Refugee Bill, 1995: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. M. Kitt

Before Question Time I complimented the Minister on the Bill, which tries to deal fairly and impartially with refugees. The legislation we are putting in place will be better than that of any other EU member state. A report, drawn up by a committee of the Council of Europe, dealing with migration, refugees and demography, made the point that not all asylum seekers whose applications are rejected are automatically deported. Different procedures apply in different countries. They may be granted refugee status, which I understand happens in the Scandinavian countries.

In the United Kingdom, for example, there is a status known as the exceptional right to remain and in Germany one can get a temporary residence permit. Obviously these rights are substantially more limited than those granted under the Geneva Convention. In the United Kingdom, refugees granted exceptional permission to remain in the country cannot be joined by their families for four years whereas those who have obtained their status under the Geneva Convention are immediately entitled to family regrouping.

In regard to de facto refugees — people not recognised as refugees such as migrant workers and students — they are in a similar position in that they are unable to return to their country of origin. Asylum seekers whose applications have been rejected may also find themselves in a similar position.

As far as the protection of refugees is concerned, the Geneva Convention and its Protocol are the cornerstone. It is important to point out, however, that the European Convention on Human Rights helps to protect refugees also. Although that convention does not lay down any provisions on the treatment of refugees and asylum seekers, the European Commission and the Court of Human Rights have applied Article 3 of the convention which prohibits inhuman and degrading treatment of persons claiming they are likely to suffer persecution if they are returned to their countries of origin. The court has repeatedly asserted that even if the right of asylum is not secured in the convention, these removal measures are likely to pose problems under Article 3 and also under Article 13 which secures the right to an effective remedy.

The European Court has also reasserted the principle of family unity — I referred to that when I spoke about the Vietnamese refugees earlier — as laid down in Article 8 of the convention, which may protect migrant workers if they are deported or refused permission to enter a European state to join their families.

In 1991 the Council of Europe received a delegation of asylum seekers whose asylum applications had been rejected in France. They described the circumstances of approximately 100,000 African, Asian, Kurdish and Latin American people who had struggled to get the government to legalise their status. On that occasion it was pointed out that under Article 3 of the European Convention on Human Rights it was prohibited to return asylum seekers whose applications had been rejected to their countries of origin if it were likely to expose them to inhuman or degrading treatment.

I wish to refer to two particular international instruments, one of which was referred to by the Minister of State, the Dublin Convention and the Schengen Agreement. The Dublin Convention, often referred to as the asylum convention, lays down criteria for the consideration of applications and also provides for the exchange of information on asylum seekers between national authorities. Some doubts have been expressed about this because a number of provisions do not comply with the relevant international treaties, including the 1991 Council of Europe Convention for the Protection of Individuals, with regard to automatic processing of personal data.

The 1990 Schengen Agreement concerning the gradual abolition of border controls between member states deals more specifically with the free movement of persons. Under these agreements, applications may no longer be considered by more than one signatory state. That is an important provision and the Government must now outline its proposals in relation to the Schengen Agreement.

It is important to point out also that we have asylum seekers here whose applications have been rejected but who do not wish to return to their countries of origin, as well as those whose applications have been rejected but who wish to return to their own countries. We must examine how we can help people wishing to return to their countries of origin. I am aware this question was addressed by the Council of Ministers on a number of occasions and in February 1993 the Council adopted measures providing economic assistance to countries which, because of their poverty, are major sources of illegal emigration. The Council also drew attention to the need to help migrants who wanted to return voluntarily to their countries of origin. That might involve targeting refugees who are in a position to return and who will help build a democratic society in their own countries.

Returning migrants must be given a foothold in society and an opportunity to re-enter the labour market. That can be difficult because close co-operation with the country of origin is required, particularly those with high levels of unemployment. The host country, for example, might consider setting up a training body to help returning migrants. It is important that these people have confidence in democracy and making jobs available to them will be crucial in that regard.

Concern has been expressed here recently about Irish people who obtain employment in other European countries. The growing levels of unemployment in Europe afford ruthless employers the opportunity of exploiting illegal immigrants. In many instances, a network of crime is established and it is important that we address that problem at EU level because we are really talking about disguised slavery. Illegal immigrants cannot contest the wages they are offered and people are forced to work long, irregular hours. There is wholesale exploitation of those workers and in many cases that can lead to organised crime, racism and xenophobia. The EU should set penalties for dealing with employers of illegal immigrants as a matter of urgency.

I am glad the Bill has been placed on a statutory footing. There have been many well publicised incidents of refugees arriving in this country, particularly at Shannon Airport, which were difficult and traumatic for those concerned. I wish to pay tribute to the Red Cross which has carried out excellent work in that region to solve the problems of refugees, which are not always concerned with accommodation but with other factors such as health, education and the trauma endured by torture victims.

Ireland has always been willing to help refugees. Deputy Lynch said we were not the country of a thousand welcomes. She should have said we were the country of 100,000 welcomes; we may not be the best in that regard but we are certainly not the worst. This legislation will help refugees and I compliment the Minister on bringing it forward. I hope some of the technical points we have raised will be dealt with on Committee Stage.

Mr. Costello

I welcome this legislation. We have put down in statutory form the best international practice and enhanced it with some developments of our own. I congratulate the Minister of State at the Department of Justice, Deputy Burton, on bringing forward the Bill in its present format.

This Bill has been a long time in gestation. When I was a member of Amnesty International in the 1970s and 1980s, much emphasis was put on getting arrangements between the Department of Justice and the United Nations High Commission for Refugees placed on a statutory footing. Thankfully this is now being done. I wish to congratulate Amnesty International on the high profile it gave this issue for many years and the Irish Refugee Council for doing likewise in later years.

This Bill is a major step forward from previous measures in this area. For example, Deputy Shatter's 1993 Private Members' Bill on refugee protection and the refugee Bill introduced by the previous Government in 1994 had many shortcomings. The Government has at last achieved the proper balance in this Bill.

I wish to give an example of how the procedures under the 1985 arrangement between the Department of Justice and the UNHCR did not operate effectively. A citizen of the People's Republic of China, Ji Yao Lau, was involved in the protest in Tiananmen Square and subsequently went on the run. However, he was captured and put in prison where he was tortured. When he was eventually released he again went on the run and managed to escape from China. He attempted to join his sisters in the United Kingdom but unfortunately, arrived at Dublin Airport where he was detained by immigration officers who correctly suspected that his passport was forged. While his nationality was being established he was detained in one of the two cells specifically allocated for the detention of aliens in the Garda station in Fitzgibbon Street.

While arrangements were being made without his knowledge for his deportation to Thailand his sisters, on the advice of the gardaí, contacted his solicitor who helped him apply for refugee status. He was imprisoned in Mountjoy from October 1990 until May 1991 at which stage the High Court ordered his release. When I met him in prison he told me he thought Ireland was part of the United Kingdom and he had disembarked from the aeroplane at Dublin Airport so that he could catch a train Birmingham.

Nobody told this man about his right to contact his lawyer and nobody contacted the United Nations High Commission for Refugees. Why should a person who has applied for asylum be held in a cell for eight months? I welcome the decision to put the procedures in this area on a statutory basis. As far back as 1982 when I was a Senator I raised this matter and requested the Minister to introduce legislation along these lines. It is extremely important that we are seen to adhere to international human rights and that we put in place procedures which ensure that natural justice is upheld, refugees are treated humanely and all applications are given proper consideration. The section on refugees and asylum seekers in the Programme for Government states:

Our policy towards the treatment of refugees, asylum seekers and immigrants will meet the highest international standards. Procedures will be introduced to guarantee rights of hearing, appeal, access to legal advice and access to the courts.

I am satisfied that the Bill provides for all these measures.

It is appropriate that this legislation is being introduced in 1995 which marks the 150th anniverary of the Famine. Many of the people who seek asylum are fleeing from persecution and famine in their countries. One hundred and fifty years ago many Irish people sought refuge in other countries to escape what was happening here. It would have been terrible if they had been turned back at Ellis Island or did not get beyond the Statue of Liberty in New York bay.

It is important that applications for asylum are considered in a humane manner. Our generosity should not simply extend to giving money to GOAL, Gorta and Concern to help them in assisting people in other countries who are being persecuted or suffering from famine. It is important that we extend a welcome on Irish soil to the small number of people who seek asylum here. It should be remembered that these are not economic refugees. It is estimated that one million people are seeking refugees status in Europe on an economic basis. We should adopt a Christian response to people who seek asylum here. We are obliged to implement the 1951 United Nations Geneva Convention and the 1967 New York Protocol. It is important to look at the definition section of the convention to ascertain the progress being made in the legislation. It states:

A refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

I welcome the Minister's decision to extend the definition of a "refugee" in the Bill beyond that required in the 1951 Convention and the 1967 Protocol by including "gender, sexual orientation or membership of a trade union". This puts us ahead of other countries in terms of the definition of a refugee.

Another key section deals with the way refugee status is determined under statutory procedures. The two important aspects in this regard are the establishment of an independent authority to examine applications and the establishment of an independent board to hear appeals. In 1991 only one of the 66 applications for refugee status was successful. In many cases people were not given a proper hearing before being sent back on a plane to their own counties. Given the lack of success in this area in the past it is critical that the procedures are correct. In future each applicant will have a right to be heard. This is in contrast with the previous practice whereby peremptory hearings were held.

Amnesty International states in its documentation:

In Ireland, asylum seekers who make a claim upon arrival at a port of entry are interviewed, often on the same day they arrive, by an immigration officer who receives no special training in international refugee law or the special situation of asylum seekers. Asylum seekers at a port of entry are not usually told of their right to legal counsel or their right to contact the UNHCR. Moreover, the decision on their case is usually made by officials in the Department of Justice on the basis of the immigration officer's notes of the interview. These officials, too, have no special knowledge of international refugee law or of conditions in the asylum seeker's country of origin.

These matters are now being rectified. It is important that a proper applications procedure is provided for and underpinned by statutory provisions.

It was proposed under the 1994 Bill to establish a one person appeals board, but under this Bill a five person board will be set up. I am delighted that it also makes provision for oral hearings.

The Bill provides for the reunification of refugees with their families who will be granted the same status. This is an important development. This means that they will be treated as if they were Irish citizens and entitled to receive social welfare allowances and to be housed. This should ensure a humanitarian approach is adopted in dealing with applications. I hope problems will not be encountered when it comes to taking up employment. In Britain a person with refugee status can apply for a work permit after a period of six months.

On the question of detention, it is expected that persons will not be detained for long periods and only where they are wanted in connection with serious offences, such as murder and rape, in their country of origin. The period of detention will be reviewed after ten days. The previous practice, whereby applicants for asylum were held for long periods in the holding cells of Cork, Limerick and Mountjoy Prisons pending a decision in their case, was totally unacceptable. They were isolated and shunned and treated as if they were criminals rather than in a congenial or humanitarian fashion.

Although I do not have the statistics, judging from newspaper reports and information supplied by Amnesty International deportation was practically the norm and the person concerned was sent home on the next plane. That was a simple but crude and inhumane way of dealing with them. It was a case of out of sight, out of mind. That rarely happens now.

The Irish Refugee Council and Amnesty International have voiced concern about the lack of translation facilities. This presents a major problem for refugees who, in the main, come from non-English speaking countries. In the past there were no proper procedures to ensure interpreters were present at interviews. I am satisfied that there will be an obligation under this legisation to provide such facilities to ensure applications are dealt with properly ab initio.

Today on "Morning Ireland" the Minister responded to Amnesty International's queries about legal aid. The Bill allows for the introduction of such a scheme to meet the needs of those who wish to apply for refugee status. This is a welcome development because, by and large, refugees are unlikely to have any money in their pockets.

There has been reference to the Dublin Convention under which refugees may be sent back to the member state from which they arrived and from where they may be sent back to their country of origin. In this regard the State should first show reasonable cause. I will quote the Irish Refugee Council's description of the Bill:

The Irish Refugee Council regards the introduction of the Refugee Bill 1995 as placing Ireland to the forefront of progressive international law and practive on asylum.

That is what the Bill achieves.

Mr. Killeen

In introducing the Bill the Government recognises the level of abuse, torture and ill treatment of people which is a fact of life in many countries. In some instances people escape from these regimes. Many flee from one state to another over land borders. There is access to Ireland from some of the former USSR states, the Balkans, Cuba and so on and a considerable number of refugees arrive here.

I am glad this and the 1994 Bill seek to put the treatment of refugees on a statutory basis. Most Members agree that no one should be sent back to their own country if the regime poses a real threat to them. We must recognise the excellent work done by Amnesty International, the International Red Cross and the Refugee Council, sometimes in difficult circumstances with little support. They bring problem cases to the attention of many Members and go to enormous trouble on behalf of people they do not know. In County Clare voluntary members of those organisations took people into their homes and looked after them at great inconvenience and expense. They lobbied on their behalf for the introduction of legislation and this Bill is a great tribute to their work and persistence.

Many Deputies said we stand indicted for our tardiness in adopting the highest international standards and ideas and legislating for them, but in many respects we have a better record than some of our wealthier neighbours. It is only right that this should be so. Famine victims left this country. Some would say they were economic refugees but in many cases they would fall into a different category. They were reasonably well received in other countries but this was not universally so. Some of them suffered degrading and inhumane treatment and others managed to be successful in their adopted countries. Against that background, it is incumbent on us to play our part and be seen to do so internationally.

The Minister referred to people who seek to escape economic hardship rather than persecution and the clear distinction that needs to be made between those two categories. We encountered that in County Clare a little over a year ago when a substantial number of people from Cuba arrived here. The evidence seemed to support the view that they were economic refugees but I spoke to many of them and was not absolutely convinced that was universally so. Some of them may have had genuine reason to fear returning to their own country. They may not have feared execution but they feared persecution. It would be unfair to automatically treat people from a particular state as economic refugees.

The procedures set out in the Bill should be applied as fairly as possible. The Commissioner has the right to bring consideration of a particular application to an end and that is important.

It is rightly said that this and successive Governments should have exerted more pressure on American Governments to lift the blockade on Cuba which is why people leave their own country as economic refugees. As well as bringing in a Bill to deal with the problem there is an onus on the Government to bring pressure to bear at international and UN level on Governments who contribute to the problem. It is important that the integrity of the process be protected. Section 22 provides for that.

Despite this country's accession to the 1951 UN convention in 1956 and to the 1967 Protocol there was considerable disquiet about the workings of the procedures in this country. People who were close to refugees expressed grave concern about the manner in which they were dealt with. The High Court case in 1992 was a major breakthrough and, in some respects, effectively established the Protocol and convention in this country.

There is a weakness in the Geneva Convention in that while it defines the term "refugee" it does not set out the procedures to be adopted to determine who is entitled to be recognised as such. This Bill addresses that successfully. It is interesting that the Bill benefited enormously from the debate on the 1994 Bill. It is encouraging that so many Deputies took the time and trouble on that occasion to express their concerns and made a genuine input to the Bill. While there is pressure on the Oireachtas to enact legislation there is also need to ensure Members have an input to it.

This Bill is an excellent example of legislation which has wide all-party support. I forget the exact wording of the previous Bill but I was among those who expressed a reservation about the provision relating to an interpreter. Although the provision was strengthened in this Bill the Minister of State has explained why it is not absolute and I accept that.

Another matter of extreme importance and of which we have some experience is the training of people dealing with refugees. The role of the immigration officer and the commissioner is set out clearly in the Bill. There is an important role to be played by people dealing with applicants. Members of the House who have had experience of meeting refugees will understand the fears and difficulties experienced by them when they arrive in a foreign country, particularly when they cannot speak English. Those whom I have met tended to have no more than a few words of English. These people must be dealt with in a specialist and specialised way.

The question of forged documents is well covered in the Bill. Some people who seek asylum have gained access to the country by using forged documents. It is important that possession of a forged passport or other document is not used as a reason to debar a person from applying for refugee status. It may be difficult to deal with this matter but it should be considered on Committee Stage. The Minister pointed out that in the past criminals have tried to get refugee status here by using forged documents. There is need for vigilance in that respect but there is also need to recognise that sometimes access can be gained only by using such documents.

The setting up of the independent refugee commissioner is welcome. It provides for accessibility and transparency. It is extraordinary that the appeals procedure, which is manifestly required in many instances, is frequently excluded from provisions. There is an absolute right for an applicant to be heard. In that respect we are setting an excellent example for other states. On the enactment of this Bill our provisions dealing with refugees will be among the best internationally.

Section 3 deals with refugees' rights. Section 18, a very important section, deals with the rights of family members and the rights of families to be reunited. Section 3 does not lay down an exhaustive list of rights but I presume it is intended that the normal rights extended to citizens will apply to successful applicants.

Section 8 deals with an area that needed urgent attention, that is the immediate problems encountered when a person first arrives at a seaport or airport. There was reason to be dissatisfied with this measure in the past. It is now being put on a statutory footing which is welcome. A person must be informed of his right to apply for refugee status and that he may consult a solicitor. The UNHCR must also be informed. People already in the State must apply directly to the Minister for Justice and there is an excellent reason for that.

Section 9 deals with an area that poses considerable difficulties, that is the rights of persons awaiting determination of their application. It sets out their right to remain here during processing of the application and also who will deal with their needs during that period.

Debate adjourned.

Dáil Éireann debate - Thursday, 19 Oct 1995