Oral Hearings

Family Issues: Presentations.

[Senator Daly ]

I propose the joint committee move on to the next business.

Chairman: It is good that we have cleared the air on that issue because it will hit the headlines sooner rather than later. The joint committee must defend the integrity of its staff who have been subject to the most unusual vilification and threats which is most unfair to civil servants who are doing their job. As Chairman and as a politician, I do not mind being attacked occasionally because we are fair game but I must protect the staff who have worked for the committee for many years and will still be doing so when I am gone.

I invite the representatives of GLUE to make a presentation. The group is represented by Mr. Mark Lacey, co-chairperson; Ms Dil Wickremasinghe, co-chairperson; Mr. Adriano Avila, vice-chairperson, and Ms Mo Halpin. I remind visitors that while members of the joint committee have absolute privilege - something of which the previous group did not take note - they do not if they make derogatory comments. The committee has received the group’s written submission. I ask it to take six or seven minutes to outline the principal issues of their campaign. There will then follow a sensible debate by way of questions and answers.

Ms Dil Wickremasinghe: On behalf of GLUE, I thank the joint committee for its invitation. This is an incredible honour for us.

Chairman: We live in a democracy.

Ms Wickremasinghe: There will be no repeat of what happened earlier.

In Ireland, as there is no legal registration of same sex couples, there are no civil registrations. We do not enjoy equal rights and opportunities with heterosexual married couples. This is especially unfair when it concerns unions comprised of Irish and non-Irish members. The lack of rights leaves these couples exposed and alone to fend for themselves and struggle with immigration laws.

There are more than 1,000 same sex couples living in Ireland who unfortunately are invisible in the eyes of Irish law. The 2002 census showed that over 77,000 family units of cohabiting couples included 1,300 same sex couples who were brave enough to state this on the census form. We are two of that number.

Our submission deals in depth with Article 41 of the Constitution which does not appropriately reflect modern Ireland. GLUE’s main recommendation is for the Constitution to embrace a broader definition of marriage. It would, therefore, be a more accurate reflection of the position of Irish citizens. Article 41.3.1? states: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. GLUE urges the joint committee to consider a broader definition such as the UN definition which refers to the family as any combination of two or more persons who are bound together by ties of mutual consent, birth and-or adoption or placement and who together assume responsibility for, inter alia, the care and maintenance of group members, the addition of new members through procreation or adoption, the socialisation of children and the social control of members. This broad definition is free of some words that may be viewed as troublesome such as “marriage”, “father”, “mother”, “husband” and “wife” and would put cohabiting couples, both homosexual and heterosexual, on an equal footing with married couples.

GLUE supports Senator Norris’s Bill on civil partnerships which it considers as a more blanket approach to allow same sex couples to register their partnership and give it full legal status. We urge Ireland to consider the United Kingdom example in dealing with this issue. In the mid-1990s, as a result of trying to obtain citizenship for their non-EU partners through the usual channels, many couples decided to apply directly on the grounds of their relationship. The Labour Party made a pact with the Stonewall Immigration Group, now known as the UK Lesbian and Gay Immigration Group. In 1997 it introduced the unmarried partners concession which stated that if a couple could prove they had been cohabiting for four years, the non-EU partner would be granted residency and eligible to apply for citizenship after a further three years. In 1999, the period of four years was reduced to two years as it was deemed practically impossible for a couple to remain legally in the UK for the full four years.

Last year the Civil Partnership Bill was passed and ratified by Queen Elizabeth and comes into force later this year. The Act will give legal rights and entitlements as married couples in matters such as taxation, immigration etc. Alternatively the committee could also consider France, which has Le Pacte Civil de Solidarité, which is also known as le PACS, which basically gives the union official recognition.

GLUE believes that the path to introducing civil union in Ireland is more straightforward than many people realise. In the meantime we believe some provisions should be introduced with immediate effect to relieve the lack of legal rights, especially when discussing same-sex couples of EU and non-EU nationality. GLUE also urges the committee to consider the numerous case studies that were included in our submission, all of which document the human plight endured by these couples every day. I now hand over to my co-chair, Mr. Mark Lacey, to continue the presentation.

Mr. Mark Lacey: I thank the committee for inviting us here today. My name is Mark Lacey and I would like to give a brief synopsis of what this is about. Mr. Adriano Avila is my partner of seven and a half years. As outlined in page 16 of the submission under the guise of the story of Stephen and Matthew, we met seven and a half years ago in London and moved back to Ireland. As my partner is from Brazil, he is legally entitled to enter the country and was not required to have a visa for three months. Ireland was different then in terms of immigration and was very naive. Mr. Avila was able to obtain his RSI number without being asked for any identification. Once the three months expired, Mr. Avila became illegal and for the past six years has lived illegally in this country with myself. As far as we know in February we became the first gay couple to be granted residency in the country on the basis of our homosexual relationship, on which we commend the Department of Justice, Equality and Law Reform. Moves in the right direction are being made on this issue.

The problem arises with inconsistencies in the law. Immigration officials have no positive framework or real legislation to which they can refer to support either same-sex or opposite-sex couples in this situation. What happened to Mr. Avila and me is not guaranteed for anybody else which is where the problem arises. We were fortunate. I presume that the length of our stay plucked a few heartstrings. There are issues, such as how long a couple should be together if they are not married, that cause big problems to both straight and gay people in this situation, which is why GLUE was established.

We do not recommend a change to the Constitution; that is not why we are here. We merely seek recognition for same-sex and opposite-sex cohabiting couples. We do not believe this undermines the Constitution in any way as we do not ask for more than what is provided for married couples under the Constitution. Article 41.3.2° refers to divorce and its five-year timeframe. If this timeframe is to remain in the Constitution, the immigration issue needs to be addressed. What is happening to gay couples in Ireland at the moment will become increasingly prevalent for heterosexual couples, particularly those who enter divorce proceedings in the country. It is virtually impossible to remain in this country - or any country - where work permits or visas must be applied for on a yearly basis. Normally after a four-year period an applicant would be rejected. If the five-year timeframe applies to heterosexual couples or same-sex couples, one partner would no longer have leave to remain in the country and might face deportation.

Last year the Law Reform Commission recommended no change to immigration law for cohabiting couples. It also recommended no change to the Irish Nationality and Citizenship Acts for cohabiting couples. This is very disturbing as it is widely accepted in the immigration arena that immigration law contains no consistencies, which basically makes it obsolete. Having said that, in the same year the LRC recommended that cohabiting same-sex and opposite-sex relationships should be recognised, which GLUE finds very heartening. However, we are opposed to the idea or proof of love by timeframe. Not only is it discriminatory, it also does not work as mentioned by Ms Dil Wickremansighre.

The question of financial implications for the Exchequer always seems paramount. Why Senator Norris would present a Bill as contentious as his seems to be ignored. Why a couple would challenge the legal system on taxation after living together for 23 years seems to be ignored. Why hundreds of people will remain in a legal relationship despite the risk of deportation is ignored. Finance seems to take precedence over humanity. Love is for sale and same-sex relationships exact a high price. Last week’s decision blatantly indicates that relationships involving people who cannot marry are financially very beneficial to the State while at the same time it is claimed that same-sex relationships are not productive to society.

Having said that, Ms Dil Wickremasinghe and I are increasingly positive about the direction of the Government and this committee. Protection is now afforded to same-sex couples under domestic violence legislation indicating that a start has already been made. Last week we were really heartened by the discussion document, Immigration and Residency in Ireland, published by the Department of Justice, Equality and Law Reform. Submissions regarding this document can be made by the end of July and we intend to do so. It will interest the committee that chapter 9 of the document is entitled Admissions for the Purpose of Family Reunification, which we find most encouraging.

Our two key recommendations for the committee are as follows. We feel the best approach is the implementation of legislation such as that proposed by Senator Norris regarding civil union. This would be a one-stop blanket approach to the challenges faced by same-sex and opposite-sex couples in Ireland today. It would automatically confer equal rights in terms of immigration, taxation, inheritance etc. as are afforded to those who can marry at present while at the same time not undermining the institution of marriage. As an organisation primarily concerned with immigration, GLUE’s main concern is addressed in our second recommendation. We seek recognition in immigration law of same-sex and opposite-sex cohabiting couples. The discussion paper on immigrants and residence in Ireland should be developed in this regard. Any recommendations and outcomes in favour of these relationships should be adopted in any new legislation that follows.

Our secondary recommendations are as follows. Should the committee determine that Article 41 of the Constitution needs amendment, same-sex and opposite-sex cohabiting couples should be provided for. In terms of verification of cohabiting couples’ relationships, no timetable should be specified before the couple can register its relationship in whatever way such registration might take place in future. Couples who can marry do not need to do this. They apply for residency after the couple has married and after a given number of years the non-European Economic Area partner can apply for naturalisation. Should the relationship dissolve before the non-EEA partner has been naturalised, the issue arises as to whether the non-EEA partner can still remain in the country. This should be the same for same-sex and opposite-sex cohabiting couples. We also recommend that the Government focus more on the humanitarian aspect of the issue as opposed to the financial one.

We thank the committee for giving us the opportunity to address it today. We remind members that, as mentioned at a recent Irish Human Rights Commission conference presided over by Professor William Binchy, Ireland has one of the most modern constitutions in Europe. It was created to be flexible and adapted to serve the changes that inevitably occur in society.

Chairman: I thank the representatives of GLUE for their presentation. Before I invite Senator Dardis to speak, I would like to ask a question about the Private Members’ Bill published by Senator Norris. When the Senator discussed the matter with the Taoiseach and me, as Chairman of the Joint Committee on the Constitution, he said he would not try to have the Bill passed by the Seanad until this committee had published its report and he could examine its recommendations. Despite what another group might think, the committee does not have any preconceived notions of its findings. In his Bill Senator Norris has stepped back from legislating for full gay or lesbian marriage. He seems to understand the public might not accept this in a referendum. It is clear, however, that he advocates a form of civil partnership or union. Would that be acceptable to GLUE?

Mr. Lacey: I am glad the Chairman asked that question. When GLUE was preparing for this presentation, its members and their friends were asked whether they believed gay and lesbian couples were interested in marriage in a religious or Catholic sense. Some 99% of the respondents did not believe gay couples were interested in such a form of marriage. One member of GLUE said they had a friend who believed full equality involved getting married in a church. That view is not generally shared by people in the gay community who think it is a separate matter and are simply seeking legal recognition of their relationships. They are not looking for sacramental recognition.

Senator Dardis: The Chairman has asked a question I intended to ask. One should bear in mind that civil marriage is as much of an option as sacramental marriage. A group which addressed the joint committee yesterday was in favour of gay marriage. The Civil Partnership Bill 2004 which is before the Seanad was introduced by Senator Norris. It strikes me that the dissolution of a civil partnership of the form recommended in the Bill would be much easier than it would be in the case of a married couple. The Bill provides that irretrievable breakdown would be an adequate ground for the dissolution of a civil partnership. If one wants to be entitled to enter into a partnership, one will have to understand certain obligations will arise from it. Does GLUE believe there should be impediments to the dissolution of a civil union?

I apologise for the mistake made in the representatives’ titles. Perhaps it is indicative of a heterosexual mindset.

Ms Wickremasinghe: I am used to it because it happens all the time.

Senator Dardis: I would like to ask a question about Ms Wickremasinghe’s case study. Was the application she lodged for residency?

Ms Wickremasinghe: I have residency.

Senator Dardis: Ms Wickremasinghe decided to lodge an application on the basis of her relationship, with the assistance of a solicitor. I am not clear about the nature of that application.

Ms Wickremasinghe: I have a work permit. I have been living in Ireland for the past five years. I met my partner when I was living in the Middle East and she brought me here. Although I have a work permit, I should point out that the work permit system is flawed in that one has to apply for a new permit on an annual basis. I decided to apply for residency on the basis of my relationship with an Irish woman. The Department of Justice, Equality and Law Reform kept my partner and I waiting for two years, before sending us a letter stating I did not need residency because I had a work permit. It suggested I give up my work permit and reapply for residency. I could not do such a thing because, like everyone else, I have bills to pay. I would not be allowed to work in the absence of a work permit.

Senator Dardis also asked about dissolution. Mr. Lacey has been with his partner, Adriano, for seven and a half years. I have been with mine, Mo, for six years. We understand the Senator’s thoughts in this regard but are ready to go the distance. If people feel it is good to place impediments to the dissolution of a civil partnership, that is not a problem. It is not as if we want to jump in and out of partnerships as quickly as possible.

Mr. Lacey: Having spoken to Senator Norris, I understand one of his concerns when he was presenting the Bill was to ensure it did not seem like an attempt to create a form of partnership that was equal to marriage.

Senator Dardis: That is right.

Mr. Lacey: Therefore, he provided for the dissolution of a civil partnership within six weeks. However, the members of GLUE are seeking full equality in the light of the level of commitment within our relationships and the consequent obligations we face. We are not making the case for civil partnerships merely to acquire the benefits of recognised relationships under law. We realise that those participating in such arrangements will have certain obligations. If the Government believes Senator Norris’s recommendation is flawed and that it should take five years to dissolve a relationship, as it does for married couples, we would completely agree.

Deputy McCormack: The delegation is seeking equality. It stated changes should be made by means of legislation rather than constitutional amendment. GLUE is welcome to this meeting of the joint committee which will learn a great deal from the organisation’s submission. I am sure the group will understand the committee is charged with examining constitutional matters. Does it envisage that the disadvantages it faces can be alleviated by means of legislation rather than constitutional amendment?

Mr. Lacey: That the recognition of gay relationships, whether in the form of marriage or civil union, is being discussed by the joint committee is seen by certain organisations as an attack on the Constitution. Groups such as GLUE think it is important to make representations to counteract such charges. I understand all legislation is introduced as a follow-up to the Constitution. While the members of GLUE do not feel their relationships constitute a threat to the Constitution, or undermine it in any way, the legislation under the aegis of the Constitution can be changed and implemented to benefit same sex and opposite sex cohabiting couples.

Chairman: As we are running late - the joint committee has yet to meet a further three or four organisations - I will allow Senator Tuffy and Deputy Ó Snodaigh to speak before inviting the delegation to respond. I accept that it is not the fault of GLUE that the meeting is running late. The committee has received its submission.

Senator Tuffy: While my question is similar to that asked by Deputy McCormack, it relates more to the Civil Partnership Bill 2004 which has been introduced by Senator Norris. Does GLUE feel the issues with which it deals such as residency could be dealt with separately from that Bill? Could other steps be taken?

Mr. Lacey: The second key recommendation made by GLUE was that the matter be considered in the discussion paper on immigration and residency in Ireland. That would involve dealing with this aspect of the matter specifically as an issue of immigration, rather than related issues such as taxation and the rights of children which would arise in the context of those involved in normal modes of marriage and registered heterosexual relationships. The question of the timeframe has been raised by other groups with which GLUE has been in contact such as the UK Lesbian and Gay Immigration Group.

In the back of my mind I have been wondering how to raise with a committee such as this the question of how the timeframe should be implemented. We were in England when the relevant timeframe was four years. We could not stay because that timeframe was impossible, although it was then reduced to two years. The new legislation passed in the United Kingdom has granted full equality in this respect to same sex couples, although not to heterosexual cohabiting couples. The UK Government felt that if it granted such equality to heterosexual cohabiting couples, it would undermine the institution of marriage. I am sure the joint committee and the Government will have to make such a decision in this jurisdiction.

Deputy Ó Snodaigh: The delegation has suggested in its submission that the constitutional provisions relating to the family should be changed.

Mr. Lacey: That was a secondary recommendation. We have said that if the joint committee finds that the Constitution needs to be changed, heterosexual and homosexual cohabiting couples should be provided for. It is not something GLUE is actively recommending.

Deputy Ó Snodaigh: If the change recommended by the delegation, with which I am broadly in agreement, although I would prefer a slightly modified wording, comes to pass, it would allow the legislation, etc., to flow much easier.

Mr. Lacey: While constitutional change would be beneficial to same sex and opposite sex cohabiting couples, our organisation has taken the view that it would take far longer to secure a positive referendum outcome than to provide for civil unions as proposed by Senator Norris. Of our members, 95% have immigration issues with which to deal and do not have a great deal of time to wait.

Ms Wickremasinghe: Unfortunately, a number of couples would have to resort to leaving Ireland. Irish members trying to return to Ireland with their non-EU partners have failed to secure status and have had to move to the United Kingdom or the United States.

Senator Daly: A number of delegations and, in certain cases, the courts have indicated that there is a need to provide further for child protection in the Constitution. Does GLUE have knowledge or information on the numbers of children of couples in same sex relationships in Ireland?

Ms Wickremasinghe: I would feel more comfortable if the Senator asked that question of the ICCL as it concerns its area of expertise. As my co-chairman, Mr. Lacey explained, our group’s primary concern is immigration. I would not want to put my foot in it.

Senator Daly: Yesterday it was indicated that there was no real research or statistics on the number of children of same sex couples. We have a special interest in children’s rights in respect of potential changes to the Constitution.

Mr. Lacey: The previous group suggested there were statistics and stated the findings of research were very negative. We refute this completely. While we do not have access to expert opinion, we refer members to organisations such as the Irish Council for Civil Liberties which has carried out considerable research.

Chairman: We will take the GLUE submission into account in our deliberations and when we come to publish our report.

Sitting suspended at 3.15 p.m. and resumed at 3.20 p.m.

Chairman: The next delegation, the Immigrant Council of Ireland, has been waiting patiently. Although we are running over time, we will try to allow it 30 minutes, as is its entitlement. I welcome Ms Denise Charlton, chief executive, and Ms Catherine Cosgrave, legal adviser. I remind visitors that while members of the joint committee have absolute privilege, this same privilege does not apply to witnesses appearing before the committee. I invite the delegation to make its presentation for six to eight minutes, after which we will have questions and answers. As we have received the submission, I suggest Ms Charlton and Ms Cosgrave provide a synopsis, highlighting the main issues they wish to get across.

Ms Denise Charlton: I thank members of the joint committee for giving us an opportunity to make this presentation which we will divide into two parts. I will speak briefly about the Immigrant Council of Ireland, its work and issues which arise with regard to the family. My colleague, the council’s legal officer, Ms Catherine Cosgrave, will then offer for the consideration of the committee a number of recommendations and solutions to the issues raised.

The Immigrant Council of Ireland was established by Sr. Stanislaus Kennedy in 2002 against the background of Ireland becoming a country of immigration and destination. While many groups were offering mechanisms of support to those entering the country on the basis of our international obligations, that is, asylum seekers and refugees, few mechanisms of support were available to large numbers of other immigrants, in other words, those entering the country for purposes such as work, study, self-employment and visits or those who had acquired irregular status or were seeking to join family members. The presentation will focus on these groups.

The core work of the Immigrant Council of Ireland is to provide information and advocacy services, principally in the areas of rights and entitlements. We regard our role as one of information provider and, as such, collate information on immigration and immigration law and distribute it is as widely as possible to as many groups as possible. We deliver training programmes for targeted service providers, work with agencies in the development of more inclusive policies and examine ways to develop new policy and research initiatives. We constantly try to learn about new communities in Ireland, their experiences and the implications of immigration policy on their daily lives. An additional aim of the council is to try to create better public understanding around the issues of migration, in terms of its benefits and challenges, and create debate on these issues.

To return to the issue of service provision, our service has two aspects. We offer an information and advocacy service for individual immigrants which supports approximately 3,000 people annually. We also offer this support to other organisations spread geographically throughout the county which may be working on other issues such as gender based violence, refugee access to health care and citizen information services.

A wide range of individuals with a variety of issues come through our door. Last year, for example, people from 139 nationalities accessed our service. We also provide a legal service in the absence of legal aid. This takes the form of support to individuals but also emulates our other service in that we try to provide our expertise for legal practitioners. We also have a working group of legal practitioners to which we can refer individuals.

An analysis of our services last year showed that family reunification, permission to remain, employment permits and citizenship were the four most common issues dealt with. Since we opened, family reunification has consistently been the most pressing issue for our service users.

We urge the joint committee, first and foremost, to recognise the changing nature and diversity of families. We know from the 2002 census that 160 nationalities live here and foreign nationals make up 5.8% of the population, a figure we believe to be an underestimate. As everyone is aware, the economy is expanding. To sustain economic growth the Central Statistics Office, in its population and labour force projections, estimates that 30,000 immigrants per annum will be required until 2036 and that 45,000 immigrant workers will be needed in each of the next 12 years. Some of the fortunate people who come here are accompanied by families. A speaker at a conference pointed out that we wanted workers but got people instead. This comment highlights the tiered system in operation and the fact that the right to family life is often dependent on one’s immigration status. We call on the joint committee, in considering what constitutes a family, to view migrants as people with rights who deserve a family life.

I will briefly address some of the issues raised by those who come through our door. There is no codified right to immediate family reunion. The Minister for Justice, Equality and Law Reform has absolute discretion to grant family reunification on an individual basis. The discretionary nature of decisions can be extremely problematic, particularly regarding children joining their families, and long delays can cause further problems.

In addition, persons granted leave to remain have no statutory rights to family reunification. Most recently, individuals applying for residency in the State on the basis of their parentage of an Irish child have been required to sign a statutory declaration accepting that they have no entitlement to family reunification. In certain circumstances this provision will affect reunification with a child or the child’s father, the signatory’s partner.

The restrictions placed on the right of a spouse to work cause difficulties. While it is welcome that some categories of spouse have a right to work, we want this right extended to all workers, particularly in the light of the number of workers the Central Statistics Office predicts will be required to maintain economic growth. The absence of a right to work also has implications for integration.

Women who come here on a dependant’s visa are afforded little protection under the current system and their immigration status often jeopardises their personal safety. Many of those interviewed as part of a recent research project carried out by the Immigrant Council of Ireland spoke of experiencing loneliness and homesickness as a result of being separated from their families under our family reunification policy.

As the joint committee heard from GLUE, the previous delegation, our current administrative arrangements are largely based on the nuclear model and have little regard to cultural and societal norms or the rights and entitlements of individuals with unmarried partners. We work closely with GLUE and support the sentiments expressed in its presentation.

The Constitution recognises the family as the primary and fundamental unit of society. However, current policy appears to have little regard for families of immigrants and this causes great hardship and suffering. Legislation is required to provide immigrants with greater legal entitlements to family reunification and ensure an equal and fair application process and, most importantly, meaningful family life for all those in society.

Ms Catherine Cosgrave: I thank members of the joint committee for inviting the Immigrant Council of Ireland to make a presentation. I am conscious of the limited time available to me. I will follow on from the contribution of my colleague, Ms Charlton, by giving a context to the various issues involved by briefly identifying the experiences of some of the migrants who have availed of our services. We are aware of one particular lady, Angela - I have changed names to protect identities - from the Philippines who was recruited through an agency to work in Ireland with a contract cleaning company. She was educated in school by Irish missionaries and before coming here she had an idea of what Ireland was like and especially the value that was placed on the family in Irish society. She is working here legally on a work permit.

Her experience of family life in Ireland is not what she had imagined prior to coming here. While her hard work and professional skills are valued, her life is somewhat undermined. She has consistently been turned down for visas for family members to come and visit her, not to join her permanently or to come and work here but for the purposes of a visit. Her experience of family life consists exclusively of cash remittances back to the Philippines and long distance phone calls. Not surprisingly she feels isolated by her experience here and misses her family considerably.

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