I move:
That Dáil Eireann approves the exercise by the State of the option, provided by Article 3 of the Fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption and application of the following proposed measure:
a proposal for a Council Decision concerning the signing of the Agreement between the European Community and the Government of the Special Administrative Region of the People's Republic of China on the re-admission of persons residing without authorisation,
a copy of which measure was laid before Dáil Éireann on 21st May, 2002.
I will first refer to some of the remarks which were made on the Order of Business regarding the sequence of events that has led to four matters concerning the EU being dealt with this morning. As will become apparent in the course of this morning's proceedings, the four particular measures which are different from one another fall to be discussed today in circumstances of urgency which were not of my creation. Deputy Quinn rightly stated that we should be in a position to give adequate scrutiny to matters involving family law, particularly when dealing with two matters which arise later on the Order Paper. Those are sentiments with which I agree entirely. The position I was faced with, which Members will appreciate, is that if we did not opt into the discussion and drafting process for those measures before a date in August, we would be prevented from participating in the discussion process in its entirety. Therefore, the dilemma I found myself faced with was that I had to choose between opting out of the discussions because there was not enough parliamentary time to pass the two motions which are before the House, or allow other people to decide the substance of the proposals and give Ireland an opt-in or opt-out choice at the end of the process, or to give this House an opportunity to give Ireland the option to participate in the discussion and formulation stage of the two measures which come later this morning.
On balance, I thought it more democratic, though unsatisfactory, to give the House the opportunity to look at the substance of what is being discussed regarding those matters, even though I accept that adequate notice was not given to the House and that the amount of time allowed to consider these matters has been curtailed. As the Taoiseach said, it would be more satisfactory if a committee of the House was up and running and able to scrutinise European instruments and proposals, rather than having a debate which is necessarily more formal and less detailed than might otherwise be the case.
I ask Members to accept that I am not trying to trample over the House. I was faced with a dilemma, particularly regarding the two later measures, that we would not play any part in their negotiation because the House had not had adequate opportunity to consider whether it really wanted to be part of the negotiations. On balance, I thought it was fairer to afford the opportunity to consider an opt-in at this stage rather than at a later stage.
I thank the House for making time available to discuss the exercise by the State of the option under the Fourth Protocol to the Treaty of Amsterdam on a proposal for a Council decision concerning the signing and conclusion of a re-admission agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People's Republic of China. I favour the scrutiny role of the Oireachtas in matters such as this.
The subject of this agreement which is the re-admission of persons residing without authorisation, falls under Article 63 of the treaty establishing the European Community. This is part of Title IV of the treaty which was added by the Treaty of Amsterdam in 1999. Title IV deals with measures in the area of visas, asylum, immigration and other policies related to the free movement of persons. The Amsterdam treaty conferred powers on the Community in the field of re-admission.
The application of Title IV to Ireland is subject to the provisions of the Fourth Protocol to the Treaty of Amsterdam. Ireland is not automatically a participant in measures under Title IV unless we exercise an option provided for in the protocol. Under the terms of the protocol we have three months from the date a proposal is presented to the Council to exercise the option to take part in the adoption of the proposed measure. We may also exercise the option at any time after a measure has been adopted by the Council. Article 29.4.6º of the Constitution provides that, in order to exercise the option, the prior approval of both Houses of the Oireachtas must be obtained. It is with a view to seeking this approval that I am before the House.
There are two Council decisions proposed and therefore there are two motions before the House. One decision concerns the signing of the agreement and the other concerns the conclusion of the agreement by the Council. As the subject matter of both proposals is the same, I propose to deal with both of these matters together. The two motions may be discussed separately if Members wish.
Re-admission agreements are a significant feature of international co-operation in the field of immigration. Indeed a re-admission and return policy is recognised internationally as an integral and vital element in the fight against illegal immigration. Ireland has been aware of the need for such agreements and in recent years has negotiated a number of bilateral re-admission agreements. To date such bilateral re-admission agreements have been signed with Romania, Poland, Nigeria and Bulgaria.
The proposed Community re-admission agreement with the Hong Kong Special Administrative Region which is before the House is the first such agreement to be negotiated to a conclusion by the European Commission on behalf of all member states. The exercise of the option will allow Ireland to be a party to the agreement.
Community re-admission agreements form part of the European Union's broader aim of developing a balanced, coherent and common approach towards immigration and asylum. Apart from Hong Kong, to date the European Commission has been authorised to negotiate re-admission agreements with Russia, Morocco, Pakistan and Sri Lanka and the Special Administrative Region of Macau. The re-admission agreement with Hong Kong will be the first to enter into force.
I fully support the view that the return and re-admission of third country nationals who are illegally resident in the EU must be an integral part of our common immigration and asylum policy. Re-admission agreements involve reciprocal undertakings by the European Union and third country partners to co-operate over the return of illegal residents to their country of origin. This is not simply one way traffic. The EU is adopting the same obligations as the Hong Kong Special Administrative Region. The comprehensive approach which has been put forward focuses on the adoption of common procedures for the legal admission of third country nationals. However, the European Commission has emphasised that these policies must be accompanied by measures to combat illegal migration and, in particular, smuggling and trafficking of human beings and the return of persons who are illegally present in the EU.
In its recent publication entitled Communication on the Common Policy on Illegal Immigration, the European Commission has underlined that the return and re-admission of third country nationals who are illegally resident in the EU must be an integral part of the common policy.
I will now outline the principal features of this agreement. It should be noted that the re-admis sion obligations set out in the agreement are drawn up in a fully reciprocal way. Article 2 states that Hong Kong shall re-admit its permanent residents and former permanent residents provided that they are validly shown to be so.
Article 3 states that Hong Kong shall readmit persons of another jurisdiction under certain specified circumstances. The obligation to readmit persons of another jurisdiction arises where, at the time of entry into a member state, such persons held a valid visa or residence authorisation issued by Hong Kong or, having entered the territory of Hong Kong, they proceeded to enter unlawfully the territory of a member state.
Article 4 deals with the re-admission by member states of the Community of their own nationals. Proof of nationality or former nationality is required. If necessary, member states will be required to issue a travel document. Article 5 provides that a member state shall re-admit persons of another jurisdiction in specified circumstances and shall provide, as necessary, a travel document.
Articles 6 to 11 contains the necessary technical provisions regarding the re-admission procedure – re-admission application, means of evidence, time limits, etc. Articles 12 and 13 concern transit operations.
Articles 14 to 16 contain the necessary rules on costs, data protection and the non-affectation of other international rights and obligations applicable to the parties.
Article 17 states that a re-admission committee shall be set up to, among other things, monitor the application of the agreement and implementation procedures.
Article 18 empowers member states to conclude bilateral implementing protocols with Hong Kong. The relationship between such implementing protocols and the agreement is clarified in Article 19.
Articles 20 to 22 contain the necessary rules on entry into force, duration, termination and the legal status of the annex to the agreement.
Ireland has a long history of legal migration from Hong Kong and China in general and the numbers of people coming here have been increasing in recent years. There were almost 12,000 Chinese nationals resident in the State in 2001, almost double the number in 2000. The number from Hong Kong was of the order of 500 in 2001. Chinese nationals come here mainly as workers and students and make a significant input to the economy. In this regard, it should be noted almost 1,000 work permits were issued in respect of Chinese nationals in 2001. I should point out that 80% of foreigners resident in Ireland hold work permits. Sometimes media coverage of this issue fails to reflect that fact.
In recognition of the significant number of Chinese nationals who seek to enter the State, my Department has recently posted visa processing staff to the Irish Embassy in Beijing. This will improve the service being provided to Chinese nationals who wish to come to Ireland.
The existence of the proposed re-admission agreement with the Special Administrative Region of Hong Kong is not expected to have any significant effect in Ireland where the incidence of illegal immigration from the region is low. It should be noted that the existence of a re-admission agreement does not affect the consideration of the merits of any claim from an individual for leave to remain in the State. Neither does it affect the human or constitutional rights of individuals or any apprehended violations of those matters either; it is purely facilitative. In any individual case where deportation is being considered, the provisions of section 3(6) of the Immigration Act, 1999, will apply. That section sets out a range of factors which the Minister must consider before a deportation order is made. The return of an asylum seeker would also be subject to the provisions of section 5 of the Refugee Act, 1996, as regards the prohibition of refoulement or the return of the person to possible persecution.
I commend this motion to the House. The development of return policy, of which re-admission agreements form an important part, is a vital element in the development of a common immigration and asylum policy at European level.