JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 13 May 2003

Vol. 1 No. 24

Immigration Bill 2002 and Supreme Court Decision: Presentations.

Chairman

The purpose of today's meeting is twofold - to discuss the contents of the Immigration Bill 2002 and to discuss the implications of the recent decision of the Supreme Court concerning the children of applicants for refugee status and asylum seekers.

A joint submission has been already circulated to the joint committee by our guests which outlines their concerns in respect of the Immigration Bill. It is proposed to hear short presentations on this issue following our discussion on the Supreme Court case.

The first part of the meeting will focus on the individual concerns of the groups attending the meeting today on the implications of the recent Supreme Court judgment. We have some logistical problems in so far as the Minister will take Priority Questions in the Dáil today at 3.15 p.m. Our intention is to ask the first three groups, in alphabetical order, to make five minute presentations on the Supreme Court judgment, following which members can ask questions of the representatives. We must try to get around the fact that Priority Questions will be taken in the Dáil at 3.15 p.m. I ask members of the delegation to introduce themselves in alphabetical order. I know some people will change what they call their group to ensure they move to the top of the alphabetical list. We will start with Amnesty International.

Ms Ursula Fraser

I am Ursula Fraser.

Chairman

I welcome you, Ms Fraser. The next group is Comhlámh.

Ms Deirdre Lewis

My name is Deirdre Lewis.

Chairman

You are welcome. The next group is the Irish Congress of Trade Unions.

Mr. David Joyce

I am David Joyce.

Chairman

You are accompanied by Mr. Noel Dowling. The next group is the Irish Council for Civil Liberties.

Ms Aisling Reidy

My name is Aisling Reidy.

Chairman

The next group is the Irish Refugee Council.

Mr. Peter O’Mahony

My name is Peter O'Mahony.

Ms Gibbons

My name is Cabrini Gibbons.

Chairman

You are both welcome. Cuirim fáilte roimh Bishop Fiachra Ó Ceallaigh, chairperson of the bishops' committee on asylum seekers and refugees. Bishop Fiachra is in Rialto in my constituency, so he will get a fair hearing today. He is accompanied by Sr. Joan Roddy.

Sr. Joan Roddy

I am lucky to be with Bishop Ó Ceallaigh.

Chairman

I will allocate less than five minutes to Amnesty International, Comhlámh and the Irish Congress of Trade Unions. I ask them to be as brief as possible.

At its meeting on 28 January 2003 the joint committee decided to hold a meeting to discuss the practical implications of the Supreme Court decision of 23 January 2003 in the case of "L and O" concerning the residency rights of non-EU parents of Irish born children. In upholding a High Court decision made in 2002, the Supreme Court by a 5:2 majority decided that non-national parents of Irish born children and their non-national siblings are not entitled to live in this country by virtue of having an Irish-born child. The decision is likely to have important implications for approximately 10,000 non-national adults and children in situations similar to those of the persons directly involved in the case.

A decision of the High Court last Thursday, 8 May, found that the detention of a Nigerian asylum seeker was illegal and that the refusal of her application for residency was unfair. The person concerned was the first parent of an Irish-born child to challenge a deportation since the Supreme Court ruling of 23 January that non-Irish parents of an Irish-born child have no automatic right to live in Ireland.

I ask Ms Ursula Fraser from Amnesty International to make a short presentation. We will come back to you about the Immigration Bill and if you want to make additional comments about the Supreme Court ruling.

Ms Fraser

Amnesty International's main concerns regarding the Supreme Court decision on Irish children are less about citizenship and more about the principle of non-refoulement, which is that states are barred from sending people back to persecution. However, given that approximately 9,500 of the outstanding 11,000 residency applications are from current or former asylum seekers, the issue has been brought into the realm of asylum policy whether we like it or not.

Amnesty International has three comments to make about the decision. The first relates to our obligations under the Convention on the Rights of the Child. We have specifically noted in our paper Article 9 which states that a child shall not be separated from his or her parents against his or her will except when a competent authority, subject to judicial review, determines and, in accordance with applicable law and procedures, decides that such separation is necessary for the best interests of the child. We also refer to the preamble to the convention which states that the family is the fundamental group of society and that for the full and harmonious development of children, they should grow up in a family environment.

Children have an entitlement to be cared for by their parents. These are our obligations under the international Convention on the Rights of the Child in so far as they relate to these residency applications. We note there will be many instances where it will not be in the interests of the child to be sent back to the country of origin of some of the parents involved in these residency applications.

The second point is about legitimate expectations. Considerations of natural and constitutional justice require that the legitimate expectations of the non-national parents be taken into account. Many people who made applications for residency were advised by Government officials and/or lawyers that, based on the State's policy towards the parents of Irish children, they would secure residency status even if they withdrew their asylum applications. I know some of the other organisations here today will talk about the importance of reinstating asylum applications and the possibility of these people reapplying for asylum at whatever stage of the process they left it.

I would like to make a few comments about the transparency of procedures. Amnesty International asks for an independent review body to be established to consider the outstanding 11,000 residency applications. This body should be free from the pressure of politics and any popular opinion and it should be independent of the Department of Justice, Equality and Law Reform which has responsibility for asylum policy in the State. Our concerns are outlined in a document which has been circulated to all committee members. I thank the committee for its attention.

Ms Lewis

On behalf of Comhlámh, I reiterate that any child born in Ireland is a citizen of the State and should be accorded the full legal rights and protection of the State, irrespective of the residency status of his or her parents. I draw the committee's attention to the limbo in which many people have been left. As Ms Fraser said, many people withdrew their applications for asylum on the basis that they would be granted residency following the birth of their Irish child. Rather than talking in the abstract, I want to point out an incident which happened to one of our members whose child was born in November 2001. That couple have still not heard about their status from the Department almost a year and a half later. There is a lot of trauma and people are living in an untenable state of uncertainty.

The current guidelines and procedures on how people who withdrew their applications may re-enter the asylum process are unclear. The website of the Department of Justice, Equality and Law Reform used to have information on the application forms. However, the information has been withdrawn since February 2003. The statement on the website is confusing for people who are left in such limbo. We request the Department to make a clear statement about whether people are entitled to re-apply and how they should do so. As regards anyone who has withdrawn an application for asylum but who would like to apply for residency on the basis of his or her child, we are concerned about the statement on the website which states that people must wait until they are offered a deportation order by the Minister before they can make an application for residency. That leaves people in an untenable psychological situation. We urge the Minister to rapidly redress that.

We are concerned about the deportation of parents who take their Irish child with them. What will the State do to protect the rights of such children? If the parents of the child who are returned to their country of origin are persecuted or imprisoned and the child is also persecuted, imprisoned or tortured, what will the State do to protect the rights of that child? As regards the deportation of parents who leave their Irish child behind them in Ireland, who will care for these children and what resources have been allocated to care for them? What guidelines or procedures are in place to care for the child and to guarantee his or her rights as a citizen? We would like a clear statement from the Government about the limbo in which many parents of Irish-born children have been left.

Chairman

I ask the Irish Congress of Trade Unions to make a short submission.

Mr. Joyce

We do not have a submission on that specific issue.

Chairman

Thank you very much. Does Aisling Reidy wish to contribute?

Ms Reidy

Yes, thank you, Chairman. The position of the Irish Council for Civil Liberties is contained in a document that has been circulated but it would take me much longer than my allocated five minutes to go through it. However, the predominant issues we wish to make clear to the committee relate not only to the situation of people such as the applicant, Ms Oja, in last-case court cases but also to any non-EU national who is, or has been, living in Ireland and is now the parent of an Irish child. It should not be forgotten by the committee that the Supreme Court case which was heard back in January was not, in essence, a case about immigration law or immigration policy. At its heart, it was a case about the extent to which the constitutional rights of an Irish citizen child could be restricted with regard to immigration policy considerations. Last week, the High Court reinforced the fact that every decision taken about whether or not a child can remain in the State accompanied by its parents, needs to be decided on its merits and in terms of the aspect with which we are dealing, namely, the constitutional rights of an Irish citizen. Only after that can we decide what overriding factors can be brought legitimately to restrict those rights. That is an important perspective to remember when we are looking at the results and the policies the Government would be entitled to adopt following the Supreme Court decision.

Our recommendations following on from the Supreme Court decision relate to general policy considerations and specific categories of people who now find themselves, as we have heard, in an untenable and anxious situation because of the Supreme Court ruling. We have only looked at the majority decision of the Supreme Court but there were, of course, two dissenting judges who felt that deportation in circumstances such as those of the families affected would be unconstitutional. Even if one has regard to the majority decisions, the limitations are clear as are the policy guidelines which must inform governmental steps following the decision. They include the fact that the Irish child is allowed to remain in Ireland anyhow. There is also a presumption in favour of the child having the company of its parents in the State. That must be the starting position for any decision. From thereon, each individual case must be examined in detail on its merits, looking at the particular circumstances of that family. Each case must be considered not just on its merits but giving fair due process to each individual applicant. Unfortunately, that did not happen to Ms Oja in her case. Where the decision maker has decided that there are grave and substantial reasons which outweigh the constitutional rights of the child to enjoy the company of its parents, he or she needs to examine also whether or not they balance the grave and substantial reasons identified with the impact on the constitutional rights of the child.

The Supreme Court decision has no effect whatsoever on the obligations under international law with respect to the right of people fleeing persecution to be entitled to refuge here and to have their cases for asylum properly considered. The Supreme Court ruling makes no pronouncements on that right and it cannot undermine the Government's obligations in international law. In fact, the Supreme Court did take into consideration the international obligations of the Government under the Dublin Convention. Equally, therefore, the other forms of international obligation the State has undertaken, which are much longer standing than that of the Dublin Convention, must be given due weight in any consideration policy. They include the Geneva Convention relating to refugees, the international convention on the rights of the child, the European convention on human rights, which is to be part of Irish domestic law at some stage, and other international obligations.

Unfortunately, the Minister has taken two decisions based on the Supreme Court ruling, one of which was to withdraw the right to apply for residency. We strongly oppose that decision and we consider it is not compatible with the findings of the Supreme Court. In effect, it says that an Irish child citizen has no avenue through which to have its constitutional rights tested. A legal immigrant in Ireland working with a work permit, as a student or with refugee status, who has a child, has no way of establishing residency for the child, even though the child may have been here for a number of years and the immigrant may wish to regularise his or her situation in the best interests of the child. There is now no way to do that except to deliberately overstay a work permit or student permit, face a deportation order and then raise the fact that an Irish citizen is part of the family, as a shield to deportation. The measure withdrawing the right to apply for residency is a disproportionate response and does not vindicate the constitutional right of the child who is still at the centre of any of these decision-making processes. We advocate the reinstatement of that right. I will save any further comments until afterwards.

Chairman

I will now call on Deputies Costello, Paul McGrath and Peter Power to ask some brief questions.

Deputy Costello

Unfortunately, I will have to rush off in the middle of the presentation for Priority Questions in the Dáil. I am delighted to see everyone here. You made the right decision, Chairman, for the committee to meet as many groups as possible, thus assimilating their views with a view to developing a coherent policy on the Supreme Court's decision. Central to what is being presented here is the fact that the rights of the child are paramount and any other decisions should reflect the vindication of those rights. Once we commence from that starting point we will begin to get things right.

I am concerned to hear the Minister is withdrawing the right for people to apply for residency and that people who wish to apply must await a deportation order and only in that last resort situation can they go about the process. This is not the right way to go about it and a coherent policy should be put in place.

Do the three groups feel that a single coherent policy can be put in place to deal with the approximately 10,000 current cases? Could that be done under the auspices of an independent review body, as suggested by Comhlámh? Would the Minister for Justice, Equality and Law Reform come aboard on an issue like that? We have already discussed inviting the Minister to attend the committee, having had the benefit of hearing what the three groups have said. A piecemeal policy should not be implemented prior to the outcome of all the discussions and consultations in which we are currently engaged. Hopefully, a single coherent way forward will arise from our discussions so that we can deal with all these cases. The issues include late applications for residency after deportation, ministerial discretion in dealing with individual cases, and the constitutional aspect. Whereas the decision has been taken not to grant residency, the constitutional rights of children not to be deported from the country, or to be deprived of the care of their parents who are being deported, also come into play. There are many issues of this nature that can only be dealt with if we adopt a coherent approach towards solving them logistically. Otherwise, such individual cases could continue for the next ten years. I seek a response to the collective question of what would be the best manner in which the committee, having consulted all the groups, might put together a policy and engage the Minister.

Chairman

It was also our original intention that people caught in this bind, who are asylum seekers and applicants for refugee status, would appear before the committee to tell us at first hand the problems they experience. We are not finished on this matter. We will return to it.

Deputy P. McGrath

It is clear from the presentation the groups made that, were they in the deciding position, they would not have made the same decision as the Supreme Court. However, they have said they respect its decision, as do all of us.

Could each of the groups tell us in a few sentences where we should go now and what we must do? The Comhlámh group recommended putting in place a group to review applications for residency. Is there anything else that should be done? What would the groups recommend the committee should do to try to overcome the difficulties they have outlined for Irish citizens who are deprived of their right to live in Ireland? Perhaps the groups could give us three or four brief proposals on where we could go and how we could handle it.

Deputy P. Power

I join my colleagues in welcoming the groups to the meeting. Their input into this complex and difficult subject is valuable. I share the points made by the groups about many families who now find themselves in a legal and administrative limbo. As legislators we must share in the groups' sympathy with those families because they are in a difficult position. This is especially the case for those relying on the old system in the hope that they would, as Ms Fraser pointed out, have a legitimate expectation of residency having been in the country from seven to ten years already. Our sympathies must lie with those families and we must see if we can find a solution.

I wish to pose a few questions to Ms Fraser about her contribution. She appeared to indicate that this was an issue not so much about immigration policy and the constitutional issues involved but more about repatriating people to countries where they may face some form of oppression or discrimination. Is she saying, therefore, that if the country of origin of the parents did not discriminate or victimise people, it would be all right to repatriate families in such circumstances? It is a question on which I would like clarification.

On the point Ms Fraser made about legitimate expectation, have any of the groups considered or have they experience of the families affected bringing court cases under that heading? I would be interested to hear that. Do the groups feel there is a further avenue of appeal under the International Convention on the Rights of the Child?

To echo what my colleagues said, the committee would be interested in a series of options. At one end of the scale would be those who would advocate a constitutional referendum to copperfasten the rights of the child. It is disappointing that the Supreme Court, not just in this case but also in others, appeared to relinquish much of its power in this area to the Executive, saying it did not want to deal with these issues and that they were a matter for the Executive. That was a bit of a cop-out. If, at one end of the scale, a referendum is needed to protect the constitutional rights or, at the other end, simple administrative measures, I would be interested, as would my colleagues, to hear what proposals the different groups might have in this area.

Deputy F. McGrath

I welcome the groups, strongly support most of their suggestions and will support their amendments to the Immigration Bill. As someone who worked in my previous job with children of different nationalities, I have seen the positive side of immigration. We all have a duty to support these amendments.

I strongly support the view that any child born in Ireland is a citizen of the State, should be respected and accorded full legal rights and the protection of the State. That is my position. I am very disappointed by any view contrary to that. It fits into the negative side we have often seen in the media on the immigration question and the issue of children born in Ireland to parents of different nationalities.

I had the privilege of seeing the positive side. This nation has a long history of emigration and has an extra responsibility to be sensitive to and conscious of this situation. Any advice the groups can give us as legislators would be deeply appreciated. I wish them well in their work.

Chairman

I call on the Irish Refugee Council and Refugee Project to make a short presentation and perhaps also briefly answer some of the questions raised. I call Mr. Peter O'Mahony chief executive officer of the Irish Refugee Council.

Mr. O’Mahony

Our interest is exclusively those parents who, along with their children, have or had claimed asylum. That is not all the non-national parents affected but it is a substantial number. That is the specific group of particular interest to us.

It is probably worth repeating what has already been said. In the months leading up to and since the judgment, many of these people have lived with worry, confusion and fear. It is important to recall that some of them submitted their applications for residency as early as autumn 2001. They may have been in the country at this stage for well in excess of two years, during which time they will not have had the right to work and will have been living in a limbo situation.

We have outlined four key points to our submission. We would request confirmation that asylum seekers who had withdrawn asylum applications with the legitimate expectation that they would be granted residency would now be entitled to reactivate their asylum applications. We think that is very important.

We note that the Minister has the discretionary power to grant permission to remain to individuals who do not wish to go that road. We request that such discretion be exercised appropriately.

Individuals concerned should not have to await notice of a deportation order to make applications for leave to remain. It does not make sense that someone must wait for a deportation order before he or she can effectively start the process. The practice whereby a deportation order can be issued while the application for residency is still pending should be discontinued with immediate effect.

We have outlined those key points in the three page document we have submitted and they are backed up by appendices explaining some of the relevant parts of the Act.

We would like to see clear, transparent and non-discriminatory criteria as the basis for the deportation of non-EU nationals who are parents of Irish children. It is important there is transparency and no discrimination. We request that ministerial discretion be exercised appropriately and those who have drawn up an asylum application with the legitimate expectation that they would be granted residency would be entitled to reactivate their asylum applications or be granted leave to remain. In our document we have expanded on those points.

Sr. Roddy

In the interests of brevity we did not want to repeat in our submission the points made by others but the Refugee Project endorses the points made by the other organisations. We too are concerned that all Irish children be granted the same constitutional rights. Ireland's commitment to uphold the best interests of the child in accordance with the UN Convention on the Rights of the Child is seriously compromised where not all citizen children are accorded equal rights. This is in the context of the forthcoming second examination of Ireland's report on the Convention.

We also raise concerns particularly about the 10,000 people awaiting decisions on their applications for residency. Many of them are already a long time in the country and there has been a delay of three months since the Supreme Court judgment so there has been no clarity or information available to these people. They are experiencing stress and uncertainty in this country and many left such experiences in their own countries, which means their vulnerability is being doubled.

Also affected by the judgment are people with residency rights who have applied to be reunified with their families. Those cases have been put on hold. I can give the example of one family with which I have dealt where the mother came here with a work visa - not as an asylum seeker - and worked in health care. She had a baby here and applied for residency rights on the grounds of having her baby. She has been joined by her husband, a dentist, who also has residency rights as the parent of an Irish child. They have gone through all the "correct" procedures in terms of being reunified with their five-year-old child in their country of origin. As I wrote this they had not had a response from the Department of Justice, Equality and Law Reform, but before leaving my office I was told by them they had been refused this right. They have now written for an explanation. This is a cause of severe stress on various grounds and certainly on the grounds of being separated from one of their children, who has been far away for some years now. Their younger child, who will be two next week, has never met his five-year-old brother. That is one human story. As a Christian organisation we join with other voices on the basis of our common humanity and on the dignity of every person not to be left in this position. The country and Government is called to be consistent in its policies and procedures. By the end of this year we hope to have a national action plan against racism and to pursue an integration plan very actively and vigorously involving people from other cultures.

Ms Fraser

On Deputy Power's point regarding people being afraid to return, the bulk of applications are from former asylum seekers so if they express an intention to claim asylum subject to a fear, subjective or objective, they should be allowed to re-enter the process. Regarding legitimate expectations, I hope a case would not be brought and that the authorities would get the proper legal advice in advance of setting up whatever structure to decide on these applications to avoid such a case. It is a clear basis for a constitutional case if one of these cases is decided unfairly, as is the situation with one of them.

Ms Lewis

Deputy McGrath asked for clear suggestions on what we could do. Comhlámh recommends that the Supreme Court decision of January 2003 should not be applied retrospectively; we recommend that anyone in the system prior to that should be granted leave to remain on humanitarian grounds, as many people have been left in limbo. "Backlog" is a terrible word but the backlog of people should be cleared so that we can start with a clean slate on the policy going forward.

Ms Reidy

I do not know if someone will bring a case on legitimate expectation but it is a clear possibility, as has been said. The evidence from the Children's Rights Alliance will be heard later but regarding the Convention on the Rights of the Child, the Canadian Supreme Court has ruled that obligations under that Convention will have to be taken into account regarding deportation orders affecting children. That factor will come into play here also.

As a concrete suggestion, categories should be recognised. Those who are not in the asylum seeker system - those with refugee status or otherwise - should have their applications clearly decided. We agree with Comhlámh that generally those who submitted applications on a legitimate expectation of the law at the time should be granted residency rights and that we have a clear policy set out from then on. The opportunity to apply should also be reinstated so we can put in writing an alternative fall-back for exceptional cases if they do not get favourable results and face deportation. Our position, as with Comhlámh, is that this should be a matter of humanitarian concern. Those in the system should be granted residency. That is not only in compliance with the Supreme Court decision but with the spirit of the constitutional rights of the child, as all members of the Supreme Court, minority and majority, set out.

Ms Gibbons

Section 17(6) the Refugee Act provides discretionary power to the Minister to grant permission to remain to individuals who do not wish to reinstitute their asylum applications. Also, individuals who wish to reinstitute their asylum applications should be allowed to do so, particularly those who had a negative decision in the first instance, as 23% of those who apply for refugee status on appeal or who appeal a decision are granted such status. Those who get a negative decision on first hearing should be able to reinstitute their applications. The ability to reinstate an application is at the discretion of the Minister and he should look favourably on it.

Chairman

Does that 23% refer to those who appeal the appeal?

Ms Gibbons

It refers to individuals who receive a negative response from the Office of the Refugee Applications Commissioner and who successfully appeal it. Some 1,097, or 23%, a substantial number, successfully appealed the decision. Reinstating an application is at the discretion of the Minister and we ask that he look favourably on doing so.

Chairman

Would it call into question the Refugee Appeals Tribunal?

Mr. O’Mahony

There are certainly some issues there. To look at the most recent period, in the first three months of this year alone 70% of all who got refugee status got it on appeal. They had all been turned down previously. Last year, of 2,000 who got refugee status slightly more than 1,000 had been turned down at the first instance by the applications' commissioner but were subsequently shown by the appeals tribunal to be refugees. There are real concerns in this context.

Bishop Ó Ceallaigh

Ba mhaith liom mo bhuíochas phearsanta a ghabháil leis an Chathaoirleach agus leis an choiste don chuireadh anseo. I will not delay by repeating what others have said as I am in total agreement with them.

This is a matter of urgency. It is urgent for the approximately 10,000 people who are in limbo. While we may agree or disagree with the Supreme Court judgment, it exists. It seems to me that the only way it can be humanised is through the Oireachtas. I am glad we have had the opportunity of expressing our opinions here. About four years ago, the organisation of which I am chairman, the bishops refugee and asylum committee, made a suggestion that the situation of approximately 10,000 to 11,000 people should be regularised in order to free up the staff, which had been increased from a small number like 22 to 700 or 800 at that stage. We suggested that those applicants should be granted a limited type of residency and a permit to work in order to free up the staff so they could deal, according to protocol, with new applicants. In fact, the numbers keep doubling all the time.

I want to make one other point. I share Deputy Finian McGrath's view of the positive benefits that accrue to society from many of the people who come into the country. I live in an area that is not far off 50% non-national now. If I look out the window on a summer's morning I will see ten to 15 young men, from 20 to 35 years of age, standing around because they have not got work permits. There are 19 houses on the road on which I live. A good half of those are occupied by people we call non-nationals who are in a type of limbo. The same is true, as Deputy Ardagh will know as we are in the same area - I am in St. Anthony's road running onto Fatima Mansions - of surrounding areas. It is a matter of urgency. I ask Members of the Dáil and Seanad to put the best thinking available to work to regularise these situations or at least to deal with the issues and numbers in a short period of time.

Chairman

We will return to this topic before the Minister for Justice, Equality and Law Reform comes to deal with it, whether by legislation, regulation or whatever. We will certainly revisit it before then to try and ensure that as legislators and public representatives we do the right thing. I thank everybody who has contributed on this.

We will now move on to deal with carriers' liability and the Immigration Bill. I invite the members of ICTU to commence their presentation.

Mr. Joyce

Thank you. Congress welcomes the opportunity to join with the groups present in expressing our concern at the Government's proposal to introduce carrier liability legislation. We believe that the proposals in the Bill fail to establish systems that protect the human rights of asylum seekers and immigrants. In addition they will place unfair expectations and responsibilities on transport workers.

We oppose any policy that will mean the return of any person to a country where he or she might face serious human rights violations such as torture or execution. The proposed carrier liability laws have the effect of obstructing people genuinely at risk from arriving in a safe country and seeking protection as a refugee. The right to claim asylum in the face of persecution, death or imprisonment because of race, religion, sexual orientation or political activities is enshrined in international law. While Ireland obviously needs to regulate the entry of foreign nationals into our country, this right should not be exercised in a way that contravenes our obligations under that international human rights law.

It is clear that people genuinely fleeing human rights violations, sometimes indeed as a result of their trade union activity, are often not in a position to obtain the proper documentation required to leave a country. Sometimes they are in hiding from an oppressive government and must leave in a clandestine manner. Sometimes the situation is too urgent for them to go through the proper procedures. In other cases the functioning of the state is broken down through armed conflict and obtaining the relevant documents is next to impossible. It is well established that it is unreasonable to demand that refugees have proper documentation. These carrier liability laws will have the effect of obstructing people genuinely at risk from arriving in a safe country and seeking protection as a refugee.

The carrier liability legislation is also of concern to us from the point of view of transport staff. Some airlines now require employees such as check-in staff and cabin crew to make decisions on the legality of passengers' travel arrangements. Most people attempting to get into a country secretly, or unauthorised, have to use some form of transport. Whether they smuggle themselves, or are smuggled by traffickers, onto a truck carrying freight or a passenger or goods train, or stow themselves on board a ship or board an aircraft with false papers, it is most often the transport staff, drivers, seafarers, ticket collectors, cabin crew and others who first come into contact with them. Transport employees should not be expected to act as an immigration police force making decisions that put people's lives in danger. In practical terms, carrier liability provisions often lead companies to act in a discriminatory manner, singling out suspicious persons on criteria such as race or indeed the general appearance of the person.

The effect of the proposed carrier liability legislation in other countries has been that transport companies expect their employees to prevent asylum seekers from boarding vehicles. Sometimes, especially in the trucking industry, companies pass their fines onto their workers. With this threat hanging over them drivers have been expected to stop people physically from climbing on board vehicles or to remove them once there. It is clear that the safety and security of transport workers would be put at risk if they were required to undertake this.

Some transport workers have been threatened by asylum seekers for fear that their attempt to cross a border would be prevented. For example, in the channel tunnel train link between the UK and France the International Transport Workers Federation is frequently advised of cases where asylum seekers attempt to board the train even when it is moving. This can put the whole train at risk, including any passengers or workers on board. Some transport workers have witnessed horrific accidents and deaths among people attempting to board such transport.

Many transport companies expect workers to check the immigration papers, passports and other official documentation of passengers. Many airport check-in staff, for example, are expected to check the papers of passengers and to judge whether the documentation is legitimate. Cabin crews are also expected to look out for people they suspect are attempting to cross borders illegally. Tasks like these put transport workers in a difficult and unacceptable position, especially when their primary responsibility should be the safety of passengers.

The crew of ships face problems in this area. The UN has reaffirmed that in maritime cases, stowaway asylum seekers should be allowed to disembark at the first port of call after they have been discovered by crew. Some countries will not now accept stowaways and, in some terrible cases, they have been thrown overboard because ships captains or shipping companies fear they will be fined if they come into a port with stowaways on board. Under international conventions, including the United Nations Convention on the Law of the Sea, a ship is obliged to go to the rescue of another close-by vessel if it is in distress. However, in some cases where ships rescue large numbers of immigrants from drowning, crews find that nearby countries refuse to allow the people ashore. Captains and crews have been left to feed and provide security for such people until a solution is found. In recent years we have seen the example from Australia.

Duties around immigration such as checking passports and papers and making decisions about the legitimacy of travellers are unsuitable for transport workers and should be left to immigration officials employed by governments. Transport workers are not trained for immigration work and should not be expected to take on the responsibility of policing borders.

Much of this submission has been put together with the help of the International Transport Workers Federation and I refer members to our submission and a resolution passed at a conference of the ITF which calls on governments to ensure that all existing international standards and rights for asylum seekers are upheld, to repeal all carrier liability legislation and other unjust penalties against airlines and other transport companies for carrying refugees and to work towards an international agreement on asylum procedures which should be established by a committee of experts to include the United Nations High Commission on Refugees.

Chairman

I thank Mr. Joyce. I note that Amnesty International, Comhlámh, the Irish Commission for Justice and Peace, the Irish Congress of Trade Unions, the Irish Council for Civil Liberties, the Irish Refugee Council and the Refugee Protection Policy Group have issued a joint statement. We have other statements as well. If it is a joint statement there is, obviously, a lot in common with all of the submissions. Perhaps Ursula Fraser of Amnesty International will give a presentation on behalf of the group. Others who may wish to add to that may do so.

Ms Fraser

To clarify, this is a joint submission on behalf of Amnesty International, the Irish Refugee Council, the Irish Council for Civil Liberties and the Irish Commission for Justice and Peace.

To start on a positive note, we welcome some of the provisions in the Immigration Bill. The establishment of the Refugee Advisory Board is a welcome initiative and we also welcome the legal provision for the resettlement of mandate refugees to Ireland. However, the Bill focuses exclusively on deterring immigration to Ireland, be it in the form of immigrants or asylum seekers. We believe that further amendments are in the pipeline, some of which might be substantial and we would welcome the opportunity to appear before the committee to discuss them when they are published, or as soon as the committee has notification as to what they are.

While we share the concerns of ICTU regarding carrier sanctions, I will not reiterate the points made by David Joyce. The experience in other European countries that have had similar laws for years demonstrates that carrier sanctions do not decrease the number of people arriving with improper documentation, nor do they hinder the efforts of traffickers and smugglers. While we hear much from the Minister to the effect that asylum initiatives being taken by the Government are a bid to stop the terrible crime of trafficking or smuggling, we do not believe that carrier sanctions will have this effect.

Research for the United Nations High Commissioner for Refugees has shown that the vast majority of asylum seekers now enter Europe in an irregular fashion and more than likely with the assistance of traffickers and smugglers. The report also points out that the main nationalities who are trafficked and smuggled are those who go on to gain refugee status. Another report which we did not mention in this submission but which I would be happy to provide to the committee is the submission by British Airways to the Council of Europe from a number of years' ago, which pointed out that many people for whom they were fined in regard to the carrying of people with insufficient documentation actually went on to get refugee status. I am not sure exactly how the carriers legislation works there but in some countries the fine is rescinded if a person ultimately goes on either to successfully claim asylum or ultimately gain refugee status. These are things which have not been considered at all by the Government.

We object to the Government requiring untrained carrier employees to undertake the policing of borders. These concerns were expressed by the union. It is not just about forcing private companies into the job of assessing documentation which they are not trained to do. Our domestic and international legal obligations towards asylum seekers are clear. We have an obligation to ensure people are not sent back to persecution. A corollary of this is that we ensure that people who are in danger are able to access safe countries and claim asylum. Passing this kind of responsibility onto carrier staff is a serious matter. In our submission we gave a few examples of where even trained immigration officials have not succeeded in identifying valid travel documents. These are examples from the United States. The research was done by the Lawyers Committee for Human Rights. We gave an example of a Chinese business woman who was stopped at Portland International Airport. She was strip searched and jailed because they wrongly thought that her passport had been altered. The immigration officials later explained that this woman fitted the profile of an illegal immigrant because she was from China and she was travelling with another person. Her documents were questionable in their eyes. She spent two nights in jail before forensic experts determined that her passport was valid. I am not sure what kind of redress she got but this highlights the dangers when assessing so-called false or dubious documentation.

With respect to carrier sanctions, an amendment was added during the passage of the Bill through the Seanad to the effect that the section on carrier sanctions "is without prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act 1996 and to the discretion of the Minister to admit to the State a person whom the Minister considers to be in need of protection". We wish to thank the Senators who paid attention to the various refugee interest groups and pushed forward many stronger amendments than this one. We hope that committee members will push further on this, as difficult as that may be, because we do not believe that this amendment really meets our concerns. We feel that it is redundant because our Refugee Act obligations that stem from international law exist anyway so putting it into legislation in this way is really only paying lip service. We are not really sure what the Minister is trying to achieve where it refers to the Minister's discretion to admit a person in need of protection, because it is hard to see how he could be given an opportunity to exercise his discretion to admit a person in need of protection if that person is refused permission to embark on a plane or boat headed for Ireland by carrier staff in another country. We seek clarification on that. In conjunction with other organisations we would continue to oppose the introduction of carrier sanctions in Ireland. May I make a few more points on the Bill?

Chairman

Please do.

Ms Fraser

With regard to the immigration legislation, we would all like to make a point about withdrawn applications. There are proposed sections in the Bill which deem an application to be withdrawn due to the omission by the applicant of certain procedural steps. Examples include failure of notification of an address change, non-explanation for non-attendance at a first instance interview or appeal and other miscellaneous procedural non-cooperation. Our worry is that these provisions in the Bill give administrative convenience absolute weight over the right of an asylum seeker to access the procedure. If one is going to withdraw a case on the basis of procedural non-compliance we worry that there is a disproportionate effect. For example, a failure to supply an address cannot necessarily be equated with intent to withdraw an application. It cannot be inferred objectively in the circumstances that a person must have intended to withdraw his or her application.

Asylum applicants might unintentionally fail to comply with procedures for a number of reasons, including difficulty with language, unfamiliarity with the asylum process, lack of legal advice and other such practical concerns. We have suggested an amendment in our submission. We suggest that the applicant be given the opportunity to give a good reason as to why he or she was unable to comply with such procedural requirements.

The overarching point is that it is only after a substantive interview has been conducted that a case can or should be deemed to be withdrawn. We suggest that cases instead be temporarily closed or abandoned until such time as they should be reactivated, or not, as the case may be. UNHCR's comments are similar to this. We also make a point in our submission about receipt of notice. We do sympathise with the asylum authorities' bid to track certain asylum seekers. As I have explained, there are different reasons why people fall out of the system. Without wishing to go into them, the proposed amendment in the Bill which requires a response from an applicant within ten days of the Refugee Appeals Tribunal sending him or her notice is perhaps a little short-sighted and we ask the committee to examine it.

In the UK, the Court of Appeals held that inequitable provisions in relation to notice were unlawful as they violated the fundamental rights of asylum seekers. This amendment does not address the problem of asylum seekers really not knowing what their rights and duties are here due to language constraints, inability to access legal advice and such matters. We are concerned that there be a very clear onus on the State to inform asylum applicants of their duties in this regard and not penalise them when they do something wrong. I know that ignorance of the law is no excuse normally but asylum seekers are a particularly vulnerable group in society and most of us have unknowingly flouted by-laws and other types of administrative policies in the past.

In fairness, we think this proposed amendment should be reconsidered a little. It might seem like a minor point but there are impractical time restrictions proposed in the Bill and we have recommended that these times be extended a little. We do not expect there will be great contention over this proposal by the organisations. We are suggesting only minor changes such as increasing five working days to ten working days and so on so that people are not cut out of the process having not got proper legal advice or whatever within a very short time period.

There are other issues that are not actually in the current Bill but I will just take a minute to mention three matters that the organisations would like to see either in the Bill or otherwise. The first is a judicial review, mentioned in our submission. We would like an enlargement of the time limitation for an application for judicial review. It is currently 14 days, which is quite impractical for lawyers and we would like to use this opportunity to express our desire for this to be changed given that the Government is undertaking an overhaul of the asylum process. We want to change the standard of proof for applications for leave to apply for judicial reviews, as in the Illegal Immigrants (Trafficking) Act 2000.

We have annexed to our submission a comprehensive paper on complementary protection written by the Refugee Protection Policy Group. The current recognition rate for refugee status is in or around 9%, which is very low. The experience of other countries has shown that the rate is increased if you have a system of complementary protection, in other words, a system whereby you recognise that people are legally entitled to protection and that although their particular cases do not fall within the remit of the refugee convention but, for example, under another human rights instrument, you may grant them protection known as subsidiary protection, ancillary protection, complementary protection or whatever. The rate of recognition might be increased to 30% or something like that. It will not answer people's concerns with regard to the motives of failed asylum seekers but it will certainly up that rate.

In fact, the Government is obliged under EU law to transpose a complementary directive by April 2004, so this is an imperative but is also an opportunity to start working on a complementary protection scheme if the Government has not already done so. We would like to see the publication of decisions by the Refugee Appeals Tribunal. This may have started but there is no harm in putting this requirement on a statutory footing.

Finally, the Minister has stated that he will introduce a provision to encode the notion of safe countries, or white lists, into Irish law. We believe that this will be done via the Immigration Bill 2002. We have set out our concerns regarding white lists in our document and have given a number of examples of countries which we believe the Minister intends to put on the white list, such as the accession countries, just to make the point that no country can be deemed absolutely safe for everybody and that asylum applications are unique to the individual even though they have a strong objective element.

It is unclear whether people who come from so-called safe countries will be channelled through an accelerated procedure or whether their cases will be rejected outright. We hope that, at a minimum, the former will be the outcome. Even within the context of an accelerated procedure we ask that very specific safeguards be taken into account. We say all of this to pre-empt amendments that will come the committee's way, presumably quite soon, and we would really welcome the opportunity to make a more detailed submission on safe countries and any other of these concerns we have set out today that might appear in the next version of the Bill.

Chairman

The presentation was very informative. Given the way it was put I think you could probably get into the hearts and minds of legislators, which is probably needed in this case.

Mr. Dowling

I am part of the ICTU delegation and I work for SIPTU. SIPTU represents many of the workers in air and sea transport who could be affected by legislation on carrier liability. In the collective agreements we have with the various companies involved in transport, there would be no provision to allow for our members to carry out the work of policing immigration in any shape, make or form. Nor would we envisage in the future that we would have such agreements. If I can state it more emphatically, I envisage severe resistance to any attempts to impose that kind of obligation on our workers. It is not the type of work for which our workers are trained.

Senator O’Toole

It will not surprise the Chair that I am totally in support of the submission from the Irish Congress of Trade Unions, which was superbly presented. I declare an interest in that before I go any further. It is an important issue. Ms Fraser made reference to the fact that it was a debate that took place in Europe some years ago when carriers and unions made reference to the same issue. It is an unanswerable argument they put forward today and we should accept it as such.

On the broader issue raised by Ms Fraser, I despair of getting this right. I have listened to different governments, different parties and different views on trying to get it right. I have spoken to immigrants who have been through the systems in different countries. People will have heard me say that last week we saw the great cynicism in Irish life, when the crowd at Lansdowne Road cheered the announcement of various initiatives by Sports Against Racism in Ireland, and then booed every time Tore Andre Flo touched the ball, merely because he played for Rangers football team. I despair as to where we are going to finish up with all of this.

I have spoken to immigrants who have been through immigration systems in various countries. I will give one example. I spoke to an African man who left the Horn of Africa in difficult times, seeking asylum in Sweden. I would have thought this was a good arrangement, but he described his experience there as similar to being in a concentration camp. By the time I spoke to him, he was in New Zealand, where he spoke positively about the arrangements there. Yet, New Zealand has a quota system of sorts for asylum seekers. It is something we do not like to talk about in any shape or form, particularly in light of Mr. Joyce's reference to the Australian example.

We take it as read our responsibilities with regard to conventional asylum seekers. We have economic migrants, like the woman referred to in one presentation who came to work in the health service and became a mother. How should we organise our system in a way that meets all our requirements? If we look around the world, where is the most perfect asylum system? Where is the system which should be the model for us to follow? It is similar to the issue of neutrality. I have searched the world for a neutral country and cannot find one. A very serious question is where to go looking.

There are two issues, one of which is the attitudes of the people implementing the legislation, which was dealt with very well in the presentation, and the way things are done rather than what is supposed to be done. The operation of the administration can be a deadner in itself. If we were to design and describe the perfect system, where would we find it?

Senator Tuffy

I thank the deputation and I support much of what is in the various submissions. In the Seanad I tabled a number of amendments to the legislation to try to ensure protections to the rights of asylum seekers. Unfortunately, not many of those amendments were accepted by the Government. My colleague, Deputy Costello is continuing that work as the legislation passes through the Dáil. One point I raised - it was raised by Bishop Ó Ceallaigh and Senator O'Toole - concerns the fact that the legislation is based around punitive measures. Our entire immigration and work permit procedure is punitive and simply a form of crisis management. We need a comprehensive immigration procedure which embraces the whole idea of economic immigration, similar to the green card system in the US. I am interested in the deputation's response to Senator O'Toole's question. I agree with Bishop Ó Ceallaigh that we need to allow asylum seekers to work.

Deputy Hoctor

I welcome the groups and this valuable discussion. We are talking about rights and Ireland has been lax in allowing people, both citizens and non-nationals, entry to the country. We have the right to screen those who come into the country. We are by no means in a unique position with the introduction of the carriers' liability proposed in the legislation. We have a duty to protect our citizens from people who wish to enter our country for questionable reasons. Of course, I am talking about a minority, but nevertheless it is important to protect the country from people with a questionable history and with all the negativity that entails. It is important this is said here today.

Sr. Roddy

On the point concerning where we might find the best example of a system or best practice, it is difficult to find one. One key thing in all this is that we need both asylum and immigration legislation. Neither system can work effectively, fairly or efficiently without the existence of the other.

On the last point that was made, we are talking here about asylum seekers and their right to seek asylum. We are not talking about the right to be granted asylum. This is why in Ireland we have aimed to continue to improve our asylum determination system, so that people will have a fair hearing with all the in-built safeguards. This is an important point concerning carrier sanction. People who have their right to apply for asylum determined at a port of entry have no access to the system we have been at pains to set up here with an appeals stage, judicial review stage and so on. A further point is that the people who are expected to decide quickly who should have access to the territory do not themselves have any responsibility to a government or to any group outside of their own company or maybe within their own company. We are above all speaking here of a new world where information, capital and goods move easily without borders. We must recognise that the movement of people is an integral part of the new system and the new world within which we live. We must also recognise that this movement of people has to be handled fairly and in accord with the various UN and EU conventions to which Ireland is a signatory, in which regard we have a long way to go in discharging our responsibilities.

Ms Lewis

I will answer a couple of points, firstly the one made by Senator O'Toole. Looking at different systems around the world, probably Canada and Australia offer some of the better models, the best elements of which we could adopt. I am not saying that the treatment of the people floating around the ocean was ideal, but speaking as somebody who was an immigrant to Australia, and was fortunate to return——

Senator O’Toole

Are you talking about the quota element of it?

Ms Lewis

Yes. Certain aspects of their immigration policy are very positive. We should look at all the models and take the best aspects of each of them. In Canada, which we could well look at, they have a manifestly founded system. As Senator Tuffy pointed out, we always look at the negative side of things - we have a manifestly unfounded system where people are refused asylum. Canada takes probably 75% of total applicants and has a system manifestly founded, which basically fast-tracks people through the system and then leaves the resources free to dealwith the more problematic cases, as Bishop ÓCeallaigh pointed out.

In relation to Deputy Hoctor's point about the State having a right to protect itself and its citizens, we are in agreement with that and none of us is advocating an open door policy. The system should be fair and transparent and it should recognise the rights of asylum seekers and refugees in all instances under international law.

Senator O'Toole made a point about workers. Recent research in the UK has pointed out that possibly 1% of GDP growth in the UK is directly attributable to workers who have come through the immigration system, so I think it is a very positive thing and we should look at it as such in this country.

Mr. O’Mahony

We often talk about refugees and economic migrants as if it were either one or the other. Our experience is that there is a substantial number of people in between those two categories. Reference was made earlier to there being various terminologies, complementary protection and so on, but there is clearly a number of people in fear of being returned to their home countries, whose reasons do not qualify them under the relevant refugee conventions but who are not in any normal sense of the term pure economic migrants. We would say it is hugely important that, as well as respecting our convention or legal obligations to give refugee status where appropriate, we adopt a reasonably generous approach to those who have complementary protection requirements, who cannot prove that they are refugees, but who equally are not in any normal sense of the term economic migrants, or what are sometimes disparagingly called economic queue-jumpers.

Bishop Ó Ceallaigh

I will not detain you, but about a year ago the committee of which I am part printed the statement supplied to the committee today, and it contains our best thinking on the carriers legislation.

There is one other thing which I forgot to say in my first intervention regarding the Supreme Court judgment. We are a largely Christian country, and we talk so much about the family and value of the family and so on, which is in our legislation. That is a strong argument, apart from any humanitarian or legalistic argument, to say that we should really try to do something to ensure that in cases like the one instanced by Sister Joan Roddy, where families are separated, there should be some way of coming up with appropriate legislation. Either we value the family as a unit or we do not. In this case, we have been left with a fair dilemma, and the legislators have been left with a large dilemma by the Supreme Court judgment, and it is a question of finding a way out of it.

Lastly I would say, tá mé fíor-bhuíoch don Chathaoirleach agus don choiste as an éisteacht a thug siad dúinn. Bhí sé galánta, agus go raibh maith agaibh.

Ms Reidy

I will make one comment regarding Senator O'Toole's question. There are other systems to look at, other European models with a history of immigration, and we will have to have regard to that because of EU measures. There are also think-tanks, maybe not based in Ireland but certainly based in the UK, like the Institute of Public Policy Research, which has looked at the whole question of immigration management and policy. I think the problem here, and the reason the asylum and refugee system sometimes gets a bad name, with people talking about high levels of rejection, is frankly because we do not have an immigration policy. People are forced into the asylum process because there is a migrant work permit system and nothing in between. It is a failure to have an immigration policy that does people damage, and that nettle must be grasped. It may not necessarily be so in other countries, but looking at other areas where this has been researched by other think-tanks within Europe could help us.

Chairman

This is a matter which, as Ursula Fraser has said, may have major amendments coming through, and if so we will be coming back to it again and there will be another opportunity. I would like to thank all of our guests for attending. The discussion has been very useful and informative and it will certainly help to bring us up to speed on our responsibilities in relation to the legislation. We will continue to monitor the situation and we look forward to seeing you in the future.

If there are any matters which you feel have not been raised or supplementary points, please come back by e-mail to the clerk to the committee. Also, if there are matters in relation to the Bill, or amendments you would like to suggest, you can send them to the clerk who will organise for them to be distributed to all members of the committee. It would be useful if, when sending the amendments, you sent your phone numbers and e-mail addresses so members of the committee can contact you if they have queries.

Again, thank you all very much. You are all members of various organisations and I am sure that we will be in contact again over the short and longer term, and I look forward to meeting you again in the future.

The joint committee adjourned at 4.20 p.m. until 2.30 p.m. on Tuesday, 27 May 2003.