Amendment No. 1 is in the name of the Minister. Amendment No. 57 is cognate and amendment No. 70 is related. It is suggested, therefore, that amendments Nos. 1, 57 and 70 be taken together, by agreement.
Refugee Bill, 1995: Report Stage.
I move amendment No. 1:
In page 5, line 5, before "A" to insert "Subject to section 17 (2),". The advice of the parliamentary draftsman is that these amendments are necessary to remove any ambiguity that might arise.
Amendment agreed to.
Amendments Nos. 2 to 4, inclusive, not moved.
Amendments No. 5 is in the name of the Deputy O'Donnell. Amendment No. 6 is an alternative and amendments Nos. 11, 13, 39, 41, 42 and 46 are related. It is suggested, therefore, that Nos. 5, 6, 11, 13, 39, 41, 42 and 46 be taken together, by agreement.
I move amendment No. 5:
In page 7, lines 5 and 6, to delete", where possible in a language that the person understands," and substitute "or, where necessary, cause such person to be informed in a language that he or she understands,".
This amendment is aimed at ensuring interpreters are used where necessary rather than where possible, as is stated in the Bill. Section 8 (1) (a) (i) provides that the interview with the person shall take place as soon as practicable. Surely it is not practicable to interview a person in a language they do not understand. Unless a person claims to be deaf, dumb or illiterate it should not be very difficult to prove that they speak or understand some language. They must be able to communicate through a interpreter to make their needs known. This matter was discussed earlier and I welcome the Minister's statement that interpretation or translation facilities will be provided as a matter of course and that the obligation will be on the authorities to provide such facilities, which will be of the very highest level. I do not see the need for the words "where possible".
I concur with Deputy O'Donnell's remarks. There is very little point trying to communicate with a person if they do not understand what is being said. The words "where possible" are superfluous. If an asylum seeker is informed in a language he does not understand, he may continue to be unaware of his right to apply for a declaration of refugee status. When the asylum seeker first arrives in the State he is at his most vulnerable and most requires the services of a suitable interpreter. He would not have the benefit or support of independent advice. Section 16 (11) (d) states that the appeal board is entitled to use its utmost endeavours to procure the attendance of an interpreter at an appeal hearing. At that stage of the process applicants are likely to have received independent advice and would be less vulnerable than when they arrived in the country. The interpretation requirement at the time of interview by an immigration officer should be no less stringent than that provided in section 16.
I noted the Minister's statement on Committee Stage that every effort would be made to provide the necessary translation or interpretation facilities. That is welcome, but it does not obviate the necessity to delete the words "where possible" from the Bill. It is extremely difficult to envisage a position where an applicant would refuse to co-operate and pretend not to speak any known language. It is equally difficult to envisage that a person would be able to travel here without being able to communicate in a known language or without being accompanied by a person who could communicate in one. On Committee Stage the Minister said that in the past five years asylum applications have been received from 52 countries, but she said application forms have been prepared in only six languages. That appears to indicate all the applicants to date speak a known language or, alternatively, their interpretation needs are not being met. Whichever is the case, the importance attaching to this matter would be demonstrated by the deletion of the words "where possible" in relation to the provision of interpretation.
The point at issue in these amendments is the provision of interpretation and translation services to asylum seekers. Throughout the Bill the obligation imposed on the authorities is to provide such services where necessary and possible or where possible as appropriate. As Deputy O'Donoghue recalled, I indicated on Committee Stage that I would be prepared to consider any alternative wordings Deputies might wish to put to me, but I have not received any suggested wordings in the interim. Since Committee Stage I have discussed the matter with the parliamentary draftswoman. The intention is that interpretation or translation facilities will be provided as a matter of course. The obligation on authorities to provide such facilities should be pitched in the Bill at the highest possible level.
Deputies may recall that the corresponding wording in the 1994 Refugee Bill is "where necessary and practicable", a much more restrictive form of wording. When that Bill was discussed by a select committee last year, amendments were tabled because Deputies were unhappy with the wording "where practicable". They rightly wanted to ensure that there would be no doubt that such essential facilities would be provided. The wording of the provision sought to put a high, but not an absolute, onus on the authorities to provide interpretation facilities on the basis that it was possible a person could refuse to co-operate and pretend not to speak any known language. I consulted the parliamentary draftswoman on the matter and asked her to ensure a form of wording that would put the highest possible onus on the authorities to provide interpretation facilities, but would allow for rare and exceptional cases where applicants refused to co-operate with them. I was advised that the words "where possible" put the highest possible onus on the authorities in this respect.
I hope the House recognises that some qualification is necessary to ensure against the possibility that unscrupulous applicants could abuse the system by pretending to speak obscure dialects for which no interpreter could be found. I hope the House will accept the advice of the parliamentary draftswoman and my assurance that all possible efforts will be made to ensure that interpretation facilities are available and that the practice will be to provide interpreters as a matter of routine.
I assure Deputy O'Donoghue that the system works very well in Shannon, with the Irish Refugee Council and so on. We are considering exceptional circumstances of potential abuse. The parliamentary draftswoman advised that the appropriate wording "where possible" is far in advance of the wording "where necessary and practicable" in the 1994 Bill, which has a more restrictive connotation.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Amendment No. 7 is in the name of the Minister. Amendments Nos. 7, 8 and 12 form a composite proposal and amendment No. 9 is an alternative. I suggest that amendments Nos. 7, 8, 9 and 12 be taken together by agreement.
I move amendment No. 7:
In page 7, line 7, after "declaration" to insert "and that he or she is entitled to consult a solicitor and the High Commissioner".
Amendments Nos. 7, 8 and 12 are designed to meet a point raised by Deputy O'Donnell on Committee Stage regarding notice to the person seeking asylum of the entitlement to consult a solicitor and a representative of the UNHCR. That was the context of an amendment tabled by Deputy O'Donnell in identical terms to amendment No. 9 before us.
The effect of the three Government amendments is to ensure that asylum seekers at a port or airport will be informed by the immigration officer conducting the initial on the spot interview of their rights to consultation. Similarly, notice arranging the initial interview with asylum seekers already in the State must include this information. I understand that was the critical point made by Deputy O'Donnell.
These amendments fulfil the undertaking I gave on Committee Stage to take account of the Deputy's amendment. As I mentioned at that time they do not implement one aspect of the Deputy's amendment which refers to a person or body within the State nominated by the High Commissioner. As I explained then, the term "High Commissioner" is defined as including the High Commissioner's representative to Ireland. I understand from the UNHCR that it is not its practice to operate by means of a nominated agency and, accordingly, it would not be appropriate to go beyond the wording used in the Government's amendments. On that basis I ask the Deputy to consider not moving her amendment.
I thank the Minister for accepting the spirit and objective of my amendment. In the light of what she said and having regard to the Government amendments put forward. I will not move mine.
I welcome the Minister's amendment. I tabled amendments to provide that an individual would be entitled to free legal aid and I am extremely disappointed that provision is not included in the Bill or in the Minister's amendments. It is most desirable and necessary that legal aid should be provided to applicants to assist them complete declarations. The individual concerned may speak in a foreign language and be fearful and vulnerable. In those circumstances he or she might not be able to fully grasp the intricacies of the Refugee Bill. In those circumstances the individual should be entitled to free legal aid.
Strictly speaking, the matter of legal aid does not arise at this point. I might on Committee Stage familiarise the Deputy somewhat further with my references to the legal aid framework — a critical element of the provision of services for refugees. I reported to Members that I had drawn up a scheme which had been submitted to the offices of the Chief State Solicitor and the Attorney General's for examination. I have requested the Chief State Solicitor to let me have his comments thereon. He has raised a number of legal issues arising from the proposed framework. In turn, he has been in correspondence with the Attorney General on the matter. Within the past week the Attorney General has directed that Counsel's opinion be sought on certain issues in relation to the framework.
I am very anxious to devise a scheme which will have the confidence of asylum seekers, will provide a high quality service, value for Government money and which will meet the requirements of the United Nations High Commissioner for Refugees who I am anxious should have a role in overseeing the operations. In this context I am also conscious of the role of the non-governmental organisations.
The difficult task of teasing out the legal issues means that getting the scheme up and running has not been as fast as I would like. However, it is more important to get matters right from the beginning than put something in place hastily which will give rise to problems later.
In the absence of details I can only repeat my commitment to ensure that an effective system is put in place in time for enforcement of these provisions. I assure the House I will make detailed information on the system of legal aid known as soon as I receive the report of the Attorney General and am in a position to do so. We have been apprised of the urgency of the matter.
Amendment agreed to.
I move amendment No. 8:
In page 7, line 15, after "notice" to insert "and the notice shall state that the person is entitled to consult a solicitor and the High Commissioner".
Amendment agreed to.
Amendments Nos. 9 to 11, inclusive, not moved.
Amendment No. 12 in the name of the Minister has already been discussed with No. 7.
I move amendment No. 12:
In page 7, to delete lines 21 to 26.
Amendment agreed to.
Amendment No. 13 not moved.
Deputy O'Donoghue's amendment No. 14 is deemed to be out of order as it involves a potential charge on Revenue.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 8, line 36, after "declaration" to insert ", or without the consent of the Minister".
My purpose in tabling this amendment is to address the possibility of the Minister having discretion to allow persons to work while awaiting determination of their refugee status. Under the current wording, applicants for refugee status are not allowed to work pending the outcome of their applications. The Irish Refugee Council recommended that applicants be allowed to work if their applications have not been determined within six months. A prohibition on work might be reasonable if processing of such applications did not take so long, but because such procedures are quite slow people are forced into dependence on the State by way of supplementary welfare allowance. In some instances applicants are quite happy to be so dependent but others, capable of taking up work, should be allowed do so at the discretion of the Minister, say, after a period of six months.
A similar provision applies in the case of the United Kingdom where an applicant may apply for permission to work after six months. The argument in favour of allowing applicants to work in their chosen field is that it enhances their self-respect and dignity.
Although I am not sure whether the Minister has such discretion, it appears from the Bill that asylum seekers are not allowed to work until their applications have been processed and a determination made
In replying, perhaps the Minister will state why it is considered preferable for asylum seekers to depend on the State and receive supplementary welfare allowance — some applicants might be doctors, teachers or others with a particular skill — rather than be allowed work, make a contribution to our economy and at the same time be helped to integrate with our society.
I agree with Deputy O'Donnell's sentiment, that there should not be a reason not to allow the creativity, talents and, in many instances, expertise of asylum seekers to benefit our economy. I understand that international studies have shown that asylum seekers who integrate into the workplace have a higher rate of return to their native countries, when circumstances improve there, than others. For those reasons I support Deputy O'Donnell's amendments.
While appreciating Deputy O'Donnell's purpose in tabling this amendment, I consider it neither appropriate nor necessary. It must be borne in mind that asylum seekers are allowed to remain in the State temporarily pending determination of their applications. Where their applications are successful they will be allowed remain in the State and work without restriction. That is as it should be and this Bill copperfastens that principle. However, where applications are unsuccessful, if not permitted to remain for humanitarian reasons, they will have to leave the State. I do not consider it would be appropriate to allow people, with temporary permission only to remain in the State, to work and put down roots here.
As Deputy O'Donnell said, one of the reasons advanced for allowing asylum seekers to work is the length of time it takes to process their applications. I hope one of the positive aspects of this Bill will be that processing of applications will be considerably speeded up, after which a successful applicant will have the right to work without restriction.
Another concern I have about allowing asylum seekers to work is that such a facility could be abused too easily. For example, an unscrupulous employer could arrange for the transfer here of a group of workers from a low-wage country, get them to seek asylum, even though their applications could be unfounded, when they would be allowed to work without complying with the normal statutory requirements. Such workers could be paid extremely low wages while their applications are being processed and the appeals process spun out but, once the asylum process was exhausted, they would be sent home at State expense, and that employer could recruit another group of people. That would be most unfair to all persons entitled to work here. It would deprive them of jobs and lead to employers losing contracts by being undercut by unscrupulous competitors.
While some countries allow asylum seekers to work after a certain length of time, the reality is that, due to other constraints — for example language difficulties, labour market conditions or cultural difference — they do not find employment. The initial period of asylum seekers' stay here is spent on acquiring language training and education so that, if and when their applications are successful, they can remain. I have observed that it has taken most programme refugees some time to adapt before entering the labour market. If the procedures in the Bill provide for the speedy processing of applications, the problem raised by Deputy O'Donnell should be largely a thing of the past. Undue delay is at the heart of the difficulty with the present procedures.
I do not necessarily accept the Minister's hypothesis that the provision could be abused by unscrupulous employers who would coax people to seek bogus refugee status to avail of cheap labour. I do not think this is a realistic threat. The Minister accepts my point that long delays in processing applications lead to very lengthy periods during which the person is deprived of the right to contribute to the economy or participate in work. Will she indicate whether delays of six months to one year will arise when the new procedures are in place? I am aware there is a backlog but is the Minister convinced that asylum seekers will not have to put up with long delays resulting in their unnecessary dependence on the State? What timeframe does she envisage for processing applications when the new procedures are in place and the backlog has been eliminated?
What are the Deputy's intentions on this amendment?
I will have to withdraw my amendment but I am dissatisfied with the Minister's response. It seems reasonable to allow people who are willing and able to work to do so after six months if the State has not managed to get its act together and process their applications. If people are talented and have a willingness and ability to contribute to the economy they should be allowed to do so until such time as the final determination of their status has been made.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 9, to delete lines 11 and 12.
Section 9 (8) (c) permits an immigration officer or a member of the Garda Síochána to detain an applicant for asylum if he or she has reasonable cause to suspect that the applicant intends to leave the State and enter another State without lawful authority. This is quite unreasonable. It appears that this provision would allow the detention of such persons for no other reason than that they had intended to enter another State without lawful authority. I do not understand why such people should be singled out for detention by this State. Surely it is a matter for the other State, or the State to which the asylum seeker intends to go to deal with the application on its merits. I cannot understand why this State should interfere with the individual in question. I understand that people fleeing from certain countries who arrived in Ireland were refused permission by US immigration at Shannon to continue their journey to the United States. In those circumstances it would appear that this State should not interfere with such people.
This amendment would remove from the grounds for detention of an asylum seeker a reference to a suspected intention to leave the State and enter another State without lawful authority.
The purpose of having this provision in the Bill is to safeguard the integrity of the common travel area arrangements that exist between this country and the United Kingdom and has nothing to do with travel or entry to the United States. These arrangements enable people to pass through the two jurisdictions without being subject to systematic passport controls or other immigration checks at the ports or borders. This is of enormous significance in the context of Northern Ireland.
This common travel area is of vital importance to the smooth operation of trade on all parts of this island and between the two islands. It is an important feature of tourism and other social interchanges on this island. The importance of safeguarding this arrangement as a matter of public policy has indeed been recognised by the High Court and I cannot overemphasise how essential it is for us to remain committed to its preservation.
An important element in these arrangements is that each country operates controls on people coming from outside either State, to ensure that not only do they meet the requirements of domestic immigration law but the other State's requirements. Thus, immigration officers at Heathrow, for instance, will ensure that a person landing there from outside these islands who wishes to continue to Ireland can do so legally. Similarly, our legislation contains provisions to deal with potential illegal immigrants to the United Kingdom.
Without the provision which amendment No. 16 proposes to delete, it would be a simple matter for unscrupulous people to use this country as a back door for easy illegal access to the United Kingdom by telling the immigration officer here that they are seeking asylum and travelling on the next boat to Holyhead. Such a loophole would make a nonsense of the common travel area arrangements and it can be assumed that our partners in these arrangements would not be slow to pull out. Whereas the majority of asylum seekers are genuine, illegal immigration is a growing business and there is evidence that organised crime is taking a more active part in it. The information networks are such that news of a loophole would not be long in gaining wide circulation. There are major difficulties in some countries with this matter. I recommend that the House does not support amendment No. 16.
I have no doubt that the Minister is correct that the primary intention of the provision is to ensure that people do not enter the United Kingdom by the back door. It is of paramount importance that travel arrangements between the United Kingdom and this country are maintained. However, the Minister cannot be correct in saying that it has nothing to do with the United States of America. This is a catchall provision which affects every single asylum seeker coming into the country, whether that person is considering going to the United Kingdom, the United States of America, Mexico, Brazil or wherever. Let us take the case of an individual coming to the country who has an invalid visa for the United States. The individual is then refused permission by the US immigration authorities at Shannon to travel on to the US and then goes on to apply to the Irish Government for refugee status. Under the provisions of the Bill, even though he may be a genuine applicant for asylum he can be detained. The provision as drafted is not achieving just its sole stated purpose as set out by the Minister but is achieving much more and some of the excesses to which it goes are undesirable.
Amendment, by leave, withdrawn.
We come to amendment No. 17. Amendments Nos. 18 and 19 are alternatives. It is suggested that amendments Nos. 17, 18 and 19 be taken together if that is satisfactory. Agreed.
I move amendment No. 17:
In page 9, to delete lines 13 to 15 and substitute the following:
"(e) has destroyed his or her identity or travel documents or is in possession of forged identity documents, and such destruction or possession was not, in the applicant's particular circumstances, reasonable,".
Section 9 (8) deals with the power of an immigration officer or garda to entertain a person who arrives at the frontier of the State seeking asylum or protection. Paragraph (e) permits detention of a person travelling without identity or travel documents or a person travelling with forged documents. Under the current wording the immigration officer or garda in deciding whether to detain the person has to consider whether the destruction of travel or identity documents was done with "reasonable cause" and if there was reasonable cause, in other words, that such destruction was necessary for the applicant to escape, then the immigration officer cannot detain him. However, the "reasonable cause" proviso does not seem to apply to forged identity documents. In other words, the possession of forged identity documents would justify detention regardless of the circumstances in which the applicant claimed to be in possession of them. My amendment seeks to extend the "reasonable cause" proviso to the possession of forged identity documents.
This point was well debated on Committee Stage but it is worth repeating. There is no need to add to what Deputy O'Donnell has had to say other than that there is well documented evidence in cases throughout the world that many people who flee persecution will be in possession of forged identity documents as they are unlikely to approach the authorities in the State from which they are fleeing, for obvious reasons. It is true that people may be afraid to go to the capital city or wherever a visa can be obtained for this country or whatever is their ultimate destination. They may well resort to forging documents. A genuine applicant may destroy identity or travel documents on the advice of a well meaning third party who might be unfamiliar with the requirements of Irish law. I recommend the deletion of this provision.
My amendment meets a point arising out of the terms of Deputy O'Donnell's amendment No. 17 when it was discussed on Committee Stage. I undertook then to come back with an amendment to deal with the question.
The present wording of the Bill is such that the qualification "without reasonable cause" in paragraph (e) of section 9 (8) applies only to the destruction of identity papers but not to the possession of forged documents. There is clearly no distinction that can sensibly be drawn between the two. It would not make sense, for instance, that if a family of asylum seekers presented themselves at a port having had to engage in subterfuge regarding their documents in order to leave their home country, some members would be liable to detention because they had forged documents whereas others would not be liable to detention because they had destroyed theirs. The amendment corrects that by ensuring that the reasonability test applies both to possession of forged documents and to destruction of documents.
The formula of words used in Deputy O'Donnell's amendment relating to the applicant's particular circumstances is one which I have discussed with the draftswoman. She assures me that the expression "reasonable cause" used in the Bill encompasses the element of subjectivity and particularity to the individual circumstances which the Deputy seeks.
Deputy O'Donoghue's amendment No. 18 would delete the paragraph completely. I could not accept this as being a correct course of action, as the question of identity is one which is crucial to immigration generally and to asylum applicants in particular. I am keenly aware — we had a long discussion on this matter on Committee Stage — that there are many instances where the applicant for asylum must of necessity for their protection resort to subterfuge in order to evade persecution and make a way to the country of intended asylum. That is accepted and understood. Our immigration officers are also aware of this. The intention is not to penalise someone for having had to do this. Where no reasonable cause is apparent for the destruction of ID papers or for having forged papers, the immigration officer must, in the interests of the protection of our society, have the power to detain the person until satisfactory evidence of identity becomes available and the officer can be satisfied that the person in question is not a security risk or otherwise a treat to the public. That is a reasonable balance between understanding the circumstances in which a person either uses forged documents or destroys documents in an attempt to escape persecution. We have to consider the proper balance for the protection of society. I believe the section now does that.
In the light of the Minister's acceptance of the principle which I sought to achieve I withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
I move amendment No. 19:
In page 9, line 13, to delete "has, without reasonable cause," and substitute "without reasonable cause has".
Amendment agreed to.
Amendment No. 20 not moved.
Amendments Nos. 21, 23, 26, 28 and 30 form a composite proposal. Amendments Nos. 27 and 29 form an alternative proposal. It is suggested, therefore, that amendments Nos. 21, 23, 26, to 30, inclusive, be taken together if that is satisfactory. Agreed.
I move amendment No. 21:
In page 9, line 26, after "paragraph (c)," to insert "and if satisfied that one or more of the paragraphs of subsection (8) applies in relation to the person,".
Government amendments Nos. 21, 23, 26, 28 and 30 are all of a piece. Their aim is twofold. First, they make clear that the role of the court is not simply to rubberstamp the action taken by the immigration officer. The phrase "if satisfied..." in amendments Nos. 21 and 30, and "if he or she considers it appropriate to do so..." in amendment No. 26, spell out the fact that the court has an active role in ensuring that a detention, a release subject to conditions or a variation of those conditions is the proper course in the circumstances. While I am satisfied that this is what was intended and would be implicit in the existing wording, I have consulted with the draftswoman, who advises that the amendments now proposed meet the aim expressed by Deputy O'Donnell on Committee Stage of greater clarity on the point.
Second, the amendments meet another point raised by Deputy O'Donnell on Committee Stage, and again in amendments Nos. 27 and 29 in her name today. That point is the specific provision of a right for the pension in question, as well as for the immigration officer or garda, to apply for a variation or removal of a condition on which the person has been released from detention. I have been happy to meet that point and on that basis I would ask the Deputy to consider withdrawing her amendments in favour of those prepared by the draftswoman.
Arising out of that point, I wish to advert to another effect of the amendments now drafted. The Bill as it stands confines to the original immigration officer or garda the function of taking any subsequent steps in relation to a detention. In extending to the person concerned the right to apply for a variation of conditions of release it occurred to us that limiting this to the original immigration officer or garda would lead to complications if that officer was transferred to other duties, or was indisposed or otherwise unavailable or off duty. Accordingly, Government amendments Nos. 23 and 26 generalise this to "an immigration officer or member of the Garda Síochána".
I welcome the Minister's amendments. Given that they deal adequately with the point which was of concern to me in my amendments Nos. 27 and 29 I withdraw them.
Amendment agreed to.
As amendments Nos. 31 and 32 are related to amendment No. 22, the three amendments may be discussed together. Is that agreed? Agreed.
I move amendment No. 22:
In page 9, line 28, to delete "10" and substitute "8".
The purpose of the amendments is to substitute the period of detention of ten days with a period of eight days. As I said on Committee Stage, the period provided for in the Bill is longer than that allowed in criminal law legislation for the detention of prisoners remanded in custody and in child care legislation for the removal of children from the custody of their parents without a full hearing. Natural justice demands that the law is consistent regarding the period of detention. The detention of an asylum seeker should not be any longer than that of an alleged criminal.
In a related provision, a person should not be detained without reasonable cause for longer than two periods. Subsection (14) appears to allow for repeated detention of an asylum seeker for further periods of up to ten days each pending the determination of the person's application for refugee status. No limit whatsoever is prescribed for the number of periods of detention. The grounds for detention must be taken into account. Under subsection (8) these grounds include that the individual concerned fails to make reasonable efforts to establish his true identity; intends to leave the State and enter another state without lawful authority; destruction without reasonable cause of identity or travel documents; and possession of forged identity documents.
A genuine asylum seeker could be detained without reasonable cause for the entire period until the application is determined. This is of particular concern for obvious reasons. In a country which values civil liberties, we should indicate in the Bill and in every other possible way how much we value the freedom of the individual. There is a real danger that a genuine asylum seeker could be detained for a considerable period, perhaps up to a decision on the application which may go all the way to an appeal. Having considered it again since Committee Stage, this measure should be re-examined.
With reference to my earlier comments about the balance between the asylum seeker's rights and the legitimate need to protect Irish society in terms of an unscrupulous application or where there is a danger or risk to the public, the essential phrase in this matter is "reasonable cause".
Amendments Nos. 22 and 31 seek to reduce from ten to eight days the maximum period for which a court may at any one time commit a person to be detained. I wish to make it clear that detention of asylum seekers is likely to occur very rarely. I am sure Deputy O'Donoghue will be relieved to note this point, given the pressure on prison places of which he is so aware. However, the provision is necessary so that detention can be resorted to in certain limited circumstances.
Deputies will recall that, in the 1994 Bill, the detention period provided for was 21 days. Some misgivings were expressed about the length of this period and accordingly the 1995 Bill provides for a detention period of ten days. This period of time is the minimum required to allow the authorities, who must in the first place have reasonable cause to detain the person, check out details such as identity, criminal record, etc. Such inquiries take time because it may be necessary to check information through international channels. A reasonable period must be provided to allow for the time required for such inquiries.
In such circumstances ten days is a maximum practicable time limit. Section 9 (10) (c) imposes an absolute obligation on the immigration officer or garda to bring the person before the court to arrange his or her release at any stage, which could be before the expiry of the ten day period if the circumstances warranting detention no longer exist. The detention provided for by the section is not the same concept as detention of persons on criminal charges in that subsection (14) (b) provides a procedure to ensure that the person is free to leave at any stage if he or she wishes to leave the State. Accordingly, I am not disposed to accept the amendments.
Amendment No. 32 seeks to ensure that the courts do not impose an indefinite period of detention, which is the point raised by the Deputy. This is not, in principle, at odds with my intention or that of the section just amended which provides for the supervision of detention by the courts. In exercising their functions under this or any Act, the courts must have regard as appropriate to the Constitution and to established principles of law, such as the principles of natural justice. Accordingly, they will not tolerate the deprivation of the liberty of any individual for longer than is absolutely necessary.
It is, therefore, implicit in assigning the supervision of detention to the courts that they will only agree to the continued detention of a person where there is reasonable cause in accordance with the provisions of subsections (8) or (13). However, I have taken on board Deputy O'Donoghue's concern that the Bill should make this clear. Amendment No. 30 puts beyond doubt that a District Court judge can only continue to permit detention if he or she is satisfied that the conditions warranting the detention continue to exist. In the circumstances I hope Deputy O'Donoghue will withdraw his amendment.
I welcome the Minister's amendment No. 30. I should have done so when I moved my amendment as it is a major improvement. However, the tone of part of the Minister's reply was, if unintentionally, almost Cromwellian — it was a case of "to Hell or to Connacht". The Minister said individuals who are detained could decide to leave the State. The person could choose to leave the place of detention and the State but in all probability they would go back to the place from where he or she fled for fear of persecution. Nevertheless, I compliment the Minister for her amendment.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 9, lines 44 and 45, to delete "the immigration officer, or, as the case may be, the" and substitute "an immigration officer or".
Amendment agreed to.
Amendment No. 25 is cognate to amendment No. 24, which is a drafting amendment, and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 24:
In page 9, line 47, to delete "apply" and substitute "applies".
The purpose of the amendments is to correct minor grammatical errors in the original text.
Amendment agreed to.
I move amendment No. 25:
In page 10, line 1, to delete "apply" and substitute "applies".
Amendment agreed to.
I move amendment No. 26:
In page 10, between lines 2 and 3 to insert the following:
"(d) Where a person is released from a place of detention subject to one or more of the conditions referred to in subsection (10) (b) (ii), a judge of the District Court assigned to the District Court district in which the person resides may, on the application of the person, an immigration officer or a member of the Garda Síochána, if he or she considers it appropriate to do so, vary (whether by the alteration, addition or revocation of a condition) a condition.".
Amendment agreed to.
Amendment No. 27 not moved.
I move amendment No. 28:
In page 10, to delete lines 29 and 36 and substitute the following:
"is being detailed; and subsection (10) shall apply to such person detained under paragraph (a) as it applies to a person detained pursuant to subsection (8) with any necessary modifications.".
Amendment agreed to.
Amendment No. 29 not moved.
I move amendment No. 30:
In page 10, line 44, after "may" to insert ", if satisfied that one or more of the paragraphs of subsection (8) applies in relation go the person,".
Amendment agreed to.
Amendments Nos. 31 and 32 not moved.
Amendment No. 33 is consequential on amendments Nos. 34, 35 and 36 is related. I suggest therefore that we discuss amendments Nos. 33, 34, 35, 36 and 38 together, on which separate decisions may be made if so desired.
I move amendment No. 33:
In page 11, line 10, to delete "either".
As I indicated to Deputies on Committee Stage, the UNHCR has raised certain issues with me regarding section 9 (15). This provision deals with circumstances in which persons can be excluded from the State and from the opportunity to make an asylum claim. While the provisions as drafted were based on provisions of the UN convention, I have re-examined our wording and I am proposing some amendments.
The concerns expressed by the UNHCR in the main related to the fact that subsection (15) (b) (i) and (ii) were an application of the exclusion clauses of the convention. It pointed out that the recommended and generally accepted practice was that these clauses should not be used to exclude persons in the first instance from the asylum process but rather that the person should be admitted to the examination process which would allow their case for refugee status to be weighed against any case for exclusion on the basis of the exclusion clauses. Because I am anxious that the Bill should honour the spirit as well as the letter of the UN convention relating to the status of refugees, I have agreed to amend this provision in accordance with UNHCR wishes. Accordingly, I am proposing to delete subsection (15) (b) (i) and (ii).
Subsections (1) and (2) of section 9 effectively give every non-national who claims asylum the right to enter and remain in Ireland until his or her application has been finally determined. As a safeguard to such an open provision, subsection (15), as drafted, provides for those exceptional cases where it has proved necessary in the public interest to refuse entry to a specific person or to remove from the State a specific person without delay.
If, for example, an ex-dictator or drug baron from South America or a notorious war criminal from Bosnia were to avail themselves of the right to seek refuge in Ireland, it could be seriously damaging for Ireland's image abroad. Therefore, in exceptional circumstances, the Minister can prevent the entry of a named person. While I believe that the presence of such an individual in the country would not be in the public interest, I have been persuaded that I should amend this provision. I no longer propose that where such an individual is already in the State he or she should be deported without admission to the asylum process. The most likely scenario is that such a person could be dealt with under the manifestly unfounded procedure. However, the State retains the sovereign power to exclude persons whose admittance represents a national security threat or whose admittance is contrary to the interest of the State. As regards such an individual who is outside the State, I do not propose to amend the provisions as already drafted.
I should point out that subsection (15) does not provide for the exclusion of a person. Its only effect is to make it clear that a person who is the subject of an exclusion or prohibition order made under section 5 (1) of the Aliens Act, 1935 cannot rely on the provisions of this Bill to circumvent the effect of such orders.
The following points regarding the revised paragraphs (a) and (b) should be noted. The order has to be made by the Minister in respect of a specific person. Orders made under section 5 (1) (a) of the Aliens Act, 1935 (Prohibition Orders) are Statutory Instruments and have to be laid before each House of the Oireachtas and may be annulled by a resolution passed by either House within 21 sitting days. Thus the making of the order will be public knowledge and will be subject to Dáil and Seanad supervision.
Orders prohibiting a person from landing in or entering the State are only made in exceptional circumstances. As I pointed out to Deputies on Committee Stage, only two were made in the period from 1975 to date. One was in respect of a convicted Nazi war criminal — Statutory Instrument No. 77 of 1985 — and the other in respect of a former colonel of the South African police whose unit was implicated in violence aimed at the destabilisation of South Africa. The order must state that the Minister considers the exclusion necessary in the interests of national security or public policy.
The UNHCR recommendations and practice would suggest that before refusing such consent the Minister would have to balance the strength of the applicant's claim against the significance of the threat presented for the reasons specified in subsection (15) (b). In any event the Minister's exercise of power in this respect would be reviewable by the courts and, in exercising this power, she would be obliged to do so judicially and in accordance with the principle of proportionality.
What I am proposing is that where the Minister has, after consideration of all the facts available, made an order prohibiting an individual outside the State from entering the State for reasons of national security or public policy, that person will not be able to use the asylum process to enter the State. Persons already in the State who might for such reasons otherwise be deported will be able to avail of the asylum process. Of course, depending on the outcome of their claim, this could still result in the making of a deportation order against them.
Amendment No. 38 to subsection (16) is a consequential amendment to amendments Nos. 33 to 36. I ask Deputies to support my amendments.
Amendment agreed to.
I move amendment No. 34:
In page 11, to delete lines 11 to 14.
Amendment agreed to.
I move amendment No. 35:
In page 11, lines 20 and 21, to delete "has serious reasons for considering that the person" and substitute "considers it necessary in the interest of national security or public policy (‘ordre public').".
Amendment agreed to.
I move amendment No. 36:
In page 11, to delete lines 22 to 27.
Amendment agreed to.
Amendment No. 37 not moved.
I move amendment No. 38:
In page 11, lines 31 to 33, to delete "and any application by the person concerned which has already been referred to the Commissioner shall be deemed to be withdrawn".
Amendment agreed to.
Amendments Nos. 39, 40, 41 and 42 not moved.
I move amendment No. 43:
In page 12, line 49, to delete "may" and substitute "shall".
The reason for this amendment is that subsection (4) enables the commissioner to request the Minister for Foreign Affairs or other persons to make certain inquiries and to furnish him or her with information but does not oblige the Commissioner to make such a request. While I am sure the commissioner will have every good intent, the loophole that exists should be closed whereby a genuine applicant could be refused by a Commissioner who was not obliged and did not make sufficient inquiries or seek sufficient information.
The provisions of subsection (4) enable the commissioner to request the Minister for Justice or the Minister for Foreign Affairs or some other person to make inquiries or furnish information. That implies assistance or information cannot be unreasonably withheld. In this, as in all such activity, Ministers are subject to the supervision of the courts.
The amendment proposed by the Deputy would oblige the commissioner to ask the Minister for Justice, the Minister for Foreign Affairs or some other person to make inquiries or furnish information. Apart from the technical impossibility of obliging the commissioner to make a request to an unspecified person, the proposal would impose an unnecessary burden on the commissioner to make inquiries which may not be necessary and serve no useful purpose.
There has been widespread approval of the independent role this Bill gives to the commissioner. One of the reasons for such approval was that it was considered better to have applications for asylum examined by a body independent of Government Departments which have functions in relation to immigration controls and foreign relations etc.
The Minister for Justice, the Minister for Foreign Affairs and the UNHCR may have sources of information which could be useful to the commissioner. Subsection (4) seeks to ensure that the commissioner can call for assistance from these sources. However, to oblige the commissioner to do so is to imply that the commissioner cannot assess when such assistance is required or might willfully ignore potential sources of information.
The proposed amendment would also give the two Departments concerned a mandatory role in asylum applications, which would fly in the face of the concept of an independent commissioner, one of the central thrusts of the Bill. In the light of what I have said the Deputy might reconsider his amendment as I am convinced the result would not be what he would wish. I cannot accept it.
In making inquiries the commissioner will only seek information reasonably required within the period specified in the notice. If the information was not reasonably required, the notice would not be sent in the first instance. In those circumstances it is difficult to understand there should not be a statutory imperative on the commissioner to obtain information reasonably required.
Amendment, by leave, withdrawn.
Amendments Nos. 44 to 47, inclusive, not moved.
We now come to amendment No. 48. I observe that amendments Nos. 49, 50 and 51 are alternatives. I suggest, therefore, that amendments Nos. 48 to 51, inclusive, be discussed together. Is that agreed? Agreed.
I move amendment No. 48:
In page 14, to delete lines 24 to 49 and in page 15, to delete lines 1 to 17.
It is clear to everybody at this stage that the inclusion of the concept of manifestly unfounded applications is aimed at eliminating fraudulent claims. Everybody will agree that such claims should not be countenanced. The section goes on to define what precisely the words "a manifestly unfounded application" mean. However, the words speak for themselves and do not require a definition beyond what has already been developed through international case law and UNHCR recommendations.
To the best of my recollection, the Minister defended this procedure on Committee Stage by stating there will be a right of appeal. He should be the last person to justify what is a bad procedure by stating there is a right of appeal. If the purpose is to remove manifestly unfounded applications from the system as quickly as possible, this would only be hampered, as anyone who is familiar with legal procedure will be aware, by an inappropriate definition of that term.
It seems to me and others who are experts in this field that a huge number of genuine applications could be deemed manifestly unfounded under the definition proposed and this is likely to result in an enormous number of appeals which would clog up the system thereby defeating the stated intention to have a fast track procedure. If we follow the United Kingdom example and abolish the right of appellants to any State assistance while awaiting the outcome of an appeal, it is not difficult to envisage the hardship likely to result.
The Minister suggested that a reason for including subsection (4) (c) which provides that "a manifestly unfounded application" means an application in relation to which the commissioner is satisfied that the applicant's reason for leaving or not returning to his or her country of nationality does not relate to a fear of persecution, is that an investigation might show that someone has only made an application to gain access to another country. People find it difficult to understand what is meant by this. It is clear to everybody at this stage that an applicant will forfeit asylum if he or she leaves the State. A refugee who has received a declaration here is unlikely to have an application for asylum accepted in a third state while he or she has refugee status here. In addition, it is clear to everybody that an applicant without a visa will not gain access to a third state for which he or she requires a visa. In what circumstances would someone make an application in this State with the purpose of gaining access to another state? It is clear that somebody who has reason for leaving and not returning to his or her country of nationality which does not relate to a fear of persecution is not a convention refugee and his or her claim is manifestly unfounded without the inclusion of paragraph (c).
Paragraph (d) contains a further definition of "a manifestly unfounded application". It states that it means an application in relation to which the applicant did not reveal, following the making of an application under section 8, that he or she was travelling under a false identity or was in possession of false or forged identity documents and did not have reasonable cause for not so revealing. An individual may not, however, have obtained legal advice, although the Minister is now well on the way to providing for this. That is most welcome. In addition, interpretation facilities to which I referred earlier are to be improved. If these were not available it would exacerbate what is already a difficult situation.
In short, I cannot see the reason a definition of "a manifestly unfounded application" has to be included. A manifestly unfounded application means, as stated in paragraph (a), an application which does not show any grounds for the contention that the applicant is a refugee. There appears to be no reason to list several different occasions when an application is manifestly unfounded. No interpretation in Statute law of the words "manifestly unfounded" could be entirely exhaustive. One could go so far as to say that there are few words in the English language with regard to which one could give a fully descriptive and exhaustive interpretation.
Montesquieu once said that one should never give reasons for laws in laws. This subsection appears to go dangerously close to breaching his dictum. As a great admirer of Montesquieu, I urge that the various interpretations be deleted.
As Montesquieu is not here the Deputy must make do with my comment, which I am sure would not be at the same level. The words "manifestly unfounded" are essentially broad, loose and sweeping if left with no explanation. We spoke at length on Committee Stage about the sense of fear, fear of the unknown and the fleeing from persecution in which genuine applicants find themselves. It is helpful to them and their legal advisers to be able to indicate to them what the words "manifestly unfounded" constitute rather than leave it as a sweeping, unspecified power, where an unknown state to which they have fled may decide their context and meaning, without any ground rules laid down or explanation offered, despite what Montesquieu said. To spell out in detail what is meant by the words will, I hope, be helpful to applicants, their lawyers and advisers.
During our discussion on this section I undertook to discuss the proposed amendments with a parliamentary draftswoman. She has advised me she is satisfied that the subsections, as currently worded, cater for the concerns of Deputy O'Donnell and I do not propose to make any changes in this regard.
With regard to Deputy O'Donoghue's concerns regarding subsection (4) (c), the parliamentary draftswoman is of the opinion that the Deputy's suggestion on Committee Stage that the commissioner be reasonably satisfied would not impose such a strong onus on him as the requirement that he be satisfied, and would weaken the burden on the commissioners. Accordingly, I do not propose to change this provision.
On Committee Stage, I referred to the definition of "manifestly unfounded", abuse of applications and the comments by both UNHCR and the Executive Committee. I will not revisit this but I hope the Deputies accept the point I made in that, in spelling out the conditions of the words "manifestly unfounded", the intention is to offer clear indications to applicants for the basis for the words.
I reiterate that, where there is a manifestly unfounded application, the applicant will be able to avail of the full rigours of the appeal system. We are dealing with both genuine applicants and applicants who are not genuine. We must strike a balance between being fair to the genuine applicants while at the same time offering some protection to ourselves. I suggest we have struck the balance in the appropriate way.
If the amendment is negatived, amendments Nos. 49 to 51, inclusive, in the name of Deputy O'Donnell cannot be moved.
Amendment, by leave, withdrawn.
Amendments Nos. 49 to 51, inclusive, not moved.
Amendment No. 53 is cognate with amendment No. 52 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 52:
In page 15, lines 21 and 22, after "recommendation" to insert "and may request an oral hearing".
These amendments meet a point raised on Committee Stage. They put beyond doubt that a notice conveying an unfavourable decision to an applicant, whether in the ordinary way or by means of the manifestly unfounded procedure, will inform the applicant, not only of this right to appeal the decision, but also of the right to request an oral hearing of the appeal. While I have no doubt that this information would, in any event, be conveyed to an applicant as a matter of administrative course, I agree with the Deputies who raised the point that it is better put beyond doubt by these amendments.
Amendment agreed to.
I move amendment No. 53
In page 15, lines 40, after "recommendation" to insert "and may request an oral hearing".
Amendment agreed to.
Amendments Nos. 54 and 55 not moved.
I move amendment No. 56:
In page 19, to delete lines 24 and 43.
Amendment, by leave, withdrawn.
Amendment No. 57 has already been discussed with amendment No. 1.
I move amendment No. 57:
In page 19, line 46, before "A" to insert "Subject to section 17 (2),".
Amendment agreed to.
Amendment No. 58 not moved.
Amendment No. 60 is an alternative to amendment No. 59 and both may be discussed together. If amendment No. 59 is agreed, amendment No. 60 cannot be moved. Is that agreed? Agreed.
I move amendment No. 59:
In page 21, lines 8 and 9, to delete "except with the consent of that person and the Minister" and substitute "without the consent of that person and the consent of the Minister (which shall not be unreasonably withheld)".
Deputies on Committee Stage will recall that the question of the Minister's consent to publicity for an asylum seeker was discussed at considerable length. I then indicated my willingness to consider the matter in the light of the discussion and to come back on Report Stage with whatever amendments I considered necessary in the light of that consideration.
Amendment No. 60 in the names of Deputies O'Donnell and O'Donoghue would remove entirely from the Minister the power of consent. I find this unacceptable and could not agree to a situation where an asyum applicant was without protection of any kind from the kind of pressures I described on Committee Stage. These would be pressures from people who might be more interested in running a good story than in the effect that the story might have on the applicant or on his or her connections or family. Such pressures may arise for naked commercial reasons, or selling in the case of tabloid newspaper, or for political reasons bound up with the causes of the applicant's original flight from the home country.
In addition, I could not agree to a situation where an applicant would be free to draw up publicity to his or her case by, for example, protesting outside the embassy of the home country in an attempt to bolster a weak case for refugee status or for humanitarian leave to remain here. I am aware from the debate on Committee Stage that the principle of a second line of defence for an asylum seeker under pressure to forgo privacy was fairly widely accepted. Some alternatives to the Minister's consent were canvassed. In particular, some Members suggested that it might be a matter for the Refugee Appeals Board being set up under the Bill. I have given that suggestion serious consideration, but I am satisfied that because of the structure of the appeals board it would be inappropriate to assign this additional matter to it.
I am satisfied that the consent of the Minister, which may be reviewed by means of a judicial review, is the most suitable protection for the asylum seeker. In amendment No. 59, I propose to put beyond doubt that the Minister's consent cannot be unreasonably withheld. That is as far as I can go in meeting the points raised on Committee Stage.
I never believed that the consent of the Minister should be required for publication but as the Minister of State has reached a happy compromise I will withdraw the amendment.
Likewise, we do not see the point in requiring the consent of the Minister if the applicant consented to such publicity. The Bill will be better when the amendment is made. I withdraw my amendment and thank the Minister of State for considering our remarks.
Amendment agreed to.
Amendment No. 60 not moved.
Amendments Nos. 61 and 62 are related. I suggest, therefore, that they be discussed together if that is satisfactory.
I move amendment No. 61:
In page 22, line 8, after "deceive", to insert "and such destruction or concealment was not, having regard to the particular circumstances of the applicant or the person, reasonably,".
Section 20 provides for various offences on the provision of false information and the alteration of identity documents. My amendment aims to introduce the defence of reasonableness, the need for a test of subjective reasonableness as to whether the person thought he or she was acting reasonably in the light of the goal to escape from persecution to a place of asylum and secure permanent status there and the fear of authority felt by many refugees and their associates.
I undertook to re-examine this subsection in the light of the views expressed by the Deputies on Committee Stage. Subsection (3) makes it an offence for a person to destroy or conceal identity documents of an applicant with intent to deceive. These subsections are not intended to cover circumstances where a person has no choice but to mislead, destroy or conceal identity documents to escape persecution. The offence must be committed in the State, and very importantly, the applicant must have the necessary intent to deceive. Emigration officers and departmental staff understand that it may be necessary for people to use false documentation in order to escape. That is not in question. We are concerned that such deception could continue and that the applicant would not give his or her true story. While it may have been necessary for them to use false documentation to escape from their country of origin, if their applications are to be successful applicants must give us their true identity. We are talking about intent to deceive.
The commissioner cannot fulfil his or her role if deception is condoned. I sympathise with the spirit of the amendments. Deputies are concerned about people who may act out of the best motives and not out of malice but could commit an offence. Having considered the matter carefully I cannot accept the amendments because they will give too wide an immunity to deception.
I accept the Minister examined the matter with the draftsperson and, accordingly, I withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 62 not moved.
I move amendment No. 63:
In page 23, line 9, before "poses" to insert "is a person whose presence in the State".
Amendment agreed to.
Amendment No. 64 not moved.
I move amendment No. 65:
In page 23, line 20, after "persecution" to insert "or of material change of circumstances".
Section 21 deals with the revocation of a declaration. Many of the grounds on which a declaration can be revoked require some act by the person to whom the declaration is given to justify the revocation of the declaration. However, subsection (1) (e) and (f) of subsection (1) permit the revocation of a declaration if circumstances under which the person is recognised as a refugee cease to exist, in other words, if the regime from which the person fled no longer exists. The Refugee Council stated that a material change of circumstances may make it difficult to uproot a person who has settled here with refugee status. Such material change of circumstances could include an intended marriage to an Irish citizen, the birth of a child, the passage of a substantial period of time, the development of a career, trade or practice or ill health. On a more general note, it would be unfair to withdraw the rights conferred in circumstances where a refugee has not done anything wrong. My amendment proposes that a material change of circumstances should be included in this section.
Amendment No. 66, which I tabled, addresses this matter. If a person ceases to be a refugee nonetheless the person may be deserving on humanitarian grounds to remain in the country. While I am satisfied the Bill as drafted would enable the Minister to grant humanitarian leave to remain in the State in suitable cases where a person's refugee status is terminated, amendment No. 66 puts the matter beyond doubt and addresses most of the Deputy's concerns.
I welcome the Minister of State's assurance and withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 66:
In page 24, between lines 5 and 6, to insert the following:
"(7) The Minister may, at his or her discretion, grant permission in writing to a person in respect of whom a declaration has been revoked under subsection (1) to remain in the State for such period and subject to such conditions as the Minister may specify in writing.".
Amendment agreed to.
Amendments Nos. 67 and 68 may be discussed together. Is that agreed? Agreed.
I move amendment No. 67:
In page 24, line 8, after "Convention" to insert "provided, however, that none of the provisions of this Act or the Dublin Convention will authorise the transfer of an applicant for asylum to a Dublin Convention country from which there is reasonable cause to believe that he/she may be returned, whether directly or indirectly, from the country which he/she has fled persecutions.".
There is no doubt that there is need for an express provision to the effect that nothing in the Bill or the Dublin Convention would authorise the transfer of an applicant for asylum to a Dublin Convention country from which there is reasonable cause to believe he might be returned, whether directly or indirectly, to the country from which he fled persecution and that prior to any such transfer the Minister should be required to make sufficient inquiries and obtain sufficient assurances from any Dublin Convention country to which it is proposed to return an asylum seeker so that there is no breach of such provision. My amendments Nos. 67 and 68 achieve this objective.
On Committee Stage the Minister suggested that these amendments could be interpreted as suggesting that Ireland could not trust its fellow EU member states to fulfil their obligations under the UN Convention. While I reject any such suggestion, it is important to point out to the Minister that many of these countries entered into agreements with other third countries on the question of asylum seekers and the granting of refugee status without any consultation with this country. They were entitled to do that; these sovereign governments were acting on behalf of their sovereign people. In the same way, this State is perfectly free to implement legislation for its sovereign people which would prevent the very real danger of people being returned to the country from which they had originally fled persecution.
As a result of agreements entered into by other countries some applicants for refugee status have been sent from country to country, with each country disclaiming responsibility for dealing with the applications on the grounds of these agreements. Ultimately the individual ends up in the state from which he or she originally fled. Apparently the European consultation on refugees and exiles has documented individual cases where this has happened. It is extremely important to point out that this has happened in the case of states which are a party to the Dublin Convention. When I say it is possible for an individual who seeks asylum in Ireland to be sent back to the country from which he fled I am not speaking in any fanciful way. This happened, is happening and will happen under the legislation if the loophole is not closed off. In seeking to fulfil our obligations under the Dublin Convention we should not, unwittingly or otherwise, send an individual back to the country from which he or she fled persecution. I do not accept the argument put forward by the Minister on Committee Stage that this would display a lack of trust in, or co-operation with, our EU partners or cast aspersions on their bona fide commitment to uphold the UN Convention.
The enactment of the Dublin Convention into domestic legislation without the provision of separate safeguards will undoubtedly mean an applicant for asylum will be returned to another European Union state and, ultimately, to the state from which he or she fled persecution. Earlier we discussed the freedom of travel between the United Kingdom and this country and it is this freedom which will increase the risk to which I have referred. For example, countries have a so-called list of white countries and the United Kingdom proposes to include Nigeria and Sri Lanka on its list. To give a practical example, a Nigerian national who flees persecution in that country for one reason or another — I am not casting aspersions on any country — and seeks asylum in the United Kingdom could have his application refused on the grounds that Nigeria is on that country's white list. He will then travel to Ireland where he will seek asylum but under the Dublin Convention he could be returned to the United Kingdom where his application for asylum is dead. As a result of the United Kingdom's policy towards Nigeria, he could end up back in the country from which he fled persecution.
I do not think the Minister or any other Member seriously believes that this loophole should not be closed off now. I was given no reason on Committee Stage to believe other than what I am saying. In seeking to meet our obligations under the Dublin Convention, ironically and extraordinarily enough the most important provisions of the legislation could be circumvented because the loophole is not closed off. This view is buttressed by the argument and enforced by the fact that separate legislation inserting additional safeguards on the ratification by this State of the Dublin Convention will not be brought before the House. In those circumstances my humble opinion is that the opportunity for change is now and that this opportunity may not arise again. My amendments, or any variation thereof which would meet the same objective, should be accepted by the Minister. If the amendments are not accepted then the possibility or probability exists of a person being returned unwittingly by this State to the country from which he fled. This extremely important matter requires attention and considerable thought. In the absence of a convincing argument to the contrary by the Minister, my amendments should be accepted.
We had a long debate on this issue on Committee Stage during which many Members expressed concern about the Dublin Convention and section 22. These concerns mainly related to the lack of opportunity to debate matters in the House. My fears in this regard were assuaged by the Minister's statement that the Dáil would have an input by way of a motion which would be brought before it. However there still remains the difficulty about procedures surrounding the return to a convention country and safeguards to ensure the applicant's entry to proper refugee status in a country which is safe in his or her particular case. This has been referred to as a suspensive appeal against a determination to return an applicant under the Dublin Convention. If returned to another state the application would be examined substantively and the applicant not refused a return to a third state on procedural grounds.
As Deputy O'Donoghue said, those who work at the coalface with refugees are still concerned. Although I am glad to know that there will be some accountability in terms of the Dáil reviewing such matters before the Dublin Convention is signed into law, I remain wholly unconvinced about these two outstanding matters. There is a danger that persons might be sent back to a country which would not be safe for them. I support Deputy O'Donoghue's expressed concerns in this matter.
I will reiterate three points which I made on the earlier Stages of the Bill. When the then Minister for Justice, Deputy Burke, was party to the Dublin Convention on behalf of the Republic, it was in the context of stopping the phenomenon of refugees in orbit to which Deputy O'Donoghue referred. People could go from one country to another without any country dealing properly with their application and would therefore find themselves back in the country from which they had fled. The Dublin Convention was entered into precisely to put a stop to that phenomenon.
As Deputy O'Donnell says, for the Dublin Convention to be fully ratified a motion must be put before the House. This will give an opportunity for a full debate on the convention. We are not required to repatriate people under the Dublin Convention. We have the opportunity to do so if we so choose. It is not a requirement, it is an option. Clearly in such cases one would examine the likely outcome of repatriation.
I wish to make some general points about the concern that member states may send an applicant for asylum to a third state. Intergovernmental co-operation in asylum matters between the member states of the European Union began in the mid-1980s. It was not based on any treaties and was outside the scope of the institutions and common policy of the European Communities. However, during that period, the political and social importance of the right to asylum increased steadily in the Community and in the member states in general. One of the first results of co-operation was the Dublin Convention.
The purpose of the convention is broadly to lay down criteria for determining which member state is responsible for examining an asylum application. It is important to understand that the Dublin Convention is essentially a set of procedural or technical rules as opposed to being a development in the area of asylum philosophy or thinking. It has a limited objective and is not intended, for example, to expand on the Geneva Convention.
In regard to co-operating with other member states concerning asylum, the starting point for each member state is the fundamental legal instrument, the 1951 Geneva Convention. All member states have the same conception of constitutional democracy and the fundamental rule of law. An important point is that in acceding to the Geneva Convention each member state entered into basic humanitarian commitments arising from this conception aimed at affording protection to vulnerable persons who have good reason to fear persecution.
Many of our fellow European Union members have been faced with the reality of expressing far more practical humanitarian concern in relation to the hundreds of thousands of refugees with whom they have had to deal than has Ireland. We should remember the numbers of refugees with whom so many European countries have dealt and attempted to deal in a fair and honourable way. There may be philosophical disagreements about the approaches of certain European countries, but it is unfair to imply that somehow or other those European countries are lesser than we are, particularly in the context of the hundreds of thousands of people who have been given asylum in some of the countries which are subject to most criticism compared with the relatively small numbers of people — amounting to a couple of thousand people — in this country.
Starting from a common legal base, the member states have implemented national laws and practices which have removed the possibility of refusing in a discretionary manner the admission of an asylum seeker into their territory. The only important criterion for each member state is whether or not the individual concerned satisfies the definition of refugee laid down in the Geneva Convention. In addition, each member state takes the view that no policy or measures at a national or international level will detract in any way from those humanitarian commitments. I wish to emphasise that this is true for any harmonisation measure taken by member states. There is common agreement that any programme of harmonisation being developed by member states cannot be used in any way to reduce our common humanitarian commitments and obligations which we have all willingly entered into under the Geneva Convention.
An underlying philosophy of the Dublin Convention is a basic confidence on the part of the member states in each other's procedures in relation to asylum law. Although of limited scope, the establishment of responsibility for examining applications for asylum implicitly presupposes that member states have mutual confidence in each other, with one member state's consent to an application for asylum lodged with it being processed by another member state in accordance with the latter's national legislation. The convention's starting point, as I have said, is that it guarantees the member states' commitment to honour their obligations under the Geneva Convention, which specifically provides that no contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.
The European Union is currently engaged in the development of a programme of harmonisation of basic asylum policy. This is an area of work which is of great importance to the whole question of mutual confidence. Harmonisation is seen as a further logical step towards giving the confidence of which I have spoken more substance. It may be of particular interest to the House which may wish to be reassured in the context of the Dublin Convention to note that the Justice and Home Affairs Council adopted a resolution last year on minimum guarantees for asylum procedures.
That resolution, which expressed the political resolve of the member states, centres on reaffirming that the important principle of non refoulement is applied. That is, an applicant for asylum cannot be removed to a state where the life or freedom of that person would be threatened for the reasons set out in the Geneva Convention. It also reinforces the right of every asylum applicant to a fair hearing at every stage of the process. It guarantees an examination in accordance with the principles and provisions of the Geneva Convention. These guarantees serve as an important factor in the context of the Dublin Convention.
The UNHCR in 1989 noted that the phenomenon of refugees or asylum seekers moving in an irregular manner from countries in which they had already found protection in order to seek asylum elsewhere was a matter of growing concern arising from the destabilising effect which irregular movements of this kind have on structured international efforts to provide appropriate solutions for refugees. This is a real worry for some of our European members. I am thinking particularly of countries like Holland, which has a marvellous history and tradition in relation to the rights of asylum seekers and has taken asylum seekers in their hundreds of thousands but which faces very severe difficulties. It would be unfortunate if we were not to acknowledge what countries like Holland and Sweden have done. However, it is also important to recognise it is necessary to protect the core definition of a refugee in order to protect the Geneva Convention. It is one of the concerns of the UNHCR to uphold the core concept of refugees in the Geneva Convention as opposed to, for instance, immigrants moving for other reasons which may be legitimate but which are not to do essentially with persecution. There may be many people who want to move for legitimate reasons of betterment but in this Bill we are concerned to protect those people who have to move for fear of persecution.
It is right that the UNHCR seeks to make that distinction. In much of the discussion on asylum policy and asylum development in Europe there is an essential confusion for reasons I understand and sympathise with, because it is a humanitarian concern that everybody be allowed to move. That may be so, but not everybody is a refugee. The Dublin Convention, in seeking to uphold the Geneva Convention, is essentially seeking to protect the concept of refugee status from being impinged on by other movements which may have a very good basis and for which we may have the most profound humanitarian sympathies.
The Dublin Convention was signed by my predecessor, Deputy Burke, when he was Minister for Justice. I am sure, in the context in which I am addressing the matter, that the amendments tabled are inappropriate. I understand the concerns the Deputies have expressed. However, I believe they are not well founded.
For the Dublin Convention to be effectively implemented following ratification by the Twelve, a number of measures will have to be adopted. As a general rule for implementation of the convention, member states have agreed that action should be pragmatic and taken on the basis of the principle of good will. For example, a network of contacts needs to be built up which can speed up the allocation of responsibility and make it possible to continue practical co-operation.
In addition, the possibility cannot be ruled out that certain concepts might be amenable to a more precise definition. That would have to be done in the light of a specific need once the Dublin Convention has come into force. In this respect, the Dublin Convention provides for the establishment of a committee made up of representatives of the member states to examine any question of a general nature concerning the application and interpretation of the Convention. It is my intention to avail of this provision in the event of any particular difficulties or problems which come to light after the entry into force of the convention.
I have raised this matter with the officials in my Department and with the UNHCR. We do not have the power to change the convention because we entered into it during our last Presidency, but regarding the arrangements under the convention certain matters should be addressed. I propose that during our Presidency we should address those matters because there are areas where procedures can be improved.
We have to look at the record of countries such a Sweden and Holland in relation to asylum and the burdens they have undertaken, and ask ourselves whether we are saying that somehow or other in relation to asylum matters we are greater than they. I hope that we would be their equal after the enactment of this Bill, but it will be a long time before we can say we are their superior. I cannot accept the amendments.
In the final analysis there is no substitute for certainty. I am not arguing the merits or demerits of any country's humanitarian concerns. I accept that there have been instances of tremendous humanitarian concern by other countries greater than our Government has shown at times. I also accept that there have been instances where, to put it mildly, the humanitarian concerns were less than magnanimous.
I have tabled amendments to provide that none of the provisions of this Bill or the Dublin Convention will authorise the transfer of an applicant for asylum to a Dublin Convention country from where there is reasonable cause to believe that he or she may be returned whether directly or indirectly to the country from which he or she has fled persecution. I have not criticised the Dublin Convention; I know how necessary it was. I have not gone into the humanitarian question because I understand all of that. We should close off the loophole whereby a person could end up in the country from which he or she has fled persecution in the first place.
The Minister said there would be inquiries anyway, but there is nothing in the Bill which says so. Therefore, I have put forward an amendment stating that prior to the making of any order under section 22 (1), that order being that the Minister may make such orders as appears to him or her to be necessary or expedient for the purpose of giving effect to the Dublin Convention, the Minister shall make sufficient inquiries and obtain sufficient assurances from any Dublin Convention country to which it is proposed to return an asylum seeker to ensure that there should be no breach of section 22 (1). This is necessary.
In saying it is necessary I am not criticising the integrity of any other country in this respect. Nor am I making any argument as to how certain countries may feel about refugees. What I am saying as a certain fact is that some states have entered into agreements with other states which, in turn, have agreements with yet other states not to accept applications for asylum from the nationals of particular countries.
The convention provides that the second country shall not transfer an individual to a place where it is likely that he will be persecuted. However, country X, to whom we transfer an individual under the convention, may have an agreement with country Y not to tolerate an application for asylum from that country, and there may be no question of persecution in that country but if the individual is sent to country Y, that country, in turn, may have a transfer agreement with country W where there is a possibility of persecution. It is obvious that the country to whom the individual has been transferred under the Dublin Convention did not transfer the individual to a place where the person might be persecuted but that the country to which the person was transferred may in fact transfer the person to a place where the person could be persecuted.
I do not believe that we would be in any way insulting or sending out the wrong signal by passing these amendments which would close off the loophole.
The Minister said there would be a motion before the House on the passing of the Dublin Convention, but she knows as well as I that any such motion is no substitute for legislation and that there will be no opportunity in this House to seek in statutory form the safeguards which are required. That is why I say these amendments are necessary. I accept the Minister's good intentions but there is no substitute for expressing them in legislation. This is the time and place to implement it as the opportunity may not present itself again. The international experience is that some applicants for refugee status have been bounced like pin balls from one State to another, each country disclaiming responsibility for dealing with the applications on the grounds of white list agreements and eventually the applicants are returned to the states from which they fled. The European Consultation on Refugees and Exiles has documented individual cases where this happened. Some of these states are party to the convention.
In those circumstances we not only have a right but a duty to insert these amendments into the legislation. If we do not do so we will lose a golden opportunity to close a loophole in the Bill.
Amendment put.
The Dáil divided: Tá, 53; Níl, 66.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Aylward, Liam.
- Brennan, Matt.
- Brennan, Séamus.
- Briscoe, Ben.
- Burke, Raphael P.
- Byrne, Hugh.
- Callely, Ivor.
- Connolly, Ger.
- Coughlan, Mary.
- Cullen, Martin.
- Lawlor, Liam.
- Leonard, Jimmy.
- McDaid, James.
- Moffatt, Tom.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M. J.
- O'Dea, Willie.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- Davern, Noel.
- Dempsey, Noel.
- Fitzgerald, Liam.
- Foley, Denis.
- Fox, Mildred.
- Geoghegan-Quinn, Máire.
- Haughey, Seán.
- Hilliard, Colm M.
- Jacob, Joe.
- Kenneally, Brendan.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- Power, Seán.
- Quill, Máirín.
- Ryan, Eoin.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Mary.
- Walsh, Joe.
- Woods, Michael.
Níl
- Ahearn, Theresa.
- Allen, Bernard.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Bhamjee, Moosajee.
- Boylan, Andrew.
- Bradford, Paul.
- Bhreathnach, Niamh.
- Bree, Declan.
- Broughan, Tommy.
- Browne, John
- (Carlow-Kilkenny).
- Bruton, Richard.
- Burton, Joan.
- Byrne, Eric.
- Connaughton, Paul.
- Costello, Joe.
- Crawford, Seymour.
- Crowley, Frank.
- Currie, Austin.
- Deasy, Austin.
- De Rossa, Proinsias.
- Dukes, Alan M.
- Durkan, Bernard J.
- Ferris, Michael.
- Finucane, Michael.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Seán.
- Lowry, Michael.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McDowell, Derek.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Mulvihill, John.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Keeffe, Jim.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Penrose, William.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, P.J.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Eamon.
- Yates, Ivan.
Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.
Amendment declared lost.
I move amendment No. 68:
In page 24, between lines 8 and 9, to insert the following:
"(2) Prior to the making of any order under subsection (1) of this section the Minister shall make sufficient enquiries and obtain sufficient assurances from any Dublin Convention country to which it is proposed to return an asylum seeker to ensure that there shall be no breach of subsection (1) of this section.".
Amendment put.
The Dáil divided: Tá, 53; Níl, 70.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Aylward, Liam.
- Brennan, Matt.
- Brennan, Séamus.
- Briscoe, Ben.
- Burke, Raphael P.
- Byrne, Hugh.
- Callely, Ivor.
- Connolly, Ger.
- Coughlan, Mary.
- Cullen, Martin.
- Davern, Noel.
- Dempsey, Noel.
- Fitzgerald, Liam.
- Foley, Denis.
- Fox, Mildred.
- Geoghegan-Quinn, Máire.
- Haughey, Seán.
- Hilliard, Colm M.
- Jacob, Joe.
- Kenneally, Brendan.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawler, Liam.
- Leonard, Jimmy.
- McDaid, James.
- Moffatt, Tom.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- O'Dea, Willie.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- Power, Seán.
- Quill, Máirín.
- Ryan, Eoin.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Mary.
- Walsh, Joe.
- Woods, Michael.
Níl
- Ahearn, Theresa.
- Allen, Bernard.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Bhamjee, Moosajee.
- Boylan, Andrew.
- Bradford, Paul.
- Bhreathnach, Niamh.
- Bree, Declan.
- Broughan, Tommy.
- Browne, John
- (Carlow-Kilkenny).
- Bruton, Richard.
- Burton, Joan.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Costello, Joe.
- Crawford, Seymour.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Dukes, Alan M.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Penrose, William.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Durkan, Bernard J.
- Ferris, Michael.
- Finucane, Michael.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Gallagher, Pat.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Seán.
- Lowry, Michael.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McDowell, Derek.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Mulvihill, John.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Keeffe, Jim.
- Shatter, Alan.
- Sheehan, P.J.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Eamon.
- Yates, Ivan.
Tellers: Tá, Deputies Dermot Ahern and Calley; Níl, Deputies Jim Higgins and Brian Fitzgerald.
Amendment declared lost.
Amendment No. 69 not moved.
Debate adjourned.