Immigration and Human Rights

Yesterday's post ended abruptly, largely because I like to make sure I have the facts in hand before going off on a potentially false tangent.
Having leafed through the digital pages of the Irish Human Rights Blog I encountered the following story, which in many ways illustrates some of the points I was clumsily trying to make.

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On Monday, the Irish Times reported on a new operation which has been undertaken by the Garda National Immigration Bureau (GNIB) to detect and prevent what they believe to be marriages of convenience for the purpose of securing EU residency rights. A Pakistani man, Muhammad Shafi, was recently convicted of offences related to the possession of ‘false instruments’. Gardai also intervened to halt his marriage to a Lithuanian woman. The Irish Times reports that marriages designed to circumvent certain legal obstacles to residency in Ireland are an important informal feature of  our immigration regime, with the Minister  for Justice estimating that  ”30 per cent of all our applications for recognition under the EU directive on freedom of movement and residency involve persons who were illegally present in Ireland or on a temporary or limited permission when making their applications”. The Times explains:

These marriages are typically arranged by failed asylum seekers or former students from Asia who no longer have permission from immigration authorities to stay in Ireland.
Minister for Justice Dermot Ahern told his EU counterparts at a meeting in Spain at the weekend that there was evidence of growing abuse of immigration laws with a growing number of non-EU nationals marrying women from the Baltic states.
Some 110 of the 384 residency applications made by Pakistanis in the Republic in 2009 were based on marriages to Latvians.
A further 50 applications were based on marriage to Polish nationals while 47 applications were based on Pakistanis marrying Estonians.

RTE claims that marriages of convenience have become a sort of industry in Ireland, involving experienced marriage brokers who pay EU citizens to marry non-EU partners. You can see a Prime Time report on the topic, which features interviews with Pakistani men living in Ireland here. Further RTE reports are available here and the Irish Independent carried reports along similar lines in 2008. Nevertheless, even if marriages are being arranged for immigration purposes in some circumstances, and even if questions arise over associated criminality, the government response must be measured, proportionate and tailored to specific abuses. As Hilka Bekker of the Immigrant Council of Ireland observes in the Prime Time report, we should be concerned that couples who genuinely wish to found a family together in Ireland will be hindered by an increasingly punitive regime founded on suspicion.

At EU level, the Irish, UK and Danish governments form  a bloc within Europe which is lobbying for a redrafting of  the EU Residence Direactive. Since the decision of the ECJ in Metock (see a House of Commons Research Briefing here and a Monckton Chambers briefing here), the government may not require that the non-EU partner was lawfully resident in another Member State prior to claiming residence in Ireland and may not restrict residency rights with respect to the time when the marriage took place (ie before or after arrival in Ireland) or the country where it was solemnised.

The Government has some plans to legislate to address the issue of marriages designed to circumvent the immigration regime. s. 126 of the Immigration, Residence and Protection Bill, 2008 is designed to regulate and control marriages in Ireland where one or both parties are foreign nationals. S. 126 (1) states that ‘[t]he marriage of a foreign national and an Irish citizen does not, of itself, confer a right on the foreign national to enter or be present in the State.’  In order for a marriage where one or both parties is a non-EU citizen to be valid, the non-EU citizen(s) must give notice to the Minister for intention to marry at least 3 months prior to the solemnisation of the marriage. They must also be ’the holder of an entry permission issued for the purpose of the intended marriage or a residence permission (other than a protection application entry permission or a non-renewable residence permission).’ If they do not already have such a permission – this is important  not only for those who have been refused a residence permission but for asylum seekers and those on the types of permission specified in the Bill –  the Minister may exempt them, subject to certain conditions outlined in s. 126(4).

Persons involved in the solemnisation of a marriage, such as religious ministers or civil registrars, are required to check that either or both ‘foreign nationals’ possess the resulting documentation at the point of marriage, and may not proceed with the ceremony unless it is produced. Under s. 126(6), anyone who solemnises or permits solemnisation of a marriage without this documentation, ‘facilitates it’ or is party to it, will be guilty of an offence. This section would add to the provisions of s. 58 of the Civil Registration Act, 2004 which allows people who do not fall within this range of roles to lodge an objection to the registration of a marriage. The Immigrant Council of Ireland correctly argues that s. 126(6) is indicative of a government preference for involving service providers in carrying out immigration functions.

The Immigrant Council of Ireland has argued that s. 126 represents a disproportionate infringement on the right to marry, and that, in addition ‘[t]he Government runs the risk of criminalising ministers of religion who consider the right to marry members of their congregation as essential to their religious beliefs and, in addition to infringing the fundamental right to marry, this constitutes a potential infringement of the right to freedom of religion as protected under Article 9 of the European Convention on Human Rights and Fundamental Freedoms and Article 44 of the Irish Constitution.’ The Council also suggests that the provision will likely not survive constitutional challenge – in all probability it infringes the constitutionally protected right to marry, rights of religious freedom and the constitutional equality guarantee – but its existence indicates the approach of the Irish government to accommodation of family and religious life within the immigration system: both appear to be viewed with a certain suspicion, as chinks in the armour of immigration law.

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Now, there is little need to view the matter as a Human Rights issue. Crimes are being committed and the only real rights being violated are those of the Irish people, who have as much right as possible not to have criminals in their country, one would presume. In fact, the proposed restrictions are quite mild.

What is happening here is that the Human Rights industry feels the need to, at public expense, stick its oar into as many aspects of public policy as it possibly can. This, in reality, does not bode well for freedom, because governments are restricted from applying their own laws, which we can assume are there to protect citizens and -in this case - strengthen the country's borders.