(3) if it was warranted on grounds of “public policy, public security or public health”.

1.4 Documentation

EU nationals should have: a birth certificate, an EU passport or an identity document from their country of origin.

2. European Economic Area (EEA) Nationals

2.1 Definition

Under the Agreement on the European Economic Area (EEA) 1992 and Protocol 1993, EEA nationals enjoy the freedom of movement between member states. The EEA includes all the EU states with the addition of Liechtenstein, Iceland and Norway. Hailbronner (2000) asserts that the EEA Agreement nearly equates the legal situation of nationals from aforementioned three countries with EU citizens.

2.2 Statistics

Again there are no accurate statistics available for the reasons outlined above in 1.2.

2.3 Social and economic rights

EAA nationals have the right to move between signatory states and take up employment and reside. There are a number of EU Directives in place, which govern workers’ health and safety as well as gender equality. But generally EEA nationals would have the same social and economic rights as Irish nationals, particularly with regard to the freedom of movement and establishment and so on.

Married spouses of EEA citizens that are non-EEA nationals do not have the same rights as their EEA spouses. In practice however, as long as the EEA citizen is in employment or self-employed, she or he would be treated like a married Irish national thus extending her/his rights with regard to pensions, taxation, health care etc. to her/his spouse. Also, a number of Directives provide for example the right to family reunification with dependent family members to married spouses of EEA nationals.

The spouse of an EEA national has the right to take up employment throughout the territory of the host State, which means that the requirement of cohabitation does not apply as long as the marriage can be considered subsisting.

2.4 Documentation

3. Convention Refugee

3.1 Definition

"membership of a particular social group” includes membership of a trade union and also includes membership of a groups of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation.

3.2 Statistics

Figure 2: Number of applicants recognised as refugees at first instance 1992-2000.[10]
Source: Department of Justice, Equality and Law Reform.

Figure 3: Substantive Asylum Appeals – by year of first stage applications to 17/11/00
Source: Refugee Appeals Tribunal

3.3 Social and economic rights

According to Section 3 (1) of the Refugee Act 1996 (as amended) refugees are entitled to seek and enter employment, to carry out a business, trade or profession and to have access to education[11] and training in the State in the like manner and to the like extent in all respects as an Irish citizen. Moreover, they have the right to family reunification.[12]

In addition, they are entitled to receive, upon and subject to the terms and conditions applicable to Irish citizens, the same medical care and services and the same social welfare benefits as those to which Irish citizens are entitled.

It is important to note that refugees have the right to language provision, support and job preparation, which is provided for by Integrate Ireland[13] and the Vocational Education Committee’s (VEC’s).

3.4 Documentation

Convention refugees will have a letter from the Department of Justice, Equality and Law Reform[14] granting them refugee status and on this basis they will be issued with a Certificate of Registration or Residence Permit.[15] They may also have what is called a Convention Travel Document, which they have in place of a passport.

4. Programme Refugees

4.1 Definition

a person to whom leave to enter and remain in the State for temporary protection or resettlement as part of a group of persons has been given by the Government ….. whether or not such person is a refugee within the meaning of the definition of “refugee” in section 2.

These are persons who are invited to Ireland by the Government usually in response to a humanitarian crisis and at the request of the United Nations High Commissioner for Refugees (UNHCR).

4.2 Statistics

Figure 4: No. of Programme Refugees in Ireland – December 2000 [16]
Source: Refugee Agency

4.3 Social and economic rights

Programme refugees have the same rights as Convention refugees as outlined in Section 3 of the Refugee Act while they remain in the State.

4.4 Documentation

Programme refugees will have a letter of reference from the Reception and Integration Agency[17] stating that they are a programme refugee. On the basis of this they will be issued with a Residence Permit. They are also entitled to a Travel Document.

5. Asylum Seekers

5.1 Definition

An asylum seeker is a person who arrives spontaneously in the State and asks to be recognised as a refugee under the 1951 Convention and 1967 Protocol.

5.2 Statistics

Figure 6: No of asylum applications for 1998 & 1999
Source: Department of Justice, Equality and Law Reform

5.3 Social and economic rights

Asylum seekers are not permitted to leave the State without the consent of the Minister for Justice, Equality and Law Reform,[18] to seek or enter employment or carry on any business or to trade during the period before the final determination of their case.

Asylum seekers who have been in the State for more than a year including the 26^th of July 1999 are permitted to seek and take up employment. They currently have the right to job preparation and placement through the FAS Asylum Seeker Unit.[19] Moreover, the White Paper on Adult Education – Learning for Life – states that asylum seekers with the right to work have access to Voluntary Training Opportunity Scheme (VTOS) courses, literacy and language provision.

All other asylum seekers are not permitted to work. In fact they can face criminal prosecution under Section 9 (7) of the Refugee Act 1996 if they are found to be working illegally. They can be imprisoned for a term not exceeding a month and or fined £500. Nonetheless, employers do not face any penalty if they are caught hiring non-nationals with no right to work in Ireland.

Adult asylum seekers do not have the right to state funded education.[20] However, the aforementioned White Paper does recommend that asylum seekers be given access to literacy, language provision and mother culture support.

Asylum seekers do have the right to medical care and some are in receipt of full Supplementary Welfare Assistance (SWA) payments, and rent supplementation if they secure private rented accommodation. However asylum seekers who have arrived in the State after April 2000 are being provided for through a system of direct provision and are regionally resettled to full-board accommodation.[21] Under direct provision they receive £15.00 a week per adult and £7.50 per child. They may apply to their Community Welfare Officer (CWO) for exceptional needs payments. Furthermore, asylum seekers (including those on direct provision) with dependant children can apply for Child Benefit.

5.4 Documentation

Up until the 20^th of November 2000, asylum seekers had been issued with an Asylum Card by the Dept. of Justice, Equality and Law Reform. However, with the full implementation of the Refugee Act 1996, Section 9 (3) states that asylum applicants will be issued with a Temporary Residence Certificate (TRC). It includes the applicants name, photograph and the date they lodged their application for asylum.

It is worth mentioning that the Department of Justice usually takes all other identity documents from asylum seekers and holds them on file while their application for asylum is being processed.

6. Leave to remain on humanitarian grounds

6.1 Definition

Leave to remain is granted at the discretion of the Minister for Justice to allow on humanitarian grounds, a person to remain in the State who does not fully meet the requirements of the 1951 Convention and 1967 Protocol.

6.2 Statistics

Fig 7: Number of individuals granted leave to remain on humanitarian grounds – 1997-2001
Source: Dept. of Justice, Equality and Law Reform.

6.3 Social and economic rights

Individuals with humanitarian leave to remain have almost all the same social and economic rights as a refugee. They have the right to seek and enter employment, to establish a business, to travel and to access fulltime education and training initiatives, to go on the list for local authority housing and medical care.

6.4 Documentation

Persons with humanitarian leave to remain will have a letter from the Department of Justice confirming this and on this basis they will be issued with a Residence Permit.

7. Leave to remain on the basis of parentage of an Irish citizen

7.1 Definition

According to the Constitution, the Irish Nationality and Citizenship Acts, 1956 and 1986, anyone born within the 32 counties is an Irish Citizen. More recently this has been included in the Belfast Agreement 1998. Article 2 of the Constitution states that:

In 1987, in a case taken to the High Court [23] it was ruled that the parents of Irish born children had the right to remain and reside in the State. The case involved two non-nationals, the Fajujonu’s, who had been living in the State illegally. When their presence became known to the Garda National Immigration Bureau, the Minister for Justice, attempted to deport them. However, during the time they had been residing in the State they had two Irish born children. It was argued by their lawyer that the children, as Irish citizens, had the right to family life, which is provided for in the Constitution, and therefore had the right to have their mother and father parenting them in the State. As a result any non-national with an Irish child can obtain a Residence Permit provided that their presence has not been deemed unconducive to the public good. However it must be noted that the parents will automatically lose their right of residence if the child dies.

Parents may have to prove in certain cases that they are actively parenting the child, or indeed, are the parent of the child.[24]

7.2 Statistics

Number	Year
1996	142
1997	107
1998	0
1999	1,227
2000	909
2001 – 31^st Jan.	200

Figure 8: No. of current or former asylum seekers who have been granted permission to remain in the State on IBC grounds 1996-2000
Source: Department of Justice, Equality and Law Reform

According to the Department of Justice there are currently 712 applications outstanding with the Immigration Division. It should be noted, however, that many of these cases relate to two applicants – the mother and father.

From the statistics above it is apparent that leave to remain was not granted to anyone in 1998. This is due to the fact that the Minister for Justice consulted the Attorney General in that year regarding the Fajojunu case. However, the Minister was advised that the case was legally binding, not only because of the Constitution, but also, on account of the Belfast Agreement.

7.3 Social and economic rights

Parents of Irish born children have the right to seek and enter employment and to establish a business. Moreover, they have the same access to medical care and social welfare benefits as an Irish citizen and to go on the housing list. Furthermore, they have the right to access training initiatives and services such as FAS, Voluntary Training Opportunities Scheme (VTOS) and Integrate Ireland. These rights are not included in any statutory instrument.

Hailbronner (2000) argues third country nationals (non-EEA nationals) are generally excluded from European Community guarantees, except in those cases in which a special regime is applicable. In legal terms, in the absence of any Government policy or recommendation,[25] parents of children born in Ireland who are non-EEA nationals do not have the same access to third level institutions as EU citizens. For example, they will be charged international fees and will be unable to apply for a maintenance grant from the VEC or County Council to study.

This adversely affects the non-EAA older siblings of Irish born children within the family as well. For example, up until the age 18 all children within the state have the same right to education. If a non-EEA sibling turns 18 and has not acquired citizenship, they could be deported from the State. Furthermore, even if they acquired their parents’ residency status, the current restrictions - not being treated as an EU national in regard to third level education - will apply to them also. Not only do we have a situation where some children in a family have more rights than others, but also there will be a whole generation of young adults that will be effectively excluded from third level education unless the Government either legislates or issues a policy statement. However, this will not even matter if they are deported to their country of origin when they become adults. Indeed, the State will have to take action to alleviate the precarious situation that these children will find themselves in.

7.4 Documentation

Parents of Irish children will have a letter from the Department of Justice confirming this. On the basis of this they will be issued with a Residence Permit.

8. Family Reunification

8.1 Definition

Section 18 (1) of the Refugee Act 1996 provides that refugees are permitted to be reunified with members of their immediate family such as a spouse, a child under the age of 18, and dependent family members such as a grand parent, a parent, a brother, a sister, a grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.

The Minister for Justice proposes to follow the policy of Section 18 also in respect of family reunification in the case of persons granted leave to remain, having been in the asylum process and who will be living in the State long term.

8.2 Statistics

From 1995 to December 2000, 217[26] people have been permitted to enter Ireland on family reunification grounds.

8.3 Social and economic rights

Section 18(3) (a) of the Refugee Act (1996) as amended states that “the person shall be entitled to the rights and privileges specified in Section 3 for such period as the refugee is entitled to remain in the State”. Therefore, persons who have been granted entry into Ireland on family reunification grounds have the same rights as a refugee.

8.4 Documentation

The individual will have a letter granting them family reunification with their family member and on this basis they will be given a Residence Permit and a Travel Document.

9. Marriage to Irish and EU citizens

9.1 Definition

Irish citizens and other EU citizens working in the State have the right to have a married[27] partner live with them even if they are a non-EEA national. However, it must be stated that the rights that pertain to each differ.

We learned in Section 2 that the primary beneficiaries of Community law are EU citizens who have moved to another Member State to work. Moreover, we learned that these individuals have the right to have their partner and dependent family members reside with them in that Member State. As a result of case law,[28] it was ruled that partners of EU citizens who have moved to another Member State to work, come directly within the scope of EU community law, and indeed, should be granted all the same rights as their EU partner. This means that these categories of persons are the most privileged beneficiaries of Community law after EU citizens themselves. Their rights are referred to as ‘derived rights’ – as they are derived from their partner.

The situation for partners of Irish citizens is somewhat different. They do not come within the scope of Community law because their partner has not gone to another Member State to work i.e. they need to activate the movement clause if they want to enjoy Community law rights. There are only two ways to overcome this:

Non-EEA partners’ married to Irish citizens who have not activated the movement clause are referred to by Hailbronner (2000) and Barrett (2000) as ‘unprivileged’. However, the latter remarks that they may enjoy extensive rights under the domestic law of a particular Member State. In Ireland, there is no domestic law governing the situation of non-EEA partners of Irish citizens. However, Article 41 on the Family states the following:

Therefore, the State recognising the fundamental importance of the family and should confer all the same rights of the Irish citizen on to their non-EEA partner. Moreover, in contrast to EC law, the Irish citizen does not have to be working in order for their partner to be granted residency.

In all cases, the Department of Justice may interview the couple in question before they grant residency. They may seek supplementary documentation, in the form of Marriage Certificates, leases, bills and so on, to see if the couple are in a relationship together.

9.2 Statistics

Figure 9: Current or former asylum seekers who have been granted residency on the basis of marriage to an Irish or EU national
Source: Department of Justice, Equality and Law Reform

9.3 Social and economic rights

As stated above, non-EEA partners married to EU nationals who have activated the movement clause have all the same rights as their partner. Therefore, they have the right to seek and take up employment, to establish a business, to access training initiatives such as FAS, to access medical care and go on the list for local authority housing. Furthermore, provided that they have satisfied certain residency requirements, they have the right to access third level institutions on the same basis as a EU national i.e. they should be charged EU fees.

Married partners of Irish nationals who have not activated the movement clause have the right to seek and enter employment. Up until recently, they were required to obtain a work permit[30] and to establish a business. Moreover, they can access training initiatives such as FAS, free medical care and go on the list for local authority housing. However, they are not treated as an EU national in regard to third level education and the right to travel. Both categories of individuals do not have the same freedom of movement as EU nationals and are required to obtain visas to travel if the country they are travelling to require it.

Both groupings of individuals can lose these rights if they divorce their partner. However, separated spouses retain their right to reside.

9.4 Documentation

The documentation a non-EEA national married to an Irish or EU national will have will differ depending on gender. For example, the non-EEA husband of an Irish or EU citizen will be given a Residence Permit on the basis of his marriage to that person. However, the non-EEA wife will not be given a Residence Permit. Instead she will have a stamp in her passport. This differentiation in treatment is due to the fact that the Department of Justice consider wives not to be independent of their husbands.

In addition, these persons should have a birth certificate and a passport from their country of origin.

10. Business Permit

10.1 Definition

Anyone can apply for a business permit. Individuals and companies that are not from a European Agreement country have to invest a minimum sum of £300,000. This condition does not apply to nationals and companies from countries, which have signed Association Agreements with the European Community. They include: the Baltic States, Bulgaria, the Czech Republic, Hungary, Poland, Slovak Republics, Slovenia and Romania.

The association agreements came about following the fall of the Berlin Wall when the European Community took steps to strengthen their relationship with the Central and Eastern Europe countries (CEEC). The intention was to create association agreements “of third generation” providing a context for aid and assistance to the CEEC and, in the longer term, integration into the Community.[31] The agreements contain articles relating to the exercise of a right of establishment by companies and nationals from each of the Europe Agreement countries. The agreements give them access to and residence on the territory of the Union for self-employed and those seeking to establish themselves as self-employed through a company or as key personnel of a company or firm based in a Europe Agreement country.[32]

10.2 Statistics

Figure 10: No. of persons granted and refused business permission 1998-2000
Source: Department of Justice, Equality and Law Reform.

10.3 Social and economic rights

Individuals with Business Permits have the right to reside in the State. They only have the right to establish and carry out a business. They do not have the right to medical and social welfare entitlements. Furthermore, they do not have the right to free education.[34]

10.4 Documentation

They will have a Business Permit issued from the Department of Justice and a Residence Permit.

11. Work Permit

11.1Definition

A work permit is required by an employer to take on a non-EEA national. The Work Permit Section in the Department of Enterprise, Trade and Employment examines applications from employers and issues permits where appropriate. The fees for a work permit ranges from £25.00 to £125.00 depending on the duration of a permit.

Given that it is pertinent for the Irish Government to ensure that employment is available for Irish and other EEA nationals, employers who apply for work permits are generally required to establish that it has not been possible, in spite of reasonable efforts[35] being made to fill the vacancy with an Irish or other person for whom a work permit is not required. A permit is granted when the employer has no alternative but to employ a non-EEA national.[36]

There are special arrangements for individuals with special skills i.e. doctors, entertainers, professional sportspersons and participants in exchange programmes recognised by the Minister for Enterprise, Trade and Employment. Moreover, there are special conditions for international companies who wish for one of their employees to spend a certain amount of time in Ireland to work for them.

11.2 Statistics

Work permits issued - 2000

Nationality	New Permits	Renewals	Group	Issued	Refused
Australia	653	115		768	15
Canada	726	59		785	11
Czech Republic	902	51		953	7
Latvia	2086	80		2166	31
Lithuania	835	14		849	8
Malaysia	684	93		777	9
Philippines	908	83		991	22
Poland	810	95		905	5
Russian Federation	695	126		821	9
USA	818	245		1063	20
Group Permits			301	301
Other	6317	1310		7627	225
Total	15434	2271		18006	362

Work permits issued - 1999

Nationality	New Permits	Renewals	Group	Issued	Refused
Australia	271	76		347	28
Brazil	144	29		164	11
India	244	146		390	10
Latvia	254	9		263	16
New Zealand	176	47		223	20
Pakistan	158	96		254	7
Poland	156	37		193	3
South Africa	291	57		348	12
Switzerland	164	49		213	4
USA	593	298		891	32
Group Permits			269	269
Other	1874	812		2695	135
Total	4325	1656		6250	278

Work permits issued – 1998

Nationality	New Permits	Renewals	Group	Issued	Refused
Australia	222	90		312	15
Canada	147	72		219	2
Indonesia	322	124		446	2
Jordan	107	141		248	9
Malaysia	131	69		200	7
New Zealand	128	38		166	14
Pakistan	117	107		224	12
South Africa	124	54		178	9
Switzerland	123	49		172	2
USA	984	441		1425	26
Group Permits			239
Other	1185	701		2125	81
Total	3590	1886	239	3590	179

Work permits issued – 1997

Nationality	New Permits	Renewals	Group	Issued	Refused
Australia	139	80		219	22
Canada	138	55		193	9
Hong Kong	55	87		142	18
Indonesia	183	85		268	6
Japan	103	148		251	7
Malaysia	107	96		203	14
New Zealand	56	25		81	23
Pakistan	108	93		201	10
Philippines	49	25		74	6
USA	858	368		1226	28
Group			259
Other	872	555		1686	67
Total	2668	1617	259	4544	210

Figure 11: No. of work permits issued 1997-2000
Source: Department of Enterprise Trade and Employment

11.3 Social and economic rights

Work Permit holders have the right to enter employment and reside in the State. Nonetheless, they do not have the right to free medical care and social welfare entitlements. Furthermore, they do not have the right to free education.

11.4 Documentation

Individuals will have a Work Permit from the Department of Enterprise, Trade and Employment on the basis of which they will be issued with a Residence Permit.

12. Work visas & work authorisation

12.1 Definition

In 2000, a working visa and work authorisation[37] scheme was introduced to facilitate the recruitment of suitably qualified people from non-EEA countries for designated sectors or the employment market where skill shortages are acute.

Persons with job offers in Ireland can obtain immigration and employment clearance from the Irish Embassies and Consulates. Unlike work permits, these visas allow the individual to work in any firm or organisation that would be considered an area where there are employment shortages. These designated areas include:

These visas and authorisations are usually granted for a period of two years by the Irish Embassy or Consulate and can be renewed at the end of that period.

12.2 Statistics

Figure 12: Work Authorisations and Working Visas – June – December 2000
Source: Dept. of Trade, Enterprise and Employment

12.3 Social and economic rights

Work visas or work authorisation allows a person to enter employment and reside in the State. They also have the right to travel if a re-entry visa is obtained before a person leaves Ireland. However, they do not have the right to free medical care and social welfare entitlements. Furthermore, they do not have the right to free education.

One positive aspect of this scheme is that holders are permitted to bring dependents into the State to reside with them provided that they can financially maintain them. Dependent children under the age of 18 are entitled to free primary and secondary education as explained in Section 19.

12.4 Documentation

Individuals will have a visa or work authorisation stamp in their passport and a Residence Permit.

13. Student Visa

13.1 Definition

Non-EEA nationals can come and study in Ireland on a study visa so long as they fulfil the following conditions: provide their immigration history, a valid passport, evidence of their course, evidence of fees paid in full, evidence of private medical insurance and evidence of self-sufficiency.

It is a primary condition of entry into the State that they do not violate the conditions of their visa. Indeed, the Minister for Justice can deport them if they do.

In recent times, the Garda National Immigration Bureau has requested proof in the form of attendance records from schools and colleges that the student has attended class.

13.2 Statistics

The Immigration Division of the Department of Justice informed me[38]that they do not keep a record of the number of student visas that are issued.

13.3 Social and economic rights

Up until recently, individuals with student visas were not permitted to seek and take up employment (even part-time). The only exceptions to this rule were students from the USA, Canada, Australia and New Zealand who were in the State on reciprocal schemes (i.e. J1 Scheme). However, non-EEA students are now permitted to work while they study here in Ireland.

Non-EEA students do not have the right to any state funded education, medical services or social welfare.

13.4 Documentation

There should be a valid visa stamp in the student’s passport – C-Type for persons who are staying less than 90 days and D –Type for visas that are for a longer period.

14. Tourist Visa

14.1 Definition

Appendix 2 of this document includes a list of countries whose nationals do not have to apply for a tourist visa. Nationals from these countries are permitted to travel into Ireland and stay for up to three months. They can have their stay extended by the Garda National Immigration Bureau.

For any other country not on the list, their citizens must apply to the nearest Irish Embassy or Consulate for a visa. The application is sent by the Department of Foreign Affairs to the Visa Section in the Department of Justice in Dublin to be decided upon in exceptional circumstances. If the visa is granted, it is issued by the Department of Foreign Affairs through the Embassy.

In order to be granted a visa, the individual must prove that they can maintain themselves and that they will not overstay the conditions on their visa.

14.2 Social and economic rights

Tourists only have the right to stay so long as their visa is valid. Persons with a tourist visa only do not have the right to study, to work, to social welfare and to free medical care.

14.3 Documentation

Individuals with tourist visas will have it stamped in their passport. A person coming from a country where a tourist visa is not required may have a stamp in their passport stating the date they entered the State and the date until which they are permitted to stay (usually one month initially).

15. Naturalised Irish Citizens

15.1 Definition

An applicant for naturalisation has to fulfil certain statutory conditions including having a total of five years residence in the State in the nine year period preceding the date of the application, the last years being a period of continuous residence.

Citizenship is always granted at the discretion of the Minister for Justice, and therefore, he has the power to dispense with any of the conditions outlined above. Furthermore, Convention refugees can apply for naturalisation three years since their application for refugee status.

15.2 Statistics

Figure 13: No. of persons naturalised 1997-2000
Source: Department of Justice, Equality and Law Reform

15.3 Social and economic rights

As a naturalised Irish Citizen, will have all the same rights as individuals who have been Irish citizens since birth and as outlined in the Constitution.

15.4 Documentation

16. Post-Nuptial Citizenship

16.1 Definition

A non-national married to a person who is an Irish citizen (otherwise than by naturalisation, honorary citizenship or post-nuptial citizenship) may accept Irish citizenship as post-nuptial citizenship by lodging a declaration not earlier than three years from the date of the marriage.

16.2 Statistics

Figure 14: Number of persons granted post-nuptial citizenship 1997-2000
Source: Dept. of Justice, Equality & Law Reform

16.3 Social and education rights

Once an individual is granted post-nuptial citizenship they have all the same rights as any other Irish national as provided for in the Constitution.

16.4 Documentation

17. Persons who have lodged applications for leave to remain and are still waiting

17.1 Definition

Under Section 3 of the Immigration Act 1999, any individual whom the Minister for Justice proposes to deport has the right to submit reasons why they should be allowed remain in the State. These reasons include:

Persons who fall into this category can include failed asylum seekers or persons whom for some reason or another have had their residency or immigration status withdrawn from them, or to whom a residence permits was not granted.

According to the Department of Justice many of these applications will not be successful and these individuals could face deportation.

It must be noted that the Minister for Justice cannot deport naturalised Irish citizens to a third country unless citizenship has been revoked by the High Court.

17.2 Statistics

According to the Repatriation Section of the Department of Justice,[39] 1,683 persons have lodged representations in relation to their proposed deportation and decisions have been taken in relation to 369 of these people to deport them. This leaves an outstanding number of 1,314 where decisions have yet to be made.

17.3 Social and economic rights

Persons with the right to work before their asylum application was rejected or residency was withdrawn may continue to work. However, all others in this category are not allowed work, carry out a trade or establish a business. They do have the right to welfare, to free medical care and accommodation. However, they have no right to free education. .

17.4 Documentation

Persons in this category usually continue to hold their Asylum Card (or now TRC) until its expiry date, after that they are not issued with an identity card. However, the Immigration Division has informed me that this is currently under review.

18. Complementary Protection

18.1 Definition

Ireland is a signatory to many other international human rights conventions, namely the European Convention on Human Rights (ECHR) 1950 and the International Covenant on Civil and Political Rights (ICCPR) 1966. The Irish Government is currently in the process of drafting legislation to implement the European Convention on Human Rights (1950) and the Convention Against Torture (1984).

Article 3 of the ECHR states that “no one should be exposed to inhumane and degrading treatment” and this has been used to prevent the forcible removal of individuals to a third country.[40] What is interesting to note about this form of protection is that there is no requirement that for the individual to be persecuted for a ‘Convention reason’. There must only be a risk that they experience ill-treatment regardless of the reason for it. Indeed, the scope of the Convention also applies to ‘everyone’ within the State.

Throughout Europe many lawyers have used this and other human rights instruments (when the Geneva Convention failed or was not applicable) to prevent the forcible removal of non-nationals to a third state. Indeed, there are a significant number of people that have remained in France, Germany and Sweden on these grounds. It is certainly conceivable that Irish lawyers will follow suit in the future and we may have individuals in the State in this category.

18.2 Social and economic rights

The Convention is not a status-granting mechanism. Even though it prohibits the forcible return of non-nationals to a third country it does not state what status they should be granted. Therefore, it is recommended that the Irish Government include the social and economic rights of these individuals in the forthcoming Immigration and Residence Bill, and also consider them as a separate category where rights are provided when devising any social and economic policy.

19. Children

19.1 Definition

All children under the age of 18 are considered equal within the State. This is ensured by the Convention on the Rights of the Child (CRC). For example, Article 2(1) of the CRC states that:

Therefore, the Government is legally bound to treat all children within the State equally irrespective of their nationality or legal status.

19.2 Social and economic rights

All children within the state have the same social and economic rights and there should be no differentiation in treatment. Therefore, they have the right to access any educational establishment, initiative or service, which is available to any Irish child. In addition, the Department of Education and Science have issued new guidelines for the provision of non-English speaking pupils in primary schools. The new initiative ensures that:

· Primary schools in which between three thirteen (inclusive) non-English speaking non-National pupils are enrolled will receive grant assistance.

· Schools with between 3 and 8 such pupils will receive grant assistance in the amount of £5,000 while schools with between 9 and 13 will receive grant assistance in the amount of £7,500.

· This grant aid is intended to enable schools to take appropriate measures to improve the standard of English of non-national pupils with significant English language deficits. Schools with fewer such pupils would be expected to provide for the educational provisions of those pupils from their existing resources.

19.3 Documentation

EU or EEA nationals would have a birth certificate and a passport or be included on their parents or legal guardians passport.

Non-EEA children legally living[41] in the State are not issued with a Residence Permit until they turn 16. However, up until that point they would be registered on their parents or legal guardians file or Travel Document. In addition, they can issued with a Travel Document if they are required to travel on their own for school trips and so on.

Asylum seeking children will be registered on their parents or legal guardians file.

20. Separated Children/Unaccompanied Minors

20.1 Definition

The Separated Children in Europe Programme’s Statement of Good Practice (1999), Section 2.1 states that:

They arrive here seeking asylum and Section 8 (5) of the Refugee Act 1996 makes special provision for them. 5(a) states that:

Hence, separated children are under the care of the Health Boards. Furthermore, 5(b) of the Refugee Act 1996 enables a health board official to make an application for refugee status on behalf of a child and to pay any costs that may be incurred.

As stated previously, the Irish Government is bound by the provisions as outlined in the CRC [see 19(a)]. In addition, Article 22(1) states that:

20.2 Statistics

See appendix 3 and 4 for the number of separated children in Ireland and breakdown according to gender, age and nationality.

20.3 Social and economic rights

In 2000, the Northern Area Health Board established an Unaccompanied Minors Unit in Baggott Street Hospital, in Dublin 4 to assist separated children. It consists of one team leader, three social workers and three project workers. They provide assistance to newly arrived separated children and place them in emergency accommodation as described in 5(c). The Unit has informed me that they have tried to place the majority of them in hostels or B&B’s together. In some cases they may be forced to share rooms with adults. Furthermore, they may have no access to study rooms or facilities.

The Health Board have recognised how inadequate this form of housing is for separated children and are funding Clann Housing Association[42] to secure accommodation and open up a centre for separated children. Clann Housing did identify premises for this purpose recently. Unfortunately, local opposition in its vicinity resulted in the plan being abandoned. They are now looking elsewhere but are finding the task to be extremely difficult in light of the current housing crisis that has besieged Dublin.

Separated children are not regionally relocated outside Dublin under the current direct provision scheme. They are supported through Supplementary Welfare Assistance payments as discussed in 5(c) above.

The service which is offered to separated children from the Health Board is quite limited due to the huge numbers. They tend to focus on the most vulnerable individuals with many needs and are currently unable to follow-up school attendance and cater for to their social needs at this point. The Unaccompanied Minors Unit refers individuals that may be experiencing from post-traumatic stress syndrome and other psychological disorders to specialists in St. Brendan’s Hospital.

As stated in 19(a) and (b) all children within the state should be treated equally. Therefore, separated children have the right to attend school and any other initiative provided for Irish children. On this basis, some separated children have entered post-leaving certificate courses. Furthermore, it is clear from preliminary research that the CDVEC and County Dublin VEC will have to develop special initiatives to deal with the specific needs of separated children working together with the Health Board.

Separated children can receive full Supplementary Welfare Assistance payments depending on their age and circumstances and exception needs payments from the Health Board. However, the Health Board will only continue to pay and support a separated child if they are in primary and post primary education. It means in effect that, separated children are unable to attend post leaving certificate courses unless they have their own financial resources.

20.4 Documentation

Conclusion

In conclusion, most of the procedures outlined above have been developed on an ad hoc basis in the absence of any statutory instruments or in response to international, Community law or case law. However, this will certainly change within the next year or two. The Department of Justice is currently drafting the Immigration and Residence Bill and it could be published by the end of the year. It is intended that the new Bill will be comprehensive and it will include general principles for the operation of immigration procedures in Ireland. In addition, it will set out measures for visa applications, entry into the State, applications for residence permits and perhaps even deportation. Indeed, it will also outline the social and economic rights for individuals with different forms of residency, many of which have been described and explained above. Finally, the Bill could also include articles around the establishment of a new Immigration Agency.

The Minister for Justice has organised a consultation procedure for the framing of this Bill and many submissions have been made. This is a crucial time for the rights and well being of non-nationals who live or will live in Ireland, and in truth, for the greater public good. It is opportunity to ensure that the social and economic rights of the various groups mentioned above are explicitly provided for. Moreover, this is a chance for the Irish government to legislate for individuals who are currently being adversely affected by current administrative procedures i.e. parents of Irish born children and older siblings of the Irish born child in regard to education at third level, and persons married to Irish citizens who do not come into the scope of European Community law. We find ourselves in interesting times, where we have the opportunity to develop a progressive, humane, fair and just statutory instrument to govern the legal and social condition of immigrants in Ireland.