I thank the Deputy for excluding me from his remarks about the adequacy and inadequacy of ministerial replies. I am not aware of any case where the deportation of a family to their country of origin following the refusal of their asylum applications in this State has been the subject of an Adjournment debate in this House. I am somewhat uneasy about the extent to which the request for this debate requires me to discuss the individual circumstances of this family. However, it is important that the House is fully aware that the making of a deportation order is a serious matter and is not a decision taken lightly. I reassure the Deputy and the House that the procedures by which such decisions are taken are fair and reasonable and while it may seem harsh to return a person to a country of origin who might otherwise have a better standard of living in this country, deportation is a normal and necessary component of any immigration system.
I will summarise the background of the family concerned since their arrival in the State. The person to whom the Deputy refers and her five children arrived in the State on 10 May 1998. The mother of the family concerned completed an asylum application on 11 May 1998. Her application was treated as one which also covered her five children. She received an interview and her case was considered by appropriately trained staff. The application was refused and she appealed this refusal. She had the benefit of an oral hearing and engaged her own legal representation at that hearing which was conducted by an independent asylum appeal authority. Her appeal was considered by this authority, which was appointed as an independent authority to consider such appeals and which recommended that her appeal should be rejected.
Her asylum application was refused on 23 August 2000. In the notice of this refusal the person concerned was given three options as required under the Immigration Act, 1999. These were: to make representations in writing as to why she should be allowed to remain in the State; to leave the State before a deportation order was made; and to consent to the making of a deportation order. The applicant made representations under section 3 of the Immigration Act, 1999, which were submitted to me by solicitors acting on her behalf. I considered all the circumstances in this case and I made deportations orders in respect of each of the family members on 2 August 2002.
The deportation orders were made by me in accordance with the provisions of the Immigration Act, 1999. That Act requires that before I make a deportation order in respect of a person I must consider a range of 11 personal circumstances, including the age of the person, the duration of their residence in the State, the family and domestic situation, humanitarian considerations and any representations made by the person or on their behalf.
Furthermore, section 5 of the Refugee Act, 1996, must be considered in every case and this provides for a prohibition of refoulement as follows: First, a person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. Second, without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened, if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault, including a serious assault of a sexual nature.
In making the deportations orders in this case, I considered the entire case file of the family, including the decision made in relation to the application for refugee status, the requirements of the Immigration Act, 1999, and the prohibition of refoulement and I concluded that the making of deportation orders was the appropriate decision.
The Supreme Court, in the case of P.L.B, delivered its judgment on 30 July 2001. The circumstances of the persons concerned in that judgment were similar to those of this family. The Supreme Court described their situation in that:
They were persons whose applications for asylum have been rejected at first instance and on appeal. They lacked any entitlement to remain in the country save that deriving from the procedures they were operating, i.e. a right to await a decision on a request not to be deported.
The court went on to say that an applicant in this situation was:
. . . at the time of making representations a person without title to remain in the State. This fact constrains the nature of the decision to be made. The legislative scheme is that such a person may be deported. If this were not so, such persons would be enabled in effect to bypass the normal system of application for entry into the country, made from outside.
The power to arrest and detain a person who is subject to a deportation order is contained in section 5(1) of the Immigration Act, 1999. The sole purpose of such arrest and detention is to ensure the deportation of that person from the State.
In the referral by the President under Article 26 of the Constitution of sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999, to the Supreme Court, the judgment on 28 August 2000 stated that a person who is subject to a deportation order and is detained on foot thereof "is a person not entitled to be in the country". The court found that, in relation to detention on foot of a deportation order, "in all the circumstances the safeguards which do in fact exist. . . are perfectly adequate to meet the requirements of the Constitution."
The safeguards to which the court referred were as follows. Under modern jurisprudence in common law, an executive power of detention must not be unnecessarily exercised and the relevant executive authority must be vigilant to ensure that the detention is brought to an end if, having regard to new circumstances or discovery of new facts or some other reason, it is no longer necessary. The person detained may challenge by judicial review the validity of the deportation order. If it is considered that the power of detention is ultra vires, then an application for judicial review can be made seeking an order compelling the reconsideration of the grounds for detention. There is a constitutional remedy of an inquiry under Article 40.4.2º, which will examine the basis for the circumstances of the arrest and detention.
The person to whom the Deputy refers was entitled to challenge the making of the deportation orders in this case by means of an application for judicial review in the High Court but, at this stage, an extension of time would have to be sought from the court. Such a legal challenge has not been instigated. Furthermore, when I made the deportation orders, my Department directed the family to report to the Garda National Immigration Bureau or the gardaí at Trim Garda station. If they had done so, no detention would have been necessary. They did not report as requested and, as a consequence, were immediately liable to arrest and detention by the Garda.
The person concerned was arrested on Saturday, 5 October 2002, and is currently in lawful detention in the Dachas Centre, North Circular Road, Dublin 7, pending her deportation from the State. Her children are at present in the care of a close relative. This arrangement is in the knowledge and with the approval of the appropriate social services.
The Deputy asked if the procedure and treatment in this case is normal and in accordance with that which would normally be expected in such circumstances. I assure the Deputy and the House that it is normal, lawful and appropriate.
The Dáil adjourned at 5.30 p.m. until 2.30 p.m. on Tuesday, 15 October 2002.
