Amendments Nos. 1, 105, 111 and 112 are related and may be discussed together, by agreement.
Immigration Bill 2004 [Seanad]: Committee and Remaining Stages.
I move amendment No. 1:
In page 3, before section 1, to insert the following new section:
"1.—Insofar as this Act is intended to make temporary provisions to meet the immediate needs of the Government to manage migration following the 22 January 2004 High Court decision in Leontjava and Chang v. Minister for Justice, Equality and Law Reform, and insofar as the publication of comprehensive immigration law reform legislation is expected, the Act shall lapse after 90 days from the date of commencement, unless expressly renewed for a further 90 days by the Oireachtas by means of a motion. Upon the expiration of the additional 90 days the Act may be renewed for a further 90 days, by the same means, if necessary.".
Yesterday the Minister suggested he would accept some Opposition amendments. When he replies on this amendment, it would be helpful if he indicated early in the proceedings which ones he intends to accept. We might then be able to move quickly on them.
The related amendments under discussion propose a title change. They are intended to give effect to the Minister's statement yesterday that this is a temporary measure pending the publication of the immigration and residence Bill later this year. Hopefully, we will be able to enact that Bill with some haste after consultation with the various interested bodies. In the new section which I propose be inserted in the Bill, I seek to impose a maximum timeframe for that process of 270 days from the passage of this legislation. That is a reasonable amount of time in which this House and the interested groups could put their heads together to produce legislation to deal with immigration and residency within Ireland. If we provide ourselves with such a timeframe, the legislation before us becomes temporary. It is desirable that we state clearly the temporary nature of this measure. It is fine for a Minister to say it is a rush job and a stop-gap measure, but unless we impose a timeframe after which the legislation will lapse, I cannot support the Bill.
When Presidents spoke in this Chamber rather than Taoisigh, Éamon de Valera said the original Act on which our provisions in this area are based was a temporary emergency measure. He was acknowledging Senator Johnson in that debate when he said the legislation was reasonably necessary from the point of view of the possibilities of war and in view of the dangers which might exist from the presence of aliens who were not known in the country. He accepted that the legislation was being introduced in response to war. These are emergency provisions which date from the Second World War and while the draftsmen have tinkered with the arcane wording, it is not good enough to extend the use of such emergency provisions any more than is reasonable. I would prefer if we did not deal with this Bill at all, but rather fast-tracked as much as possible without rushing the full immigration and residency Bill.
Some of my other amendments have been tabled as a protest at the rushing through of this Bill. However, if the Minister were willing to accept amendments Nos. 1, 105, 111 and 112, Members on this side of the House would be happy that the legislation was temporary. All of the non-governmental human rights organisations, the ICCL, the Human Rights Commission, the Immigrant Council and the Refugee Council have stated that this Bill is not the way to proceed. The Human Rights Commission has said that the Bill should be withdrawn completely. We agree, but if this amendment is accepted, at least we will know it is only for a very short period in the scale of things. I would like to hear the Minister on that. I can come back on other points. If he wishes to push other amendments and slightly extend the time, we will examine that, but 270 days is time enough if there is urgency regarding immigration and residency.
As the Minister stated, we need proper, coherent regulations in this Bill. No one denies that, and I would have a problem with anyone who did. We need it as quickly as possible, and that is why, if it is a political priority of the Government, we on this side of the House will facilitate proper discussion and consultations so we can get rid of this Immigration Bill, if passed, as quickly as possible within the 270-day timeframe. In that way we will not have such legislation on the Statute Book any longer than necessary.
I consider the amendment tabled by Deputy Ó Snodaigh as eminently reasonable, and it ties in very well with what the Minister said yesterday, namely, that he saw this as a temporary measure and that his Department was working hard to put together forthcoming legislation, which he expected to be ready before too long. He said it was part of his remit and commitment to do that and that it was well in train in the Department.
When one looks at the original Aliens Act 1905 on which this is based, one sees that it was itself an emergency measure produced in very difficult circumstances before the Great War. The whole tenor of that legislation is of a hostile, emergency situation when Britain was exposed and afraid of what at the time were called unidentifiable "aliens", or non-nationals, who would threaten its security. It was proposed to deal with German spies at the time. The fact that Britain itself has reviewed the situation and produced new legislation should be another reason to consider regarding this legislation produced before the foundation of the State and which predated our Republic. It was in Saorstát Éireann and predated our Constitution, our membership of the European Union, the European Convention on Human Rights, the United Nations and the Irish Human Rights Commission, which is concerned with such legislation.
We should show intent in this Bill regarding our definite commitment to get rid of this outdated, antiquated, anti-person legislation — that is the tenor — as quickly as possible. It would be very advantageous if, at this point, on the very first amendment, at the beginning of our discussions, the Minister might show his acceptance of this approach. If that were done, we could certainly go through the rest of the Bill with great alacrity, and it would obviate the need for much of the debate and discussion that we are likely to have otherwise — and probably a great deal of acrimony over the rest of the morning and afternoon.
This measure, as the Tánaiste said earlier, is a response to a situation that emerged, not simply in the short term, but like a bolt from the blue. It must be addressed immediately. It is for that reason that this legislation is being introduced. The officials in my Department and I did not sit down and take out a beer mat to write out random thoughts that occurred to us on how this situation might be addressed. We did precisely the opposite. We said we should keep continuity until such time as the Immigration Bill on which we are working can be presented to the House. We did not simply say that we should think of a whole new package of ideas and throw it onto the floor of the Oireachtas in a moment of desperation; it is quite the reverse. The situation for 60 years has been generous regarding immigration. This country has had significant and welcome legal migration into it. The system, largely speaking, has worked fairly well. While we think about what should be a fundamental law regarding immigration, let us preserve continuity until such time as we are able to introduce it.
The work which will be required on the new Bill is extremely extensive. Yesterday Deputies, in what I thought, generally speaking, was a very good debate, zeroed in on issues such as work permits. There is a superficial attraction. People feel that the present system whereby one must have a permit related to a specific employer in some sense likens one to an indentured servant of old stuck with one employer. I can see that criticism and that a link to a specific employer has that ring about it. The truth is that someone who comes in as a bricklayer or whatever to work for one employer is de facto free to go to work for others with minimum difficulty once he has got into the country. The person is not simply told to get out of the country because his employer has gone bust or sacked him.
If we introduce major legislation, we will have to consult with a wide variety of interests, not simply Departments. The Department of Enterprise, Trade and Employment is one. The Department of Social and Family Affairs is another interest that would have to be considered, especially in view of today's headlines about Ireland being the last country in Europe holding out for unlimited access. The Department of Education and Science and the Department of Health and Children would have to be considered regarding all those issues, and many other Departments have insights. Stopping there, the consultation process would be complex enough. However, the trade union movement and the social partners would also want to be consulted. The alternative to the individual work permit system is a generalised quota system. I would like to see the reaction if the Tánaiste persuaded the Department of Justice, Equality and Law Reform that there should be such a system. I would like to see the reaction from some sections if one said that one was making provision for 2,000 bricklayers next year. There might be some muffled squawks from some interests in the economy. We want the trade union movement to be consulted before we do anything of that sort. The employers and Irish enterprise might also want a say in that process.
If I said the Bill would lapse 270 days after its enactment, I would effectively be saying that, some time in the autumn of 2004, this House must pass replacement legislation. Otherwise we would be in exactly the same position as when the High Court made its decision. We would have no law at all in that circumstance. I am not against putting a gun to the heads of Oireachtas Members, as everyone in the House has accused me, and telling them to get on with their work. As the Order of Business so eloquently testified and Deputy Richard Bruton so eloquently elicited from the Tánaiste, I have 13 Bills already published for which this House cannot find time. That is the first point. Some of them, such as the Private Security Services Bill 2001, are of great importance. Almost all of them are of major significance.
As Deputy Deasy constantly says, I have another batch of legislation coming, and I will give Deputies a little taste of what that involves. It includes the Garda Síochána Bill, the anti-compensation-culture court and civil liability Bill, a Bill on the question of judicial behaviour and ethics and a judicial council, and a criminal justice Bill on Garda powers. These are four Bills which occur to me at random and I am adding them to that list of 13 measures.
People talk about Oireachtas reform which I strongly support. However, if the rate of progress on legislation continues as it has done and if we engage in the luxury, as we did yesterday, of spending an hour and a half on the Order of Business and related votes, I could not put my hand on my heart and say that, in the autumn, we will be in a position to deal with the legislation.
If I accepted Deputy Ó Snodaigh's proposal, one of two scenarios would take place. I would say to the House in the autumn that we must pass the Bill in three weeks or we will otherwise have no law. All the fingers pointing at me for the past two weeks would be pointing at me again saying I was a Fascist to try to override the will of the House, that I created this mess myself by accepting Deputy Ó Snodaigh's proposal and that there was no law thanks to the amendment I accepted on day one. If I did not do this and the other House exercised its prerogative to have extended consideration of important legislation such as this, I would face exactly the same situation I face now, which is that large areas of our controls of non-nationals in the country would evaporate under our noses.
I was tempted by and I considered the notion of calling it a temporary provisions Bill, to time-limit it and even to include something which Deputy Ó Snodaigh would not do for obvious reasons, namely, to limit it to a period and to allow the House to extend it by resolution as a signal of the temporary nature of this set of proposals. However, I do not have sufficient confidence in the capacity of the Houses of the Oireachtas to get on with the existing workload and to make space for such a Bill to be dealt with to enable me, in good conscience, to accept such an amendment.
My officials are working hard on the major Bill. We have had consultation processes and we will probably need to have more. I have outlined to the House the nature of the consultations that will be necessary, but I cannot create a crisis in the autumn equivalent to that which we face now just as a way of putting a whip upon myself to get on with the work. I am not the problem. Sectoral interests, which want to have an input into the matter, will say to Deputies opposite and to my colleagues on these benches that they need more time to do all this. I will not create a second crisis in one year; it would be irresponsible of me to do so.
I would fully accept what Deputy Costello said if he had a sense of confidence that it was an agenda item for the Department of Justice, Equality and Law Reform which it was treating with urgency. It would perhaps sweeten the atmosphere for the rest of this debate. That is precisely why I thought of doing something similar to what Deputy Ó Snodaigh suggested, but to do so would be to create, in all probability, another crisis in six to eight months' time. It would mean sweeping aside much important legislation with which this House has yet to deal and rushing through more legislation to meet a deadline we had imposed on ourselves.
In the circumstances, grateful as I am to Deputy Ó Snodaigh for making this proposal and sympathetic as I am to many of the arguments he made, I cannot, in good conscience, accept that we should create a second guillotine for ourselves in the autumn because it is likely to be surrounded by exactly the same controversy that has surrounded this legislation.
It is a pity the Minister cannot accept the amendment. He could have altered the timeframes I proposed and I could have examined them. If the Title included the words "temporary provisions", it would at least give an indication that, at some stage in the future, something would happen. If the Minister does not have confidence in the abilities or capacities of both Houses to deal with legislation, it is a sad day. If it is a political priority, we have shown we can deal with quite complex legislation while, at the same time, including all the sectoral interests.
The immigration non-residency Bill is due to be published this year. We need to create a sense of urgency on this issue. I do not necessarily blame the draftspeople in the Department for the delay. However, if the heads of the Bill are available, we need to speed up the consultation process and get to grips with it by seeing the heads. We should begin at an early stage to consult support staff, if we have any, and people who have given us their views in the past.
The Minister said that such legislation has been in place in some form for the past 60 years and that it has worked well. It is only in the past ten years that the immigration issue has come to the fore and we all know the associated problems. It is only because of the level of applications for residency and work permits that we are beginning to see the problems. These problems did not emerge 30 or 40 years ago; they have only emerged recently. That is why society was not focused on this issue in the past. However, it has been in recent years, which is why court cases have been taken and more will be taken in the future unless we get to grips with this issue as quickly as possible.
It is a pity the Minister is not able to accept this amendment because it is the view of most of the groups with which we will consult that there is an urgency in respect of the other Bill and that this legislation should, at most, be a temporary provision or not be taken, which is the view of the Human Rights Commission. I urge the Minister, even at this late stage, to accept the amendment and change the timeframe therein if he believes it is too short, or at least change the Title to indicate that it is a temporary provision.
If there is a delay, we might end up with a situation like that with the disabilities Bill which has been promised for a number of years. In four or five years' time, we might end up without an immigration non-residency Bill and that would be a travesty. I know the Minister and Opposition spokespersons do not want that to happen, but it could if we do not say this must be done by a certain date. That is why I set the date, although it may be too short, and if we needed a little more time, the Minister could extend it by order of the Oireachtas. The Minister could change the times to 100 or 200 days, but it is important that we know it will be brought to finality because the Government and the Opposition must sign off on it at some stage.
It ill behoves the Minister to shed crocodile tears about the amount of work he is doing in his Department and the amount of legislation forthcoming. I have always considered the Department of Justice, Equality and Law Reform to be something of a mini-factory in the production of legislation.
That is new to me.
I often wonder why approximately one third of the legislation before the House appears to emanate from the Department of Justice, Equality and Law Reform. Where do its officials get the time and energy to produce so much legislation? It may be a better idea to have fewer, but more focused Bills. We certainly need less of the emergency approach evident in a number of recent cases and less use of the guillotine which the Minister has exercised on a number of occasions.
Since the Minister came into office, there has been considerable focus on anti-terrorist type legislation. The House discussed the framework document on terrorism before the summer, dealt with the Immigration Bill about which major questions arose, and discussed the European Arrest Warrant Bill before Christmas. We could have addressed more important issues and should focus on ensuring the correct issues come before the House.
I am also concerned that this Committee Stage debate is taking place in the Chamber. It should have been held in one of the committee rooms to allow Second Stage of the Maternity Protection (Amendment) Bill to be discussed, as scheduled, in the House. This would have freed up time and we could then have debated Report Stage of the Bill in the House.
The Minister must signal to the House his intention, within his term of office, to replace this Bill with comprehensive immigration legislation which addresses the new reality. Deputy Ó Snodaigh is correct that immigration did not become an urgent issue until the previous decade because until then we did not have a significant number of non-nationals. As a nation, we travelled the world and lived as non-nationals elsewhere. Now that immigration has become an issue, we should address it in a humane, comprehensive fashion. Having failed to do this, it must become a priority in the Department.
Will the Minister indicate a timeframe within which he will publish the heads of legislation? How can we receive all the inputs required from the various Departments and interest groups to which the Minister referred unless a text is placed in the public domain? The sooner some schedule or scheme of a Bill is presented, the quicker we can deal with it. This side of the House would be willing to co-operate because all Opposition Deputies regard it as an urgent, priority matter.
The programme for Government commits the Government to introduce the major immigration Bill about which we are speaking. It is, therefore, not only my commitment but that of the Government to ensure the Bill forms part of the legislative programme during its lifetime. The legislative programme indicates that it is the Government's aim to publish the legislation during 2004, having regard to the consultative requirements I have mentioned. The Bill before us will effectively remove a month from the diaries of the same group of officials who do much work on the other major project. Therefore, the process in which we are engaged today is taking place at the expense of the agenda and timetable for the other legislation.
The International Organisation on Migration has prepared a useful report which we will take into account. I ask the House to accept that there are fundamental issues involved in moving to a quota system of work permits. It occurred to me on the day I walked into my Department that the individual work permits system seemed unattractive. To move to a quota system by reference to economic necessity requires taking decisions on fundamental issues such as introducing quotas for countries of origin.
Having regard to Deputy Michael Higgins's comment about a private memorandum emanating from the Department at one stage, clearly any system of organised migration must be neutral and non-discriminatory in terms of ethnic origin. Creating the conditions to bring about such a system is difficult. These are fundamental issues rather than easy questions to which pat answers are available. Would one establish a system in which people from Sudan would be entitled to a percentage of immigration opportunities? Would one create a complex bureaucracy and advertise the system in the Republic of Sudan? Would one establish elaborate, comparative processes to decide who may enter this country? These are fundamental issues to which I am not offering solutions today, save to say that moving from an individual work permit system to a quota system would not be without difficulty on points of principle.
Why not have a European Union initiative?
While I do not want to digress too far, in my capacity as president of the Justice and Home Affairs Council I must deal with a study commissioned by Italy which is due to come before the Council during our semester. The study addresses the question of relating our campaign on illegal migration to some form of informal assurance to countries of origin to the effect that we are operating a quota-sharing arrangement which guarantees their nationals who wish to come to Europe that they will not encounter a fortress Europe but a European Union open to legal migration of a fair kind.
The Italian initiative is not free from controversy and some Ministers are of the view that this matter is essentially one for member states to decide and that the idea of attempting a joint approach is too ambitious and would not be accepted by the electorates in some member states. This raises a number of significant issues. I agree that for a small country such as Ireland, it is probably difficult to treat quotas in a manner divorced from what is happening in the European Union generally. On the other hand, I am not sure the electorate is ready to create a European competence in this area or if such a proposal would go down well at the ballot box.
In case Deputies feel I am unduly negative on the pace at which legislation is proceeding through the House, they should remember that this is the third Bill dealing with immigration since 1999 and that the Private Security Services Bill, to which we referred earlier and which, as far as I am a aware, has the support in principle of all Members of the House, was published two and a half years ago. Finding time to take Report Stage of that Bill is not easy. On the Order of Business today, for example, Opposition speakers demanded separate debates on water quality and EU migration matters. Unfortunately, debates on specific issues, which I do not oppose because they are necessary from time to time, take place at the expense of a Stage of legislation. We need to examine this matter carefully.
It has been said there is so much outdated legislation among the Bills before this House that perhaps the Tánaiste would ask the younger Bills to look after the older Bills because some of them are getting to that stage of antiquity. I emphasise to the House that I am in favour of getting on with the legislative process. Whenever a suggestion is made that the House should sit late or sit on a Friday or whatever to deal with legislation from my Department, I am up for it and so are the two Ministers of State at the Department of Justice, Equality and Law Reform. I have no problem whatsoever with it. I have never resisted making legislative time available.
Deputy Costello makes the good point that it is preferable in principle for Committee Stages of Bills to be taken in committee and I agree with him on that point. The physical, emotional and intellectual resources of the members of the Joint Committee on Justice, Equality, Defence and Women's Rights will be stretched to breaking point with the Barron report inquiry, the report on criminal justice problems, a series of Committee Stages of Bills and the European developments. They are all on the table of that committee and, in fairness to the members, there is very little return in terms of public appreciation for how hard they work. There is also a logistical issue.
There are very few resources.
There is no certainty that in the autumn of this year I would have legislation enacted by this House, not simply published,. The Refugee Bill was nine months going through the two Houses of the Oireachtas. If I had any moral conviction that as a matter of certainty I could time limit this Bill I would consider doing so. Any fair-minded view of the probabilities would lead one to believe that it would be very dangerous to time limit this legislation.
- Boyle, Dan.
- Broughan, Thomas P.
- Burton, Joan.
- Costello, Joe.
- Crowe, Seán.
- Cuffe, Ciarán.
- Ferris, Martin.
- Gilmore, Eamon.
- Gormley, John.
- Gregory, Tony.
- Harkin, Marian.
- Healy, Seamus.
- Higgins, Joe.
- Higgins, Michael D.
- Howlin, Brendan.
- McGrath, Finian.
- Morgan, Arthur.
- Moynihan-Cronin, Breeda.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O'Sullivan, Jan.
- Pattison, Seamus.
- Penrose, Willie.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ryan, Eamon.
- Ryan, Seán.
- Sherlock, Joe.
- Stagg, Emmet.
- Upton, Mary.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, Barry.
- Ardagh, Seán.
- Aylward, Liam.
- Brady, Johnny.
- Brady, Martin.
- Browne, John.
- Callanan, Joe.
- Callely, Ivor.
- Carey, Pat.
- Carty, John.
- Cassidy, Donie.
- Collins, Michael.
- Cooper-Flynn, Beverley.
- Coughlan, Mary.
- Cowen, Brian.
- Cregan, John.
- Curran, John.
- Dempsey, Noel.
- Dempsey, Tony.
- Devins, Jimmy.
- Ellis, John.
- Fitzpatrick, Dermot.
- Fleming, Seán.
- Gallagher, Pat The Cope.
- Grealish, Noel.
- Hanafin, Mary.
- Harney, Mary.
- Haughey, Seán.
- Hoctor, Máire.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kelleher, Billy.
- Kelly, Peter.
- Kirk, Seamus.
- Lenihan, Conor.
- McDowell, Michael.
- McEllistrim, Thomas.
- McGuinness, John.
- Martin, Micheál.
- Moloney, John.
- Moynihan, Donal.
- Moynihan, Michael.
- Mulcahy, Michael.
- Ó Fearghaíl, Seán.
- O'Connor, Charlie.
- O'Dea, Willie.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Flynn, Noel.
- O'Malley, Fiona.
- O'Malley, Tim.
- Power, Peter.
- Power, Seán.
- Roche, Dick.
- Ryan, Eoin.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Joe.
- Wilkinson, Ollie.
- Woods, Michael.
- Wright, G. V.
As amendments Nos. 2 and 3 are cognate, they may be discussed together, by agreement.
I move amendment No. 2:
In page 3, subsection (1), line 13, to delete "the" where it firstly occurs.
Amendments Nos. 2 and 3 in my name are technical in nature.
We have examined amendments Nos. 2 and 3 in the name of Deputy Deasy. As he has said, they are drafting amendments. The reality is that they do not add substance to the Bill. In such circumstances, we have decided not to accept the amendments.
I would like to make one comment. The Minister, Deputy McDowell, said yesterday that he would come here today in good faith, as far as amendments are concerned. The Minister of State has said that he will not accept two amendments that propose to remove a single word. Does he honestly expect us to take him seriously, as far as good faith in respect of this Immigration Bill is concerned? He is an absolute joke.
I would like to take up this point. I asked the Minister about today's amendments. He indicated yesterday that he is willing to accept amendments. I would like a further indication in that regard so we can plan our deliberations on this legislation. Which amendments does the Minister propose to accept?
We can only take the amendments that are before the House at the moment.
The Minister expressed——
Deputy Ó Snodaigh's point is valid. He has raised this matter already and we were anxious that the Minister would give some indication of his views. We have a limited time to deal with this legislation and there are more than 100 amendments. If the Minister could give us an idea of which amendments he intends to accept, we could speed up the business of the House, which would suit everybody.
Deputy Ó Snodaigh's point is reasonable. If the Minister wishes he can give that indication. He will be back shortly and I suggest this be put to him when he returns. To deal with Deputy Deasy's point, I do not understand all this nonsense about good faith. Deputy Deasy has put forward an amendment that does not add to or subtract from the Bill. It does not alter the Bill one iota.
It is a drafting amendment.
Does the Minister of State know what that is?
I will accept any drafting amendment, and so will the Minister, if it improves the Bill. I do not see why I should accept an amendment just to get into Deputy Deasy's good graces——
The Minister of State should sit down. This is pathetic.
——just because it is an amendment which he happened to put forward.
The Minister of State is pathetic.
I will discuss and accept amendments of substance.
What we need is a Minister of substance.
We have much to do.
The Minister of State will never be a real Minister if he carries on like this.
Deputy Deasy has been complaining about the short time given to this legislation. If the Deputy stops wasting the time of the House putting forward amendments that mean nothing we will do more business.
The Minister of State is pathetic.
Amendments Nos. 4, 42, 43, 69, 84 and 85 are related and may be discussed together by agreement.
I move amendment No. 4:
In page 3, subsection (1), between lines 14 and 15, to insert the following:
" 'authority recognised by the Government' means an authority recognised for the purposes of this Act;".
Non-nationals are asked to present documents from a recognised government. That provision is contained in the primary Act of 1999. However, there are instances in which governments have not been recognised for certain reasons. For example, the Government of Taiwan was not previously recognised. Under this legislation, valid documentation such as passports and identity documents cannot be accepted. This amendment extends the definition so that non-recognised administrations will still be able to produce a valid form of identification. There will be no gap or loophole that will allow people to be refused simply because they do not belong to an internationally recognised state.
As Deputy Costello said, there are a number of countries whose governments are not recognised. Many governments are in such a state of unrest that it is not possible for people to acquire a passport. There are also countries whose governments refuse to issue a passport. The legislation needs to recognise that people may be caught in these circumstances.
I agree with Deputy Deasy. There are a number of governments for which these circumstances pertain. There are times when new governments are instated or new states are founded and this Government does not necessarily recognise those governments or authorities. It does not take away from the Bill if we delete the words "issued by an authority recognised by the Government", as is intended by most of the amendments we are dealing with. Section 4(3), which we are seeking to amend, deals with the recognition of states and international law. It allows immigration officers to refuse leave to land to non-nationals who are in possession of a travel document from a government that the Irish State does not recognise. In reality, this section will have a negative impact on persons originating in countries which are not recognised internationally, of which there are a number. For example, Somalia was previously not recognised and Tibet is currently not recognised. There are also newly independent states with which we have not yet established diplomatic relations.
We must try to ensure that documentation which identifies the bearer and has some legality internationally is accepted by immigration officers and that people do not end up being arrested or even imprisoned — people who commit offences under this legislation are liable for a fine or imprisonment. Sometimes people do not have the required documents if they are fleeing or trying to link up with family members here who are holding documentation for them. Some opportunity should be given for the documentation required to be obtained upon landing here. Perhaps there could be a method for getting in contact with a representative of the United Nations so that the UN could issue the recognised documentation.
I consider the insertion of the definition proposed in amendment No. 4 unnecessary as the meaning should be clear to all concerned. The issue arises when a non-national presents his or her passport or other travel document on arrival at a port in the State. The officer must determine whether the document in question is validly issued by the proper authority. Where the non-national is a member of a class of persons exempted by order of the Minister from the requirement to have a visa it can be taken that a valid passport presented by that person has been issued by an authority recognised by the Government. Where the non-national is required to have a visa, if the Irish visa sticker has been entered in the travel document, the question of the travel document having been issued by an authority recognised by the Government will have been settled at that stage.
There are some wonderful passports issued by bodies with august-sounding names such as the World Service Authority, or such fantastical entities as the Golden Republic of Ceylon, which any interested customer can buy for €50 or so, but which no immigration officer would fall for. Identity fraud is one of the most intractable issues facing immigration authorities in every jurisdiction. I know these concerns are shared by my opposite numbers in other jurisdictions, including our common travel area partners in the UK. The purpose of a passport is to identify the nationality and biographical details of the holder. It is, essentially, an identity document.
I remind Deputies of the aftermath of the terrorist atrocities of 11 September 2001. After these events extraordinary meetings of the European Justice and Home Affairs Council took place at which an extensive and wide-ranging programme of tasks was agreed. In addition, UN Security Council Resolution 1373 of 28 September 2001 imposed significant additional obligations on all member states. These obligations require EU and UN member states to exercise the utmost vigilance when issuing residence permits and to take measures for the prevention of fraudulent use of identity documents.
Deputies should be aware that establishing identity is not an easy process. For example, a birth certificate on its own provides evidence of birth but does not confirm that the person is still alive or that the individual producing the certificate is the person named in it. Consequently, it is expected within the international community that states will go to some lengths to ensure that the issuing procedures of national passports will be rigorous and characterised by some degree of investigation on the part of that state as to the identity of the passport applicant. It is important, therefore, that some benchmark be established not alone for the security features associated with the document itself, but also for the process by which the passport is obtained in the first place.
It is for this reason that reference is made to an authority recognised by the Government. Otherwise, a situation could arise where warring factions in a troubled country could determine themselves to be a separate jurisdiction in their own right and issue passports which could be comprehended by these amendments. It should also be noted that UK immigration law has similar provisions to those in this Bill.
Amendment No. 42, in the name of Deputy Ó Snodaigh, proposes to remove the power to check for passports from an immigration officer working at a point of entry to the State. I am astounded by the notion that Ireland, alone among all the nations of the Earth, might decide not to bother doing such a thing.
Amendment No. 43, in the name of Deputy Deasy, does little better. It seeks to limit the circumstances in which an immigration officer may exercise the discretion to refuse permission to a non-national who does not have a passport. The amendment would set a number of challenges to the immigration officer faced with a non-national who has no passport or has a false or photo-substituted document. The officer would have to quiz the applicant by reference to the UN Convention on statelessness, acquaint himself or herself of recent political developments in the country of nationality claimed — if any is claimed — and inquire as to whether the person had been refused a passport by his or her government.
The aim of amendment No. 84, tabled by Deputy Ó Snodaigh, appears to exclude the requirement of a proper passport or other travel document when arriving in the State for the classes of persons listed in section 2(2). This section applies in the main to EEA nationals. There is a provision, confirmed by case law in the European Court of Justice, that EEA nationals arriving in another EEA state are obliged to satisfy the border authorities of their status as EEA nationals. The only satisfactory way to do this is by producing either a passport or a national identity document of the type issued by many continental countries. We cannot have a situation where EEA nationals arriving in Ireland are only required to say that they are of EEA nationality without backing it up with a passport or other identity document.
Under the UN Convention on the Status of Stateless Persons, a person recognised by a state as stateless who is resident in that state can obtain on request a travel document enabling him or her to move from state to state. That document will generally be issued by an authority recognised by the government. If the stateless person is resident in Ireland, the State issues the travel document. Thus the first element of the amendment is unnecessary.
If a person turns up claiming to be stateless and who has no passport, any immigration officer will view such an assertion with an appropriate degree of scepticism, since such an assertion is more likely to be made by an individual who wishes to conceal their nationality and identity than one who is genuinely stateless within the meaning of the convention.
On subparagraph (ii) of the amendment, the newspaper headlines of our nearest neighbour showed a government that is clearly recognised, but is evidently in a state of political unrest. I recognise that is hardly what the Deputy had in mind. With regard to subparagraph (iii), what if the government in question had confiscated the person's passport or refused to issue one in order to prevent the abduction of a child from its jurisdiction pursuant to its obligations under the relevant Hague Convention? Is the immigration officer to facilitate such action? The thinking behind the amendment is based on the mistaken reading of subsection (3) that the immigration officer in each case must refuse in any of the circumstances listed in the subsection. That is not the case as it is a discretion, not an obligation.
For those reasons, I cannot accept these amendments.
The Minister of State has given a comprehensive reply. However, he did not address my amendment. He stated that the Government's intention was to deal with documentation that was validly issued by a proper authority. However, that would be comprehended by my amendment which seeks to differ from the present position, which is that it is an authority formally recognised by the Government. For political purposes, Taiwan and Tibet are not recognised by the Government, yet they both produce passports that are, as the Minister of State describes, "validly issued by a proper authority". This amendment proposes that it should be an authority recognised for the purpose of this Act, thereby preventing the legislation embarrassing the nation by refusing entry to the Dalai Lama and his entourage. The amendment would also encompass passports and identification documents that are validly issued by a proper authority and would improve the quality of the Bill.
The general principle is that the decision to refuse entry on the basis of a document which has not been issued by an authority recognised by the Government remains discretionary in each individual case. The practice of immigration officers, on the instruction of the Minister for Justice, Equality and Law Reform, in the case of Taiwan — I am advised it is the same for Tibet — is to accept such documents, notwithstanding that Taiwan is not formally recognised by the State. However, that does not derogate from the general principle which I identified earlier.
Amendments Nos. 5, 81 to 83a inclusive, and 89 to 90a inclusive, are related and will be taken together by agreement.
I move amendment No. 5:
In page 3, subsection (1), to delete lines 20 to 23.
The function of this amendment is to delete the reference to "keeper". It is related to other amendments concerned with section 10 and the requirement of hoteliers to keep a register. How will a keeper or a hotelier determine who is a non-national? Will hoteliers resort to relying on racial and ethnic profiling? Four groups, the Immigration Council of Ireland, the Irish Council for Civil Liberties, the Irish Refugee Council and the Migrant Rights Centre of Ireland, have asked how the hotelier will determine who is a non-national. What will happen if a hotelier does not believe an individual who insists he or she is Irish? Will the hotelier have to force him or her to sign the register? It is likely that Irish citizens will have to supply their passports for hotel registers to prove they are Irish citizens and not non-nationals. We should delete the reference to keepers because, if a hotelier fails to comply with these provisions, he or she can be arrested without a warrant if there is reason and may be liable to a prison sentence of up to a year, with or without a fine.
The section should be omitted as it is excessive and heavy-handed. The Minister said that having to register is common when travelling through Europe, but it is possible that an Irish person may be refused entry to a hotel on the basis that he or she cannot prove he or she is Irish or because the hotelier is frightened of a possible fine or imprisonment. Will we end up with racial and ethnic profiling? The Minister opposes such profiling and says it does not happen, but anyone who has come through Dublin Airport in the company of people who are not white, including those born in Ireland, will see that it does happen. Racial and ethnic profiling occurs here and we are encouraging hoteliers to become involved in it.
My amendments attempt to reduce the bureaucracy the Bill may impose on people who provide lodgings. Despite the Government amendment, that bureaucracy will still apply to someone providing a room in their house for lodgings on a commercial basis. The Minister will be familiar with the tax exemption allowed for people with lodgers, a good provision which allows those living in a house that is too big for them to provide a room for a student or some other paying guest. My elderly aunt has been doing so for many years, but it would be an undue burden on her if having a foreign lodger meant she was obliged to keep an extensive register which would have to be available to the garda at the drop of a hat. It is an undue level of bureaucracy. Section 10 reminds me of travelling in eastern Europe before the fall of the Berlin Wall, when one practically had to give one's mother's maiden name before being admitted to a guesthouse.
While I recognise the making of regulations in connection with the Act is discretionary, this provision is very convoluted. It sends out a message to those taking in guests that having foreigners as guests will mean trouble and another layer of bureaucracy. That is not the kind of message a modern, outward-looking Ireland should send in the 21st century. We should be removing red tape and bureaucracy, and it is ironic that a Minister who prides himself on trying to do so is creating a very bureaucratic system of regulations. He is not only allowing the State significant access to the workings of hotels and lodging houses but access to the affairs of individuals who provide lodgings to foreign students out of the goodness of their hearts or for some pin money. We should not go this far.
The basis for my amendment is the fact that property is afforded much greater protection in the Bill than a person. A garda can arrest someone under this Act without a warrant, yet if the same garda wants to seize property, he or she must first obtain a warrant from the District Court. The Bill affords people much less protection than personal property; the Minister should address that. My amendment simply ensures that persons will have the same protections as property in the Bill.
Deputies Ó Snodaigh and Cuffe were discussing section 10, but a related matter arises in section 9. Yesterday, Deputy Higgins spoke on Second Stage about people informing on each other. He referred to a regulation in the 1940s which obliged people to inform on those they suspected or knew to have tuberculosis. The regulation was part of the Infectious Diseases Regulations but was repealed in 1981 for reasons of privacy. Deputy Higgins said yesterday that people felt it was an invasion of privacy, but I do not see much difference between that regulation and section 9(4), which states:
If a non-national who is required under this section to register or report is lodging with, or living as a member of the household of, any other person, it shall be the duty of that person to take steps ... to secure compliance with the terms of this Act in respect of the registration of or reporting by the non-national.
Some people have said this turns Irish people into immigration officers and spies and there appears to be a precedent in the form of a regulation from 50 or 60 years ago, which was ultimately found to be an invasion of privacy. If a person was suffering from an infectious disease, others were under an obligation to inform on him or her, but that regulation was struck down for reasons of privacy. There is a problem here because the provision in section 9(4) is similar.
I said on Second Stage that a ridiculous situation arises in section 10 which states: "It shall be the duty of the keeper of every premises to which the section applies to keep in the premises a register in the prescribed form ...". Section 10(5) extends that provision to any premises, whether furnished or unfurnished, in which lodging or sleeping accommodation is provided for reward.
The Minister's amendment No. 83a seeks to address this but does not succeed. It is still seriously flawed. The amendment deletes section 10(5), and replaces it with: “This section applies to a hotel or other place in which lodging or sleeping accommodation is provided on a commercial basis.” The amendment is an attempt to tighten it up, but does it really deal with the situation we outlined yesterday?
For example, I referred to a bean a'tí type case where a person runs a lodging house. Under planning regulations, planning approval is not required if there is less than four units. Such a person would not even be registered under existing law. How can those people be expected to have a separate register when they do not exist on any formal register? There is no way of checking it. In budget 2003, the Minister, Deputy McCreevy, made provision for individuals to receive €7,000 or €8,000 tax free for keeping a lodger. Is a household in suburban Ireland expected to have a register of non-nationals if lodgers are kept? What is the definition of "commercial"? If a person is in receipt of up to €8,000 from a lodger, which is tax free thanks to the Minister for Finance, it is still a commercial operation, as is the case of the bean a'tí. This provision is totally unenforceable. Why do we have legislation like this, which appears effective, as if we are cracking down on loopholes and dealing with the problem, but is meaningless? The attempt to improve the section has not addressed the problem. Would it not be preferable to delete subsection (5)?
This section is titled "hotel registers" so it could only properly deal with an area of commercial accommodation, which is registered by the State. We are creating a legal anomaly where virtually anyone who provides accommodation on a commercial basis will be subject to penalty under the legislation. There is a flaw which the Minister needs to address.
Deputy Deasy referred to the tenor and ethos of section 9(4). It is disgraceful that people are expected to inform on each other in the manner specified. It is an attempt to turn people into informers and spies. I hope the Minister is prepared to delete this subsection.
I am glad Deputy Costello drew the attention of the House to the additional amendment to section 10, which makes clear that the section only applies to a hotel or other place in which lodging or sleeping accommodation is provided on a commercial basis. He also queried the meaning of "commercial" in this context. Ordinary rules of construction apply to a term and subsection like this. What lawyers call the iustum generis rule applies, which means something of the same kind. In the phrase “a hotel or other place”, “other place” is always interpreted as meaning something similar to a hotel. It is not just any other place in the world, the iustum generis rule is applied. Since this is a penal measure, it will be interpreted by the courts in a manner which is most favourable to a person accused of an offence under it.
"Commercial" means the provision of accommodation on the basis of somebody carrying out a business in so doing. This deals with Deputy Cuffe's concern about his aunt and other people in similar circumstances. As a result of the high cost of housing, it is frequently the case that people share houses with others who can contribute to the household expenses or mortgage. This is a way of life for many young people in particular. The proposed amendment deals with the issues raised. The place has to be one which is analogous to hotel. It has also to be one which is carried out on the basis of running a business.
Until the High Court delivered its recent judgment, the law required the keeper of a hotel or inn to maintain a register of this kind. I do not know how many Deputies present travel around Dublin frequently, but I presume Deputy Costello is familiar with the city. In his constituency in particular, as in mine, there are a number of premises one would not describe as hotels that are called hostels or some such name. Effectively, they are similar to what the Victorians and previous generations called inns. These are places of accommodation operating on a commercial basis that would not be considered hotels for the purposes of the Hotel Proprietors Act or would not be described colloquially as hotels. A particular street in the Deputy's constituency has a number of these institutions.
The Minister must tell me about it some time.
I do not wish to start using the antiquated term "inn" for this purpose. The phraseology chosen by the draftsman is correct. For one to be under obligation under section 10, the premises of which one is a keeper must be one which either is a hotel or is a type of business analogous to a hotel. This is how the legislation will be interpreted.
It has been argued that this measure is draconian, redolent of eastern Europe and so on.
We belong to a common travel area with the United Kingdom. Provision is made under UK law for registers to be kept in places like this as well. It might be argued, and perhaps it will be when we come to revisit this whole area, that we should get rid of registers completely and let people do whatever they want when going to hotel accommodation. I do not know why Deputy Cuffe chose eastern Europe, because every hotel in any part of Europe I have ever visited has had a register. One does not have to be as old as I am to remember the film, The Day of the Jackal, where the main character is sought across the south of France and the gendarmes are rushing around checking registers to see where is their man.
The register is not used to deal with non-nationals.
Right across the European Union, including the United Kingdom and Ireland which do not have identity documents as a matter of form, it is an obligation of somebody providing accommodation on a commercial basis to keep a register which can be checked. While this may be a relic of a distant age that should be done away with, before we do something like this, we must consider whether it is a good idea. Were I to get a rush of blood to the head, would the Garda Commissioner find that he was no longer capable of tracing people he is seeking? Would it be a good if Ireland was the only country in the EU that did not have hotel registers? While it may be a good idea and perhaps hoteliers will be wildly in favour of this, I have not consulted them.
The purpose of this Bill is to maintain continuity. I am not persuaded that it would be a good idea, without carefully thinking through the consequences, to get rid of this procedure. I remind Deputies that this measure — which has been variously described as draconian, eastern European, Nazi or relic of the Third Reich — has been in place for 60 years. No one has said Ireland is a police state where the Minister for Justice, Equality and Law Reform spends his time scurrying from one establishment to another trying to find out who slept with whom last night in what hotel. The Department of Justice, Equality and Law Reform has better things to do than that.
We must keep a sense of proportion about this. Even in the absence of legislative compulsion, every premises that provides accommodation on a commercial basis would keep some form of register if only for the purpose of good regulation of the business. This is commonplace throughout the world. I have never felt put upon by being asked to sign a hotel register wherever I have gone. However, I have felt slightly put upon when, in some European countries, one's passport is taken and put in the hotel safe. None of this is required here.
They do not take your fingerprints.
No, nor is it suggested in the Bill that fingerprints be taken in hotels.
Nor do they seek one's CV if one is a civil servant.
The Deputy should allow the Minister to proceed without interruption. Deputy Cuffe, do you wish to make your two minute contribution now?
This is of no relevance to hotel registers. I presume Deputy Cuffe travels to America frequently. If he does, he will have to fill out cards stating the purpose of his visit, his profession, etc.
At least the Minister is not suggesting that we ask whether the traveller has been convicted of moral turpitude.
The Deputy should allow the Minister to continue without interruption.
I travelled to Toronto on Progressive Democrats business some time ago. An immigration officer brought me to a room with a one-way mirror and left me there for some time.
Fair play to him.
He asked me what my business was in Canada and I told him I was a Progressive Democrats Deputy. He said: "Progressive Democrats? Never heard of them." It was a relatively new party at the time and I explained this to him. He then asked me about my profession: "What is this about Deputy? Deputy to who?" I felt completely put down by this procedure.
The State is entitled to know if a foreign state is sending someone here on official business and what official business he or she is carrying out. This is perfectly reasonable and conventional and there is nothing draconian or fascist about it. Members should remember that this is not new; this is how the law has stood for 60 years. This does not have the alarming consequences that are being claimed for it. This is conventional in international terms and it would be strange if Ireland were to use this emergency legislation to tear up migration procedures that are standard throughout the world.
Ireland has a common travel area with Britain. No person coming from Ireland is stopped and asked account for him or herself when entering Britain. This is a valuable treaty right that we have with Britain. If we were to dismantle provisions that are common to both countries without consulting the British on what the implications might be, we would be in serious trouble. There is an element of mutual support between the two sovereign states on these islands. If the price of freedom of travel to Britain is to maintain a migration system that is remotely conventional in international terms, then it is small.
The issue with which we are dealing shows the emergency nature of the original legislation. The provisions regarding registers, etc. were based on the circumstances prior to, during and after the Second World War. I have signed many registers on my few trips abroad. However, if a hotel register exists, it should not be limited to non-nationals. A specific non-national register is being created in this legislation. Hotel registers should be dealt with in hotel proprietors' legislation rather than in immigration legislation. Registers are used on a commercial basis and are useful both to the tax man and the hotel. This is a discriminatory register that isolates non-nationals and puts the responsibility on, and provides fines for, hoteliers. The Minister should accept the amendments that propose to delete this. That the law exists in Britain does not mean it is a good law. Ireland has suffered over many generations from Britain's bad laws.
The Minister was correct to say that the drafting of this Bill was done when those involved grabbed what existed for 60 years, tidied it up and put it into this Bill. This is only tinkering with the issue. It must be tackled properly and the only way to do this is to delete this section. There is a reference to keepers at the outset and later one to hotel registration. If the Minister for Finance desires that a hotel register be kept for tax purposes, then so be it as everyone will be included and it will not be discriminatory.
Will the Minister address amendment No. 89 which proposes to amend section 13(2) where "A member of the Garda Síochána may arrest without warrant a person.., ."? Will he also address the issue of section 9(4) with regard to repealing the infectious diseases Regulations? The Minister mentioned yesterday that he would reveal which amendments he would accept and it might be helpful if he would give us that information.
The more we discuss the Bill, the more apparent the anomalies become. The very stark, draconian and almost racist wording of the opening lines of section 10 state: "It shall be the duty of the keeper of every premises to which this section applies to keep in the premises a register in the prescribed form of all non-nationals staying at the premises." I do not think that any commercial entity ever knew it had to keep such a register. It was aware it had to keep a register of all people staying at the premises, but was not informed it had to keep a separate register of all non-nationals. Has this been well advertised? Will there be two registers in all commercial premises that provide accommodation throughout the country? I have not heard about it and I do not know if the Minister is aware of that. As I understand it all guests sign a hotel register and this record is available for tax purposes.
So that a private detective can see it
I am sure there are certain people who would like to see the register open to the Garda Síochána to check on the private "goings and doings" of everybody. If every hotel is bound already to have a register, mainly for tax purposes, is there a need for the provision in legislation to have a separate register for non-nationals? That smacks of identifying them, isolating them and treating them in the manner prescribed in the Bill. It will criminalise all the other sectors. The Minister has not addressed the question of householders offering accommodation in their home for reward. The word "keeper" is defined in the first page of the Bill as being in relation to premises where accommodation is provided for reward. However, in the ministerial amendment, the Minister uses the word "commercial". If people are offering accommodation in their home under the tax initiative introduced by the Minister, Deputy McCreevy, are they doing so for reward or for commercial purposes?
Why not use the same wording "reward" in both instances? The Minister differentiates between the meaning of "commercial" and "reward" and, if that is so, he should amend the wording of amendment No. 83a. The amendment states: “a hotel or other place in which lodging or sleeping accommodation is provided on a commercial basis.” There is an anomaly there. There is a world of difference between the two types of registration. Under the provisions of section 9 (1)(a) the non-national is obliged to register. A register of non-nationals who have permission to be in the State shall be established and maintained by registration officers in such manner as the Minister may direct.
The State maintains a register of all non-nationals. Every "two bit" inn or lodgings will have to keep on the premises a register in the prescribed form of all non-nationals staying at the premises and, to make matters worse, under section 9(3) if he or she stays for more than 24 hours, notice must be given of any intended change of address to the registration officer. The legislation is confusing, discriminatory and will be impossible to operate.
Section 9 refers to the Garda register and has nothing to do with the hotel register. A non-national who comes to Ireland has to register with the Garda Síochána and it has to maintain a register. The Schedule to the Bill refers to the Garda register and has nothing to do with hotel registers
Why do we need a plethora of other registers?
Deputy Costello is arguing that a separate register will have to be held, but it will not. Until now the law was that everybody had to enter his name on the register, be they national or non-national, even though any sensible hotelier or accommodation provider will register everybody who comes into his premises because it saves the reception clerk having to ask if the person is a non-national.
That is not what the legislation states.
I know it is not what the legislation states but what I have done is that if a reception clerk omits to register an Irish citizen, it will not result in a prosecution. I am trying only to make the law less onerous on people. People will keep registers and will register all their customers. The ministerial regulation will provide for that and they will not have to separate the register into two parts. They will sign their name and enter their nationality in the next column of the register and so on, as is the case at present. If it transpires that on some occasion that yours truly goes into a hotel and omits to sign the register it will not be the subject of a prosecution or a criminal liability because I am an Irish national. That is how it will work out in practice. I believe all hotel reception clerks will do as they have always done and ask the guest to sign the register and fill it in. It makes sense to find out who is in their hotel.
It amuses me that it is said to be discriminatory. If somebody fails to register somebody else and if it turns out that the person was an Irish citizen, because this is an immigration Bill, there will not be a criminal prosecution. Let us not lose the run of ourselves. Imagine if I was saying the contrary that everybody must be registered and that if I go to a bed and breakfast and stay the night, because a pipe burst in the roof and the person fails to register my arrival, the owner will be liable to be criminally prosecuted. If I were to say that, Members would be jumping down my throat and saying that it was an unnecessary, draconian Nazi Third Reich, eastern European, crazy idea that I wanted to keep tabs on every Irish national in the country and have the Garda Síochána snoop on them. We have alleviated an onerous obligation in respect of Irish citizens because we believe it would be unreasonable for a District Court prosecution to follow under an immigration Bill where a hotel clerk had failed to register an Irish citizen.
Could anything be more reasonable? Why then are we being treated to this nonsense, if I may say so, that this is discriminatory? The essence of an immigration law is to discriminate between nationals and non-nationals, and to do so effectively. One person has obligations, while another does not, precisely because he or she is a citizen or a non-national. If one chooses to use the term "discrimination", of course it is discriminatory in the proper sense of that term because it discriminates between two categories. I am trying to make the law easy for people to operate. I am asking hoteliers to keep a register. I know they register everybody because it makes common sense to do so, rather than cross-examining people as to their nationality when they come in. I know hoteliers will do that kind of thing. For the first time in 60 years, I am providing that if they slip up concerning an Irish national, they will not be liable to prosecution in the District Court. Could anything be more reasonable than that?
Deputy Deasy referred to the issue of there being no protection against arrest without a warrant, while on the other hand a warrant is required for searches of property. The Deputy said that this apparently affords greater protection to property than to individuals. That is one way of looking at it but if it were necessary, as has been suggested, to get a warrant to arrest people under the Bill, the whole system would be chaotic. I will provide an example. If a group of illegal immigrants are seen running across the fields from Armagh to Monaghan, and gardaí are watching them through binoculars, is it being suggested that the gardaí must rush back to Castleblaney and summon up the local District Court judge to seek a warrant to pursue those people?
They will have to go to a judge.
Yes, but let us be clear about it — that law would simply cease to mean anything in those circumstances. I agree with Deputy Deasy on one level: it is a fair point to say that one category of police action requires judicial sanction and another does not. I accept that distinction is there but would it be practicable to provide that one could only arrest a person suspected of committing an offence under this Bill on a warrant? The answer is that it would not, because frequently one would not even know the name of the person with whom one was dealing. One would not know who to name on a warrant. The gardaí could not run back to Castleblaney and say: "We need a warrant to arrest the 12 people we saw running across a field an hour ago, who we hope will still be hiding in the bushes by the time we get back from the District Court." It will not work that way.
Likewise, in many cases, if gardaí or immigration officers are arresting a number of people concealed in a vehicle, they will have no idea who those people are, so they could not get a warrant. If they discovered a container-load of people entering the country illegally, as happens, they could not run to the District Court and say: "There are a number of people — we have not even checked yet how many because if we open the container they will all run away — so please give us authority to arrest them." The world could not work that way. Nonetheless, I accept the case Deputy Deasy is making — that in this case people's property rights seem to be superior, if one looks at it in that peculiar way, because no warrant is needed for an arrest. On the other hand, the reason a warrant is not needed for an arrest is that the law would be unworkable if it were. If, however, I were to say that immigration officers or gardaí could enter premises, including homes, with no warrant, everybody on the opposite side of the House would say this law was "Nazi", "Third Reich", "east European", or whatever other appellation they wished to use. There is a distinction, which I stand over because I think it is a reasonable one. If we were to go down the road of requiring gardaí and immigration officers to obtain prior sanction from a judge in respect of a person they could not even name in a court sitting, the law would just collapse.
I appreciate the removal of the requirements for Irish citizens to register, which is a step in the right direction. Removing these Victorian anachronisms is to be welcomed, although it is not exactly breaking the mould of Irish politics. I also note the distinction between both types of register that will be kept.
I am not mould breaking, I am putting a mould together.
Good. I thought one of the Minister's old slogans was, "Breaking the mould", or maybe it was one of ours.
I am repairing a fractured mould.
There is no need for the Minister to discuss the internal politics of his party.
As regards the distinction between the two registers, I will discuss the register for immigration officers later, but it appears to seek details such as the length of a person's toenails. I am amazed at the amount of detail sought in it. The problem is that we do not have any guidance as to what will be required under registration by a keeper of rooms. It is very open-ended; it could be anything. Good law should be precise and I would appreciate some Schedule setting out what might be kept by the keeper of premises. Some clarity on that matter would be welcome.
This registration requirement is not dissimilar to the requirements for somebody who is out on bail, namely, that they have to make themselves known, perhaps every day, at a Garda station. In the case of this Bill, the Minister is asking the foreign national to provide intimate details at every premises in which they may stay. That is too onerous a requirement. I appreciate the kite the Minister flew about possibly removing this requirement altogether. I would be broadly supportive of that but obviously we would have to examine the details.
There is a difficulty, however, in that once the register is in place, it might well be open to abuse. I note that it has to be made available to a member of the Garda Síochána or an immigration officer, if so requested. It is certainly possible that the system could be abused, if one wished to seek out the register continually to discover who is on it. It should be nailed down more firmly as to who would have access to the register, and in what circumstances a member of the Garda Síochána or an immigration officer could look at the information therein. Otherwise the possibility for abuse could be opened up. I would like to hear the Minister's thoughts on that matter, in addition to getting some indication as to what details will be on the register. Could the Minister insert a Schedule to the Bill stating what will be required?
Will the Minister address the question I raised concerning a lodger who might be in a premises being subject to the tax-free benefit? Will he also address the case of a small bed and breakfast establishment in which only one or two bedrooms are being used for accommodation, and where the normal registration procedures are not required, although it is still a commercial outlet?
Will the Minister deal with the apparent obligation to report, which is mentioned in section 9(4)?
I will leave section 9(4) until later, if I may. As regards the lodger issue raised by Deputy Costello, it amuses me that wenow regard lodging as a "post-McCreevy phenomenon", if I may use that term. The Minister for Finance's concession on the taxation of payments made by lodgers is a welcome and intelligent move, which has worked well. Lodgers existed long before this ever happened. They are part of history and have always existed.
The Deputy asked if I was wise in taking out the words "for reward" and substituting the word "commercial". This was the subject of consultation with my officials yesterday. The reason we decided to take this route was to avoid the issue raised by Deputy Cuffe, that people would feel — particularly older people sharing their home with younger people or companions as is frequently the case — that they were under a duty to keep a hotel register.
We have put in place a restriction on that obligation — to hotels or other places where there is the provision of accommodation on a commercial basis. The iustum generis rule applies to the phrase “or other place” and that means it will be construed “analogous to a hotel”. I am not going to get into the minutiae of whether three rooms or two rooms in a house constitutes a commercial basis. Common sense on the part of the courts and the immigration staff will draw that distinction.
Let us hear the Minister's common sense. Can he give us some direction? Can he speculate?
If I included in a long Schedule how many cubic feet of space in any particular house could be used and how many lodgers could be in it before it crossed the line, we would be here from now until the crack of doom legislating on the matter. Let us remember this ——
On a point of order, I referred to the legislation of the Minister for Finance, Deputy McCreevy, which only allows for one lodger. Can the Minister give a specific answer on that?
I do not believe any judge, no matter how adventurous, could ever hold that a person who took a lodger into his or her house was providing accommodation on a commercial basis in the context of this particular section which is covered by the iustum generis construction rule which is that it would have to be analogous to a hotel. No judge would do that. If I am proved wrong I will return and humbly apply to Deputy Costello, but I do not believe that will happen. I cannot envisage an immigration officer or a garda wasting his or her time becoming involved in such a matter.
I have forgotten the matter raised by Deputy Cuffe.
I asked if the Minister could be more specific on the matter of the register.
There is a provision to make regulations for what should be in a register. That provision has always existed and nobody has ever said it could have intrusive consequences. I assure the Deputy that it is only sensible to be realistic in these circumstances and to look for name, address, nationality and some minimum identificatory details. This is a perfectly sensible way of dealing with the matter. If a Minister went to town on the provision and began to include intrusive private details of an irrelevant kind, the regulations would immediately be challenged in court — as everything in this code is constantly challenged — and it would be found to be ultra vires the Minister. The Deputy asked whether a garda could do this for any purpose whatsoever. It would have to be lawfully done under the Constitution and in pursuit of a lawful purpose of the garda. Otherwise, it would be an unlawful act and would be suspect.
Somebody also raised the matter of fingerprints. If the Garda register did not allow gardaí to take fingerprints, we would have a ridiculous situation which is by no means fanciful. It would then be possible for any of us, if we were a non-national, to go to a garda and register under one name, go back again the next day and register under a second name, and have multiple entries on the Garda register with no means for the gardaí to work out who was who.
The great thing about modern technology is that our system is not simply an ink and pad job. Now, under technology systems such as Eurodac, if somebody puts the same thumbprint on two separate forms with separate names, it is possible to detect them and find that the person has registered previously claiming to be someone else. If we do not include elementary protections of this kind, biometric if required, the Garda register would be a sort of 19th century process in a 21st century environment. Non-nationals' cards now have provision for a microchip on which a fingerprint can be encoded. This provision makes the card unique to the holder and enables gardaí to verify whether the card is genuine or whether the holder of the card is the owner of it.
The same was said about passports in the past.
Across Europe the Justice and Home Affairs Council is squaring up to the issue of biometric identifiers in passports and visas and sooner rather than later all European passports will carry biometric identifiers, as will visas for people coming into the European Union. The Americans have set a demanding agenda on this issue.
I want to provide some detail on the issue of fraud regarding identity documents. This problem is now recognised by the 2001 UN Security Council Resolution 1373. This resolution was adopted in the wake of the 11 September atrocities. It requires that all member states prevent the movement of terrorists or terrorist groups by, among other things, controls on issuance of identity papers and travel documents and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.
Yesterday, I was told I was thinking in terms of national law rather than international law. However, our international law obligations require us to do this. Between 1999 and 2001 the number of legally resident non-EEA nationals in this jurisdiction grew from approximately 30,000 to over 90,000, an increase of 200% in three years. These figures do not include asylum seekers. It would be naive in the extreme to believe that the undoubted benefits accruing to the State from the scale of this migratory flow into Ireland are not accompanied in some cases by abuses and attempted abuses of the immigration system by transnational criminal gangs who specialise in establishing false identities for immigrants for illicit purposes.
Passport forgeries, photo-substituted passports and forged work permits, for example, are a constant and growing feature of the Irish immigration landscape. I know this from personal experience because I visited the Garda National Immigration Bureau office in Burgh Quay recently where I was shown a kind of rogues gallery of forged documents. The quality of some of them is astonishingly good and the sophistication of the forgery is amazing. We know from yesterday's or Tuesday's newspapers that forged passports being found in people's possession are an almost daily occurrence.
There is a danger that people legally resident in the State who acquire possession of more than one passport can seek to register under two or more guises. This is a concern which the State must address, as must any other state. The international community is determined to address the matter.
If we are finishing with this section, will the Minister take the opportunity to let us know which amendments he proposes to accept?
That does not arise at this point.
I move amendment No. 6:
In page 3, subsection (1), to delete lines 27 to 29.
This amendment deal with the references in the Bill to the master of a ship and the member of a crew. It is linked to the debate on section 7 which, among other provisions, extends powers of detention to the master of a ship. For that reason, I would prefer if we deleted these references at this early stage and, subsequently, deleted section 7 in its entirety.
I wish to quote from submissions made by different groups given that this is Committee Stage and we have not had a chance to meet these groups and cross-examine them. I will not quote in their entirety the documents submitted as we would be here all day. In fairness to the groups, they were succinct in what they had to say. In the short time available to them, they did Trojan work to put their thoughts on paper and obtain agreement from their members. The Human Rights Commission submitted what it described as a preliminary observation. It looks like it will not get the opportunity to submit anything more detailed given that the legislation will have been passed before the commission has a chance to provide its full, considered opinion.
According to the Human Rights Commission section 7, which contains the references to the master of a ship and the member of a crew, grants broad powers of search and seizure of property to immigration officials at points of entry. This raises serious questions about privacy and the right to private property. Amnesty International said section 7 is of concern because it permits an officer or member of a crew to search a non-national to ascertain whether he or she is carrying certain documents. There is no requirement of reasonable suspicion that the non-national is carrying documents or that the documents must be in any way relevant to immigration concerns.
The larger document, which we all received, came from the four organisations. I have already quoted from it. It outlines that immigration officers can, with no stated purpose, force non-nationals to declare at ports whether they are carrying or conveying any letters, written messages or memoranda or any written or printed matter, including plans, photographs or other pictorial representations. Section 7(3) allows immigration officers to search, examine and retain without cause printed material of any nature. Section 4 criminalises non-nationals for failing to comply with these provisions.
Section 7 gives broad powers to the master of a ship or a member of a ship's crew whom it makes akin to members of the Garda. Section 7(3)(b) provides that an officer or crew member may search any such non-national and any luggage belonging to him or her or under his or her control. These are not immigration officials and they have no training. They may be members of the crew of a small trawler on the high seas or coming toward land, yet they have been given the power to detain people. The Bill does not outline the nature of the detention or indicate whether it is open to abuse. Are people permitted to use physical force to detain non-nationals? The Bill simply provides that they are allowed to detain on board any non-national coming in a ship from a place outside the State until the non-national is examined or landed for examination.
This aspect of the legislation is too broad and it has not been tidied up as it should have been. The required protections have not been put in place and there is no requirement of reasonable suspicion when searching for material. The power to search luggage is not one we would ever intend to remove from gardaí or immigration officers because of the dangers of people importing drugs or whatever else. In this case however, we are providing such powers to people who are masters of ships, pilots of aircraft and, probably, masters of submarines, although such a vessel is not mentioned, or members of a crew. It could be anybody on one of the large ships coming here. It could be the stoker of the fire or a porter, neither of whom has been trained to deal with immigration issues.
This section and the references to the master of a ship and the member of a crew must be deleted and the Minister should come back with more specific provisions when we deal with the overall immigration and residency Bill. When he or she lands, the non-national has a duty and obligation to report when landing here. If he or she fails to do so, he or she breaks the law. In this Bill, we are placing an onus on people who do not have legal or other training to deal with non-nationals outside the State, before they land. The non-nationals in question might be in international airspace or international waters. My amendments should be accepted.
If I intervene at this stage, I might be able to clarify matters. In section 7, subsections (1) and (2) deal with the master of a ship. Section 7(3) deals with the powers of immigration officers and members of the Garda. In looking at section 7(3)(b), Deputy Ó Snodaigh may be assuming for the purposes of this debate that the officer or member is an officer or member of a ship's crew. The officer or member referred to in paragraph (b) is the immigration officer or garda referred to in paragraph (a).
In that light, section 7 imposes on the master of any ship arriving at a port in the State a power to detain on board any non-national coming in the ship from a place outside the State until the non-national is examined or landed for examination under the section. The master of the ship shall, on the request of an immigration officer, detain any such non-national, whether seaman or passenger, whose application for permission has been refused by an immigration officer, and any such non-national so detained shall be deemed to be in lawful custody. That clarifies the Deputy's point.
Masters of ships have very substantial powers regarding maintaining control of what happens on board. Effectively they are the law, subject to the laws of whatever member state they are in. At sea, the master of a ship has, under customary international law, very extensive powers to detain people, to clap them in irons or whatever they used to do. It is a necessary aspect of marine law; someone must have authority on a ship. What is contained in section 7(1) and (2) is a requirement that a master of a ship should not simply dock in a city and let all its passengers rush down on to the quayside without making provision for them to be examined by an immigration officer. The same applies to an aeroplane. One cannot simply stop on the runway, let down the emergency chute, and let one's passengers take to the countryside. One must present one's passengers and crew to an immigration officer. That is how the world works.
In case anyone thinks that is egregious or unusual, in the common travel area, precisely the same requirements are placed on the captain of a ship arriving in the United Kingdom. It is fairly clear that they have a common ancestry in old legislation which applied in both these jurisdictions. The power is not unusual or strange and recently, under the immigration legislation that I brought through the House, analogous powers and obligations were cast on the liabilities of carriers to ensure that persons whom they are carrying are brought to the attention of immigration officers.
The other point Deputy Ó Snodaigh raises is reasonable. The terminology of paragraph (b) does not require reasonable suspicion on the face of it. However, it does in the sense that every power must be exercised in a constitutional manner. That means that arbitrary or groundless searches and detentions are ultra vires for any officeholder under the Bill. They are unlawful, and one cannot simply start throwing dice and decide to pick out every sixth person for a search or behave in an arbitrary fashion. Using constitutional principles of construction, something that was an arbitrary violation of someone's constitutional rights would be excluded. One would therefore have to have a reasonable basis for a search. One cannot simply search people because one is feeling liverish on the day.
Under the European Convention on Human Rights Act, every power conferred on every person under every statute in Irish law must also be carried out in a manner compatible with the European Convention on Human Rights. A power of this kind to search people, which looks broad on the face of it, must be read subject to the overriding principles of the Constitution and the European Convention on Human Rights. That is, they should not be used in an arbitrary, invasive, humiliating or discriminatory manner which has no foundation in reasonable suspicion.
I hear what the Minister says. However, there is no section other than section 7 that displays so clearly how this legislation is tied up with the time in which it was produced. Subsections (1) and (2) are a preamble to what will happen in subsection (3). The powers included are extraordinary. Nothing gives that away more than the last line in page 9, subsection (3)(c)(iv), allowing the officer to seize or demand “any information in non-legible form that is capable of being converted into legible form”.
We are looking for spies here. That is what the legislation is about. This is the Aliens Restriction Act 1914, on which the Aliens Act 1935 was based. It goes back to that British legislation when they were trying to get hold of German spies before the Great War. Why else would they be talking about "non-legible form" — some cryptic form that can be made legible? The provisions regarding detention on board exceed what is in the carrier liability, which is that an immigration officer must in advance seek to determine that the documentation is authentic identification. As far as I remember, there is no reference to detention on board for that purpose in the legislation passed last summer. We are going a step farther here, giving Garda powers to the captain of a ship or any carrier.
The degree to which the provisions here are unnecessary is extraordinary and they must contravene the European Convention on Human Rights in their interference with non-nationals as outlined in section 7(3). I have tabled an amendment to delete that section. It will come up later, but since the debate has almost finished with it, we may as well deal with it. Perhaps the Minister will consider this. All the extraordinary powers and demands made by the officer under subsection (3), governing what happens when the non-national lands regarding all the documents, photographs, currency notes, counterfeit currency notes, non-legible material and audio or video recording seem to be unnecessary. It relates to secret documents that are expected to be smuggled and concealed on the individual. We do not need it in this legislation.
Most provisions, but not that concerning materials in non-legible form, were there before the crisis emerged in the wake of the High Court decision. The information regarding materials in non-legible form is new, and I will come to why that is so presently.
When someone arrives, one of the functions of an immigration officer is to determine if someone presenting himself or herself at an Irish port and claiming to be someone who intends to visit Ireland as a tourist is seeking to migrate illegally to the United Kingdom. That is very frequent, and internationally, as part of the common travel area, we are obliged to stop such people. This may surprise Deputy Ó Snodaigh in particular, but effectively we act, as does the UK, as immigration officers for each other because we have a common travel area.
With the land Border between the State and Northern Ireland at the moment, it is obvious that we should have common external border controls which are mutually compatible. Otherwise the common travel area would mean nothing. One of the powers of an Irish immigration officer under this legislation and the Aliens Orders was to refuse leave to land to someone if he or she thought, on reasonable grounds, that the person was coming to Ireland with a view to going to Britain and would be refused leave if going there directly. That we must act as each other's watchdogs is a necessary outworking of the existence of the common travel area. A person in those circumstances can come in with documents including — this is day-to-day experience and by no means fanciful — a booking for a hotel in London that night, a job offer in the United Kingdom to work on certain premises or brochures for this place or that.
I have been reminded it could include a UK refusal stamp on a passport, documentation showing a person had been thrown out of the UK on another occasion or documentation suggesting a person is not the person he or she claims to be, but somebody else. It could also include spare passports, documents with photographs of the person with a different name appearing on them, or business cards suggesting the person operates under different names. This is the daily fodder of immigration officers at ports and airports; this is what happens regularly.
When conducting an interview, immigration officers may come across a person who says he or she is coming to visit Ireland and in the course of the interview, they become suspicious of what they are hearing and ask to see the documents the person is carrying and find he or she is en route to a business meeting or has a booking for a hotel in London or wherever. That is a daily occurrence. The person could have a roll of sterling notes which might or might not suggest he or she was coming to Ireland. There are a vast amount of possibilities in this regard.
There was a case, which I remember very clearly, where a number of Indian nationals were stopped at Shannon Airport. They claimed they wanted to get off the aeroplane and to come here. They, and a person who was there to meet them, had documents showing that they were all en route to the UK. One must be able to carry out collateral searching of people in those circumstances and draw inferences from documents in their possession, including encrypted documents and information which is in non-legible form and is capable of being converted into legible form. If, when interviewing somebody, one finds a card with a microchip inserted in it, and after reading that card, one finds the person seems to have another name on the card in question, that is relevant to the question of whether one gives the person leave to land.
None of this is fanciful, draconian or otherwise. This is the most elementary legislative underpinning for what happens day in, day out at our common external border. It is material which the United Kingdom must have as well. If we do not have this, we, effectively, disable immigration gardaí from making any intelligent assessment or deduction from the material in front of them as to whether the person is a genuine immigrant, is who he or she says he or she is, and is coming for the purposes he or she states.
This was the law, as we all thought, until less than a fortnight ago. It operated and was used with the exception of the electronic material. This is the bread and butter of what happens in Irish immigration scenarios. I will not scrap it now, especially in a continuity Bill which is designed simply to maintain, as far as we can, the status quo until we bring in an immigration Bill to deal with this whole area. It would be a serious dilution and disarmament, if you like, of our immigration laws and officers if I was to agree to remove any of this material. It would be a serious, retrograde step and I do not intend to do this.
The section is broader than the Minister has suggested. It states that the officer may find out whether the person is conveying any document and may examine and detain for such time as he or she may think proper for the purpose of such examination, any documents so produced or found in the search. That covers everything. The reason I mentioned it was that one can see that the direction of what it includes is directed at spies — non-nationals who are hostile. What about private and confidential documents of a personal nature a person might have? This provision was struck down because there were not the specifics in respect of the statutory instrument. The Minister is giving total umbrella power to not only examine, but to seize, detain and to hold for as long as that particular officer may think proper. Not only is the Minister, effectively, giving the full powers of the Garda Síochána to an officer but he is even giving him or her more powers to become judge and jury. The officer will have the power to hold the person until such time as he or she believes his or her examination is completed to his or her satisfaction. I would think that is as broad a power as has ever been given to somebody and it includes powers which should not be given. It reflects an emergency situation in different times; times of warfare. This legislation is vulnerable because of that clause being retained.
Personal documents could be relevant. A personal letter saying, "I will meet you in London tomorrow evening", could be the answer to the question as to whether a person was coming to Ireland, and it frequently is. We cannot have a situation where the immigration officer must stop the search if anything has personal and confidential written on it and he or she must say, "I cannot look at that. I will blinker myself and look at the rest of the documents this man or woman has." We cannot have such a situation.
Let us be clear that all legislation this House passes is subject to our Constitution and the overriding principle that it must be constitutionally construed so that somebody cannot root around somebody's private documents in circumstances that are oppressive, arbitrary and destructive of his or her privacy and the like on a whim. Since this power involves interfering with somebody else's privacy and rights, to a limited extent, in every case, there is a constitutional rule of construction that in exercising those powers, an immigration officer or a garda must do so in a way which is proportionate and is invasive and destructive of people's rights to the minimum degree necessary to carry out his or her functions.
If that was not the case under the Constitution, as I said earlier, it is explicitly provided for in the European Convention on Human Rights Act which states that any organ of the State — that includes a garda or immigration officer carrying out his or her functions under this legislation — must carry out any powers and functions he or she has under any statute in a manner compatible with the European convention. There is a fundamental rule of statutory construction that everything must be done in a way which is compatible with the European Convention on Human Rights. On top of that, there is an underlying golden rule of constitutional construction that such powers can only be used to an extent permitted by the Constitution. Therefore, purely arbitrary discriminatory searches, which are anti-constitutional in their purpose or method, are prohibited.
This legislation will be construed by any judge before whom this matter ever arises in a manner which is compatible with the Constitution and must also be construed in a constitutional manner by an officer exercising these powers. The fact that we do not recite the Constitution in every section of every Act or insert in all legislation little shrines stating that everything in it is subject to the Constitution, does not mean that this rule does not apply. The ECHR, because it is not our Constitution but has been given this new interpretative role, will apply to this Act on the day it becomes law. From the beginning, anybody exercising powers under the Act will be obliged to carry out his or her functions in a manner compatible with the European convention. I do not see where the big problem lies in this regard.
The big problem is that the non-national in question may not be around to assert his or her rights under the ECHR.
While I accept that is true, it is the duty of the immigration officer and garda in question to comply with constitutional and European convention safeguards. Much of the less thought out criticism of this legislation seems to suggest that an elaborate legal procedure, including legal appeals and legal interventions, should be available in every immigration decision. We cannot have such a position. We have judicial review and the Minister has a power to vary any decision made by an immigration officer under the Acts. We cannot, as some people increasingly demand, effectively provide for everything to be dealt with by some kind of adversarial tribunal in which every issue is fought out on a quasi-legal basis before independent arbiters.
We live in a real world in which real people must make decisions on a day-to-day basis in real situations in ports, airports and so forth. The notion, one which has crept into much of the public comment on the Bill, that somehow we should change all of this and introduce a system in which a tribunal sits in perpetual session, second-guessing and supervising every decision, is not feasible.
I remind the House that human rights law training, as a recent television programme showed, is now an integral part of Templemore's training programme for all gardaí. It is not as if members of the Garda have never heard of the European Convention on Human Rights or the Constitution and only find out about them when somebody brings them to book before the courts. On a pre-emptive basis, the training of officers is based on the proposition that they must respect people's ECHR and constitutional rights in the manner in which they carry out their duties.
The notion that somehow we are to transform this country at every act of the Executive arm of the State into something which is immediately the subject of a layman's version of judicial review, and that a lengthy bureaucratic review of every decision must take place with a view to determining whether everything is in order, would reduce any state to paralysis. Some people are insatiable in their demands for creating layer upon layer of procedure to ensure that no decision is made on an ad hoc basis. There is a tendency to build in more and more of what are termed “safeguards”. For people who are determined to ride roughshod over our immigration law, these are not safeguards but new avenues of delaying perfectly reasonable decisions about them from having any effect.
I am sorry I asked the question.
Judicial review is very active in this area. Approximately 190 judicial review type cases are before the courts. One of these cases is the reason we are debating this legislation. It is not as if people are without remedies, nor is it the case that immigration cases do not give rise to judicial review. It is not as if I and my officials do not review internally decisions which are the subject of protest. If I were to give up all other activity, I could be occupied for 24 hours each day doing nothing other than second-guessing the decisions of the immigration service with which people are dissatisfied. While I exercise an intervening role on occasion, we must be realistic and accept that there is a limit to the process and to the extent to which we can allow every decision to give rise to endless consequences for the State. We cannot run a system like that.
On Second Stage yesterday, many Deputies engaged in bogus and unhistorical argument by stating that our current attitude, now that we are a net recipient of migration, differs from when we were a net contributor to migration. The poem about huddled masses and so forth inscribed on the plinth of the Statue of Liberty was mentioned. In the 19th and 20th centuries the United States pleaded with the huddled masses of the rest of the world to come to America. It no longer does so and it is codology to suggest that the noble sentiments inscribed on the statue, which invite the peoples of Europe to come and colonise the wide open spaces of middle America, remain as operative now as when the statue was erected or that Ellis Island beckons new immigrants.
I was simply suggesting the Minister should produce an immigration policy.
Why has the United States introduced an amnesty?
I am aware of the amnesty but I will not comment on the motivation for it. It is not true that every developed state should behave in the 21st century as states such as Australia, New Zealand, Canada and America, which were underpopulated, behaved in the 19th and 20th centuries. It is about time we cottoned on to the fact that Europe is not beckoning the huddled masses of the rest of the world to come here.
The Minister is making a Second Stage speech. My question was put not to attract a lecture but to highlight the need for more specific legislation. Judicial review or other procedures would not be necessary if the legislation was more specific fashion. The powers of detention and search are too wide and documents can be seized without any requirement to return them, except on the whim of the officer who seized them.
Nothing can be done on a whim.
The legislation is not precise and reflects the era in which it was produced.
The purpose of the quotation I used yesterday was to open up the discussion on immigration policy. While I would not make a comparison between our current immigration policy and that of the United States, at least the latter has a policy. It would be useful if the Minister, in consultation with all interested groups, devised a policy instead of responding to potential immigrants as they arrive on our shores.
This Bill deals with a loophole rather than opening up a wider discussion of immigration policy. My main concern is that what shreds of a policy we have are based on economic necessity rather than on much wider grounds. It would be useful to all concerned with immigration policy if the Government set out its priorities for the future.
The Government intends to bring forward legislation dealing with broad immigration issues. Whether something is in statute form does not make it necessarily better or worse. As I said earlier, to attempt to reduce to statute form some notions such as economic interest, quotas for particular areas of the economy and the like, and to attempt to reduce that to some kind of system governed by statute and statutory instruments might be a foolish enterprise and one which is counter-productive in the end.
Everyone suggests there should be a really good immigration Bill which will state who can come to Ireland and in what circumstances. I do not believe it will be possible to have a Bill of that kind because it will always be necessary to make choices and deal with more people wishing to come to this country than some or other aspect of policy believes we should receive. There is a limit to what this forthcoming great restatement of our immigration law can achieve. There is a limit to whether it is wise to put all policy decisions into a statutory form, especially concerning employment.
Our unemployment level must be relevant to the question of whether we encourage or discourage inward economic migration at a given point. I do not know exactly how putting into statute some formula concerning the level of unemployment and the number of people who can come to Ireland is a feasible project.
Some people refer to "fortress Ireland". In 2002, 105,000 visas were granted by the State and 14,000 applications were refused, which is approximately an 85% success rate. As Minister, I only hear about the failures; nobody telephones me to thank me for the visa received. I only hear about the other ones. Sometimes the amount of dissatisfaction seems overwhelming, but when one examines the truth of the situation, 105,000 were granted in 2002 and 14,000 were refused. Those figures place the issue in context. This is not a fortress state.
I have no doubt that, among the 14,000, some decisions were made which some of us on reflection might think should not have been. People making estimates of other people's motivations is bound to produce a level of dissatisfaction. I want to minimise it and make it as fair as possible.
I ask the House to consider the example of people who come to Ireland and state that they wish to carry out some specific task such as visit an Irish factory. If one examines the application form from the perspective of an immigration officer, one must ask if it is reasonable that 18 people from an area of high unemployment are coming to look at a new product in a factory in Nenagh. Somebody must make a judgment on the application as to whether it is genuine or not. I hope to include in the new law some means of allowing people to act as guarantor on a bond for the behaviour of others. For instance, if the manager of the Nenagh factory is showing the product to 15 people who have come from a region of the world where there is high unemployment and he really wants them to come, he can take some risk and not just ask an immigration officer to second-guess whether this is a bona fide transaction.
It is not an enviable task and I do not think any of us in this House would like to try to decide whether an application is legitimate or whether we are being collectively taken for fools. It is not easy work. People talk about the conservatism of the Department of Justice, Equality and Law Reform on this matter, but the figures show that 105,000 visas were granted and 14,000 refused. The great majority of people who apply for visas to enter Ireland, for whatever reason, are accepted. The number of non-nationals registered in Ireland at present gives the lie to the notion that some appalling, draconian fortress policy is being operated; it is not.
Will the Minister state how many are renewals?
A considerable number of visas would be renewals, I am sure.
Is the figure of 105,000 not representative?
The figure of 14,000 also includes renewal applications, so it goes both ways.
I welcome the Minister's discussion which may initiate a reasoned debate on how the issue of immigration is addressed. I welcome the reference to the state of our economy. We should be careful not to follow the example of Germany where, once the German economy was suffering, the guest workers were asked to go back to Turkey. The current work permit situation, in which the visa is tied in to the employer, often causes workers to be treated as little more than indentured servants. We must move away from those umbilical strings linking the employee to the employer. Employees must be treated with the respect they deserve. We should examine examples from abroad to find the best method and achieve an immigration policy that treats the immigrant with more respect than the current system does.
I agree with Deputy Cuffe that there are other countries whose systems are, shall I say, tougher than ours. I emphasise to the House that, once a person is resident in Ireland for five years, it is his or her right to apply for Irish citizenship. They do not have an automatic right to be Irish citizens, but in the ordinary course of events, somebody who is long-term resident in Ireland is accorded Irish nationality. In a period of five to 12 years, they become full citizens of our State. We do not operate on the German system where the nationality of a Gastarbeiter remains frozen in that status and this also applies to their offspring. We are much more generous in our approach.
There is a certain group of people who like to tell the Irish public, through the Irish media, that we are in some way morally derelict and far behind the rest of the world in these matters. The immigration and naturalisation process is an extremely inclusive one. Unless there is some specific feature of the applicant regarding his or her behaviour, anybody who behaves remotely normally in our society and who is a long-term resident in the country has every reason to believe that he or she will obtain Irish citizenship under our citizenship and naturalisation laws.
That is by no means the international norm. I am not saying that we are the most progressive country in this regard but we are well above the median line, on the spectrum of national policies in this area, in our willingness to give long-term residents the right to nationality. Each day, I see people such as nurses and doctors who have been here for almost five years waiting for the five-year period to finish so they can submit an application form. Some of them mistakenly start the process before five years have elapsed because they know there will be delays, thereby lengthening the queue.
There is a widespread feeling in Ireland that we are mean-minded, negative and exclusionary in our approach. If one compares us to any other European country, however, I believe one will find that the vast majority of long-term residents become Irish citizens. Those who do not become Irish citizens are those who choose not to do so, for whatever reason. I have no complaint to make in that regard, other than to say that matters are much easier for the State if such people become Irish nationals. If one is an Irish national, one does not have to register with the Garda, to acquire a residency permit or to register when one visits an hotel. We want those who are long-term residents here to take up their rights as Irish citizens if they so desire.
I move amendment No. 7:
In page 3, subsection (1), line 32, after "1999" to insert "but does not include a citizen of a European Union or European Economic Area member state save to the extent (if any) as may be prescribed".
We are making some progress. Although we are still on the first page of amendments, at least we have reached the last amendment on it. This amendment proposes that the definition of "non-national", which is taken from the Immigration Act 1999, should be extended so that it, "does not include a citizen of a European Union or European Economic Area member state save to the extent (if any) as may be prescribed." I have made this proposal because there is a considerable degree of confusion about the precise application of the restrictions and requirements the legislation imposes on non-nationals.
Section 2(2) states:
Nothing in this Act shall derogate from——
(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,
(b) any act adopted by an institution of those Communities,
A half-hearted attempt, at least, has been made to say that the provisions of this legislation do not apply to people from EU member states. The provisions seem to apply in some senses, however, but not in others. This confusion reflects the cobbled-together nature of the legislation. It is obvious that the Union did not exist when the parent legislation, the Aliens Act 1935, was drawn up. The EU has created a new relationship between its member states. It has conferred rights within the European Community that are enshrined in legislation under the treaties.
The suggestion that EU nationals should be treated as non-nationals by this State is a questionable one. It seems to me that the simplest way to clarify the matter is to include in this Bill a fresh definition of "non-national" that clearly indicates that EU nationals are not considered to be non-nationals. The legislation will be brought up to date if this is done. Such a measure would remove some of the references in the legislation that attempt to do the same in respect of derogations from legislation relating to EU treaties, institutions and bodies of legislation. Perhaps the Minister will solve this problem by agreeing to a fresh definition of the word "non-national" to take account of what I have said.
Article 18 of the EC treaty states that every citizen of the Union has, "the right to move freely and to stay in the territory of Member States." Some people consider this right to be absolute, but it is not absolutely absolute, if I may use that phrase. It is subject to the limitations and conditions set out in the EC treaty and to the measures adopted to give it effect.
I would like to speak about entry to this State. Community law, which is constantly evolving in this area as a result of the case law of the European Court of Justice, stipulates that member states must admit nationals of other member states into their territory on presentation of a valid identity card or passport, except in very exceptional circumstances. On the basis of the community legislation, as judicially interpreted, only those persons who are carrying a valid passport or identity card have a right of residence in Ireland. For example, community legislation does not provide for measures which member states may adopt if these documents are not available.
French people, for example, are entitled to come to Ireland but only if they are carrying a passport or ID card that we recognise. If they do not carry such an item, they do not have a right under EU or Irish law to come here. They cannot simply say, "I am French and I am coming in." There is a pre-condition that they must be documented as French. There are exceptions, therefore, to the rights of EU nationals in areas which are comprehended by this Bill. For that reason, I am not tempted to adopt Deputy Costello's approach of saying that this Bill does not apply to them. We need some means of dealing with a person who claims to be French but cannot produce documentation to prove it. If a person arrives here from France without documentation, I have to have some law by reference to which I can say, "Sorry, you cannot come in." If I was to say that this legislation does not apply to EU nationals, somebody would say, "I am an EU national, I am coming in and I am not going to prove to you that I am entitled to stay."
A number of the Bill's provisions are applicable to European Economic Area nationals — persons from the EU and the other EEA states. The provisions of section 10, for example, which relates to hotel registers, are applicable to EEA nationals. The provisions of sections 11 and 12, which relate to documentation requirements, are similarly applicable. The carrier liability provisions in section 2(1)(c) of the Immigration Act 2003 oblige carriers to ensure that all non-national passengers are properly documented, regardless of whether they are EEA nationals, when coming from outside the common travel area. If an airline such as Aer Lingus or — I have to be fair — Ryanair flies an undocumented French person, for example, to Dublin Airport from outside the UK and Ireland, it is liable to incur a penalty for doing so. There is no unrestricted right of access. If an airline produces somebody in that form at Dublin Airport, immigration officers can say that he or she does not have permission to land and can send him or her back. It is not as simple as saying that none of these provisions apply to EU nationals.
There are some very restricted circumstances in which an EU national may be the subject of a deportation. I refer to ordres publics, health grounds and things of that kind, which are provided for in sections 3(2)(c) and 3(2)(d) of the Immigration Act 1999. The person in question would be properly the subject of the provisions of section 4(3)(f)(i) of this Bill in such cases. For those reasons, I believe that the definition of “non-national” in this legislation is consistent with and coheres with the definitions in the 1999 and 2003 Acts. I am satisfied that the proper way to proceed in this legislation is to take account of the free movement provisions and the other obligations of our membership of the European Union. This is being done by means of section 2(2) of the Bill, which ensures that nothing in the Bill will derogate from those obligations.
European law on this matter is not fixed, because the European Court of Justice develops it from time to time and states the implications of the right to free travel and residence. As the Deputy will appreciate, European law in this matter is, by virtue of our constitutional incorporation, superior to Irish law. I can see exactly why the Deputy put down his amendment, but rather than trying to recognise EU law while saying it does not apply to this procedure, we should adopt a wiser approach, although it may seem conservative. We should provide that it applies to EU nationals except to the extent provided in the exceptions in the Bill.
That is what I say in my amendment, which would amend the Bill to state: "but does not include a citizen of a European Union ... member state save to the extent (if any) as may be prescribed". The Minister is inserting a derogation. The provisions being inserted in this fashion are rather sloppy. My new definition would improve matters immensely.
I thought we all operated in a sort of common travel area, that borders were inoperative on the Continent and that one could move without a passport or border control in a train or car from Belgium to France or the Netherlands. I thought Ireland was one of the few countries, because of the Schengen arrangement, that still had such requirements. Many people from the Continent, when they come here, are quite annoyed that they must produce identification and documentation, because they do not have to do this in neighbouring member states. It is only because of the Schengen arrangements that there is a limitation on the common travel area. I thought all that had changed since 1997, that Ireland and UK had always had a common travel area but now, with the expansion of the EU, this had been extended to other areas. We now have restrictions in the common travel area, although they are limited to us, while on the Continent the new common travel area has no restrictions.
The Minister spoke of the case of an EU national pretending to be French but who is not really. It is equally possible that a person might pretend to be Irish. If there is doubt, one is entitled to ask questions. That does not necessarily mean, however, that we cannot have a definition that will allow the legislation to apply to EU citizens except where we specifically say it does not. This would make things much easier for us. It would clarify which areas are covered by the provisions of the legislation and which are not. It is not quite clear as things stand.
The Schengen arrangements are similar in one sense to the arrangements between Ireland and the UK. The principle is one of free movement within a common, external, controlled perimeter. Once one is in the Schengen area, one is free to travel across borders without formalities. However, there are radical differences between the common travel area and the Schengen area. Right throughout Europe, including the Netherlands, which used to be more liberal than other European states, there is an obligation to be documented at all times. Ireland and the UK have no such obligation for their nationals. Ireland is a bit like an egg in this respect; once one is through the outside, it is all soft on the inside. Nobody can stop an Irish citizen on the street and ask him to identify himself.
My European Union colleagues on the justice and home affairs council find it hard to believe we do not have a State register of citizens in Ireland. If any of us went to stay permanently in Belgium, for example, he would be obliged to register with his local prefecture and with the police and he would need to register his lease with his landlord. The state knows one is there. The common law system in the UK and Ireland is different. The State does not know, and affects not to care, who lives in what house. With the sole exception of the register of voters, on which one places oneself voluntarily, the State has no record of who lives where in Ireland. Even our public service number card does not carry a photograph or an address.
What about the census?
The census is confidential. A garda cannot go down to the Central Statistics Office and demand to see information about Deputy Costello or anybody else. That is not part of our system. The census is taken every ten years as a record of where everybody is on one particular night. One is free to move house or move into and out of Ireland without notifying the Central Statistics Office.
I recently told my Dutch colleagues, who were surprised by this, that it was technically possible for a Dutch Minister to live in Dublin, commuting to work in the Hague every Monday and returning every Friday, with nobody in Ireland being aware of his or her existence, although identification may be demanded at the blue channel in the airport. We run a system of minimal State knowledge and official registration of our citizens' status.
How many European Ministers will be coming over?
I do not know. It is a curious fact. An Irish citizen going to work in Belgium would need to spend about a week establishing himself with the Belgian state, going from one office to another and registering his existence. He is not free to move from A to B without informing the state of this fact.
I am making a point about Schengen. The Deputy asked about our common travel area. The UK and Ireland have an external perimeter through which one cannot pass without documentation. Ireland is not part of the Schengen arrangement. Both states demand that citizens of EU member states document themselves passing through. People from outside Europe who have flown into Rome with an Egyptian or American passport must go through a separate process when they come into Ireland. We do not just take everyone from an aeroplane on the basis that they have all come through a common perimeter at some other point.
There are good reasons for maintaining the present situation, particularly as long as identity cards are not used in this State. There are good reasons as to why this is the case. We cannot have a system equivalent to the Schengen agreement if our citizens are undocumented. The rest of the European Union would not accept that an Irish citizen can swan around France and Germany in a T-shirt and jeans, unable to prove who he or she is. However, United Kingdom authorities will not stop an Irish citizen coming off the ferry at Holyhead because they do not have sufficient documentation or the authorities want to check who they are. This also applies to the Border. There is no question of any person resident on either side of the Border having to carry documentation when he or she passes through it.
A number of people claim that it would be much more convenient if we joined the Schengen agreement. In the long term, it will be an issue with which many people will agree. However, it would not be without consequence. One consequence would be that every Irish citizen would, thereafter, have to be documented. A second consequence would be that all Irish citizens would have to notify their local prefecture, Garda station, county council, or whatever is designated when changing address. Whether we want a nanny or fascist state with big brother screens will be trotted out as the reason it should not happen.
It would be the Minister's golden opportunity.
I am not attracted to making the carrying of ID cards mandatory. Deputies may be aware that the UK Home Secretary, David Blunkett, is working on a proposal for identification cards to be issued to every UK national, yet they would not be obliged to carry them. They will merely need to have one so that if an argument breaks out over a person's identity, they will have proof of it in the eyes of the state.
We are looking at this issue closely to see how it progresses. The possession and carriage of identity cards on a mandatory basis, tied in with allowing the police to demand their production, would not be a problem for me. However, if that power were generalised it could inconvenience marginalised people, giving rise to a suss law. People more likely to be of Garda interest would find they were being stopped all the time. That relationship between the police and the people does not exist in Ireland, and the longer we can avoid it, the better.
Will the Minister give me a one-line reply to this question? Would it be better if the legislation did not apply to EU citizens, except where specifically stated?
No. I do not believe that the non-application of this Bill to EU nationals would yield satisfactory results. I would be forced to introduce another Bill to put together special measures for EU nationals if this Bill was not applied to them in the way the Deputy is suggesting.
I move amendment No. 8:
In page 4, subsection (1), to delete lines 9 and 10.
I do not intend to press this amendment as the Minister addressed the issue in amendment No. 36. The amendment concerned the unfettered powers of the Minister to prescribe, by regulation, diseases and such. However, we can deal with the issue in its full context later.
I move amendment No. 9:
In page 4, subsection (1), line 21, to delete "of a ship".
This is a drafting amendment as the words "of a ship" are unnecessary.
Amendments Nos. 36, 38 and 106 are related. Amendments Nos. 37 and 38 are alternatives to amendment No. 36. Amendment No. 68a is consequential on amendment No. 106. Amendments Nos. 10, 36 to 38, inclusive, 66a and 106 may be taken together by agreement.
I move amendment No. 10:
In page 4, subsection (2)(b), line 29, to delete “the” and substitute “a”.
This part of the Bill has attracted public controversy since it was published last week. Amendment No. 10 simply proposes to delete "the" and substitute "a". Amendment No. 36, which is a Government amendment, proposes to delete paragraph (c) which attracted a good deal of negative comment and to substitute it with “(c) that the non-national suffers from a condition set out in the First Schedule”. Amendment No. 106 proposes to insert before the First Schedule, which will mean the original Schedule will become the Second Schedule, the conditions which can give rise to a refusal of leave to land in the State. These include diseases subject to the international health regulations for the time being adopted by the World Health Assembly of the World Health Organisation; tuberculosis of the respiratory system in an active state or showing a tendency to develop; syphilis; other infectious or contagious parasitic diseases in respect of which special provisions are in operation to prevent the spread of such diseases from abroad; drug addiction and profound mental disturbance, that is to say, manifest conditions of psychotic disturbance with agitation, delirium, hallucinations or confusion.
As I indicated on Second Stage, I availed of the opportunity presented by the intervening days between the Seanad passing the Bill and now to reflect on the best approach to this question. To put it in a historical context, the Aliens Order 1946 set out health criteria for the refusal of leave to land that included references to lunatic, idiot or mentally deficient persons, terminology that sounds stigmatising and is thoroughly unconventional in modern language. In 1972 following our accession to the EEC, provision had to be made for our obligations regarding the free movement of persons. Regulations were made under the European Communities Act 1972. In 1975, an amending Aliens Order made extensive changes to the 1946 order, including the adaptation of some of the provisions of the free movement of persons regime for general application. The old and, now, offensive provision was replaced with one which drew on the Annex to the Council Directive 64/221/EEC which deals with limitations on the right of free movement between member states.
The effect was to put into the Aliens Order a new Schedule of what were described as diseases and disabilities — disability is a word which now has a connotation it did not have at that time. That is how language and attitudes move on. The new provision reflects the terminology of the directive and mirrors precisely the list of conditions set out in the annexe to the directive. Thus since 1975 there has been a uniform basis for determining whether on health grounds a non-national should be admitted to the State, irrespective of whether the person is an EU national or not. The simplest and fairest option is to have the same criteria for both and that is what the Government amendments Nos. 10, 36 and 106 propose. The amendments do not use inappropriate terminology, nor do they use terminology in an inappropriate way.
There is virtually a unanimous Opposition view that no optional power should be given to an immigration officer to refuse a person leave to land on health grounds where that is appropriate. Refusal on health grounds has rarely been employed in the past and there should be no great change in that pattern in the future. However, in the event of an outbreak of a disease identified by the World Health Organisation as a danger to the public, I cannot have a situation whereby immigration officers could not keep such a disease out of Ireland. Who else is going to be at the airports if SARS or some variant thereof becomes a live issue? I would be failing in my duty to society if I accepted amendment No. 37. It would not be in the public interest to leave Ireland, alone among the countries of the world, defenceless against such an outbreak. It is the same with amendment No. 38. Whatever about the language, this concept is almost universal. Most Deputies would agree that if there was an epidemic of SARS or some other disease it would be wrong if immigration officers at airports did not have a function in relation to it.
On mental disturbance, I agree that the original language of the Aliens Order 1946 is hard to understand now. I grew up in a legal profession which dealt with "idiots" and "imbeciles" as phrases of common usage. They are now degrading terms to use about another human being——
Yes, but when they were included in legislation they were reflective of the social attitudes of the time.
To put this in context, no refusals on health or disability grounds were made in 2003. The House should accept that we had the Special Olympics in Croke Park. This issue does not arise in reality.
The term "disability", as used in the EU, has now taken on a different meaning. It is amazing how language changes. There was a time when one was not just permitted to call African-Americans black people, one was required to do so. Now that is not acceptable and one must use the term "African-American". What is acceptable in language changes and to some extent the law is always left behind. A particular form of tobacco was once referred to in an Act and its name was wholly unacceptable. I will not put the name of the tobacco on the record in case I have to read about it in the newspapers tomorrow, though those who are interested in the issue can go back to the budget which substituted one form of pipe tobacco for another kind.
Paragraph 6 of the Schedule deals with profound mental disturbance, which means manifest conditions of psychotic disturbance, with agitation, delirium, hallucinations or confusion. Under European law that is a ground on which a member state can refuse to give right of access to another member state. I have listened to radio broadcasts in which people have said we will be packing the mentally ill back onto aeroplanes and effectively avoiding our moral responsibilities for such people.
The Minister said it himself.
It is as if there will be psychologists out at the airport checking people for mental illness, with the State saying those people will not get into Ireland because we do not want to foot the bill for their treatment. That is not what this is about at all.
I wanted a simple definition for the ground, for example if a person was a danger to himself or herself or to someone else. However, that is not easy, as people ask what makes a person a danger to himself or herself. Is someone suffering from suicidal ideation to be refused admission to Ireland? Common sense phraseology was not without difficulty, so in the end we decided to have a level playing field and common standard for EU and non-EU nationals coming to Ireland.
People asked when these provisions will be used. For example, if someone was released on a technicality from a French court it might be apparent to the Minister of the day, from what he or she knew of the case, that that person was a sociopathic individual who posed a serious danger to members of society. In those circumstances it is not international law that Ireland should be obliged to say, "Come in, we will take the risk." We do not have to do that.
This is not something that will happen every day of the week, as none of these cases arose in 2003. However, I do not want to be in a position where, if Nicolas Sarkozy, the French Minister for the Interior, phones me and says that a very dangerous person is going from France to Ireland, I have to say that that is too bad as there is nothing I can do about it. The Irish people would not thank me if a person who had exhibited seriously dangerous tendencies came into Ireland in those circumstances.
Profound mental disturbance means manifest conditions of psychotic disturbance, with agitation, delirium, hallucinations or confusion. That is a very narrow subset of psychiatric ill-health and it sets a high bar at which an immigration officer must make a decision. It is not a matter of a person looking odd or being agitated, delirious or confused. The person must be suffering from profound mental disturbance, including one or other of those states.
The public is entitled to look to the Executive arm, the Government, to ask its immigration officers to protect the public in the same way that the rest of Europe protects itself. I am happy with the debate on the matter. This provision is as good as we can do for the time being and at least it has the value of being part of European law. These are recognised criteria for refusal. They have not been chosen arbitrarily or inappropriately by Ireland to deal with what is necessarily a very delicate issue. However, the truth is that though sensitivities are delicate and we must be careful with our language, at the bottom of this there is a contingency against which the public are entitled to be protected.
Tuberculosis was mentioned earlier. Deputy Deasy somehow drew an analogy between the obligation to inform, which existed under health protection legislation in the past, and the obligation cast on the owner of a premises to ensure that non-nationals residing with him or her conform with their obligations under this statute. I do not see a direct analogy between the two. Deputy Michael D. Higgins is of great value. He is a great man for searching his mental archives for interesting analogues in his debate. As far as I am concerned, there is no connection between the two. I do not see why it should not be a matter of concern to an Irish citizen as to whether a non-national residing with him or her is here lawfully. Social responsibility cuts both ways. One cannot simply say: "Somebody is in my house, it is their problem if they are here unlawfully, it has nothing to do with me." I do not think that is a reasonable way to operate. The duty against which Deputy Michael D. Higgins was railing is not a duty to inform, it is a duty not to have guests under one's roof who are here illegally. It is a fairly reasonable thing to say to Irish society that immigration law is not just a matter for gardaí and immigration officers to play some game. Everybody has a duty to uphold this law. Everybody who admits into his or her home somebody who is a non-national, in whatever circumstance——
The Minister is wandering from the amendments.
——has a duty to ensure that the law is upheld. I was just thinking about one of the circumstances to which that obligation would apply. The head of a religious house should be under a duty to make sure that the non-nationals in his or her congregation——
Does the Minister think Americans should inform George Bush about all the illegal Irish in America?
I would be surprised if under American law it is perfectly legitimate for somebody to harbour illegals in their home. I would be very surprised if Americans are that relaxed about their legal provisions. I doubt it very much.
Can we deal with the amendments?
Section 9(4), which forms part of the mechanism for the control of non-nationals, has been, as far as we understood it to be the case, the law since 1946. It complements the rest of section 9 and does not impose an unreasonable burden on householders in regard to non-nationals staying with them as lodgers, guests, au pairs, live-in domestic staff and so on. It will generally require no more than a question to the non-national concerned, inquiring as to whether he or she has fulfilled his or her statutory duty, or a gentle reminder that this should be done.
If a householder wishes for some reason to conceal the presence in his or her house of a non-national, it is right that the failure to take the requisite steps should be penalised. It is ripe for the exploitation of people, particularly in the case of au pairs, domestic staff and companions——
I do not wish to cut across the Minister, but we are dealing with the issue of health.
In most cases, both the householder and the non-national have no desire to be otherwise than in compliance and there is no problem.
On a point of order, a Leas-Cheann Comhairle——
What is the point of order?
We are not debating the amendment or section to which the Minister refers.
This issue has been an emotive one which has attracted a great deal of media attention. All of us have tabled amendments that delete the section.
I originally looked at this in terms of how the Minister presented some of his arguments. When one looks at it carefully, it is difficult to see how this section should be allowed to stand. It gives power to an immigration officer to make a blanket refusal if he or she is satisfied. That is the level of proof required. There is no requirement that any specialist, medical practitioner, psychiatrist or anybody who would be a proper judge be present to examine and make a determination.
In yesterday's debate, the Minister said that he would put a violent sociopath or similar individual straight back on a plane. There was no question of treatment or the health and safety of anybody who would be involved on the plane. This approach is just not good enough.
Deputy Twomey referred yesterday to the incredible work done by the medical profession in treating infectious diseases and its spread among non-nationals granted asylum here. They have prevented infectious diseases being passed to offspring and others in the community. Infectious diseases are not what they were back in 1911 when the legislation was first devised.
The range of specified illnesses is too broad. Tuberculosis is treated in the same terms as malaria, which we do not have in Ireland. From what the Minister said, it appears that we are free of this disease and that a non-national would be responsible for re-introducing it. This is a commonplace disease in Ireland.
Drug addiction is also a reason for refusal. It will be a great deal harder to identify and get rid of a drug pusher. Is schizophrenia a profound mental disturbance? How will it be determined? A diagnosis for it can take up to a week. The Minister has compiled a list of proscribed illnesses with which it is the responsibility of the immigration officer to deal. The manner in which this is presented is too heavy-handed.
Non-nationals should be given medical treatment if there is a suspicion that there is a medical problem. There is no requirement for this in the legislation and the Minister's approach is to put such a person on the next plane out of the country. The section is most unsatisfactory. I am not sure it is capable of being amended, and the Minister should delete it.
I agree with a few of the matters the Minister has explained. However, I cannot go along with this as I do not think it is necessary. I return to the Infectious Diseases Regulations 1948. The relevant regulation was repealed in 1981 because there was a perception that people were spying on each other. If someone was suspected of having tuberculosis, the intention was that the individuals in a school, college, hotel, club, guest house nursing home, factory workshop, office, store or restaurant would inform the authorities of the person's condition. This was repealed because it invaded an individual's privacy. There is no need for section 9(4). It turns people into immigration officers and turns bed and breakfast proprietors into informers for the Garda and the immigration bureau. The Minister should delete this section.
I will confine my remarks to amendment No. 106. I am particularly concerned about the provision in the First Schedule where someone can be refused entry on grounds of profound mental disturbance. During the Order of Business it appears, on the surface at least, that many members of the Government, let alone the Opposition, suffer from "agitation, delirium, hallucinations or confusion". It is difficult to judge in a short period of time if there exists a profound mental illness or a transitory state of confusion. It is wrong to make immigration officers judge and jury on this. If we are to adopt these grounds for refusal, the necessary medical advice should be available.
There is a real danger that people not allowed into this country will be returned to countries where there are, at best, rudimentary mental health facilities. I have no doubt that we have returned people to countries where existed only the shreds of a treatment facility for persons with mental health difficulties. I am concerned at the signal we would send out if we refuse entry to people on these grounds. A Victorian resonance seems to run through the Bill. We should reconsider this — profound mental disturbance should not be grounds for denying entry to Ireland.
While I accept the point about infectious diseases, we must be careful in this area. There are obviously issues surrounding, for example, tuberculosis, which can be a significantly infectious disease and people trying to enter Ireland have been found to suffer from it. I am not sure whether this should be extended to syphilis. I am not convinced that we should encompass in this part of the Bill people with profound mental disturbance. I am concerned about this and I urge the Minister to reconsider it. For example, if someone in a state of profound mental disturbance were entering the State with his or her family, would we refuse entry to the disturbed person and allow the rest of the family to stay? While this may have been the way things have been carried out for the past 60 years, this is not good enough for the 21st century.
While I am glad to see that the Minister adopted my amendment No. 38 as an element of amendment No. 106, it is a pity he added to it. After all, "disease subject to the International Health Regulations for the time being adopted by the World Health Assembly of the World Health Organisation" would have been sufficient to cover other diseases. If the WHO issued a directive stating that tuberculosis posed a threat, restrictions could be put in place.
The Minister's amendment states that drug addiction is a ground for exclusion. What drug does this refer to? Is it alcohol, tobacco or prescription drugs?
We are all on drugs.
I did not have sufficient time to develop the amendment I tabled. There are problems with the entire section. On what will the immigration officer base his determination? Everyone who has these medical conditions will not show outward signs. Will immigration officers have the benefit of medical advice? Will medical staff be present at points of landing? Will we medically screen immigrants to ensure we catch all these diseases and expel those suffering from them, even Irish people returning with these diseases? This question must be addressed. An immigration officer does not have the benefit of seven years' study in the medical field. Some of these diseases are not easily identifiable.
I have not had time to consult with medical experts to determine whether they would be happy with paragraphs 2 to 6 of the Schedule as proposed by the Minister's amendment. I have questioned how drug addiction can be determined. Does the wording of paragraph 6 prevent people who are not a danger to themselves or others from gaining residency or temporary stay in Ireland? Are we being too prescriptive?
Owing to the rushed nature of this legislation we have not had time to properly address it and will have to look at it in the future. Will the Minister tell the House whom the immigration officers are to consult when making determinations? I hope we will have other years like 2003 where immigration officers do not have to make such determinations and the work Governments around the world are doing in tackling poverty at source, and therefore disease, will pay dividends in the near future.
The issues of profound mental disturbance and serious dangerous tendencies have been raised. What do we mean by this? I have a concern about the way issues of mental illness and disability are dealt with. An idea seems to be lodged in the minds of people, whether politicians or legislators, that individuals with a mental illness are necessarily violent, disruptive or dysfunctional in some way. The reality is that 90% of people with this illness are not violent but a small minority are. It reminds me of the debate ten or 12 years ago on children with disabilities in primary schools. Children with disabilities were perceived at that time as a problem or a potential risk to other children when they entered mainstream schools. At present there are 15,000 children with disabilities in mainstream primary schools and this is not an issue for the vast majority of them. I think it is important to iron things out and bring reality to the debate.
Section 9(4) makes provision for situations in which non-nationals stay in a household. It states, "It shall be the duty of that person to take steps....to secure compliance with the terms of this Act in respect of the registration of or reporting by the non-national." I fully respect that people must behave as responsible citizens, but would we expect the people who live and work with law abiding illegal Irish immigrants in the black economy in the US to inform the authorities? There are thousands of people living like that and many cannot come home for Christmas or family funerals. We cannot apply double standards by bringing in such legislation when we expect other countries to do the complete opposite. I think it is important to highlight this issue.
Yesterday, my colleague Deputy Twomey raised this question which arose from his experience as a general practitioner providing medical services in the Wexford area for those arriving with particular diseases. The medical personnel provide a professional service and in many cases worsening conditions were prevented by their intervention, particularly with regard to the children of those families. Medical care has improved. I compliment those who work in the medical services on their excellent work in saving lives every day. It is not appropriate for the Government to be having a go at doctors and consultants. It should be out there working with them and trying to resolve the issues. The way in which consultants are being attacked is a disgrace in view of their dedication to their job.
We have to face the reality that drug addiction is not only an Irish problem which affects Dublin, but that it is a national and international problem. We have to work together to resolve this issue and offer constructive help to addicts. We know that Irish drug addicts travel to England and avail of services for addicts in London and Birmingham. It is a bit rich for us to raise the barriers in those cases.
The use of language is very important, and the Minister touched on this point, in dealing with this issue. It is best that words such as "aliens" and "idiots" are buried and forgotten because they were degrading. Like my colleagues on the Opposition benches, I too have major concerns about the Minister's amendments.
I have heard what has been said and some Deputies are asking me to withdraw this section completely. If I were to withdraw this section completely, I or my successor would have to face the consequences if a situation arose which had appalling consequences for somebody and nothing was done about it because we decided not to avail of a provision which is generally available under European law in respect of the admission or non-admission of nationals to each others states, and not even to have the protection which is recognised as available to us under European law regarding people coming from anywhere else. I do not believe that is a responsible decision to take. I do not believe it is sensible to make such a decision here today, especially as I said in the context of this Bill being one which is designed to keep in being a code of law which has worked well in the past. If one deals with individual cases, it is highly unlikely that an immigration officer will come to the conclusion that somebody coming in at Dún Laoghaire or Dublin Airport is suffering from syphilis.
He is not qualified.
It is highly unlikely that he would come to such a conclusion but there could be circumstances in which a carrier of syphilis, who had behaved appallingly irresponsibility in another state, was the subject of a notification to the authorities that he was on his way to Ireland. As Deputies know syphilis is a curable disease but it can cause terrible damage to innocent people, especially if the carrier conceals the fact that he is suffering from it. This provision is taken from European law and not invented by me. The carrier of such a condition could be somebody one would not want to come to Ireland because of his irresponsible attitude and the fact that he had infected five, ten or 15 women in a particular place. We do not want to expose Irish people to that risk. Likewise with tuberculosis, nobody knows more than I do what a scourge tuberculosis can be and I do not want in any sense to stigmatise people who suffer from it. However, again there are circumstances in which it would be legitimate for the Irish State if it had advance knowledge that somebody who was suffering from very active tuberculosis proposed to enter the State in circumstances where he or she would quite reasonably be a source of real threat to the people with whom he or she was going to deal. In those circumstances it would be reasonable to say, "No, your privilege of entering the Irish State which the Irish State accords you on this occasion would be inappropriate."
Likewise in cases of communicable diseases, such as SARS and other types of conditions, if the situation arises that we have to deal with these types of infections, somebody will have to make decisions and the Bill provides for medical inspectors to be appointed in addition to back up the immigration officers in certain cases. I am very clear in my mind that it is responsible to provide protection of this kind and it would be irresponsible to tear it down in a hallucinatory moment in Parliament in the belief that by doing so we were being somehow compassionate. There is nothing compassionate about exposing people to SARS if one can avoid it and there is——
There is nothing compassionate in sending people back to where they camefrom
There is everything to be said in certain circumstances for allowing the Irish State to say "No" to people coming into the country if it is suspected they are suffering from SARS
Did the Minister stop the Canadians entering?
It is not a compulsion to do this. Nobody is going to start testing people or rounding them up and behaving oddly towards them. It is simply a discretion that we have. Likewise I wish to state clearly that metal illness can have consequences for others. I am the first to understand that schizophrenia is something that would not normally be the subject of an exclusion under this Bill. Many of us know people who have suffered from schizophrenia or who are battling with it. It would not be a basis on which any immigration officer would intervene. However, if somebody, for example, the French Minister of the Interior, Internal Security and Local Freedoms, Nicolas Sarkozy, warns me that there is a dangerous psychopath who has killed before on the Cherbourg ferry on his way to Ireland, then, regardless of whether he has a criminal conviction under French law, I believe I am entitled to take steps to protect the public and not let that person loose.
I wish to indicate that I accept amendments Nos. 54, 59 and 61. These should be accepted as amendments when the Bill is guillotined.
I am now required to put the following question in accordance with an order of the Dáil of this day: "That amendments Nos. 54, 59 and 61 and the amendments set down by the Minister for Justice, Equality and Law Reform for Committee Stage and not disposed of are hereby made to the Bill, in respect of each of the sections undisposed of, that the section, or, as appropriate, the section, as amended, is hereby agreed to in Committee, that the Schedule and the Title are hereby agreed to in committee, that the Bill, as amended, is accordingly reported to the House, that Report Stage is hereby completed and the Bill is hereby passed."
As only one section of the Bill was reached during the debate, and it was not fairly treated, and as only 25 amendments of 100 were reached, I demand, as a teller, a vote by traditional methods.
It is a waste of time.
As Deputy Stagg is a Whip, under Standing Order 69 he is entitled to call a vote through the lobby.
Question again put: "That amendments Nos. 54, 59 and 61 and the amendments set down by the Minister for Justice, Equality and Law Reform for Committee Stage and not disposed of are hereby made to the Bill, in respect of each of the sections undisposed of, that the section, or, as appropriate, the section, as amended, is hereby agreed to in committee, that the Schedule and the Title are hereby agreed to in committee, that the Bill, as amended, is accordingly reported to the House, that Report Stage is hereby completed and the Bill is hereby passed."
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