(Dublin West): This is one of the worst aspects of the Bill. It is pernicious and an attack on human rights and human beings. It shows up a Government that has scant regard for human rights as they relate to people on this island and those seeking the protection of this island in their plight. We objected on a number of occasions to material brought in under the Bill which had nothing to do with illegal trafficking. That is the position as regards the right to judicial review. The Government's proposal to limit to 14 days the time within which a person notified of a deportation decision can make an application for a judicial review is an attack on their rights.
In many cases the Government has piggybacked on previous legislation regarding elements relating to immigration law as a result of disorganisation and because it does not have a cohesive immigrant policy. However, there is another reason it chose to bring in this proposal. It is a sleight of hand by the Minister and the Government. It is very significant that it is being introduced in this Bill as lawyers who have briefed var ious Deputies and parties have pointed out. It is clearly the case that if the Government wished to make proposals in this regard, it should have done so under the Refugee Act, 1996. There is a clear reason that did not happen. It was an implicit admission that if it was introduced into other legislation, particularly the Refugee Act, 1996, it would not stand up in law. It is clearly laid down in legal matters in this State that any statutory restriction on the exercise of the right of judicial review must be interpreted in the context of the object and purpose of the Act wherein it is contained. The Long Title of the Refugee Act, 1996, states that it is an "Act to give effect to the Convention Relating to the Status of Refugees done at Geneva on the 28th day of July, 1951, the Protocol Relating to the Status of Refugees done at New York on the 31st day of January, 1967," and other international agreements. In the context of those international agreements and international practice with regard to refugees, this proposal would not stand up because it represents an attack on fundamental rights and represents the making of a clear and invidious distinction between citizens of this State and non-nationals seeking refuge here as they stand before the law.
Article 16 of the Geneva Convention 1951 on the Status of Refugees, which is included as a Schedule to the Refugee Act, 1996, states that "a refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts". It is also common practice, accepted by the bodies which deal with refugees internationally, that asylum seekers must enjoy the same presumption as refugees and, therefore, must enjoy the same rights in front of the law as accorded to refugees. Therefore, it is clear that the sleight of hand in this legislation was not possible in the 1996 Act because it would be an attack on the rights of asylum seekers and could not be included in a Bill which purported to give some measure of protection to asylum seekers. The only way the Government could find to introduce it was through legislation which deals in criminal trafficking. We have already made the point of how prejudicial it is to the rights of innocent people that matters relating to their rights in this State should be included in legislation related to criminal trafficking.
Lawyers who appeared before the Committee on Justice, Equality, Defence and Women's Rights dealt with this in some detail. On the question of frivolous and vexatious cases being brought for judicial review, it was pointed out that 30 cases had come for judicial review until a month ago. Far from being frivolous or vexatious, the Minister won only one of those cases and either settled or lost all of the others. There is no evidence from the High Court that frivolous and vexatious cases were being brought by people seeking to remain in this jurisdiction.
The real scandal about this legislation is the chasm it opens up between the rights accorded to citizens of this State and to those applying for asylum. That is shameful when one considers that these are poor, vulnerable people who have had to uproot themselves from their homes and cultures, as Irish people had to do in their millions. When they come here they find a Government going to extreme measures to cut down on their rights. This legislation will end up before the courts because of that and the Minister will have a very rough ride.
By reducing the time to 15 days with the proviso that, in effect, a substantial case is made within that period of time, the Minister for Justice, Equality and Law Reform and the Minister of State will create severe practical difficulties for those who will be called upon in the courts to represent asylum seekers seeking a judicial review. The High Court may not grant the right to judicial review unless it is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. If it is a requirement on the High Court that it should refuse such an application except when there are substantial grounds, then the substantial case will, effectively, have to be argued at the point of application for judicial review. That is clearly the case.
What effect will that have? If the Minister is trying to frog march people seeking judicial review, he will find this will have the opposite effect. Normally the process for seeking a judicial review does not take a long time. A basic case is laid out and on that a judge makes a decision to hold a hearing of the substantive grounds of the case at a later stage. If the judge has to be satisfied that there are substantial grounds for an appeal, the barristers representing the asylum seekers will have to make the substantial case at that point.
This will cause mayhem in the courts because, instead of the ten minutes an application for the right to a judicial review takes up, there will be cases that will run into hours. The barristers and solicitors representing the asylum seeker seeking a judicial review will have an obligation to make the case substantially at that point because so much will depend upon it. This is a serious attack on civil rights. How will the barristers and solicitors, who have a heavy case load in many instances, be able to prepare a substantial case in 14 days? There will be extraordinary difficulties, difficulties that will not be faced by Irish citizens. Deputy Howlin mentioned the language barrier – it can be a severe impediment. The rights of those with extra difficulties are being attacked in comparison with the rights accorded to Irish citizens in the time allowed for a judicial review.
The denial of an appeal to the Supreme Court is a further attack on civil rights and a further exacerbation of the distinction the Government is attempting to make between non-nationals in this State seeking justice before the law and citizens of the State. It is only under the planning Acts – this may apply in one or two other exceptional cases – that the period in which judicial review applications must be made has been foreshortened. In the case of the Planning Act, 1993, it is foreshortened to a two month period. The planning Acts deal with matters involving land, property, etc., but we are discussing human beings, human rights and people who face deportation to, in many instances, extremely difficult circumstances in their countries of origin. However, the period in which an application for a judicial review must be made under the Bill is foreshortened to 14 days. That is disgraceful.
Most of those who will be affected by the legislation, if passed, are poor people without means. These individuals will require legal aid. Anyone who knows anything about the free legal aid system, will be aware that this will place intolerable pressure on the Legal Aid Board. In my opinion these people's rights will again be severely compromised because lawyers will be forced or pressurised into preparing cases. As part of their code, lawyers stress that they will not present cases unless they are sure that they will have ample time in which to prepare and present them properly. If the legislation is passed, I foresee a situation where lawyers will be obliged to go before judges and state that they could not prepare cases for judicial review applications within the 14 day period. Under a further provision in the Bill, judges will be obliged to consider this as a good and sufficient reason for extending the period within which the application shall be made. That provision is self-defeating.
We are faced here with the inclusion in legislation of provisions which are inimical to civil and human rights and which are a disgrace to this country, particularly in terms of the way it treats non-national poor people. In many instances those provisions might prove unworkable in practice. Mar shaoránach na tíre seo teastaíonn uaim a rá as Gaeilge go goileann sé go mór orm go bhfuil ionsaí fíochmhar á dhéanamh anseo ar dhaoine a tháinig chun na tíre seo ag lorg dídean ón tír seo, ó Rialtas na tíre agus ó mhuintir na tíre. Daoine bochta go mór mhór atá i gceist, daoine nach bhfuil rachmas nó saibhreas acu, daoine ón Afraic, ó oirthear na hEorpa agus ó thíortha eile, Daoine iad atá ar aon bhonn leis na deoraithe ón tír seo a chuaigh go gach tír ar domhan.
Tá sé náireach amach is amach alt 5 den Bhille seo a thabhairt isteach fé mar atá sé agus go mbainfí de na daoine bochta úd ceartanna atá ag saoránaigh na tíre seo in ionad a gceartanna a chosaint agus gach iarracht a dhéanamh ar a laghad na ceartanna céanna a thabhairt dóibh is a thabharfaí do shaoránaigh na tíre seo. Tá súil agam go dtacóidh an Dáil leis na leasaithe atá againn, ar a laghad go ndéanfaí an t-achar a leathnú go tréimhse níos faide nó a choimeád ag trí mhí, nó bheadh sé mhí níos fearr fós.
