"That the Bill be now read a Second Time."
This Bill replaces the Refugee Bill, 1994, introduced by the previous Government which has been withdrawn. The primary purposes of the new Bill and its predecessor are essentially the same, namely to place our procedures for dealing with applications for refugee status on a statutory footing and to ensure that those procedures meet the highest standards in terms of fairness and impartialty towards applicants. As Deputies will recall, when the 1994 Bill was referred to the Select Committee on Legislation and Security, concerns were voiced on all sides of this House that it did not go far enough in seeking to safeguard the interests of applicants for asylum. In that context numerous amendments were tabled to the Bill and it was clear from the discussions that took place within the Select Committee that there was widespread support for the bulk of those amendments. The Government decided that, rather than seek to incorporate a large number of amendments into the original text, the better course would be to withdraw it and to introduce a new Bill which would take on board the relevant amendments to the maximum extent possible. This is a process that has involved a substantial amount of work including, in particular, detailed consultation with the Parliamentary Draftsman and the Office of the Attorney General.
In the course of my statement I will outline the main changes that have been made to the 1994 Bill. They are concerned, inter alia, with the entitlement of an applicant to be heard in the determination process and the extent to which interpreters must be provided. In addition I might mention, and this was urged extensively by the members of the Select Committee, that it is being made clear that the definition of a refugee will include a person persecuted because of his or her gender, sexual orientation or membership of a trade union. I believe that the new Bill fully meets the needs and legitimate expectations of applicants and I am confident that that view will be shared by the Members of this House. Before I go into detail in relation to the new Bill, it might be of interest to the House if I were to outline the background to the decision to introduce legislation to deal with asylum seekers and refugees.
Ireland acceded to the 1951 United Nations convention relating to the Status of Refugees in November 1956 and became a party to the related 1967 Protocol in November 1968. Since our accession, we have fulfilled our obligations under both instruments, although the procedures to give effect to those obligations were administrative and were never placed on a statutory footing. In the mid-1980s these administrative procedures were revised in consultation with the Office of the United Nations High Commissioner for Refugees, usually referred to as the UNHCR. The procedures were held to be legally binding by the Supreme Court in 1992. However, it has been contended that these arrangements are not sufficiently transparent or formal to meet today's needs. There is also a perception that because asylum seekers are a particularly vulnerable group of people it is in the interests of justice that their rights and entitlements should be clearly set out in a statute.
In 1993, an interdepartmental committee was established to examine all aspects of policy and practice in relation to non-nationals. Because of the importance of the issue of political asylum, the committee gave priority to this subject and produced an interim report which recommended that the existing administrative arrangements be put on a statutory footing, with the important addition of an appeals authority. The committee also recommended that an independent body be established to examine and make recommendations on applications for refugee status. The recommendations were accepted by the previous Government and incorporated in the 1994 Bill. They also form the basis of the new Bill. Accordingly the Bill is designed to give statutory effect to our international obligations with respect to refugees and to introduce an independent procedure for determining who is entitled to refugee status as well as providing for an appeals system. The 1995 Bill differs significantly from the 1994 Bill in the way in which it achieves this purpose. It provides for new structures to give applicants an absolute right to be heard and it provides for additional procedures and safeguards in the determination process.
At the heart of the Bill is the question of who is a refugee. It is, therefore, important that we should be clear as to what is meant by the term "refugee". The internationally accepted definition of a refugee is set out in the 1951 UN Geneva convention relating to the status of refugees, as amended by the 1967 Protocol. It is this definition that is used in section 2 of the Bill which provides that "a refugee" means 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 the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
When the 1994 Bill was before the Select Committee on Legislation and Security, amendments were tabled to include within the definition persecution for reasons of gender, sexual orientation, or membership of a trade union. The previous Minister for Justice was sympathetic to the suggested amendments and promised to examine the matter in consultation with the Parliamentary Draftsman. We have followed up that undertaking and, as I mentioned earlier, the definition has been augmented by an explanatory provision in the definition section to the effect that membership of a particular social group includes membership of a trade union and also includes membership of a group of persons whose defining characteristic is their belonging to the female or male sex or having a particular sexual orientation.
The first substantive issue addressed by the Bill is the question of the legal status of a person recognised as a refugee in this State. Section 3 sets out the statutory rights of a person who is declared to be a refugee. These rights will apply to all persons already recognised as refugees in the State as well as to any persons recognised as refugees in the future. Section 18, which I will discuss later, provides that these rights will also apply to close relatives and other dependent relatives admitted to the State for family re-unification purposes.
Articles 3 to 34 of the Geneva Convention set out a number of specific rights which should be afforded to recognised refugees admitted into a State. This is an aspect that is addressed in section 3 of the Bill and the general approach taken is to give recognised refugees rights similar to those held by Irish citizens. Section 3, as is made clear from the first subsection, is not intended to be exhaustive. It is only intended to cover issues which are particularly relevant to refugees or where there might be a doubt as to the legal entitlement of a refugee because he or she is not an Irish citizen. Refugees will automatically have those legal rights which apply to all persons who are in this jurisdiction.
Article 33 of the Geneva Convention provides that no contracting state shall expel or return a refugee to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. It goes on to state that a refugee who poses a danger to the security of the country or who has been convicted of serious crime and who constitutes a danger to the community cannot claim the benefit of this prohibition on expulsion or return.
Article 33 is given effect to by section 5 of the Bill. Indeed, section 5 goes further than Article 33 in that it applies to all persons, not just refugees, and it has been decided not to apply the second paragraph of Article 33 which prevents certain categories of people from availing of its protection. The Government has decided that no person will be expelled to the frontiers of a country where the life or freedom of that person would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. The section is of general application and is not limited to applicants for refugee status.
I might add that, regardless of section 5, when a person is declared a refugee under this Bill that person cannot be removed from the State. It is only if that person's status as a refugee has been revoked in accordance with section 21 that the possibility of expulsion arises. Section 5 also incorporates a provision to put it beyond doubt that a person's freedom shall be regarded as being threatened if the person is likely to be the subject of a serious assault, including a serious assault of a sexual nature. This reflects concerns expressed during the select committee debate on the 1994 Bill that sexual violence can be used as an instrument of persecution.
I turn now to the procedures for determining whether a person is entitled to refugee status. The Geneva Convention defines the term "refugee" but the procedures to be adopted to determine who is entitled to be recognised as a refugee are left to the discretion of individual states.
One of the main purposes of the Bill is to provide for statutory procedures which are not only fair but are seen to be fair and which fully comply with our commitments under the Geneva Convention. To this end, the Bill goes to very considerable lengths to ensure that all valid applications are thoroughly examined, that every applicant has the opportunity to put forward a case and that there is a comprehensive appeals procedure. The primary purpose of the Bill, therefore, is to safeguard the rights of applicants and to ensure that no valid application is rejected. The State and the Government have an obligation to ensure that all applicants are fairly treated. However, we also have a duty to make sure that the interests and safety of Irish citizens are not jeopardised. In addition, as a member state of the European Union, we have obligations to the other member states in this area. The Bill has to take all these matters into account.
The Bill must also ensure that the refugee determination process is not abused. While we are all aware of the difficulties that can face genuine refugees in fleeing and escaping persecution, it would be foolish and irresponsible, however, if we did not also recognise that many applicants are seeking to escape from economic hardship rather than persecution. We may indeed have every sympathy for such persons but it must be borne in mind that the primary purpose of the Bill is not to provide a solution to problems caused by economic situations but rather to offer protection to persons fleeing persecution. Of course, even cases involving economic hardship may not be clear cut. There could be aspects of particular situations which would have to be examined to assess if genuine Convention grounds for seeking the protection of the State exist but such consideration must be undertaken in a way that ensures that the integrity of the asylum process is maintained. This is something which the UNHCR, in its discussions with us, laid particular emphasis.
There may, of course, also be people who apply for refugee status who pose a threat to the community. This category would include a hardened criminal such as a murderer or rapist fleeing either prosecution or detention in another country and hoping to explain his or her forged documents or lack of documentation by claiming to be a refugee. Indeed, such applications have recently been made in Ireland. It could also include a terrorist, or an agent working on behalf of a foreign government, who might try to avail of the procedures to gain access to the country with the aim of engaging in political violence. In addition, there are people who have gained international notoriety and are seeking a country of refuge. The Government has a very important responsibility to protect the public and the national interest against such threats and, accordingly, powers to detain such people and in certain cases to prevent them entering the country in the first place must be provided.
The Bill had to be framed to deal with all these types of applicants with the emphasis on the genuine applicant. I consider that the right balance has been struck by providing an extremely open and fair system for dealing with applications for refugee status which will be subject to a limited number of essential protective measures.
I would like to turn now to the details of the application procedures provided for in the Bill. The first step for most applicants will arise when they arrive at the Irish immigration controls at one of the airports or ports. The intention behind section 8 is that, if an immigration officer has reason to believe a person might be a refugee, he or she must be informed that they may apply for a declaration of refugee status. The person must also be told that he or she may consult a solicitor and the Office of the United Nations High Commissioner for Refugees. Persons will, therefore, have access to independent advice before they decide whether they wish to apply for a declaration under the Bill. The onus is being placed on immigration officers to inquire of a person they believe may be a refugee as to whether he or she wishes to apply because a refugee fleeing from a country of persecution could not be expected to be familiar with our law.
The situation will be slightly different for persons already in the State. Whether they are here legally or illegally, they will apply to the Minister for Justice and then be given an appointment for an interview with an immigration officer. At this point I draw the attention of the House to the provision in subsection (2) of section 8 which provides for the assistance of interpreters. The corresponding provision in the 1994 Bill provided for the assistance of an interpreter "where necessary and practicable". When that Bill was discussed by the select committee last year, amendments were put down to the subsection because Deputies were unhappy with the expression "where practicable". They felt that it unduly limited what they saw as an essential right to interpretation in the interests of fairness.
As Deputies may be aware, the provision was worded in that way to avoid putting an absolute onus on the authorities to provide interpretation on the basis that a person could refuse to co-operate and pretend not to speak any known language. However, because what the Deputies wished to achieve was essentially the same as what the Bill was intended to achieve, it was agreed that the provision would be re-examined. The parliamentary draftsman was consulted and asked to provide a wording which would put the highest possible onus on the authorities to provide an interpreter but allow for the rare and exceptional case where a person refuses to co-operate with our authorities. The wording in subsection (2) now refers to the provision of interpretation "where necessary and possible". I am satisfied that this will mean that interpretation will be provided in the normal course of events. A similar approach has been adopted in relation to the other parts of the Bill that refer to the provision of interpretation for applicants.
If a person makes an application for refugee status it will be referred to the Refugee Applications Board and the UNHCR will be notified. However, before I go on to elaborate on how applications will be processed I should mention what will happen to the applicant while the application is being dealt with. This is governed by section 9 of the Bill.
If the applicant has arrived from abroad then, once he or she makes an application for a declaration regarding refugee status, the immigration officer will be obliged to give the applicant leave to enter the State. I must emphasise, at this point, that the immigration officer is being given no discretion to refuse entry to any person who applies for a declaration. It is also important to note that with the exception of Dublin Convention cases — I will explain the situation in relation to such cases later — once a person is given leave to enter under this section, he or she will be entitled to remain until either the application is withdrawn or finally determined. This is important for the applicant as it means he or she can remain during the processing of an appeal.
However, under section 9(15) entry will be refused to persons who are the subject of deportation, prohibition or exclusion orders. These will be orders made in respect of named individuals who are believed to have committed a serious crime or to pose a threat on security or public policy grounds. Such orders are not and will not be made frequently and have to be made by a Minister, not an official.
In general, however, all applicants will be admitted to the State and, as I have already mentioned, under section 9(2), will be entitled to remain until an application has been processed. Similarly, a person who is already in the State, whether lawfully or unlawfully, will be allowed to remain until his or her application has been finalised.
Applicants who would not otherwise be entitled to enter and remain in the State will be subject to certain controls which are set out in section 9(4) to (14).
One such control is that applicants will not be allowed to work or go into business while their applications are being considered. In most cases, as at present, the taxpayer, through the health boards, local authorities or central Departments, will carry the cost of housing and maintaining asylum seekers. It must be remembered that asylum seekers are applicants for legal status in this country. If they are granted this status, of course, they can work, but until such a determination is made it would be inappropriate that they should be allowed to work and establish themselves in the State. We must be careful not to create conditions which could make it attractive to abuse the asylum procedures.
As I have mentioned, immigration officers will not have any discretion to refuse entry to asylum applicants and, accordingly, the general rule will be that such applicants will be given free entry into the country. However, if an immigration officer is clearly faced with a suspected foreign criminal or terrorist who is applying for asylum we do not wish to see such a person free to walk our streets. Section 9(8) provides that, in the circumstances listed in the subsection, an immigration officer or member of the Garda Síochána may detain the person in question. The 1994 Bill provided important safeguards in relation to detention in that every person detained had to be brought before a District Court which could order continued detention or release the person subject to certain conditions. Because depriving a person of his or her liberty is such a serious step, additional safeguards have been included in this portion of the new Bill. In the first place some of the grounds on which detention may arise have been amended. Under the 1994 Bill, a person could be detained if he or she failed to establish his or her identity or destroyed or had forged identity documents. During the debate on that Bill in the select committee, Deputies were concerned that these grounds did not take into account the situation of fleeing asylum seekers who might not have been in a position to obtain identity papers or whose only hope of escape was to use forged documents. The previous Minister for Justice accepted amendments to take account of such situations and they are included in this Bill. The section had also been amended to provide that a person under 17 years cannot be detained and the intervals at which continued detention must be reviewed by a court has been reduced to ten days from the 21 days permitted by the 1994 Bill.
To return to the processing of applications for a declaration regarding refugee status, the question arises as to who will investigate the applications. To ensure that the process is not just fair but seen to be fair, the Bill proposes that applications will be considered by an independent commissioner who will investigate each case to make a recommendation. Section 6 and the First Schedule provide for the commissioner who will be called the refugee applications commissioner. The commissioner will have had at least seven years' experience as a practising barrister or solicitor and is required by the Bill to be independent in the exercise of his or her functions. The commissioner will also have his or her own staff to assist in investigations and he or she will be in a position to provide an independent and objective assessment in each case as to whether the person concerned should be granted a declaration of refugee status.
Section 11 deals with the investigation of applications by the commissioner. The first step by the commissioner will be the appointment of an authorised officer to interview the applicant and to report on the application to the commissioner. This section gives an applicant an automatic right to an interview with an authorised officer. While the 1994 Bill envisaged such an interview it did not give an applicant any specific right in that regard and it was possible for an application to be determined without the applicant having the opportunity to present his or her case.
In addition to the interview and the commissioner's investigations the commissioner may seek the assistance of the Department of Foreign Affairs or the Department of Justice, or perhaps the UNHCR, in verifying the applicant's claim. The applicant will, of course, be free to submit material or representations to support his or her application. In every case the applicant must be supplied with the material and observations received relevant to the case so that he or she may rebut or explain any material which might not support his or her application.
While an applicant will be given every opportunity to present his or her case, and to be aware of any material which might militate against his or her application, the question of adversarial proceedings will not arise. It would be quite incorrect to envisage that there will be two competing sides in this process. The role of the commissioner will be to investigate all applications in an independent and objective manner and this will work in favour of all genuine refugees.
However, experience has shown that investigations of this type can be time-consuming as normally asylum seekers are from countries which are a considerable distance from Ireland. Our European partners have found that a significant proportion of applications are manifestly unfounded. This had led to considerable delay and expense in investigating such claims and has resulted in the investigation of genuine applications being delayed. The UNHCR is familiar with this problem and the executive committee of the UNHCR programme adopted a conclusion in 1983 to the effect that national procedures "may usefully include special provision for dealing in an expeditious manner with applications which are considered to be so obviously without foundation as not to merit full examination at every level of the procedure". The Ministers of Justice and Home Affairs of the European Communities, who are responsible for immigration matters, adopted a resolution in 1992 on manifestly unfounded applications for asylum. In keeping with the UNHCR conclusion, and the EC resolution, section 12 provides for a special procedure for manifestly unfounded applications.
If the commissioner forms the opinion that an application is manifestly unfounded, he or she may stop the investigation and advise the applicant why the application is considered unfounded. The applicant will have an opportunity, which includes the facility of an interview, to put forward the case that the application is not manifestly unfounded. If the commissioner remains of the view that the application is manifestly unfounded he or she will recommend that the applicant should not be granted a declaration. The applicant may, under section 16, appeal against that recommendation to the appeal board. I would point out that the applicant does not have to prove that he or she is a refuge. All that will have to be shown is that the application warrants a full investigation.
An application that is not dealt with as manifestly unfounded will be the subject of a full investigation under section 13 where the commissioner will submit a report and make a recommendation to the Minister. If the recommendation is negative, the applicant may appeal to the appeal board.
Section 15 and the Second Schedule provide for the establishment of the Refugee Appeal Board. It will comprise a chairperson who will have had at least ten years' experience as a practising barrister or solicitor, a representative of the Minister for Justice, a representative of the Minister for Foreign Affairs and two other persons. The appeal board can, under section 16, either agree with a negative recommendation of the commissioner or reverse it. In a case where the commissioner did not fully investigate an application because he or she considered it manifestly unfounded, the appeal board can direct the commissioners to carry out a full investigtion. One of the most important new provisions is in this section. It provides that an appellant will have a right to an oral hearing before the appeal board. This is a significant change to the 1994 Bill which provided for oral hearings only at the discretion of the appeals authority. It has been made because the Government believes that to be absolutely fair the procedures should enable an applicant to be heard by the persons who will make the final decision on his or her case.
The appeal board may direct any person to attend and produce documents for an oral hearing. It may also permit the applicant to present his or her case through a legal representative. The appeal board hearings will be held in private to protect the identity of applicants and their overall interests.
To avoid any confusion I should explain that, if the Commissioner recommends that a person should not be granted a declaration, the Minister will not make a decision on the application until after the Appeal Board has had an opportunity to consider any appeal.
Section 17 deals with the giving of a declaration that a person is a refugee. The importance of a declaration is that it is a formal recognition that the person named in the declaration is a refugee under the Geneva Convention and is entitled to the protection of the State.
The Minister is obliged by this section to grant a declaration that a person is a refugee where the Refugee Applicatins Commissioner or the Appeal Board has recommended that the person should be declared to be a refugee. The Minister can only refuse to give a declaration in the interest of national security or public order as provided for in the Geneva Convention.
I should emphasise that the power to refuse a declaration under section 17 will be confined to the specific circumstances of threats to national security or public order where the Minister would be so advised by the agencies of the State responsible for such matters. Indeed, I would expect that it is a power which would be seldom used, if ever. Nevertheless, it has to be included to cover a situation where security information on an applicant, which by its very nature cannot be passed to the Refugee Applications Commissioner, becomes available to the Minister and which indicates that the applicant poses a serious threat to the State. Of course, the norm will be that where the Commissioner or the Appeal Board recommends that a person be granted a declaration the Minister will be legally obliged to give the person concerned a declaration. Section 17 (5) deals with what happens to a person who has applied for refugee status but is found not to be entitled to such status.
The approach taken in the Bill is that applicants who are refused a declaration are being put in the position they were in before their made their application. If, before their application was made, they had no right to enter the State then, once their application has been considered and rejected by the Refugee Application Commissioner and the Appeal Board their right to be in the State lapses and provision can be made for their removal. I should point out, however, that the provision has been significantly amended to provide for a situation where, although a person is found not to be refugee, there may be grounds for allowing him or her to remain in the State. Accordingly, it will be open to the Minister to give that person permission to stay here on humanitarian grounds.
However, where the person has been found to have neither a case for refugee status nor otherwise to have grounds to remain in the State, his or her removal from the State may be necessary. I am anxious that the removal provision, no less than any of the other provisions of this Bill, should reflect the highest standards of natural justice. Accordingly, the Bill contains new provisions to ensure that an applicant is given ample notice of a proposed removal.
It is important that a country like Ireland should be generous in relation to the provision for reunification of families or refugees. The Bill provides in section 18 that on application and verification of the family relationship by the Refugee Commissioner, a close family member of a refugee such as a spouse, parent or child may be granted permission to enter and reside in the State. This provision is similar to the provision in the 1994 Bill. However, it has been augmented by two important further provisions. We are now providing that it is not only close family members who may be admitted to reside in the State but also other family members where a dependency relationship exists between the refugee and the family member. In addition, we are providing that family members permitted to reside here will be entitled to rights similar to those which the Bill guarantees to persons granted refugee status. These rights include the right to reside and travel freely. In relation to health, social welfare, housing, education, employment, religious freedom and access to the courts, family members and refugees will enjoy rights similar to Irish citizens.
