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Joint Committee on Justice debate -
Tuesday, 21 Mar 2023

Opt-In Regulation (EU) 2021/2303: Discussion

No apologies have been received. I know Deputy Costello is in another meeting and hopes to join us at some stage and I understand that Senator Ruane is in the same position. I may also need to step out to attend the Joint Committee on Foreign Affairs and Defence which is meeting next door because the Chief of Staff is there and I wanted to have an engagement. I might ask one of the other members to deputise for me briefly if that occurs.

I think the usual arrangements relating to mobile phones and sound recordings are well understood by members at this stage. We have some public business on which we will engage with the Minister, Deputy Harris, and his officials and then we will have some private business at the end. Is that agreed? Agreed.

I welcome the Minister and his team to the committee again today. The purpose of this part of the meeting is to be briefed on the Opt-In Regulation (EU) 2021/2303. I understand that it is not for a decision of the committee today; I understand the decision will be made by the Dáil, if a decision is required, tomorrow. It is really for information of the committee today so that everyone understands what it is about. I will invite the Minister to brief the committee and then we will have an engagement. I do not think I need to remind anyone in the room about privilege, other than to say that the usual rules apply. I think that is understood by all present. The Minister is very welcome and I invite him to present on this item.

I thank the Cathaoirleach and committee members for having me here today. I know that later my officials will brief the committee on their work at EU level on child sex abuse. I am very pleased to see the committee's interest. I will be engaging with the European Commissioner on this matter on Thursday. Ireland is very keen to play a leading and constructive role. I look forward to hearing the outcome of the committee's discussions with my colleagues.

What I am here for is relatively straightforward, though it is obviously a matter for the committee to give a view on. I am here to discuss the Government's proposal the State exercise its option to opt in to the EU regulation establishing a European Union agency for asylum. I thank the committee for its engagement on this matter. As I go through my note members will see this is very much a continuation of existing policy and previous policies taken regarding precursors to the establishment of this agency. As members will be well aware, Ireland and the UK at the time negotiated a protocol known as Protocol No. 21, which is annexed to the Lisbon Treaty. The effect of the protocol is Ireland is not automatically bound by EU measures in the areas of freedom, justice and security - this obviously includes asylum - unless it notifies the Council and the Commission it wishes to opt in. The State may opt in to a measure either within three months of its publication or at any time after it is adopted. Any decision to opt in is subject to the approval of both the Government and both Houses of the Oireachtas.

The regulation establishing a European Union agency for asylum was adopted on 15 December 2021 and came into effect from 19 January 2022. It repeals and replaces an earlier measure establishing the European Asylum Support Office that Ireland participated in fully. We have, therefore, already taken the policy decision to participate in the office that was a precursor to this agency. This regulation tries to build on the mandate of the European Asylum Support Office to turn it into a fully-fledged agency equipped with the necessary tools to improve the implementation of the common European asylum system across the Union. All other member states are automatically part of this agency, so were Ireland not to opt in we would be on our own. Opting in to this measure will bring us in line with those member states already participating. Some of the key functions of the agency are to enhance practical co-operation and information exchange on asylum processes across member states and to ensure greater convergence in the assessment of protection needs across the Union. The agency would have a monitoring role in this regard and will provide increased operational and technical assistance to member states that have asylum systems that are under pressures. There will be an obligation on member states to contribute to an asylum reserve pool of around 500 experts established under the regulation to assist the agency in providing this support to member states. It is anticipated Ireland would be expected to pledge in the region of five to ten people to this pool.

I hope committee members look favourably on the proposal to opt in and that the committee and indeed the Oireachtas see the benefits it will bring in the form of enhanced co-operation and information exchange with our European counterparts. From my attendance at meetings of the Justice and Home Affairs Council and my engagement with European counterparts, I can tell members that Europe is dealing with migration. We are a member of the Union, but this is a Europe-wide challenge and it simply seems logical and sensible that there be a pooling of information and expertise and an exchange. As I said, we have already been doing this and Ireland has been participating fully in a version of this, if I may call it that, through the European Asylum Support Office. This is Europe deciding to take the next step and establish a formal agency. It is a very good thing and it would be peculiar for Ireland to not be a part of it. I hope the committee shares that view.

I thank the Minister and invite contributions from the room. We will hear from Senator Ward, Deputy Martin Kenny and perhaps Deputy Alan Farrell.

I thank the Chair. I agree with what the Minister said. As a small island nation and a small nation in the context of our European neighbours it is tremendously important for us to plug into this. There are so many different areas where we can share with our European colleagues but also gain intelligence, information, skills, etc. I wanted to say I absolutely agree with what the Minister said. Where we can, we should and in this instance we can and we should.

I likewise think it is something we need to be involved in. There are a few issues around this. The Minister mentioned that there would be a pool of expertise to assist countries that are under particular pressure. On numerous occasions Ireland has been one of the countries that is under pressure. It continues to be because for the size of our population we have quite large numbers of people coming here seeking international protection, which they are quite entitled to do. Such applications must be processed and we have legal obligations to do that in a coherent and rigorous fashion and people have a right to appeal if they are refused protection initially and again that has to be gone through and there are legal obligations around all that. Sometimes that can put great strain on our own system and we may sometimes require the assistance from the pool of expertise and the additional resources that may be available through this agency. I would like the Minister to comment on that. Is it something he sees happening?

The other issue is asylum in Europe and across the European Union. I am not sure whether the Minister has read Sally Hayden's book My Fourth Time, We Drowned. She writes for The Irish Times and the book is about the EU's response to people coming across the Mediterranean and how it has engaged with Libya to get its coast guard to round people up, bring them back and put them into compounds very similar to concentration camps, from what anyone can see. There are huge issues with all of that. It is about the way Europe has dealt with these matters. We also have a situation in Türkiye where the authorities there have also been engaged by the EU to deal with people trying to cross into European territory. There are serious issues with respect to the human rights of these people that must be acknowledged and dealt with. If we are engaging with the group and are going to be part of it, which I appreciate we have to be, we need to be raising the concerns around these issues and doing so very strongly. It is inappropriate that people who make it across the Mediterranean are treated one way and others, who can be rounded up at the behest of Europe and brought back to other jurisdictions outside Europe, are treated in a disgraceful fashion. We need to find a means of doing much better with all that, because there have been very serious human rights violations in respect of those matters. I would like the Minister to comment on that.

I thank my colleague, Senator Ward, for his comments and support. He has summed up my view that we can only gain from participation in this. We are a small country at the heart of Europe but on the geographic periphery. We can only benefit from an exchange of information and fundamentally that is at the heart of what this agency intends to do, namely, share information, best practice and expertise.

I thank Deputy Kenny for his constructive engagement and recognition of the benefit of this to Ireland. He asks legitimate questions. I have not read the book but I will. The issue of assistance is something I certainly do not rule out our doing. I do not mean this in a flippant way but we obviously cannot seek assistance until we have opted in, so that at least becoming an option shows the benefit of opting in. According to my note, there are ten member states that currently have operation plans in place. They are Romania, Cyprus, Greece, Italy, Malta, Austria, Belgium, Lithuania, Spain and the Netherlands. The support can very in terms of a country-specific scenario, but it is clear it does not matter what member state you live in, as while some are under more pressure than others the overall scenario in relation to the EU and migration is significant at the moment. Last year, 330,000 irregular entries, as they are described at a European level, were detected at EU external borders. That was the highest number since 2016. It is a 64% increase on the previous year. The western Balkans route is 136%, the eastern Mediterranean route is up 108% and the central Mediterranean route is up 51%. These are the most active routes. This has put pressure on front-line member states at the external borders of the EU.

I want to be associated with Deputy Kenny's comments, because it is important when we talk about these things that we are associated with such comments. People have every entitlement to come and seek protection in the EU and protection in any member state of the EU. I am very proud of the approach we take and Europe takes versus the approach others take to migration. We have a rules-based system. It is robust. We all need to work to make it more efficient and we are doing so, but fundamentally we believe in helping people in need and that is an important characteristic of our nation and of the EU. I might get the Deputy a note on one of the points he made because I do not have the materials to hand, although I have some of it my head as I heard from the Commissioner on this recently at my last meeting in Brussels. Embedding human rights and respect for human rights and law and international law and decency and dignity in any return agreements the EU is involved in and is funding is a core component of the work we are doing. Can we and should we do better as a Union? The answer is "Yes", but it might be useful if I can get the committee a note on this, because it is an important point. More and more, return agreements are going to be a part of the European response. It is a question of how to safely and legally return people who do not have a right to be in the EU and how to do it in a way that is absolutely compliant with and upholds their human rights.

It is something the Commission is working on and has a number of return agreements in place. I would be very happy to share a briefing note on it with Deputy Kenny through the committee.

I understand the return agreement is part of that but this is also about people who do not get here to return. They are intercepted before they arrive onto European territory and are brought back and held at the behest of the European Union which pays for that to happen. We look with a jaundiced eye at Britain for the proposal to send people to Rwanda but the fact is that the European Union is doing exactly the same thing in respect of what is happening in Libya and in Türkiye. I welcome whatever note the Minister can get but there are clearly issues here that we are avoiding. We should stop avoiding them.

I do not want to avoid any issue and I certainly take seriously what the Deputy says. I would fundamentally reject with every fibre of my being that the position of the European Union in relation to migration - and this country being a member of the EU I am not talking about Europe as something separate and disconnected from us - is in any way shape or form aligned with the policy adopted by the British Government on migration. Deputy Pringle can have a different view but I would love him to show me how and I would show him, in a briefing note, how we have a very different approach. People have a right to seek protection. We are a member state of the EU. Britain would not be allowed to do what it is doing if it was a member state of the EU. I do not want to get too much involved in the internal affairs of another country but I do think they are fundamentally different. However, I do not wish to dismiss the important points that Deputy Martin Kenny makes about the safety of people trying to access the EU. There is the importance of legal routes for migration. I often say, and I believe passionately, that we need more people to be able to come to the EU to work. We need more people to come to Ireland to work but it is about providing those legal routes. I am very clear in my mind that the EU takes a very different approach from the EU on returns, migration and some of the policies that the UK has announced recently.

My apologies for being late. I was at another meeting. I am just reading the proposals. Will the organisation link in or work with Frontex? The Minister talks about how good the European policies are. Surely he would agree that Frontex has not covered itself in glory in how it treats immigrants in Greece and places like that where there have been documented cases of people being put back in boats and pushed back into the Mediterranean by members of Frontex and by the Greek authorities as well. In that case, the Brits are actually better in that they let the people arrive. The EU is forcing people back into the sea. I am wondering what the new organisation's role will be and what its links to Frontex will be. Is there any information on that?

The principal roles of the agency will be monitoring. The monitoring will cover the operational and technical application of all aspects of the common European asylum system. Frontex is obviously a border agency whereas this will monitor the common European asylum system. They are not directly linked but, again, when I go to justice and home affairs meetings there tends to be a sharing of information from all agencies involved in migration, border controls and the like. However, they will not be directly interacting. Some of the things the new agency will monitor will be the operation of the Dublin III regulation proceedings for granting international protection including respect for fundamental rights, which relates to Deputy Martin Kenny’s point; child protection safeguards; the needs of vulnerable applicants; the availability and capacity of staff in terms of translation and interpretation; capacity of staff to handle and manage asylum cases efficiently including appeals; reception conditions; capacity infrastructure and equipment; and financial resources for reception. The way I describe this agency in my own mind is an effort to share best practice across the common European asylum system in relation to procedures that are in place. It is very much an agency that will work as a support tool for member states. We all, as member states, will feed in expert numbers. Ours will be quite small in the overall scheme with about five to ten members. It is available to member states which can call on the agency for support. It will also do something else that I know the Deputy holds deep convictions on. It will provide monitoring and reports on how countries are doing to respond to our legal obligations and our obligations under the common European asylum system. Before Deputy Pringle had the opportunity to arrive, I mentioned that this is not in itself that new a departure for Ireland because its precursor was an asylum support office which Ireland was already in. As migration has become such a very significant issue there has been a decision to upgrade that office, as it were, to an agency and to take things that have been discretionary until now, things that generally happen such as the sharing of information, and make them requirements. All other member states have automatically opted in. I know the Deputy is not suggesting this but were we not to opt in, we would be very much on our own and therefore we would not have the ability to seek its support either.

Is Frontex one of the agencies that the Minister would look to for best practice or expect best practice from?

This is an agency in its own right. The Deputy is asking me a question specifically about Frontex. I think all our European agencies do their very best to respond to very difficult and challenging situations. Can people and organisations sometimes do better? Of course they can but this is an agency in its own right. The only exemplar that this agency is building on is the work of the asylum support office.

I do not think any other members are offering.

I have one quick question. The Common European Asylum System, CEAS, mentions information exchange. Is that about policies, procedures and systems or is it information exchange about individuals who are seeking asylum as well?

No. It is absolutely not about the individuals, it is about the systems. It is about best practice and it is about a resource to draw on to support the embedding of best practice and the information exchange but I welcome the question because it is an important one.

That concludes our discussion on that item. I thank the Minister and his team for being with us today.

The joint committee suspended at 3.28 p.m. and resumed in private session at 3.30 p.m.
The joint committee adjourned at 4.08 p.m. sine die.
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