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Address given at the launch of a Policy Paper on Family Reunification (28.06.2006)

Address by Emily O'Reilly, Ombudsman at Launch by the Immigrant Council of Ireland of a Policy Paper on Family Reunification

Chairperson, ladies and gentlemen it is a great pleasure to be invited to speak at the launch of this important policy paper. I am aware from previous contacts that staff from my Office have had with the Immigrant Council of Ireland that it has been playing a key role in the provision of advice, information and support to immigrants. This is all the more remarkable as the ICI was only established in 2002. I have been struck by the quality and comprehensive nature of your previous publications such as the Handbook on Immigrants' Rights and Entitlements in Ireland.

The policy paper being launched today will not only heighten the level of debate on the important issue of family reunification but will increase public awareness of the real trauma being experienced by many families as they seek to be reunited with family members and loved ones; experiences which the vast majority of people in Ireland are scarcely aware. Senator Maurice Hayes, the former Northern Ireland Ombudsman, once said that the role of the Ombudsman is to "shine a light into the dark corners of the administration" and this is what this publication does in relation to the administration of the family reunification process as it exists in Ireland. The strength of this document lies in the numerous case studies it outlines which illustrate the administrative and legislative weaknesses in our current system and underline the validity of the improvements called for in the paper.

I hope that our administrators and legislators take careful note of its contents and react positively to its recommendations as part of the deliberation process which is on-going on the lead up to the enactment of the Immigration and Residence Bill.

Indeed, in July 2005 my Office made a submission to the Department of Justice, Equality and Law Reform on the Immigration and Residence Bill. In that submission my Office pointed out that Section 5(1)(e)(i) of the Ombudsman Act 1980 provides that the Ombudsman shall not investigate actions taken in the "...administration of the law relating to aliens or naturalisation...". My Office is one of the few Ombudsmen Offices in Europe whose jurisdiction is restricted in this way. I expressed the view that the restriction is unwarranted and that the full range of administrative actions in this area should be subject to investigation by my Office in accordance with the terms of the Ombudsman Act. Such a development would open the way for full scrutiny by my Office on all aspects of the administrative process surrounding family reunification applications.

I pointed out to the Department that the Ombudsman Act also provides that an examination or investigation by the Ombudsman does not affect the validity of the action being investigated nor does it affect any power or duty of the person who took the action to take further action in relation to the subject matter of the examination or investigation. The Act also provides that the Ombudsman shall not investigate any action where the person affected by the action has a right of appeal to an independent body.

My Office has been receiving a growing level of complaints against the Department of Justice, Equality and Law Reform concerning immigration and residence in Ireland. In 2003 2 such complaints were received, in 2004 it rose to 23 whereas in 2005 I received 36 such complaints.

Despite the bar on investigating actions relating to the administration of the law in this area, I conduct a preliminary examination of each complaint received in co-operation with the Department. Typical complaints relate to: not being given all of the reasons for the refusal of a visa application - complainants rightly complain that this hampers their ability to effectively appeal the decision; allegations of discrimination against people on race and age grounds; apparently arbitrary admission of one child and not its sibling and unwarranted assumptions that complainants or their dependants may be a burden on the state. The complaints received also cover the usual range of customer service issues, e.g., failures to reply to correspondence or delays in replying and inability to contact the officials or section dealing with the particular case.

It is interesting to note that many of the case studies contained in the ICI policy paper reflect similar difficulties for applicants. One of the issues of poor administration highlighted in the case studies is that in making certain decisions which have serious adverse affect on immigrants the Department of Justice is not automatically setting out the reasons for those decisions and the onus is put on the individual to pursue the Department for the reasons. I find this both disappointing and surprising in view of the fact that in my first Annual Report as Ombudsman in 2003 I noted that, in the Dáil in November 2003, the Minister for Justice, Equality and Law Reform had indicated that his Department had a policy of not disclosing reasons for refusing an individual a certificate of naturalisation. Failed applicants were advised to apply for access to their records by means of a Freedom of Information (FOI) request. I noted approvingly at the time that the Minister's answer indicated that the policy had ceased and that reasons are now normally given for such refusals.

I would not like to give the impression here today that once an FOI application is made that the Department is obliged to disclose all of the information sought in each and every case. You should be aware that there are exceptions to the right of access to information which the Department can cite to validly refuse an FOI request in whole or in part. As you know I also hold the separate statutory post of Information Commissioner and in adjudicating on FOI appeals I have to have regard to these exemptions and, where appropriate, public interest considerations, in deciding on the release of records in any particular case.

Apart from those particular constraints, it is surely not acceptable that a similar open policy, to that which is in place in the naturalisation area, is not put in place in other decision making areas within the Department. As Ombudsman I believe it is of paramount importance that public bodies should deal openly with people by giving clear and full reasons for decisions to the public with the minimum of restrictions and in a prompt manner, unless there are valid statutory or other grounds for restricting or refusing the information.

In my submission to the Department of Justice I pointed out that in her 2004 Annual Report, the Ombudsman for Children, Emily Logan, commented on a similar restriction in the Ombudsman for Children Act 2002 at Section 11(1)(e)(i). She noted that in response to concerns expressed by members of the Oireachtas during the debate on the Ombudsman for Children Bill, the Minister for State at the Department of Health stated that: "Children seeking refugee status or asylum can go to the Ombudsman for Children in relation to that process. It is only the decisions that are excluded." The Minister went on to state: "If, however, there are problems in relation to delays, the provision of accommodation, nutrition, housing, etc, those issues are covered. This provision is only to ensure there is not a duplication of the actual process of the administration of the law … I have checked this carefully with the Department of Justice, Equality and Law Reform. Its intention is that only the final decision is covered, in other words, the administration of the law and not the provision of services surrounding their being in this country ". The Ombudsman for Children expressed the view that if a broad interpretation were given to the provision in the Ombudsman for Children Act, then she may be precluded from investigating actions in the fields mentioned by the Minister for State.

I believe, however, that this restriction on my jurisdiction has acted to deter potential complainants from approaching my Office, thereby depriving them of a remedy against maladministration which is widely available to other users of public services. The restriction has also caused confusion among officials who deal with my Office. I think now is an appropriate time for the restriction to be removed and I stated this in my submission to the Department. When I see the level of enquiries that the ICI has been receiving in the short period since it has been established, 12,500 since 2002 with 4,185 of these relating to family reunification, it strengthens my view that the jurisdictional restriction is deterring such people from coming to my Office when one compares these figures to the level of complaints my Office has been receiving in this area. No doubt there would also be a very low level of awareness of my Office among the immigrant population.

I believe that an amendment to the Ombudsman Act would also coincide with the stated intention of the Department of Justice, Equality & Law Reform in its Strategy Statement 2003 - 2005, "To provide the framework for ensuring that asylum, immigration and citizenship policies respond to the needs of immigrants, asylum seekers and our society and are line with the best international practices and standards in this area." (High Level Goal 10). One of the objectives developed under this High Level Goal is: "Continue to provide and support the necessary structures, including the necessary legislative base, for the asylum and immigration areas having due regard to best international practice." I said in my submission to the Department that I considered that the scrutiny of an independent Ombudsman is universally accepted as being in accordance with best practice.

I welcomed the consultation process in which the Department engaged. According to the Department, the overall objectives and principles which will underpin the future immigration system include:

· the protection of human rights;

· ensuring the fair treatment of persons;

· the achievement of reasonable standards of clarity and transparency, and

· the provision of satisfactory standards of service.

I also welcomed these commitments; my Office is experienced in each of these areas and can contribute to ensuring that the future system upholds these principles. It is clear, however, from the evidence emerging from the ICI policy paper that there is a long road to travel in order to bridge the gap between the achievement of the objectives and principles set out by the Department and the present day to day reality experienced by family reunification applicants.

Until relatively recently Ireland was an inward looking country, which exported its people whether as workers or monks or missionaries, and saw homogeneity as a benefit rather than a disadvantage. Perhaps the greatest change we have witnessed in recent years is the vibrancy, excitement and diversity in all its aspects which people, predominately young people, both from Europe and further afield have brought to Ireland. The suddenness and extent of the change caught our public authorities unprepared and they have been trying to catch up ever since. The Ombudsman Act passed in 1980 specifically excluded the laws relating to aliens and immigration from the Ombudsman's remit on the grounds at the time that this was mainly a security issue. Despite my best efforts and those of the previous Ombudsman, that has remained the position although other appeals mechanisms have been put in place.

In my submission to the Department I noted with interest the report, commissioned by the Department, from the International Organisation for Migration entitled 'International Comparative Study of Migration Legislation and Practice'. This comprehensive report, which was published in April 2002, covers the systems and practices in Europe, the UK, Australia, Canada, New Zealand and the United States of America and covers a broad range of areas including visas, entry controls, enforcement measures, residence permits, immigration systems and an interesting chapter on integration of immigrants into their new countries. The report brings out very clearly the complexity of the internal administrative arrangements and the number of public authorities involved at national level. The need for much greater co-ordination of these arrangements at national level is essential if an overall policy is to be possible. Equally essential is the oversight of administrative action which, given its relative accessibility to complainants and its relatively informal working relationship with public bodies, is best provided by the Office of the Ombudsman.

I noted that it is proposed that the Immigration and Residence Bill will respect the principle of Ministerial discretion. Discussing review mechanisms the department's policy proposals stated: "The requirements of transparency and fair procedures indicate that there should be a process whereby persons aggrieved by adverse immigration decisions should have the opportunity to have those decisions looked at afresh. It has been suggested by some commentators that review mechanisms should operate by way of appeal to an independent body. However the nature of immigration is that it is ultimately a matter for the discretion of the Minister whether or not a non-national is permitted to enter or be in the State. In such circumstances, appeal to an independent body would be inappropriate."

I beg to disagree with this statement. I consider it to be a fundamental tenet of fair and sound administration that administrative discretion must be subject to independent review and I have said as much to the Department.

As I conclude my remarks I would like to leave you with a suggestion as to how my Office might become more proactive in assisting our immigrant population. As I explained above there are certain constraints on my Office in dealing with complaints regarding immigration and asylum matters but I have no doubt that many immigrants also encounter problems in dealing with public bodies providing services in the areas of health, housing and other social services, areas in which I operate without the same constraints. I have no doubt that awareness and understanding of my Office would be extremely low among the immigrant population and this is an area that needs to be addressed.

Since February of this year my Office has been operating a new service in association with the Citizens Information Services in certain locations. This is called the Ombudsman Link Service, and will allow members of the public easier access to the services of my Office. For over ten years my Office has been in attendance for one day per month at the Citizens Information Centres in Cork, Limerick, Galway and Coolock in Dublin. This attendance afforded members of the public from these areas the opportunity to meet with my staff and explain the details of their complaints in person. Since these monthly visits began, over 5,000 people have been seen in the centres visited.

The Ombudsman Link Service will build on this existing monthly attendance by enabling people to call into Citizens Information Centres at any time to make a complaint to the Ombudsman. In addition, because of training provided to the staff and volunteers of the Centres, they will now be able to quickly identify matters that their clients raise which could be referred as complaints to my Office, and if their client so requests, the staff and volunteers of the centres will be able to assist them in making their complaint.

To this end I would be very willing to arrange for my staff to enter into exploratory discussions, with the ICI perhaps leading to a pilot project, under which the concept might be developed. I would see this as a very practical and concrete expression of the commitment of my Office to reach out to those immigrants who have to struggle to get their benefits and entitlements, hampered by language, cultural and other barriers. Perhaps together we can help to remove those barriers.

I congratulate everyone involved in the production of this valuable policy paper and I offer my best wishes and continuing support to the ICI in its future work on behalf of immigrants. Thank you for your attention..

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