We now proceed to amendment No. 1 on Report Stage. A recommittal is necessary in respect of this and related amendments as they do not arise from committee proceedings. Therefore, the Bill will be recommitted in respect of amendments Nos. 1, 22 and 25, together with amendments Nos. 1 to 4, inclusive, to amendment No. 25. Is that agreed?
Illegal Immigrants (Trafficking) Bill, 1999: Report Stage.
As regards the procedure, are we now in a Committee Stage debate for the duration of these amendments?
For these amendments only.
When we move on to the next phase of amendments will we revert to Report Stage?
Yes.
Will you guide me procedurally, a Cheann Comhairle? When and how will these amendments be dealt with on Report Stage?
They will be dealt with in committee on Report Stage.
I am at a loss to understand. If we deal with amendments Nos. 1, 22, 25 and my two tabled amendments to amendment No. 25 on Committee Stage now, when will we reach those amendments again on Report Stage?
At the same time.
Will there be a gap between Committee and Report Stages?
No. There is no gap, they overlap. They will be so deemed when they pass this stage. It is a way of dealing with them at this stage on Report Stage.
So there will be no Report Stage for these amendments?
What is being done is a long-standing practice.
I am just seeking clarity on it.
There is no separate Report Stage. This is Report Stage.
So, for these amendments that we got for the first time yesterday, there will not be any Report Stage?
We are dealing with Report Stage now but these amendments are being recommitted.
For committee?
Yes.
In terms of precedent, when was the last time this mechanism was used?
I would need some notice to answer that.
I would have liked to have notice of the amendments, a Cheann Comhairle, but we only got them yesterday.
The rule is that there is not a separate Report Stage in circumstances like this. It is quite a common practice in the course of Report Stage for sections to be recommitted and dealt with as in Committee Stage. It is not unusual. It happens in regard to quite a number of Bills.
Amendment No. 1 is consequential on amendment No. 25. Amendment No. 22 is related to amendment No. 25, as are amendments Nos. 1 to 4, inclusive, to amendment No. 25. Amendments Nos. 1, 22 and 25, together with amendments Nos. 1 to 4, inclusive, to amendment No. 25 to be taken together, by agreement.
Bill recommitted in respect of amendment No. 1.
I move amendment No. 1:
In page 3, line 7, after "1996," to insert "AND THE IMMIGRATION ACT, 1999,".
This amendment to the Long Title of the Bill is related to amendments Nos. 22 and 25, also in my name, the primary purpose of which is to make changes in the laws as regard the deportation process arising out of the practical experience gained in operating the present procedure. That experience, the facts and figures of which I will be detailing, demonstrates a need to refine certain aspects of the Act if the deportation process is to function effectively. To assist in our debate, it would be useful to outline the current procedures, how they operate in practice and the problems that have been encountered to date.
I will deal, first, with some of the basics of immigration law and policy. It is a well recognised principle of the sovereignty of states generally that they have the right to determine which non-nationals should be admitted to their territories, on what conditions and for what duration, and to determine when non-nationals should leave and, if necessary, remove them. Irish courts have recognised that the Executive has a responsibility, in the interests of the citizens of the State, to exercise such controls on non-nationals entering, staying in and leaving our territory. Judge Gannon's dictum to this effect in the 1986 case of Osheku has been cited with approval in many High and Supreme Court judgments since, most recently by the Supreme Court in the Laurentiu case in 1999.
An essential element of the exercise of this Executive function is the power to remove non-nationals who no longer have a proper basis, or who perhaps never did have a proper basis, for remaining in the State. It is interesting that in the same Laurentiu case, which found that the manner in which the Oireachtas, in 1935, had dealt with the powers of the Minister to deport non-nationals was inconsistent with the 1937 Constitution, the Supreme Court stated that the right to expel or deport non-nationals is an aspect of the common good which inheres in the State by virtue of its nature as a sovereign State; and that such a power is clearly Executive in nature and is capable of being exercised in the absence of legislation.
This Executive function must be exercised in accordance with both domestic and international law and legal principle. Some of the relevant principles of international law which inform policy, practice and the development of domestic law are already well known to this House. There is the principle of non-refoulement, deriving from the 1951 Geneva Convention relating to the status of refugees. There are also relevant provisions of the European Convention on Human Rights, in particular Article 5(1)(f) which contemplates specifically the detention of those in relation to whom deportation is in process, subject to proper safeguards as to notice of the reason for the detention, access to a habeas corpus court procedure, and clarity and transparency in the law on which the detention is based.
The United Nations High Commission for Refugees continually expressed the view that the repatriation of those who fail the asylum process and are not otherwise entitled to the protection of a state is vital to preserve the integrity of asylum as a concept and of asylum processes throughout the world, and that deportation is an essential corollary of an asylum determination process in order to ensure that applicants who turn out not to be in need of the protection of the State are not unjustly rewarded. This sentiment is echoed by the joint policy statement of the Irish Commission for Justice and Peace and Trócaire, published in December 1997, which, under the heading "Grasping the Nettle of Expulsions", stated:
The difficulties facing the Minister and the Department of Justice have to be recognised. A clear fair and efficient adjudication procedure, with all the necessary attendant safeguards, will by definition admit not only those whose application is well-founded but also let in on a temporary basis many whose applications will be eventually adjudicated not to be well-founded. The inevitable and necessary consequence, if the system is to work properly, is that such applicants will be sent out of Ireland to some other country, i.e. deported or expelled. The nettle has to be grasped that deportation of some applicants . is an inescapable part of a fair and efficient process, and provides an essential protection for genuine cases."
Let us now look at our present domestic law in relation to deportation of non-nationals. The procedures are set out in the main at section 3 of the Immigration Act, 1999. Subsection (1) of that section sets out what a deportation order is, and subsection (2) lists the classes of non-nationals who are liable to be deported. An essential feature of any fair deportation process, and one underlined by the Supreme Court in the Tang case in 1996, is the opportunity to make representations as to whether deportations should take place. In our system, under subsection (3), that feature is implemented by informing the potential deportee that deportation is under consideration and providing him or her with 15 working days – roughly equivalent to three weeks – from the sending of the notice to make submissions as to the reason he or she should not be deported. The 15 day notice period does not apply to certain categories of potential deportees who have already had access to their own special review mechanisms provided for elsewhere in statute. There is also an opportunity for the person to forgo the opportunity to make representations by consenting to deportation – availed of in a number of cases.
Section 3(1) of the Immigration Act makes it clear that the deportation of a person is subject to the provisions of section 5 of the Refugee Act, that is, prohibition of refoulement, which requires that the State may not return any person to a place where his or her life would be threatened by persecution. This important provision applies to all persons liable to deportation. Along with this overriding consideration, and any representations made by the potential deportee, section 3(6) of the Immigration Act sets out a wide range of criteria which must be taken into account before deciding whether to make a deportation order against the person concerned. These criteria cover such aspects as family circumstances, the character of the person and humanitarian considerations.
The decision to make a deportation order does not come out of the blue but rather at the end of a series of processes, whether they be in the asylum or immigration area. It is the final decision on the individual case, and the culmination of an exhaustive examination of the basis for the non-national's stay in the State. In particular, where the deportee is a failed asylum seeker, he or she will have gone through a procedure which consists of a thorough investigation of the claim for asylum at first instance; an independent appeal procedure; and the process I have just described, where the person can make a case as to the reason he or she should be allowed to remain in the State despite being found not to be a refugee. Legal aid is available at State expense for the person at all stages of these processes.
Once the deportation order has been made, the deportee is notified of the decision and of the reasons for it in a notice issued under section 3(3)(b)(ii) of the Act. That notice requires the deportee to present himself or herself to a Garda station or immigration officer named in the notice at a specific time and place for the purpose of his or her deportation from the State. The notice is sent, where possible, in a language which the deportee understands, and can be delivered personally or sent by registered post. The service of these and other notices under the Act is an issue to which I will return when discussing the substance of the amendments before us today.
Where a deportee fails to comply with the deportation order, or with the notice to turn up at the specified time and place, that gives rise to a power of arrest and detention for the purpose of ensuring the person's departure from the State. That detention is subject to certain safeguards. Deportees under 18 years of age cannot be detained, and there is a limit to the length of time a deportee can be detained. A detained deportee has, of course, access to the courts by way of habeas corpus or judicial review. The court hearing any such proceedings can decide whether, and on what conditions, to release the person from detention.
Let us look now at how the procedure has fared in practical terms since the coming into effect of the new deportation process in July 1999. A total of 1,218 notifications of a proposal to consider making a deportation order and inviting representations have issued to date. The bulk of these have been sent to failed asylum seekers, that is, people whose claims for asylum have been either rejected on appeal or turned down at first instance and not appealed.
Of the number invited to make representations as to why a deportation order should not be made, 715 people, that is, about 60%, did not make representations. In about half of those cases, the invitations to make representations, which had all been sent by registered post, were returned as undelivered.
What was the percentage?
It was 60%. I will repeat that for Deputy Howlin. Of the number invited to make representations as to why a deportation order should not be made, 715 people, that is, about 60%, did not make representations. In about half of those cases, the invitations to make representations, which had all been sent by regis tered post, were returned as undelivered. Eleven people consented to deportation.
(Mayo): What was that last figure?
Half of the 715 people who were written to did not receive the letters. They were sent by registered post and were returned as undelivered. Eleven people consented to deportation, that is, about 1% of the total. Another 492 people availed of the opportunity to make representations in writing within 15 days of sending the notification.
To date, I have made 396 deportation orders. Of that number, arrangements for removal have been made in respect of 198 persons. There have been supervised departures of 30 people and a further seven people left the State before deportation could be effected. In another 60 cases the deportation order cannot be executed pending the hearing of judicial review proceedings initiated by the deportees.
It would be helpful if that page of the Minister's statement could be circulated later.
We can ask the officials to circulate that page so that Members can have the figures for their contributions.
As I said, there have been supervised departures of 30 people and a further seven people left the State before deportation could be effected. In another 60 cases the deportation order cannot be executed, pending the hearing of judicial review proceedings initiated by the deportees. In a further ten cases, the deportation orders have been revoked, mainly on the advice of the Attorney General's office. Technical difficulties of various kinds, such as the need to obtain proper travel documentation, have held up the departure of the deportee in 48 cases. A further 32 deportations are currently being arranged. In the remaining 91 cases, which represent approximately 75% of cases, excluding the judicial review cases, where arrangements for deportation had been made, the deportees have in each case chosen to flout the requirement to turn up at the named Garda station at the appointed time.
What was the percentage of applications for judicial review?
As I said, in the remaining 91 cases, which represent 75% of cases, excluding the judicial review cases, where arrangements for deportation had been made, the deportees have in each case chosen to flout the requirement to turn up at the named Garda station at the appointed time. It must be fairly clear that a substantial number went by way of judicial review. In the region of 60 out of 400 went for judicial review. In a further 117 cases, removal cannot be effected because the persons are not at their last known address.
One may speculate that a proportion of those who have, as it were, fallen out of the system at the various stages along the way may have already left the country for unknown destinations. In relation to the 3,000 or so asylum applicants who have abandoned their applications and who are no longer in the social welfare system, that speculation may have a strong basis. It is also possible that some of those who have not availed of the invitation to make representations as to why they should not be deported, or who failed to comply with the requirements of a deportation order when made, may have assumed fresh identities and reapplied for asylum or are otherwise still in the State and making a living by working illegally.
Whether such people are still in the State in disregard of our laws or have left to enter another state in disregard of the laws there, it is clear we have a responsibility to ensure the law of the land is observed and upheld. In particular, I am conscious of the ease with which people may travel between here and the United Kingdom, availing of, and in some cases abusing, the common travel area arrangements which are intended to facilitate citizens of these islands alone. The maintenance and protection of these arrangements is an important element of the public policy of this State. It was recognised as such by the High Court in the case of Kweder in 1992, and was considered of such a high priority that it resulted in the negotiation by Ireland of a special protocol to the Amsterdam Treaty. It behoves us to ensure to the greatest extent possible that those arrangements are not abused by people entering the UK illegally from our territory.
I am also convinced of the need to ensure that access for non-EU nationals to our employment market is reserved for those who comply with the proper requirements of our law, and that the opportunities for the law abiding should not be diminished by those who flout the law. I am further concerned to ensure that the asylum process is not abused by those who apply repeatedly in different identities, clogging up the system and making life even more difficult for those who are genuinely in need of the protection of this State.
Does the Minister have statistics on that?
Not at present but we can deal with that on Committee Stage.
The fingerprinting of asylum applicants, due to commence when I implement the Refugee Act, as soon as this Bill is enacted, will go in large measure towards eliminating that type of abuse for the future, but we need, in addition, to tackle the problems that are there at present.
With these ends in mind, I have brought forward amendment No. 25, the aim of which is to refine the deportation system, building on the experience acquired over recent months, so as to ensure that when non-nationals have finally exhausted all processes for being allowed to remain in the State, we can see them properly off by sending them back where they belong, where they will be less well able to abuse our immigration laws or those of our neighbours in the European Union. I have addressed this issue in a sensible and balanced way, consistent with legal principles and our obligations under international law.
I am satisfied that the provisions already in place ensure fair procedures and fair treatment, with proper safeguards for all non-nationals who may be subject to a deportation order. However, it is equally clear to me that a number of procedural and practical matters require addressing in order to improve the effectiveness of the process in bringing about more supervised departures. These are dealt with in the Government amendments.
I will now turn to the detail of the amendments. Chief among these is amendment No. 25, which inserts in the Bill a new section 10 containing amendments to the Immigration Bill, 1999. The first of these, at paragraph (a) of the new section 10, inserts a new subsection (1A) in section 3 of the 1999 Act. This makes the general statement of principle that a person the subject of a deportation is liable to detention in accordance with the provisions of the Act, and that this detention is for the purpose of ensuring his or her deportation from the State. This makes it clear that the Minister's Executive power in these matters, which has been long recognised by the courts, will be exercised in line with the policy and procedures set out in the Act. It is a signal to those involved in a deportation process that they run the risk, if they do not comply with the deportation order, of being detained with a view to ensuring their departure from the State. This warning message will be incorporated in the notices sent during the process leading to deportation, so that those concerned need be in no doubt of the seriousness of the business and of the risks they run by non-compliance on their part.
Paragraph (b) of the new section 10 replaces the existing section 3(9)(a) of the Immigration Act with a much expanded version, setting out in much more detail the sort of practical arrangements that can be made to ensure the successful supervised departure of the deportee. Under the present section, which sets out the content of the notice of the making of the deportation order, the only requirement that can be made is that the person concerned present himself or herself to an immigration officer or a member of the Garda Síochána at a specific date, time and place for the purpose of his or her deportation. That requirement is repeated in the amendment in the new subparagraph (a)(i)(I). Alongside that, the other sub-subparagraphs provide for a number of additional practical requirements that can be included in the notice, as follows: the production of any travel documents, passports, tickets or other documents required for deportation purposes that the person may possess; co-operation with a garda or immigration officer to obtain travel documents; the requirement to reside in a par ticular area or address in the State while arrangements are being made – this provision has been adopted from section 9(10)(b)(ii)(I) of the Refugee Act and can be necessary where there is likely to be a delay in obtaining a passport from the person's country of origin; a requirement to report periodically to a specified garda station or immigration officer – based on section 9(10)(b)(ii)(II) of the Refugee Act and designed to ensure that the person is continuing to be available for removal once the arrangements are finalised; and the requirement to notify a member of the Garda Síochána or immigration officer as soon as possible of any change of address.
These are all very practical measures, some combination of which is likely to be necessary to ensure that the deportee remains available for removal from the State on foot of the deportation order. The person must be present before he or she can be deported. He or she cannot travel without his or her passport, travel document or tickets. In many cases a person will not have a passport or travel document or it may have expired or been lost or stolen. In such cases it will be necessary to obtain a new or replacement document for the person concerned and this will require the person to co-operate in obtaining these documents, for example, completing application forms and obtaining photographs. If the person already has a return ticket, there is no need for the State to foot the travel bill, though a deportee may need to be escorted by immigration officers whose expenses will normally be borne by the State.
Which requirement or combination of requirements should be applied in particular cases is a matter for decision in the circumstances of each case. In subparagraph (ii) there is a further important modification to the provisions of subparagraph (i). This simply provides that where a notice of deportation under section 3(3)(b)(ii) of the Immigration Act includes a requirement under subparagraph (i), then a garda or immigration officer may, for the purpose of the deportation of the person concerned, make a further requirement in writing of the kind of acts set out in subparagraph (i) and this is to have effect as if it were contained in the notice under section 3(3)(b)(ii) of the Act. This is to cater for the situation where a deportee reports as requested to a Garda station for the purpose of deportation, but some impediment emerges which make immediate removal impossible for the time being.
To give a brief example of what is envisaged by this provision, let us take the situation where a notice of the making of the deportation order under section 3(3)(b)(ii) includes a requirement that the person presents himself or herself to the member-in-charge at Santry Garda station at noon on Saturday and to bring along his or her passport. The person fulfils the first requirement by arriving at the Garda station on time but cannot fulfil the second requirement because the passport is lost or stolen, or, if in his or her pos session, it may have expired. Clearly the deportation of the person cannot proceed without the passport, because in most cases, the countries of origin or transit will require some form of travel document. Therefore a further requirement under subparagraph (ii) might be that the person come back on Monday, when the appropriate passport form has been obtained, followed by a further requirement to complete the passport form, to remain at the current address in the meantime and to report back in a week's time to pick the passport up and put the final arrangements in place for the journey home. If there was something in the deportee's record that suggested it, the garda or immigration officer might consider it necessary to require the deportee to report daily or every two days to ensure that the order would be complied with once the arrangements were complete.
It is a practical measure designed to minimise delays due to necessary administrative detail, to ensure that the deportee can remain in his or her regular accommodation while awaiting the finalisation of the arrangements and to facilitate the return of the person as soon as that can be done. Any additional requirement must, like those in the notice of the making of the deportation order itself, be in writing, with a copy in a language that the person understands, where this is necessary.
I am satisfied, having consulted the Attorney General's office, that these further modifications are justified given our experience of the operation of the Immigration Act to date and the desirability of providing for these practical arrangements in the Act and that they allow for the maximum flexibility in their operation. Non-compliance with any such additional requirements will result in the person being liable to be detained for the purpose of ensuring deportation from the State.
Paragraph (b) of the new section 10 being inserted by this amendment makes changes to section 5(1) of the Immigration Act, which deals with the detention of a deportee. The existing section 5(1) provides that where a garda or immigration officer with reasonable cause suspects that the deportee has failed to comply with any provision of the order or with a requirement in a notice of the making of the deportation order, the deportee may be arrested without warrant and detained. This detention is with a view to ensuring the deportation. Experience of the operation of the 1999 Act to date demonstrates the extent to which persons are prepared not to comply with deportation orders – lawful orders which have been properly made after due process. There is a clear need for greater powers of detention in order to reduce the incidence of non-compliance and to increase the proportion of deportation orders which result in the supervised departure of the deportee from the State. My proposal is to expand the grounds on which arrest and detention of a non-compliant deportee may arise. The additional grounds for detention are to be where a garda or immigration officer, with reasonable cause, suspects that the deportee intends to leave the State and without lawful authority enter another state – in effect, to abuse the common travel area arrangements between here and the UK – and has destroyed his or her identity documents or is in possession of forged identity documents, or intends to avoid removal from the State.
On a procedural point, the Minister is making an interesting Second Stage speech, but we are on Committee Stage. Will the Minister speak for much longer? We must absorb all of this and it would be useful if we had a copy of his speech.
I will end this contribution within five to ten minutes. I am outlining not just the amendments, but, to be helpful to Members, I am also outlining the current law.
It is very helpful.
I am just trying to be helpful. It is a duty of the State and my duty as Minister, in the interest of the common good in all aspects of that concept, to ensure that persons who are the subject of a deportation order comply with the requirement in that order to leave the State. It is also the obligation of the person to obey the order to leave. However, the State would be failing in its duty were it not to equip itself with reasonable measures to ensure that a person who is the subject of a deportation order does not leave the State voluntarily only to enter another State illegally.
We have a particular responsibility to ensure that our common travel area arrangements with the United Kingdom are not breached in this way. I referred earlier to the High Court case of Kwaeder, and it might be useful to quote the views of Mr. Justice Geoghegan in that case:
I accept that the common travel area arrangements as between Ireland and the UK have been and are perceived by the general public to be of great advantage to this State. I, therefore, accept the submissions made on behalf of the Minister that this public policy is not merely legitimate but also fundamental. Provided proper regard is had to European Community Law such a public policy is not in any way incompatible with that law . In a literal sense, the continuance of the common travel area may not be threatened by a single or individual instance of back-door illegal immigration into the UK through initial entry into Ireland and the taking advantage of the common travel area. But an accumulation of such "back-door entries" would obviously threaten the continuance of the privilege. For that reason each individual instance of such back-door illegal entry or probable back-door illegal entry is a serious threat to the long-term continuance of the common travel area and it is a legitimate act of public policy to take the necessary steps to prevent each individual instance of it.
Similarly, in the context of our co-operation with our other European colleagues it would, to say the least, be an unsatisfactory situation if a person the subject of a deportation order issued by a Minister in this State, for the purpose of returning to a country outside the European Union, could simply ignore the order and wander off into another EU State. This is the basis for paragraph (b) of the new section 5(1) in this amendment. It is modelled on similar provisions in relation to asylum seekers set out in section 9(8)(e) of the Refugee Act, 1996, which provides for detention in similar circumstances.
The amendment of paragraph (c) of subsection 5(1) in this amendment, which is also modelled on a provision of the Refugee Act, 1996, at section 9(8)(f), is designed to deal with situations where deportees seek to obstruct their deportation by destroying their travel documents or to avoid it by obtaining false papers. The amendment at paragraph (d) of subsection 5(1) of the Immigration Act provides for detention in circumstances where a garda or immigration officer with reasonable cause suspects that a deportee intends to avoid removal from the State.
Any detention under this provision is subject to the conditions and safeguards set out in the remaining subsections of section 5. These deal with placement in a mode of transport about to depart, proper accommodation during the journey, the non-applicability of detention to persons under 18 years, provision for review by the court of a detention where the deportation is under court challenge and the overall limit on the period of detention in any case.
Essential to the success of the deportation process is that people are on notice of what is happening and what may happen to them in that process. As we have seen, our procedures incorporate at every stage of the process the provision of notice to the person liable to be deported and to the deportee which keeps the person informed of his or her rights and of what is expected of him or her. Section 6 of the Immigration Act, 1999 allows for service either personally or by registered post. This can only work properly, however, where notice is sent to and received by the person at the address which that person has most recently supplied. At present it is open to a deportee or a potential deportee to try to frustrate the process by avoiding acceptance of the notice, either by moving without telling the authorities or by simply refusing to accept registered post from the postman.
To ensure that the process cannot be evaded in this way, paragraph (c) of the new section 10, being inserted by amendment No. 25, modifies section 6 of the 1999 Act to provide that the person concerned will be deemed to have received the notice three days after that notice has been sent by registered post or any other form of recorded delivery to the last address provided. This provision could not work effectively, however, unless provisions were in place to ensure that there was a responsibility on the individual concerned to ensure that the authorities are kept abreast of that person's up-to-date address. Those provisions already exist for non-nationals under the Aliens Order, 1946.
Article 11 of that order requires them to register with the Garda Síochána including particulars such as name, nationality, date and place of birth, address in the State and a requirement to notify his or her registration officer and An Garda Síochána of any change to the particulars provided for the purposes of registration. A person who is registered is given a registration certificate which records these particulars and any changes to them and also records any permission to remain in the State granted to the person.
For asylum seekers, the Refugee Act, when it is commenced shortly after the passage of the current Bill, will provide a somewhat different system. Section 9(3)(a) of that Act provides for the issue, by the Refugee Applications Commissioner, of a temporary residence certificate stating the name and other personal details of the applicant and containing his or her photograph. Section 9(3)(c) of the Refugee Act provides that a person issued with such a certificate shall be deemed to have complied with article 11(1)(a), that is, the requirement to furnish certain particulars for registration purposes.
The Refugee Act provides further, at section 11(8), that the Refugee Applications Commissioner on receipt of an application under the Act must give to an applicant a statement in writing specifying a number of requirements, one of which includes the obligation upon the applicant to notify the commissioner of his or her address in the State. However, the Act as it stands has no express provision requiring the applicant to provide his or her address to the commissioner. For completeness, I propose a further amendment of the Refugee Act, amendment No. 22, to spell out this obligation on asylum seekers.
Finally, amendment No. 1 changes the long Title of the Bill consequential on the inclusion, by way of amendment no. 25, of a section amending the Immigration Act, 1999. I framed this set of proposals, in consultation with the Attorney General, to take account of the climate of international human rights law so that there will be sufficient safeguards for the rights of the individual, to ensure that those who are willing to obey the lawfully made deportation order by co-operating with their removal will not be detained and to provide sufficient powers to ensure the law is upheld in the interests of society generally. I am confident that in combination with the establishment by the Garda authorities of the new Garda national immigration bureau and the increased Garda resources being devoted in the area, these proposals will result in a higher level of compliance with the law without diminution of the rights of individuals.
I propose to keep this area of the law under constant review and I am determined to give it whatever strength is needed to ensure its effectiveness consistent with the administration of justice. I urge Deputies to support the amendments.
I remind Deputies that this is, in effect, a Committee Stage debate on a Report Stage amendment.
It sounds like a Second Stage debate so far.
(Mayo): The Minister should also have been reminded of that. For the past 20 minutes—
Half an hour.
(Mayo): —we have listened to a Second Stage presentation outlining what the Minister sees as the imperatives for bringing forward these amendments.
What is happening here is disgraceful and undemocratic. Of all the issues on which we have had a useful exchange of ideas with representative bodies, none has provided more of an opportunity or demanded such an input as that of immigration, asylum and refugee policy. During the debate on the Immigration – or deportation – Act last year, which was a hotch potch measure to fill a gap that resulted from a constitutional challenge to the 1935 Aliens Act, we had a useful exchange with various relevant bodies such as Amnesty International, the Refugee Council, the Irish Council for Civil Liberties and the Irish Episcopal Commission. Their views were enormously valuable in sensitising Members to the issue, in informing the debate and in enabling Members bring forward amendments which were eminently suitable and sensible in terms of ensuring that the Bill had balance or proportion.
However, at the end of the Committee Stage debate we were presented with a raft of amendments which changed the dynamic and thrust of the Bill. Members put down a marker at that time that they would not permit that to happen again. However, it has happened again with the Illegal Immigrants (Trafficking) Bill. On Committee Stage a huge tranche of amendments, which changed the thrust of the Bill, was put down at short notice by the Minister. We thought that this was surely a line in the sand as far as the Minister and Members were concerned. However, that line has vanished again.
Yesterday, we were given another raft of amendments. They were not posted to Members. The list is dated 30 May 2000 and was issued by the General Office. It is the Minister's expressed intention to change further the thrust of the Bill. That is disgraceful and undemocratic. The Minister claims it is fair but it is an abuse. Even if one leaves aside fair procedures, good manners should have dictated that Members be told in advance what the Minister intended to do.
As Deputy Howlin pointed out, this Bill was published last year. We are not responsible for the fact that it took months to reach Committee Stage. Committee Stage was completed over Wednesday and Thursday, 29 and 30 March 2000. The House is now in the final phase of this session or on the home straight, as it were, and on the eve of Report Stage of the Bill, Members have again been saddled with a raft of amendments. That is simply not good enough. The Minister is responsible for the fact that we were not given the amendments on time. He knew that changes were being contemplated. Whatever difficulties have arisen in relation to deportation procedures did not suddenly arise yesterday or last week. They were known for a considerable period of time. To parachute these amendments into the Bill without notice and to expect Members to deal with them in a proper, democratic and instructed fashion is not good enough.
The Minister has delivered a 30 minute speech, part of which was tightly compacted with statistical detail. The Members are expected to absorb its minute details and to respond in a cogent fashion. I have major problems with the amendments and with what the Minister is doing. Amendment No. 25, for example, provides for the tightening up of the procedures adopted under the Immigration Act, 1999. Section 3 of that Act, which deals with deportation orders, states:
Subject to the provisions of section 5 (prohibition on refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order“) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter outside the State.
The Minister states that what he is doing today will refine the deportation system. What he is doing here is setting down a whole range of strictures to ensure that anyone who is the subject of a deportation order is under constant surveillance from the moment the deportation order is made. I accept the principle of deportation orders. I accept that if there are procedures and laws in place and if we abide by our international obligations, where people do not meet the requirements set down in international or domestic law, in certain circumstances, deportation is an option. One of the reasons the Minister finds himself in this present bind is the slowness and tardiness of the existing procedures, the fact that people are in this country for two, three or four years.
The Minister refers constantly to the fact that he inherited a very difficult situation and that he is being blamed unfairly for failure of the procedures to work. One of the reasons he is having difficulties with deportations is his tardiness in dealing with the procedures. People are in this country for two, three or four years languishing in a legal limbo. They are not allowed to work. Their applications are not being processed and, as a result, they have become embedded in Irish society. They have become part and parcel of the regime. They are living here and they have become grafted onto Irish society. The result is that when it comes to making deportation orders, they see themselves as part and parcel of this society because the Minister has failed to invoke the procedures within a reasonable period.
On the new regime being introduced, I thought section 3 was more than adequate. The person must now present himself or herself to such member of the Garda Síochána or immigration officer at such date, time or place as may be specified in the notice. Therefore, the person is told exactly where and when he or she must report. The person must produce any travel document, passport, travel ticket or other document in his or her possession required for the purpose of such deportation to such member of the Garda Síochána or immigration officer at such date, time and place as may be specified in the notice. In other words, not only will these people be deported and their stay here terminated within the terms of the deportation order, but they must now report to their executioner on a regular basis to remind him they are in this country and are ready, available and about to be deported. They must co-operate in any way necessary to enable a member of the Garda Síochána or immigration officer to obtain a travel document, passport, travel ticket or other document required for the purpose of such deportation. They must reside or remain in a particular district.
Therefore, these people are told exactly where they must stay, their location and the confines within which they must reside. They must report to a specified Garda station or immigration officer at specified intervals pending removal from the State. I have no doubt these people will be told to report on a daily basis until such time as their exit order is invoked. They must notify such member of the Garda Síochána or immigration officer as may be specified in the notice as soon as possible of any change of address.
The Immigration Act was quite adequate because section 5 states that where an immigration officer or member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force, has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii), he or she may arrest him or her without warrant and detain him or her in a prescribed place. Further additions are now included whereby an immigration officer or a member of the Garda Síochána who, with reasonable cause, suspects that a person against whom a deportation order is in force has failed to comply with any of the provisions of the order under section 3(3)(b)(ii), intends to leave the State and enter another state without lawful authority, has destroyed his or her identity documents or is in possession of forged identity documents, or intends to avoid removal from the State, may arrest him or her without warrant and detain him or her in a prescribed place.
I would have thought that failing to comply with any of the provisions of the order – these are very detailed and were debated at length on Committee and Report Stages of the Immigration Act – would be sufficient. However, there is now a further set of conditions, including if the person intends to leave the State and enter another state without lawful authority. How does one prove that these people are going to enter any other state without lawful authority? The Bill includes the wording if the person "has destroyed his or her identity documents or is in possession of forged identity documents". In other words, if the person decides not to return to some regime which in the view of the authorities assessing the applications is not seen as punitive and where the person would be subject to discrimination, and if the Department gets it wrong and the person decides he or she will not return to the country with the identity documents because of the obvious consequences, that person will now be subjected to arrest without warrant and detained in a prescribed place.
The thrust of the Minister's proposals and the ad hoc approach to immigration and asylum policy has one intention, that is, to deal with it on an instalment basis, to send out at convenient times convenient soundbites to give the distinct impression that Ireland is increasingly becoming a no go area for asylum seekers and that asylum seekers simply are not welcome here.
The next amendment amuses me. The 1996 Act states that where a notice is required or authorised by or under the Act to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her in some one of the following ways where it is addressed to him or her by name, by delivering it to him or her or by sending it by post in a pre-paid registered letter or by any other form of recorded delivery service prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her to the Minister or in a case in which the address for service has been furnished to that address. We are now saying that if it is three days from the expiry date of the dispatch of the envelope, that is it. As far as the Department is concerned, the person has been given due notice. In other words, that is an absolute certainty or guanantee that the person has been in possession of the document. We are well aware, given the vagaries of the postal system which has deteriorated rather than improved in terms of service since the days of the threepenny stamp, that accidents happen and post goes astray, even registered post can go astray. However, the Minister is proposing in this legislation that, as long as three days have expired since the letter was dispatched in the post by his Department, the assumption and presumption is that the person has received it, therefore, he or she will receive the red card and be out the door.
I am amused by the removal of the reference to the Minister. It is now proposed to furnish the information to the applications commissioner. In other words, we are putting the Minister at a remove from what is happening here. This is another way of immunising the Minister in relation to his involvement, even though ultimately he has sole responsibility for the entire application of the procedures which have been invoked in this draconian measure.
The Minister delivered a half hour speech more appropriate to Second Stage. I welcome this and think we should all be given the opportunity to start again given the substantial and far-reaching amendments. Since they will become part of our legislation they deserve to go through the procedures laid down for the enactment of legislation. The stages in debating a Bill include starting with a debate on the principle, then moving to Committee Stage which is followed after a time lapse by Report and Final Stages. The Minister has repeatedly sought to circumvent that established procedure in relation to immigration, asylum seekers and related matters, which is quite wrong.
I will talk about the procedure and the content of the amendments. The Minister is acting outrageously in terms of procedure and he and his officials are aware of this. In recent days I have spoken to staff of his Department. I understood the amendments would be ready last Thursday, but they were not available until yesterday. If the Minister was on this side of the House he would be as upset as I and other Members at being treated in this way. We have been presented with substantive and far-reaching legal texts 24 hours before Report Stage. In his heart of hearts the Minister knows that is no way to do business and that it is unfair to Members. These amendments were brought forward after we had submitted our amendments on Report Stage and two months after the conclusion of Committee Stage. It is wrong to treat the House in such a way and I do not know why it is repeatedly happening in relation to these issues.
The law is a bad patchwork quilt and we are grafting on bits and bobs to whatever vehicle happens to be handy. The appropriate vehicle last year in the opinion of the Minister was the Immigration Act, 1999. We went through the same procedure whereby a very straightforward Bill designed to deal with plugging a loophole after the Supreme Court ruled provisions of the Aliens Act, 1935 were unconstitutional, was used as a vehicle to do far more. The Minister uses whatever legislation is before the House at the time to add bits and bobs of policy. He has repeatedly refused to bring overarching immigration legislation before the House. What was promised for this year in the most recent comments by the Taoiseach on the Order of Business is now being promised for next year and the Minister is fast realising he will not be around to introduce a Bill at that stage.
It is wrong to treat the House in this way and it is not fair on Members or Opposition spokespersons.
Acting Chairman:
It is fair to say the point is well made.
I do not think it is sufficiently well made.
Acting Chairman:
Of necessity, we will have to spend considerable time on this amendment.
The Minister was allowed 35 minutes to give a Second Stage speech. There should be some allowance for Opposition spokespersons to at least vent frustration since our legislative role is being circumscribed by the Minister. The Minister knows my arguments are correct and are not too different from the arguments he would make if he was on this side of the House.
The amendments were received by Members yesterday and those who would like to have made comments and submissions on them to the Select Committee were not given a chance to do so. We are required by the Minister's tactics to deal with them now, and I am very displeased with that.
I am very concerned by the contents of the amendments. I agree with the general comment of Deputy Higgins that the Minister likes the notion of presenting sound bites to the media and to present himself as the strongman in these matters while grossly and deliberately misrepresenting the views of the Opposition, as he again did last weekend when he insultingly referred to office holders in the political parties on this side of the House. He included a reference to the president of my party as being in that position for life. There is no office of president for life in my party – the president is elected at national conferences of our party. Such a derogatory comment is typical of a Minister who has nothing else to say on issues.
The Minister is the longest serving Minister with responsibility in the area of justice of the most recent three Ministers. With the exception of two and a half years, Members of Fianna Fáil have been Ministers for Justice since 1987. It is about time he took some responsibility rather than constantly harping back to a previous Administration. As many as 85% of asylum seekers have arrived here on his watch. Deputy Higgins is correct when he says the Minister's policy is botched. There are people here three and four years awaiting a determination of their legal status. Last Saturday an individual came to my office who is married to an Irish national and is four years in the State but whose situation is not yet regularised. The Minister is responsible for ensuring applications are dealt with in some semblance of a speedy way. I hope he will take responsibility rather than constantly trying to off-load to somebody who preceded him, given that he has been in officer longer than his two immediate predecessors.
I support the notion of deportation for those who have no right to be here. I have not ever said anything different in the House and have not heard a Member of the Opposition say differently – I speak authoritatively as spokesperson of my party. We are talking about the mechanism by which determinations are made about who can lawfully remain here and how deportation orders are implemented.
I support amendment No. 22 and do not have any difficulty with it. However, amendment No. 25 is a different kettle of fish. It revisits the powers to deal with people whose asylum applications have been refused. This morning I received communication from the Irish Refugee Council, which barely had a chance to examine the measures now before the House. The council asked me to be mindful of its representations which state:
The Irish Refugee Council is seriously concerned at the manner in which the proposed amendments and the increased powers of the Garda in relation to deportation and detention have been introduced. The Irish Refugee Council notes that these amendments were introduced a day before they were scheduled for discussion in the Dáil; that this has taken place without any opportunity for human rights organisations to make comments on the proposed amendments; and if implemented would have a serious impact on the rights of unsuccessful asylum seekers.
There are organisations which have a legitimate right to be heard and I regret that many other organisations have been denied that right because of the tactics employed by the Minister.
Could the Deputy enumerate the rights of unsuccessful asylum seekers?
I am not here to answer the Minister's questions. The Minister is here to be accountable to the House, not to bully his way through procedures. He must be accountable to the House, and if he will not even listen to the views of organisations—
(Interruptions).
Acting Chairman:
I discourage exchanges as we will only get bogged down.
What are the rights to which the Deputy is referring? Am I to enumerate the rights of unsuccessful asylum seekers? It is a fair question. I answered the Deputy's questions.
Acting Chairman:
If the Deputy is not prepared to respond to the Minister's question he has the option of proceeding.
I want to proceed. The Minister is discomforted by what I am saying-—
The Deputy does not know what they are.
—but I want him to understand that there are organisations which have a legitimate right to be heard. His bluster will not deny them that right.
It is the Deputy who is blustering.
The statement continues:
These amendments represent a stringent tightening of the rights of unsuccessful asylum seekers to access legal remedies in the Irish courts. Inability to access legal remedies could potentially result in a breach of the principle of "non-refoulement" providing that no person should be returned to a country where their life or liberty would be at risk. The increased power to detain where is a "reasonable suspicion" that the individual will not comply with a deportation order is not adequately qualified. Detention of individuals may therefore occur entirely at the discretion of a member of the Garda Síochána. There is no provision for access to any review of this decision.
I hope the Minister will have regard to this.
I have tabled four amendments to amendment No. 25 which deals with the Immigration Act, 1999, the first of which relates to the new section 10(a)(i) which reads:
(1A) A person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State.
That is a general statement of principle. I propose to delete this subparagraph as there are no safeguards implicit in what the Minister is suggesting. Detention may be immediate notwithstanding the fact that the person concerned may apply for leave to remain in the State on humanitarian grounds. He or she may still do so from a place of incarceration.
The Deputy seems to be thinking of proceeding to deal with his amendments to amendment No. 25. Is this procedurally possible?
Acting Chairman:
All the amendments are being discussed together. If the Minister has a question to ask, Deputy Howlin has the option of accepting it or proceeding.
I understand that amendments Nos. 1, 22, 25 and amendments Nos. 1 to 4, inclusive, in my name, to amendment No. 25 are being discussed together.
Is the Deputy moving his amendments now?
I cannot do so.
They are being discussed.
Acting Chairman:
Amendment No. 1 in the name of the Minister is before the House. It is consequential on amendment No. 25. to which amendment No. 22 is related and to which there are four amendments.
I thank the Chair.
It was agreed to group the amendments for the purposes of debate. I am seeking to delete the new section 10(a)(i) under which a person against whom a deportation order has been served may be detained regardless of whether he or she has applied for leave to remain in the State on humanitarian grounds. It seems there will be no time limits on the period of incarceration. If such a proposal was to apply to citizens of the State there would be an outcry. Despite the inclusion of the word “equality” in his title the Minister seems to be of the view that human beings the subject of deportation orders may be treated differently in terms of the scale of the rights from citizens of the State. This is regrettable.
A person detained under section 5 of the Immigration Act, 1999, may be detained for a period of eight weeks but this will not apply to those detained under the new section 10. I am seeking in amendment No. 2 to amendment No. 25 to create such a time limit in circumstances where I cannot strike down the new powers of detention. I suggest a time limit of 48 hours, save by order of a court. The Minister will say that such a person will be able to apply for a writ of habeas corpus but it is wrong and unacceptable that under subparagraph (ii) a garda, if he or she has a suspicion on a range of matters, may take a person into custody. That is a matter of the gravest concern.
Amendment No. 3 to amendment No. 25 seeks to delete subparagraphs (ii) and (iii) in the paragraph proposed to be substituted by subparagraph (a)(ii) of the proposed new section under which a garda who effects an arrest will have the power to attach new conditions to a deportation order. I am very concerned about this. It raises questions in terms of the separation of powers. The relevant subparagraph reads:
Where the notice under subsection (3)(b)(ii) contains a requirement to do an act specified in subparagraph (i), a member of the Garda Síochána or immigration officer may, if he or she considers it necessary for the purpose of ensuring the deportation of the person concerned from the State, require the person in writing to do any one or more of the acts specified in subparagraph (i), and any such further requirement shall have effect as if it were a requirement in a notice under subsection (3)(b)(ii).
I am concerned that a garda or immigration officer who has effected an arrest or detention will have the power to attach new conditions on the spot.
Amendment No. 4 to amendment No. 25 seeks to delete paragraph (b) in the subsection proposed to be substituted by paragraph (b) of the proposed new section. This is a point on which Deputy Higgins touched and which needs amplification. The Minister is giving the power of arrest and detention to a member of the Garda Síochána or an immigration officer where he or she suspects that the person the subject of a deportation order intends to leave the State and enter another state without lawful authority. Does this mean that the Minister wants to have arrested an asylum seeker who entered the State through the port of Rosslare and against whom a deportation is in force even though he or she voluntarily wants to get back on the boat from whence he or she came? It strikes me that he or she should not be prohibited from doing so. What is the logic behind this proposal? Is the Minister of the view that he is required to do this on foot of his discussions with the UK authorities on the common travel area? On first reading it does not strike me as a particularly sensible proposal.
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.