Dáil Éireann debate -
Wednesday, 9 Oct 2024

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Council Regulation on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement,

a copy of which was laid before Dáil Éireann on 16th August, 2024.

I thank Deputies for agreeing to debate this motion at relatively short notice. As is so often the case for our opt-ins, the time we are given is quite short and this one in particular has been quite technical in nature. Although technical, it will not change how things operate on the ground. It is simply in response to a recent court ruling.

I welcome the opportunity to address the Dáil on Ireland's opt-in to an updated legislative proposal on strengthening the security of identity cards and residence documents issued to Union citizens and their family members exercising their right of free movement. Ireland has an option, provided for in Article 3.1 of protocol 21 annexed to the Treaty of Lisbon, to opt in to individual proposals in the area of freedom, security and justice. The protocol provides that Ireland has three months from the date a proposal or initiative is presented to the Council to notify the Presidency of the Council in writing of its wish to take part in the negotiation, adoption and application of any such measure. The three-month period for this proposal is due to end on 23 October. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas. Ireland can also accept a proposal at any time after it has been adopted, but in such a case it will not have been in a position to vote on the final content of the proposal. It must also be noted Ireland made a declaration appended to the Treaty of Lisbon of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible.

One of the founding principles of the European Union was freedom of movement for EU citizens and their family members. Free movement of people has become one of the most successful aspects of the European project and one which brings a multitude of benefits to EU citizens and their family members throughout the European Union. However, this freedom of movement brings challenges, and as we navigate through some challenging times in Europe and the world, the importance of security and ensuring the resilience of our borders has never been more necessary. Prior to 2019, there was considerable divergence in standards among the EU member states regarding identification card security features. Similarly, residence documents issued to family members of EU nationals or EU citizens varied quite considerably. Due to the variance in documentation, there was an increased risk of falsification of these documents and it gave rise to the possibility of increased identity fraud. To combat this and reduce the possibility of falsified certification, it was decided to introduce uniformity and standardisation of identity cards and residence documents issued within the European Union. The resulting regulation, titled "strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement", was adopted in June 2019 and has been in application since 2 August 2021.

Among the measures laid out in the regulation was an agreed minimum level of common security measures for identity cards and residence documents which focused on a number of things. The first element was the inclusion of two different sets of biometric identifiers, meaning facial images and fingerprints. This follows a similar approach already taken for security features of passports. The second was the establishment of phase-out rules such that non-compliant cards will phase out at expiry or within a maximum of five years, or two years for less secure non-machine readable cards. The third was the introduction of an EU-wide maximum validity for identity cards of ten years.

The proposal before us is a technical amendment to the 2019 regulation on the strengthening of the security of ID cards. This is required as a legal challenge was taken to the facial image and biometrics taken for the ID card and whether they were compatible with the fundamental right to respect for private life. While the Court of Justice of the European Union found it was compatible with fundamental rights, the court ruled the underlying legal basis of the regulation was incorrect. The underlying legal basis should have been Article 77(3) of the Treaty on the Functioning of the European Union and required unanimity rather than qualified majority voting, as was followed. The court therefore annulled the regulation in its entirety but with a stay on effect until 31 December 2026 or adoption of a new legislative provision. If not resolved in that timescale, the default is to revert to the pre-2019 position.

As this new proposal will be based on Article 77(3), it has a title V legal basis and, as such, the Ireland opt-in applies. The previous regulation did not provide an opt-in option for Ireland and so Ireland was automatically included in the regulation. It is important to note Ireland does not currently register EU citizens availing of free movement and this regulation does not compel us to do so either. Ireland is already compliant with the existing regulations, including the encryption of the photo and the two fingerprints on all Irish residence permits, including third-country nationals availing of EU treaty rights. This regulation does not require Ireland to take any new measures to ensure compliance with this new proposal as the proposal essentially replicates the wording of the previous regulation, which has already been in force for three years.

Aligning ourselves with other EU member states in the adoption of policies and regulations on free movement is hugely important not only to ensure the ease and benefit of free movement for Irish citizens across the EU but also for the additional security opting in to these measures will bring. The security of Ireland's borders during these unprecedented times of global migration, illegal border crossings and security threats is of fundamental importance. We must be aligned with other member states and ensure we are working in tandem to reduce the risk of illegal migration, terrorism and cross-border crime while also ensuring our right to free movement is upheld and secure. This proposal is an important element in ensuring we reduce, insofar as possible, the ability of criminal elements to falsify or replicate important EU identity papers and documentation.

As this proposal is essentially a technical fix for a regulation with which Ireland is compliant and has already adopted, it is prudent that Ireland now opts in to this regulation. It is a significant regulation among a whole suite of measures which the EU has introduced over recent years to ensure we are able to maintain effective control of our borders and to ensure the integrity of the systems, which allow for the freedom of movement, are upheld. For the reasons I have outlined, I am requesting Members' approval to opt in to this proposed regulation. I, of course, look forward to hearing the views of the Deputies today and I urge them to support the motion.

According to the briefing paper, the legal advices are that there is no legal or practical impediment to opting in to this proposal, but that does not mean we should not scrutinise why we should opt in to it when we are not obliged to. The approach of the Government more and more seems to be to opt in to all these proposals when requested and this proposal is the latest example.

The impression given in the paper is that it is an innocuous and administrative change, but what exactly is the proposal? The briefing that was provided says "The purpose of ... [COM (2024) 316 is to introduce] ... a new regulation on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement being adopted on the appropriate legal basis". The existing regulation was challenged by a group in Wiesbaden in Germany called Digitalcourage. The administrative court there submitted the case to the European Court of Justice. The briefing note continues that the decision to introduce the proposal arises from the results of the legal challenge in March 2024 in which the European Court of Justice found that Regulation (EU) 2019/1157, which is the current regulation on strengthening the security of identity cards of Union citizens and of residence documents, is invalid due to its adoption on the incorrect legal basis. It appears the underlying legal basis should have been Article 77 and required unanimity rather than a qualified majority.

Two important points arise from the briefing paper that has been provided to the House.

It states, "In operational and policy terms Ireland is already adhering to the proposal and it is considered prudent that Ireland avail of an Article 3 opt-in before 23 October 2024." It continues, "To note, Ireland does not currently register EU Citizens availing of free movement under the Directive, and this Regulation does not compel us to do so."

Related to that, it needs to be considered what occurs in other jurisdictions regarding the free movement of EU citizens. For example, if staying in Belgium for more than 90 days, even EU citizens must register with the local municipality and prove they have sufficient resources to avoid becoming a burden on the social welfare system and that they have or are seeking employment, and other requirements. Does the Department have any view on such a system or has that ever been considered?

With regard to this motion, Sinn Féin supports an asylum and migration system that is fair, efficient and enforced. Our general position on EU proposals is that Ireland should only opt in where we would otherwise not be able to do things ourselves. This was reflected in our stance on the EU migration pact in that Ireland should legislate for Ireland.

Of course, any gathering of data should be proportionate and necessary and we similarly want to uphold high standards in identity documents to prevent fraud within identity documents. The Government's briefing claims it is already adhering to the proposal in operational and policy terms. The Government has not mentioned what data will need to be gathered into the future to adhere to this regulation. That issue was considered when the proposal was considered initially in Europe. According to the briefing note, this regulation mandates the inclusion of fingerprints from every citizen looking to exercise freedom of movement rights. As the new proposal itself states, "In the recitals of the regulation, a reference is added to the fact that the Court of Justice has ruled that the mandatory inclusion of fingerprints on the storage medium is compatible with the fundamental rights to respect for private life and the protection of personal data as guaranteed in Article 7 and Article 8 of the Charter." There have been concerns expressed by a number of bodies that the data could possibly be used for other purposes. Will the Minister provide clarity on that concern, given that there have been many leaks and that the use of data for other purposes is always a concern?

They are some of the concerns Sinn Féin has about opting in to this regulation at this stage.

I thank the Minister for the opportunity to speak on the motion on the proposed approval by Dáil Éireann of the proposal for a Council regulation on strengthening the security of identity cards of Union citizens and of residence documents issued. This is for EU citizens and their family members exercising their rights to free movement.

I do not think anybody can dispute the need for a regulation that requires and ensures member states issue and renew identity cards or passports to international citizens in accordance with national laws or ensures member states issue permanent residency cards and documentation to family members who are not nationals. This is a given and I do not see how anyone could oppose the issuing of such identification or documentation.

To be honest, I question the need to have a debate on this motion at all but I see from the Minister's speech that there is a requirement that it is changing from qualified majority voting to unanimous and that is why this motion is being put forward to be rubber-stamped in the Dáil today. Why did we need a full debate on this in the Dáil? The motion could have been sent to the justice committee and then come back and been proposed and seconded during the Order of Business and the time could have been used for more effective debates. Although there are concerns about what could happen in relation to this, I do not see why it could not be passed without debate and I wonder what the reasoning for that is. Will the Minister speak to this?

I understand other European regulations are just proposed and seconded as they are technical motions and this appears to be a technical motion. It has already been implemented and supported by Ireland since 17 April and operational since 2 August. We are already supporting and going along with this regulation so debating it in the House would not make any difference, except if we refused to ratify it on the basis of the change from qualified majority voting. Why has this motion been put forward for debate?

To answer the previous question, as this regulation requires an opt-in, it is a requirement that we seek and get the approval of both Houses, which requires a debate, however long it is. This will be a short debate today but sometimes we have had opt-ins where the debates were for much longer. It is a requirement if we choose to opt in that we make that known to the Council and that it is by the adoption by both Houses. We will have a similar debate - perhaps a short one as well - in the Seanad. It is for those reasons we are here.

As I outlined earlier, this proposal is a technical fix for a regulation that is already in force and one with which Ireland is already in full compliance. It is important for me to reiterate that opting in to the proposal will not require Ireland to start registering European Union citizens. In terms of how we are already operating, it will not place any additional onus on Ireland to issue any new documentation or alter any of the residence documentation or registration cards we already issue.

The registration certificates for EU citizens Ireland provides can still be applied for after the five years of residency in the State and this continues to be optional. There is no mandatory requirement for EU citizens to obtain one or to register with the immigration authorities, ensuring EU citizens can move with ease, and that allows for positive inward migration and the flow of eligible people under freedom of movement.

This proposal is to ensure the regulation introduced in 2019 that is already in effect remains and that the status quo remains. By not opting in we are potentially going backwards.

In terms of the legislation itself, the proposal essentially reproduces the text of the regulation from 2019 in almost all respects but there are a few minor amendments to the original regulation: the legal basis is corrected; recitals containing references to past policy documents are streamlined; there will be minor changes to the recitals to take into account Denmark and Ireland’s opt-ins or opt-outs; reference to the court ruling regarding the compatibility of fingerprinted fundamental rights; there will be a reference to case law and the possibility to attest entitlement to rights by other means; and there will be a new European data protection supervisor consultation. Those are the changes but all of these essentially will just ensure the status quo – the regulation that already exists, that was introduced in 2019 and Ireland automatically became part of – is maintained. Anything beyond that will be debated in the House if there is anything further to add or there are any further measures we need to take in this regard.