JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 2 Apr 2008

Immigration, Residence and Protection Bill 2008: Discussion.

Chairman

The purpose of today's meeting is to have a discussion with the Irish Refugee Council, the UNHCR, the Irish Human Rights Commission, the Immigrant Council of Ireland, Amnesty International, the Vincentian Refugee Centre and the New Communities Partnership on the Immigration, Residence and Protection Bill 2008 which will be taken by this committee in the coming weeks. I advise members of the committee and the groups coming before it that, arising out of this morning's events, the committee has agreed to suspend at 3.40 p.m. and resume at 6.15 p.m. to facilitate members to attend the Chamber for business during the afternoon. Furthermore, the committee has decided that it will discuss the Immigration, Residency and Protection Bill in the following order with the groups in each session as follows: first session up to 3.40 p.m. — Irish Refugee Council, UNHCR and Irish Human Rights Commission; second session commencing at 6.15 p.m. — Immigrant Council of Ireland; Amnesty International; Vincentian Refugee Centre; and the New Communities Partnership. We will commence our discussion with the Irish Refugee Council.

I draw everybody's attention to the fact that members of this committee have absolute privilege but that same privilege does not apply to witnesses appearing before the committee. The committee cannot guarantee any level of privilege to witnesses appearing before it. Further, under the salient rules of the Chair, members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Before we commence I advise everybody that the procedure we will adopt is that each organisation will make a brief presentation which will be followed by a question and answer session. Everyone will appreciate that we have a heavy workload today. I ask those making presentations to be brief so that we can concentrate on the major issues of importance and engage in a question and answer session after presentations are made.

I welcome Mr. Robin Hanan, the chief executive officer of the Irish Refugee Council and his colleagues. Mr. Hanan, perhaps you would introduce your colleagues and commence your presentation.

Mr. Robin Hanan

Thank you very much. I will say a few general words about our approach to this Bill and I will ask my colleagues to make very short interventions. Ms Maureen Kirkpatrick is our legal officer, Ms Jyothi Kanics is our separated children's officer, Dr. Deo Ladislas Ndakengerwa is our policy officer.

I thank the committee and the Chairman for this chance to give our views and proposals on the Immigration, Residence and Protection Bill. From the point of view of people seeking protection in Ireland, this is the most important and comprehensive legislation since the Refugee Act 1996. As a complete revision of that Act, this is Ireland's chance to get matters right, to put in place a system that is fair and humane and that ensures people who need protection are able to avail of it. This is why we are particularly pleased the committee is putting aside so much time to consider amendments and have discussions and that the Minister has indicated so clearly on several occasions, including in the Dáil, that he is open to considering amendments to this Bill as a result of this debate. We very much welcome that.

It is also very important that the debate around protection is constructive and starts from the need of people seeking protection. Again, the tone of the debate in the Dáil has been very helpful in terms of improving the level of public debate. Much of the debate in the recent years about asylum seekers has referred to asylum seekers as if they were in some sense people trying to take advantage of the country or people who are in some sense underhanded. As Ms Mary Robinson said, talking about Europe in general and not just about Ireland, the words "asylum seeker" have become in some countries a term of abuse. Asylum seekers find themselves doubly stigmatised as aliens and as cheaters, if not criminals, for no sin other than having entered fortress Europe. In public opinion and political discourse there is a disturbing tendency to criminalise asylum seekers, notably by linking their search for protection to the questionable methods of smugglers and traffickers. Some parts of the media have played a very negative part in whipping up hysteria over these issues. There is a dangerous identification of victims with wrongdoers, which should be firmly resisted.

We start from the principle of the Geneva Refugee Convention that everyone has a right to enter the territory to claim protection and everyone has a right to a fair and balanced hearing of their case for protection. In the Irish Refugee Council we meet people every week who have had to flee from their own country because of persecution, in some cases fleeing from torture, rape, false imprisonment and so on. For those people this is an opportunity we cannot afford to get wrong. If we get it wrong in this Bill it can mean that the people we deal with day to day will not get a right to a fair hearing. This is effectively a life or death decision for people fleeing from persecution. It is important, therefore, that the committee is giving time to consider the ways in which this Bill can be strengthened to ensure we come up to best practice in terms of international protection.

One of the voices we do not often hear in these debates is that of people who have gone through the asylum process. With the agreement of the committee I propose to invite my colleague Dr. Deo Ladislas Ndakengerwa, our policy officer, who has been accepted in Ireland as a refugee, to say a few words about coming through that process.

Dr. Deo Ladislas Ndakengerwa

Ladies and gentlemen, members of the committee, it is an honour for me to address the committee today. I express my deep gratitude to the Irish Government and to the people of Ireland for welcoming me to Ireland and for giving me protection. Without it, today would perhaps have been the tenth anniversary of my death.

That is not to say that my asylum process was not very tough from the very first. I arrived in Ireland ten years ago fleeing from persecution in Rwanda in the aftermath of the genocide, the killings and the massacres. When the plane I was in hit the Dublin Airport tarmac I was very happy because I had made it to safety. Unfortunately, my experience with the gatekeepers and immigration officers at Dublin Airport was not as good as one might think. I was treated as a liar, as a cheater, as somebody who was nothing more than bogus. I was not allowed to enter the State. Instead I was put in a room where I spent more than six hours while the immigration officers tried to have me sent back where I came from. I begged them to at least allow me to give them an account of my story. Fortunately, it was getting late and around midnight I was allowed to enter the State.

The following morning my asylum process started. It was not easy. I do not want to talk about the very voluminous questionnaire I had to fill in within ten days, without any assistance from legal services. Neither do I want to talk about the long days and endless nights I spent in the direct provision centre where I was posted in Waterford, where I did not know how long I would have to stay, unlike a criminal who is sentenced and knows when he will get his freedom. The fact that I was living with other people who had spent more than four or five years in the system did not help me much.

I will return to my experience at the airport. When I arrived I was very traumatised having gone through torture. Having believed I had reached paradise, the six hours I spent in that small room was very traumatic. I wonder what would have happened if I had been returned to Rwanda straight away after they had listened to my story. I think that today I would be history.

My interview at the Office of the Refugee Applications Commissioner was not easy either. The prevailing attitude to asylum seekers in the asylum process is one of disbelief. I was told from the beginning to the end of my interview, which lasted more than eight hours that I was not telling the truth, that everything I said was lies. Fortunately, I was lucky and after a few months I was granted refugee status. Today I appeal on behalf of other people who are still in the asylum process, some of whom came at the same time as I. It would have been very tough on me if I had not been given the opportunity to present my account. I would not say that my case is unique or that I am special. There are so many other cases like mine, people who are genuine refugees arriving in Ireland who are not given a fair hearing and natural justice to present their case. Today I am before the committee to ensure that in the new Bill there will be transparency, provision for a fair hearing, and balance and accountability in the system to ensure everybody arriving on Irish shores is given natural justice.

Mr. Robin Hanan

Mr. Ndakengerwa's introduction has explained why it is so important that we get it right and ensure this Bill will put in place a fair, transparent and balanced system for hearing claims for protection. I will not go through the proposals we have made in our written submission which has been circulated to the committee. Given the questions we have been asked, I am aware many of its members have studied the submission in detail. We make 12 proposals in the submission for amending the Bill to put in place a fair and humane asylum process. A number of our colleagues in other NGOs who will not have an opportunity to make a presentation today such as the Refugee Information Service, Integrating Ireland, the Mercy Justice Office and so forth have covered other areas where changes could possibly be made. Instead of going through them in detail, I will briefly give a couple of examples to show why we believe these proposals are important. My colleague, our legal officer, Ms Maureen Kirkpatrick, will discuss how somebody could be affected by the detention provisions included in the Bill.

Chairman

Before Ms Kirkpatrick begins, I should point out that the members of the committee have received all submissions from all groups and have taken the opportunity to study them. They can be taken as read. We are trying to encourage an interaction with our guests to tease out some of the issues about which committee members are concerned.

Ms Maureen Kirkpatrick

I draw the committee's attention to how people seeking protection in Ireland will be affected by this Bill. I will outline a situation that is based on information provided for the Irish Refugee Council, the Refugee Information Service and Integrating Ireland by asylum seekers and refugees. I will tell the committee about Ali. He was a political activist in his country where he was arrested and detained without trial. While he was detained, he was tortured and beaten very seriously. On his release some of his friends helped him to escape his country and he managed to make his way to Ireland. When he arrived at Dublin Airport, he told the immigration officer, in broken English, that he was here to make a protection claim.

Later that day Ali was taken to prison. He did not understand what was happening. No interpreter had been provided for him and he did not know why or for how long he was in jail. As a result of his experiences in jail in his own country and being a survivor of torture, he experienced flashbacks. While in detention, another detainee who happened to speak his language explained to him that he was being detained until it was practicable for the immigration officer to issue him with a protection application entry permit. This is reflected in section 70 of the Bill. Ali was lucky. An entry permit was issued to him, but he was not released from prison. An interpreter was provided for him but, unfortunately, he did not speak Ali's dialect. All that Ali was able to understand from the interpreter was that he would be brought before a court. Ali believed and hoped he would be released after his appearance in court. This did not happen. He was returned to prison. He became very depressed and distraught after he heard from others in the jail who were also in the asylum process that they had been held for many months. This is reflected in section 71 of the Bill.

I acknowledge that there are periodic detention reviews every 21 days before a District Court but unless the judge orders that the person be released, he or she can be held for the duration of his or her asylum process. This is an existing power under section 9 of the Refugee Act 1996. I wish particularly to draw the committee's attention to section 71(g) and (h), which are new provisions providing for new powers of detention. Under section 71(g), where a person who is found unlawfully on the territory and who would be removed from the State makes a protection application “for the purpose of delaying their removal” from Ireland, he or she will be detained. That is a prejudgment of the claim and could impact on many people in Ireland. Many of those who claim protection here make their claims inland, not at the port of entry. This issue was raised by the Minister, Deputy Lenihan, on “Questions and Answers” on Monday night. The Bill provides for increased powers of detention.

Chairman

I invite members of the committee to ask questions.

Deputy Denis Naughten

With regard to the protection element of the submission, two categories who apply for protection are dealt with in the current legislation, that is, adults and children. However, people with disabilities are ignored in it. That contradicts the legislation we are currently enacting with regard to human trafficking, where specific provision is made for people with disabilities. Perhaps our guests would comment on this.

Second, specifically on the issue of children, the only provision in the legislation, as it stands, is to the effect that children, defined as persons under 18 years of age, will be put under the jurisdiction of the Health Service Executive. There are reports of hundreds of children going missing from HSE accommodation. Are there figures for the numbers who have disappeared? They are allegedly applying for protection from the State, yet have disappeared from the control of the State authorities. What specific provisions should be put in place to deal with this? The HSE does not appear to have any control over what is happening.

My next question relates to the issue of judicial review, a controversial element in the legislation which will have to be examined in detail on Committee Stage. Is it not the case that many of the current judicial reviews arise because of the lack of transparency in the review tribunal? Is it feasible to amend the protection review tribunal as proposed in the legislation, which will take over from the existing tribunal? There are serious questions regarding the fairness of the current system. Perhaps the representatives would comment on this issue.

Senator Ivana Bacik

I thank the Irish Refugee Council for its detailed submission and the work it has done on this issue. I share many of its concerns about the inadequate human rights protections for a person seeking protection under the Bill. I will deal with a number of important points.

The council raised the issue of interpretation. Given the extensive powers of detention under the Bill for persons seeking protection, we must be concerned that the rights to be dealt with in a language understood by the applicant are so qualified. I refer, in particular, to section 73(4) relating to the application for protection and section 85(5) dealing with the oral hearing where a person is making an application for protection. In both provisions the right to be dealt with in a language understood by the applicant is curtailed to "where necessary and practicable"; in other words, an interview shall "where necessary and practicable" be conducted with the assistance of an interpreter. I presume the council is concerned that the right is too qualified and that it must apply where it is necessary for the person to understand what is happening, particularly given the case study described.

Concerns have also been raised about particularly vulnerable persons. Clearly, there are inadequacies concerning protection for children, including those who are trafficked and not dealt with separately. The delegates may wish to comment on this.

The provisions in section 70(8) which are repeated in section 58 regarding applicants generally, not just applicants under the old asylum law, also deserve attention. Where it appears to the authorities that a person may not be under 18 years of age, the benefit of the doubt is not given to the child; in other words, my concern is that it seems the onus is placed on the individual child applicant. Under the UN conventions and international law on children, it is important that the benefit of the doubt is given to the child and that the person concerned is treated as a child until the contrary is proved. Section 70(8) provides that where the Garda has reasonable grounds for believing the person is not under the age of 18 years, the law will apply as if he or she were over 18. The children's office may want to address that point, which seems to be at odds with international law.

Deputy Pat Rabbitte

Following these hearings the Bill will proceed to Committee Stage where I hope it will be scrutinised paragraph by paragraph. Will the Irish Refugee Council indicate the three priority changes it believes must be made to the Bill before it can live with it? What are its views on the operation of the Refugee Appeals Tribunal? Are there straightforward steps that might be taken to invite the council's allegiance and confidence with regard to that procedure?

Mr. Robin Hanan

I will answer some of the questions and refer others to my colleagues.

On the question of the Refugee Appeals Tribunal, members will be aware that there is much disquiet within the existing Refugee Appeals Tribunal which has been raised by a number of eminent members of the tribunal, including the former Minister for Foreign Affairs, Mr. Michael O'Kennedy; the former Director of Public Prosecutions, Mr. Eamon Barnes, and their colleague Mr. Donal Egan. To address some of these concerns we need to see a clear break between the Refugee Appeals Tribunal and the Protection Review Tribunal, which is not evident in the Bill.

We see two priorities, although we mention a number of others in our submission. First, the tribunal needs to be more open, transparent and accountable; in other words, its decisions should be published, suitably anonymised, as they are in countries considered to be using best practice. The guidelines should also be published. Second, there should be a clear break between the two tribunals by removing the clause that has been added to the Bill since the 2007 Bill, which provides for continuity in respect of the chair of the Refugee Appeals Tribunal into the Protection Review Tribunal, was published. This is something we believe should be dealt with through the public appointments service for which the Bill provides in the case of all other members.

We have concerns about the level of interpretation services. We are happy that people seeking protection are entitled to such a service during the course of their hearing. Unfortunately, however, that Ireland does not have in place a system of registered, trained, qualified and certified interpreters, an issue which has been raised by persons involved in the health service as well as the asylum service, is of considerable concern. We consider it absolutely essential that, as Senator Bacik suggested, persons are allowed to avail of interpretation services in their own language.

This is our big chance to get it right. We would be worried if only three textual amendments get through. In our submission we cite the need to ensure best practice in allowing people access to the protection system and entry to the country to seek protection, in making improvements to ensure they get a fair hearing, and in providing protection for particularly vulnerable groups. The changes are needed to ensure that throughout the Bill there will be provision for transparency and accountability, which will remove some of the uncertainty, and that at every stage of the process people will have a right to receive the support and information they need to make their case clearly and in such a way that decisions can be made openly and transparently. In that case, justice will not only be done but will also be seen to be done. We must ensure particularly vulnerable groups such as victims of trafficking and torture, children, particularly separated children, are protected. My colleague, Ms Kanics, will say a few words about separated children.

Ms Jyothi Kanics

As many members of the committee are aware, the protection of separated children has been a priority for the Irish Refugee Council for many years. We define separated children as those under the age of 18 years who are outside their country of origin and separated from their parents or their previous legal and customary care giver.

In recent years more than 4,850 separated children have arrived in Ireland. Many of them have been reunited with family members here, others are seeking asylum or remain in a legal limbo. The numbers of children who go missing from care are alarming. Studies have indicated that most separated children are not identified at ports of entry. Of those who were identified and taken into care in the State, it was indicated in response to a parliamentary question in 2006 that 328 had gone missing in the period 2001 to 2005. To give the committee more up-to-date statistics, last year 41 children went missing from care. That may not sound like a large number, but if one third of Irish children in care went missing, what would the response be? This number represents one third of the children placed in care. There is an urgent need for reform. That children go missing, many of whom show up in situations where they have been trafficked and exploited, is an indication that there is a need for such reform. We need to ensure protection and equitable treatment and to prevent trafficking.

On the changes we would like to see to ensure protection, current Irish legislation and practice do not meet international obligations and minimum standards. As pointed out, this is, first and foremost, an opportunity to implement the UN Convention on the Rights of the Child. Furthermore, it is an opportunity to implement the commitment laid out more than seven years ago in the national children's strategy that such children should be treated in accordance with best international practice which provides for a designated social worker and a guardian ad litem. As the committee may know, many of the children in question do not even have access to a dedicated social worker and almost none has access to a guardian ad litem to assess their needs. Furthermore, we point to authoritative guidance provided by the UN Committee on the Rights of the Child, in addition to that provided by the special rapporteur on child protection in his report to the Dáil last November, in recent reports from the Ombudsman for Children and the Irish Human Rights Commission.

We are also aware that children's rights organisations are calling for a separate hearing with the committee to discuss child protection issues. We would also like to support that call. Separated children and their protection is one only issue; as has been pointed out, other issues can be considered in the Bill. Children's rights organisations, including the Children's Rights Alliance, Barnados and the ISPCC, would like to raise these issues directly and consult the committee on them. In particular, we should consider how the Bill could be further developed and how it might amend the Child Care Act 1991.

The Irish Refugee Council supports this cause and would like to contribute to the ongoing exchange. We are finalising a much more detailed submission on the need for protection for separated children, to compile authoritative guidance on various categories, including those that have been highlighted such as identification, age assessment, family tracing and guardianship, among others. We will make detailed suggestions for amendments to those who are interested. We made a separate submission on section 124 and the provisions relating to the protection of trafficked persons. We wish the Bill to facilitate ratification of, in particular, the Council of Europe Convention on Action against Trafficking in Human Beings.

Senator Eugene Regan

I seek our guests' observations on some of the general principles of the Bill. On non-refoulement and detention, the Bill will update our law in light of the jurisprudence from the Supreme Court. However, it will also implement EU law. Our guests’ submission refers to the refugee convention and states that the principle of non-refoulement, which is laid out in that convention, is undermined by the provisions in the Bill. It states that these restrict access to the asylum process — such as the Dublin regulation rules — the concepts of safe third countries and safe countries of origin, as well as rules on carrier sanctions and transporter liability. Does this not suggest that the EU law in these areas, which the Bill is trying to reflect, is incompatible with the convention? That seems to be the implication of the submission.

The convention does not rule out detention, per se. However, it states that where it is used it should be proportionate and non-discriminatory and those employing it should establish that it is necessary. There are four areas in respect of which our guests have taken issue, namely, arrest by carriers, detention of children, the arrest and detention of people who apply for protection at the frontier and the arrest and detention of protection applicants. Is it their view that detention is neither necessary nor proportionate in respect of these areas and that somehow it is perhaps discriminatory?

Deputy Finian McGrath

I welcome the representatives of the Irish Refugee Council and commend them on their valuable work, particularly in respect of assisting people and their families. Most Members of the Oireachtas appreciate the work done by the council. I accept that at times such work may not be popular with particular sections of the media or society.

Would it be possible for Dr. Ndakengerwa to describe his experiences in Rwanda at the time of the genocide and to indicate how he managed to travel to and enter this State? What has been his experience since settling in Ireland ten years ago? Is race an issue? Does Dr. Ndakengerwa feel involved in wider society or do Irish people have much to learn in that regard?

Deputy Charles Flanagan

I also welcome the delegation and thank its members for their submission. Many of the submissions received and much of the public comment aired relate to the narrow definition of family reunification and the constraints that will be put in place, which may give rise to considerable hardship and anxiety on the part of those involved. In its submission, the Irish Refugee Council refers to the absence of an appeal process and states that it would like people to be allowed to appeal to an independent body. Will its representatives elaborate on the form such a body might take? Will they enlighten members as to international best practice where such independent appeals bodies are concerned? In so doing, will they make particular reference to the definition of family reunification? How does Ireland compare to other countries in that regard?

Chairman

If Mr. Hanan does not object, I will ask him and his colleagues to be brief in their replies. A number of other groups are due to come before the committee today.

Mr. Robin Hanan

We will try to cover all the questions in as brief a period as possible. Perhaps my colleagues, Dr. Deo Ndakengerwa and Ms Maureen Kirkpatrick, will respond to the issues raised.

Dr. Deo Ladislas Ndakengerwa

It would take perhaps a week to describe what I experienced in Rwanda before making it to Ireland. I come from a family of 12. Every other member of my family was killed. I was the only one who escaped. During the genocide in 1994, I was just moving from one area to another. I was very lucky, being a medical doctor, that I had friends who were working for Médecins Sans Frontières. Without them I would not have made it because people were being hunted here and there. I endured an ordeal over a period of seven months and was obliged to move from town to town, house to house to remain in hiding. It was a traumatic experience. I am writing a book about what happened to me and members can read it.

I was asked how I made it to Ireland. It is important to highlight this issue because many people who make it here are refused entry because they do not possess valid visas or authentic passports. Members will be aware that a person fleeing persecution is under threat of dying. If I took off my clothes, members would not like the scars they would see on my body. I will not go into detail in that regard because it is too emotional a subject. I am very happy that I made it to Ireland. I did not have a valid visa because if I had approached the authorities for a passport in my own name, I would have immediately been arrested and killed.

According to the 1951 convention, people may use any means to get to safety. When I got here, I had all the evidence necessary to show how much I had been persecuted. I was very lucky because the officers and interviewers were able to access my file. It is a long story.

On integration, I am very thankful to the Irish community because I was welcomed, particularly by those in Waterford, in a friendly way. It was not just up to Irish people to welcome me, I also had to play my part and show them my respect for the law here and indicate my intention to make a contribution to this country. I would do anything to ensure that I made such a contribution. My first job when I came here was as a kitchen porter. I took it because I did not want to just sit around and wait for my medical qualifications to be recognised. It was not really a good experience to work as a porter, particularly because I should have been in a hospital caring for people.

Most Irish people are not racist. In my view, 99% of them are good. Those who display racist tendencies do so out of ignorance. Such ignorance can be eradicated through education and awareness. I am happy that certain organisations are trying to spread such awareness and that things are changing. The position is not the same as it was in 1999 or 2000, even in the media. Change is taking place.

Ms Maureen Kirkpatrick

I will reply to the questions relating to non-refoulement and detention. As stated in our written submission, we have serious concerns regarding many of the provisions in the Bill which we think — I am sure UNHCR also highlighted these in its written submission — are incompatible with international law, particularly the 1951 convention.We will, in particular, examine provisions relating to carrier liability, inability to access the State, the non-suspensive effect of judicial reviews, having an asylum application deemed withdrawn and section 4 which deals with persons who are lawfully and not lawfully in the State. This section is particularly important when read cognisant of the fact that a person who is unlawfully present in the State is subject to removal without notice. This could result in persons being removed from the State immediately and without notice.

The Irish Refugee Council raises detailed concerns about detention in its written submission. I agree with the comment that in the cases we have raised, we do not find the detention provisions either necessary or proportionate, particularly the provision to detain a person on an aeroplane. What right does an aeroplane pilot or crew member have to detain a person on board an aeroplane, thus essentially performing the actions of immigration officers or other State officials? These provisions are a source of grave concern.

Chairman

I thank the Irish Refugee Council for its written and oral presentations. Its contribution will inform members' consideration of the Bill when it comes before the Select Committee on Justice, Equality, Defence and Women's Rights in the coming weeks.

I welcome to the joint committee Mr. Manuel Jordao, the UNHCR representative in Ireland, who will assist us in our consideration of the Immigration, Residence and Protection Bill 2008. I propose that Mr. Jordao makes a presentation after which we will have a question and answer session. Members will have received and considered Mr. Jordao's submission. The purpose of our meeting is to tease out some of the finer issues.

Mr. Manuel Jordao

I and my colleague, Ms Emilie Wiinblad-Mathez, will do our best to answer members' questions once my presentation has been completed. I thank the joint committee for inviting the United Nations High Commissioner for Refugees to present and discuss the contents of our comments to the new draft legislation, the Immigration, Residence and Protection Bill 2008. To facilitate our discussion, members have been given a copy of the 40 page document the UNHCR produced as a commentary on the Bill and a copy of this statement.

My statement intends to be a brief summary of the main topics addressed in our comments. As members will be aware, the United Nations High Commissioner for Refugees was mandated by states in 1950 to assist and guide signatories of the 1951 Refugee Convention in meeting their international obligations. Our comments on the Bill centre on three key articles of the 1951 convention, namely, Article 1 which defines who refugees are both in inclusive and exclusive terms, Article 33 which outlines the principle of non-refoulement prohibiting the sending of any person back to a country where they would be persecuted, and Article 31 concerning the special exceptions for refugees in relation to waiving penalties for unlawfully entering or staying in a country due to their special circumstances.

Ireland acceded to the 1951 Refugee Convention and its 1967 protocol in 1956 and 1968, respectively, and has co-operated extensively with the UNHCR, especially since the mid-1990s when Ireland first experienced an increase in asylum applications. A key milestone in Irish asylum legislation was the adoption of the 1996 Refugee Act which largely complied with the 1951 Refugee Convention in relation to the definition of "refugee", respect for non-refoulement, detention and establishment of asylum institutions which aim to include, among other matters, a fair and efficient asylum procedure and adequate reception structures. The UNHCR comments seek to ensure the new Act preserves positive features of the current Irish asylum process while capitalising on the unique opportunity to address key aspects of the asylum system which call for a number of improvements, in particular in relation to introducing subsidiary protection in a single protection procedure but including provisions for separated children, family reunification and victims of trafficking and torture.

It is important for understanding the UNHCR's comments and the nature of international obligations placed on the state in the 1951 convention to first explain what we call the "declaratory nature" of refugee recognition. This concept, which is fundamental to refugee law, emphasises that, in accordance with international law, one is a refugee not because one is recognised; one is recognised because one is a refugee. As a result, state parties to the 1951 convention are requested to put in place refugee status determination procedures which will be effective in the identification of those persons whose cases meet the criteria of the convention's refugee definition. Until the moment the process of determination of one's status is completed, states are expected to treat the asylum seeker as a potential, de facto refugee. Hence, states have an international obligation to guarantee that all asylum seekers will be granted access to the territory and asylum procedure and will not be returned to a place where they fear persecution before an assessment of the merits of their claims for protection is completed. Our comments on access to asylum procedures must be read with this concept in mind. They centre around issues such as allowing a defence for a carrier if found to have assisted a refugee in distress to reach the country, not excluding any groups of persons from having their case heard and ensuring the substance of all claims is heard.

The issue of access is also linked to our comments on non-refoulement which build on the logic that returning a person whose claim has not been assessed on its merits may cause breaches to the non-refoulement obligation. The UNHCR recommends making amendments in the Bill to ensure full compliance with the non-refoulement principle. In particular we refer to extradition, section 53, exclusion orders, section 117, assessment by a judge before a person is returned, section 71, and the procedures around withdrawal of a claim and making further applications, sections 80, 87, 89, 104 and 118.

Respect for non-refoulement also relies on the correct use of the refugee definition in relation to both inclusion and exclusion. In this respect, it is important to highlight the additional challenge Ireland faces with the introduction in the Bill of a single procedure to determine refugee status and subsidiary protection status, the latter status being the long-awaited harmonised legal status complementing the Refugee Convention status in the European Union. To ensure high quality decisions within this new system, the UNHCR recommends some important changes to the Bill to assist the institutions carrying out refugee determinations. We point to our recommendation on the refugee definition on pages 12 to 17 of our comments and to procedural issues addressed on pages 18 to 26 of our comments. In particular, we draw members’ attention to our comments on sections 53, 61, 63 and 64 where the current wording of the Bill limits the scope of the refugee definition as found in Article 1 of the 1951 convention. I ask the committee in its deliberations to take a close look at this concern and bring the Bill in line with the 1951 convention, in particular with the definition of persecution, actions of protection and exclusion.

The use of detention and the provisions regarding penalisation for unlawful entry or stay in a country is another significant key area addressed by the 1951 convention. Based on accepted international refugee and human rights principles, detention should be a last resort and an exception based on an individual assessment of particular cases. Detention, purely on the basis of administrative shortcomings would, in the UNHCR's view, not be correct or comply with international standards. Our submission's paragraphs 70 and 71 regarding detention highlight this.

We recommend detention must observe core human rights principles, including the right to due process of law, and the basic individual right of any detainee that the terms for detention be defined and subject to judicial review.

The UNHCR believes the Bill poses an opportunity to introduce several important improvements to the current national protection regime, not least of which is the proposed introduction of a single procedure. However, several additional aspects of the Bill would, in our view, be greatly improved by our relevant recommendations. These are in the area of protection of children, family reunification and the protection of victims of human trafficking and torture.

In our submission we highlight the issue of child protection, in particular children separated from their parents. The best interest of the child must be determined at all levels of the asylum process. While the Bill suggests improvements in some areas, we ask the Legislature to go further in defining the framework for what must be a collective effort to protect children from the scourge of trafficking, forced labour and sexual exploitation.

Key areas where more can be done include reception and accommodation of separated children, family tracing and reunification, guardianship and foster care, as well as defining the best way to undertake the formal determination of the best interests of the child. We ask that the Bill address the issue of the lack of an appropriate alternative to the asylum application for children who have no other legal basis for staying in the country.

Regarding family reunification, our submission comments on how existing procedures have resulted in a backlog of applications and, in many cases, a minimum of a two-year delay in decisions. The unity of families, while not covered in the 1951 convention, is a key right for refugees and will play an important part in their integration prospects in Irish society.

Our submission also referred to other vulnerable groups, including victims of human trafficking. The UNHCR would like to see a Bill which guarantees the protection of victims of trafficking and their access to the asylum system, where appropriate, with provisions flexible enough to meet the needs of those who have experienced torture, inhuman and degrading treatment, including needs for medical assistance. In this regard we refer to our comments on page 24 of our submission.

I thank the committee for its attention.

Chairman

Thank you, Mr. Jordao.

Deputy Denis Naughten

The submission was mainly concerned with the protection of individuals. However, it contained an important point that there is no opportunity for an individual, found to be illegally resident in the State, to return voluntarily to their country of origin. There are implications for people who are forcibly deported from the country, both from the taxpayers' view and the individuals concerned. The legislation must afford such individuals the opportunity to voluntarily return to their country of origin.

Paragraph 25 of the submission stated the liability of carriers should not apply in respect of refugees and other persons with protection needs or rescue operations. How would this work? For example, could a carrier claim that it believed a passenger was a genuine protection applicant and, therefore, allowed him or her to travel without proper documentation?

Paragraph 47 dealt with the legislation's exemption of EU nationals from protection. Is there an example of the type of person eligible to apply for protection in this country who could be a citizen of an EU member state?

Paragraph 92 stated the UNHCR considers the prioritisation of applications should only be possible when based on the objective criteria such as country of origin, family relationship, age of the applicant. However, should the most important prioritisation for an individual detained by the State be that their application is dealt with expeditiously and fairly to ensure they remain in a prison setting for as short a period as possible?

Deputy Pat Rabbitte

Were Mr. Jordao's remarks on trafficking drafted before the passing of the Criminal Law (Human Trafficking) Bill 2007? The issue overlaps with this legislation with the charter of rights enshrined for victims of trafficking. Did the criticism take this trafficking legislation into account or does Mr. Jordao believe it is still too weak?

Regarding refoulement, is the excision of section 53(2) the only refurbishment which would be considered acceptable by the UNHCR? Are there any circumstances, either under the European Arrest Warrant Act 2003 or other legislation, where extradition ought to apply?

Senator Ivana Bacik

Mr. Jordao's comments have been very detailed. I note the submission contained different recommendations for the better protection of children. It expressed concern that the Bill, as drafted, does not comply with best practices in this area. Which is the most serious encroachment on the rights of children in the Bill?

The submission stated children will de facto be detained where there is a doubt as to their age. It also stated children should be entitled to have a guardian appointed in the process, a provision not contained in the Bill. Does Mr. Jordao agree with a previous speaker that the committee should hold separate hearings with children’s groups on the Bill’s provisions relating to children? Would it be helpful to tease out what should be the best way to protect child applicants?

Deputy Michael D. Higgins

I am interested in two aspects of this. The first is legislation which has passed through the Seanad on trafficking. Part of the Bill states that it shall be a defence if the person who offered or procured services regarding a trafficked person did not do so knowingly. This is worth consideration, but it is not my principal point.

I am interested in the delegation's views on family reunification, especially on those people who have a relationship with the child. From the evidence submitted to the UN agencies on the consequences of AIDS and HIV, we know that relationships of many children are not with their natural mother and father. The relationships can be with uncles, aunts, relatives, grandparents and so on. Having reviewed what is proposed, what is the delegation's view on those relationships which the child may need with regard to social and legal protection? When the submission has been made and the delegation has looked at comparative legislation in the European Union, how does it respond to the virtual silence on the general principle of reunification in the proposed legislation?

Senator Eugene Regan

The submission is comprehensive and there is plenty food for thought. I would like to repeat the question I asked of the previous delegation. Many of the observations pertain to matters which we are importing from EU law. It is difficult for us to re-examine EU law and to take on board these submissions when we are effectively transposing that law here. To what extent does the delegation consider aspects of the EU law that we are transposing to be objectionable?

Section 53(2) deals with extradition and the European arrest warrant. I do not see how the European arrest warrant provisions could be relevant here. I cannot see how returning somebody to another member state under a European arrest warrant could raise issues of refoulement. I understand the delegation’s point about the extradition treaties that deal with refoulement to a non-EU member state, but I do not see the point in the case of the EU. The EU largely operates on the basis of the rule of law and clearly established principles which are to be consolidated in the Charter of Fundamental Rights under the Lisbon treaty.

Chairman

We are under a time constraint to conclude by 3.40 p.m., so I will confine this part of our discussion to five minutes for replies.

Mr. Manuel Jordao

I will do my best, as will my colleague. I thank the members for their questions. With regard to carriers and carrier sanctions, the UNHCR commented on the occasion of the adoption of the convention implementing the Schengen agreement. We proposed the inclusion of what we called a savings clause in that EU instrument. In our view, the sanctions foreseen by the directive implementing Schengen should not apply where the third country national, lacking necessary documents for admission, is seeking international protection under the refugee instrument. It might happen that a person is in front of somebody disembarking on the road, as happens more often in the Mediterranean countries than in the Mediterranean Sea. Somebody at Dublin Airport or Cork Airport might have no documents, but claim that his or her life is in danger if turned away. These are the cases where a person is formally in front of an asylum applicant, who does not need to say the word "asylum", but just asks that the State does not send him back because he believes he is in danger. This is the sort of exception where the carrier sanctions should not apply. The way the legislation is drafted, it will not apply. Due to the way it is drafted, an asylum seeker will have no chance whatsoever to be identified and the carrier will be obliged to take him back.

We have appealed this provision, but we have been very unsuccessful for a number of years. This is a question of principle. Where an asylum seeker is identified, a state party to the convention cannot whistle. It is the obligation of such a party to admit the asylum seeker to a procedure and to assess if the claim comes under the convention, or the claim of someone that is in need of international protection, be it convention protection or subsidiary protection. We would like this Bill to include that provision if possible, even though most of the EU member states have not taken this into consideration. I do not understand why not.

This is the same principle when it comes to the question of EU nationals that apply for asylum. Before coming here, I was dealing with the Americas. We have equally sophisticated asylum procedures in Canada and the US. We had to deal with claims from US citizens applying for asylum in Ottawa, Canada. We know that most of these cases are not very serious and will probably be unfounded. However, the principle is that we should have a procedure to listen to the claim of the person in question and to decide quickly if the claim is groundless. We should not be assessing asylum claims simply because the applicant comes from a nice country. That is the central point to which I could draw to the attention of members of the committee. More than 80% of comments made by the UNHCR derive from the fact that refugee status recognition has a declaratory nature: "I am a refugee, not because you recognise me. You recognise me because I am". This is very important if we are to take the principle seriously.

I was asked whether we prioritise persons that are suffering or going through a detention measure. We do that in principle, particularly if the people involved are minors.

Ms Emilie Wiinblad-Mathez

We are developing objective criteria that could include detention. What is more problematic is when we prioritise findings that are not necessarily objective. For example, we could prioritise age in order to get through things quickly, as that is an objective criterion. It is not an exhaustive list, as long the criteria used are objective.

Mr. Manuel Jordao

That was one of the measures we supported in 2003, when important amendments were introduced to the Refugee Act 1996 and prioritisation was one of the main changes to the Act. In my statement I say that sections 53, 71, 117 and so forth are the main provisions that would benefit if the non-refoulement principle was fully respected. This was also at stake with regard to section 53, the provision dealing with extradition. When it comes to implementing EU extradition treaties, the key issue remains the same. The same logic applies when referring to asylum seekers who are EU nationals. If the extradition request is made on the same grounds as an asylum claim, one may wonder whether that claim is or is not well founded. However, we ask that the claim be assessed before the extradition of any person, which is a basic right.

This issue relates to the declaratory nature of refugee status recognition. It is a basic right of an asylum seeker to have his or her claim assessed, particularly if an extradition request invokes the same reasons under which a person claims asylum. This exception can be very simply put. Portuguese law does this, a point I mention as I have just returned from Coimbra University where I commented on Portuguese law while participating in a conference there. Portuguese law has this exception enshrined in a similar paragraph dealing with extradition, including extradition within the EU. Therefore, we hope this exception to the implementation of the way an extradition treaty is implemented will be duly reflected in the Bill.

Chairman

We are under extreme time pressure due to events today.

Mr. Manuel Jordao

I have talked too much.

Chairman

Not at all. If possible, the important questions can be dealt with in writing, which would be much appreciated by the committee.

Mr. Manuel Jordao

I will give two minutes to my colleague, who is much faster than I.

Ms Emilie Wiinblad-Mathez

I will be as brief as possible. On family reunification, it is difficult to draw up best practices across Europe because there is much change, particularly with regard to the definition and acknowledgment of marriages and partnerships. This is an area where Ireland has very limited legislation when compared to other countries and this causes many problems, for example, where a child can be recognised without recognising the other parent, which of course does not respect the principle of family unity. It is an important issue.

We have raised the issue of separated children, who could have family other than the normal recognised family but who are important for their needs. The definition of the family unit has always taken this into account, which is what we recommend, particularly for separated children.

With regard to a hearing for children, the bulk of our comments and what we have heard from other colleagues suggest it might be a good idea to have a separate hearing. This issue has been raised many times. There is now an opportunity to perhaps have a special procedure examining how we deal with it in this context. Our particular concern is that the determination of the best interest of a child should guide the process. If we include this determination early on, it would solve many of the current problems.

In terms of practicality, the section dealing with the carrier sanction issue already contains a defence. There are other defences for carrier sanction. Just including such a defence without prejudice to the 1951 convention would mean a case would be a matter of evidence at the end of the day, but it should be a possibility.

We have covered the issue of extradition and other EU states. On the non-refoulement principle, we have made several submissions. Extradition is just a small part of the issue — if one likes, it is a small, technical addition. The more serious issues around non-refoulement continue to be the use of the definition, on which we have made substantial comment, including with regard to implementation of EU legislation. Again, we are talking about very detailed and technical terms. We believe one part taken from the EU directive has been quoted wrongly in the current Bill and would cause a great amount of confusion at the level of determination. We hope the committee will examine the definitions, particularly with regard to subsidiary protection, which is a new area being entered into. There will be many new challenges in this regard and we hope the committee will examine the issue.

Our comments with regard to EU law are still valid, particularly with regard to whether the convention is sometimes a little stronger than EU law.

Chairman

Thank you very much. The witnesses' written and oral submission will help us very much in our consideration of the Bill.

I welcome Dr. Maurice Manning, president of the Irish Human Rights Commission, IHRC, and his colleagues. I should say I welcome back Dr. Manning, as he is very familiar with the Houses and he is most welcome at all times. The IHRC submission and contribution have been circulated to members. I invite Dr. Manning to make his opening comments, following which we will have an immediate exchange as members know the issues in the submission and wish to address them and tease them out.

Dr. Maurice Manning

I thank the Chairman. We greatly welcome the opportunity to attend. Like other speakers today, we welcome the atmosphere in which this Bill is being debated. It is clear there is a need for a calm and reflective approach to this major legislation. We also very much welcome the fact the Bill will be subjected to the most detailed committee scrutiny. If ever a Bill needed to be examined in detail, this is it.

I will briefly outline the role of the IHRC in this regard. Under the Human Rights Commission Act, one of our main functions is to examine all proposals for legislation to ensure they are compliant with Ireland's international human rights obligations. While we do not suggest to committee members that these are the only factors that go into their making up their minds about the final shape of the legislation, we believe it is very important that there be utter clarity and certainty as to what these obligations are so those who make the law have a very clear guide on this matter.

As the Chairman noted, time is our enemy. I will introduce my IHRC colleagues: Mr Éamonn MacAodha, chief executive; Mr. Michael Farrell, commission member and chair of the racism committee; and Ms Kirsten Roberts, chief policy and research director.

Chairman

You are all welcome. We look forward to our engagement. As Dr. Manning will understand more than most, events have conspired adversely against us today. Nonetheless, I invite the members of the committee to make their contributions.

Deputy Denis Naughten

I welcome Dr. Manning, with whom I shared an office for a time some years ago. He taught me well at that time.

If Dr. Manning cannot respond orally to my questions due to the time pressure, he might communicate the answers to us. I will focus on two issues with regard to the submission before us. The first is in regard to the marriage of foreign nationals, which seems to have ignited the imagination of certain members of the public in the context of this whole process. The objective the Minister claims is behind this provision is to address the issue of marriages of convenience. The Department claims there are a significant number of marriages of convenience taking place here and that he is trying to deal with it from this perspective. If this is the Minister's concern, it can be dealt with much more easily, without using a sledge-hammer to crack a nut, than in the mechanism contained in the proposed legislation. Can the witnesses elaborate on the provision element of the Bill?

I will focus on the issue of the victims of trafficking. The witnesses may be aware the Minister quoted extensively from the Irish Human Rights Commission during the passage of the human trafficking legislation through the Houses. However, he appears to have contradicted himself in respect of some of the provisions in the legislation under discussion. Can the witnesses comment or elaborate on the issue pertaining to foreign nationals, whereby no provision is being made for EU citizens? Members of the joint committee have received evidence that a sizeable proportion of victims of human trafficking, especially those trafficked into the sex industry in Ireland and throughout Europe, already are citizens of the European Union and therefore this legislation would make no provision for them. I refer to the restriction that will be placed on residency in Ireland, which will be solely on the basis of co-operation with the Garda Síochána. This is completely unacceptable and perhaps the commission's representatives will comment on whether a successful prosecution against a trafficker could be damaged, were the residency of the person who is giving evidence, the victim, solely dependent on giving such evidence.

I have two broader questions and will return to the issue of trafficking victims because that is the easiest way to explain the point. Under the legislation's present provisions, persons who are picked up on the street without documentation and who are victims of trafficking can be deported from this jurisdiction before being able to make a claim for protection because they already are illegally resident here. Does the commission have an idea as to what should be the appropriate target set by the Department in processing protection applications? While I appreciate that each application must be dealt with on an individual basis, the present position, in which it can take up to nine years to process an asylum application, is completely unacceptable.

Deputy Pat Rabbitte

Members have received a highly comprehensive submission for which I commend Dr. Manning and his colleagues as it goes to great pains to explain the rationale behind each of its recommendations. While members do not have time to go through it now, I will mention a couple of things. Although I do not wish to drag Dr. Manning or his colleagues into the business of commenting on the Refugee Appeals Tribunal and recent controversies connected with same, I refer to the commission's recommendation that there ought to be what it called a visibly independent appeals process. This was not included simply because it was a commitment in the programme for Government, but because the commission perceives it to be at the heart of what we are doing and the lack of a visibly independent appeals process undermines somewhat the credibility of this Bill. The witnesses should comment on this point.

I refer to the question raised by Deputy Naughten regarding the issue of marriages of conveniences. Are figures available that this constitutes a problem of any significance in Ireland? Is there a necessity for the provision that one must get the sanction of the Minister in the circumstances described in the Bill and so on? I refer to detention. If there must be detention, what is the Irish Human Rights Commission's view on the provisions in the Bill in this regard and on newspaper commentary to the effect that arrangements are being made at the new prison under construction at Thornton Hall for that purpose?

Deputy Michael D. Higgins

This is a highly comprehensive submission and I will avail of the opportunity to ask two small questions on it. The witnesses should elaborate a little on the related issues of safe country of origin and safe parts of country of origin. I believe the commission has suggested that the Bill should be amended to meet the requirements of Article 3 of the European Convention on Human Rights in this regard. Is the commission concerned at how such a definition would be made under the proposed legislation? For example, would it be on a discretionary basis with regard to the Minister? On what information would the Minister rely? Would it be legitimate to ask the questions, for example, that the commission suggested in another submission regarding what protections are in place in such a safe country or safe part of a country for the person who is at risk?

The second issue arises entirely from my constituency office practice and from reading decisions. I refer to the issue of credibility. I can state with absolute confidence that having read the basis on which people have arrived at decisions, in every instance what was offered was a legally based opinion on the credibility of the person, with no attention paid in any case I read over a long period to the credibility of the circumstances. This therefore raises the question of what is a safe country of origin or a safe part of a country of origin. Equally, in respect of the cases being presented, I refer to issues such as the ethnic context, family disputes, inappropriate marriages, internal tribal disputes or whatever. I have seen in no case——

Mr. Maurice Manning

With respect, I ask the Chairman to allow us to attempt to answer the questions thus far.

Deputy Michael D. Higgins

I have finished.

Mr. Maurice Manning

Otherwise, time will have——

Deputy Michael D. Higgins

I apologise. My only two questions pertained to the country of origin and to the issue of credibility.

Chairman

Although normally these discussions are open-ended, the Taoiseach is appearing in the Chamber in approximately five minutes. It is unfortunate but that is how things go. Perhaps Deputy Manning or rather, Dr. Manning, can respond.

Dr. Maurice Manning

Thank you.

Mr. Éamonn MacAodha

I will respond specifically to the trafficking questions and then will hand over to Mr. Farrell. As for the question of EU nationals and trafficking, we have stated there should be a separate chapter in the Bill to indicate clearly that the provisions apply to a specific category of persons and not only to foreign nationals per se. I believe this addresses that point. The other point about which we have been asked by members pertains to the six-month temporary permission to remain in the State and whether it should be dependent on the victim’s co-operation in the criminal prosecution of alleged traffickers. Our reading of the Council of Europe convention on trafficking leads us to suggest there should be a provision that would allow permission to remain for humanitarian reasons in certain circumstances and that the Bill should take this into account. This should address the point raised in this regard.

Mr. Michael Farrell

I will raise one point that has not been raised, namely, the question of regulations. We have placed much stress on the point that this Bill is basically a skeleton and that a great deal of it must be filled out by regulations. It is essential to know in advance what those details will be because of the importance of this issue both to those who come here as refugees seeking asylum or protection and, because the immigrant population will continue to increase, to immigrants. We have called on the Minister to publish the draft regulations and for them to be debated in the Oireachtas and this is very important.

I will try to pick up on a couple of the issues. On the Refugee Appeals Tribunal or refugee protection tribunal, we do not wish to get into the particular controversies. However, on the question of a visibly independent process, we also have made the point that there is no provision in the Bill for an independent appeals mechanism or tribunal for immigration decisions, as opposed to asylum and protection decisions. Those decisions are increasingly important. Since the proportion of asylum seekers to immigrants is changing rapidly and drastically, it is important that there be a credible, independent and reliable procedure for immigration decisions.

Concerning the protection tribunal, we have stated that it is important that decisions be published. Otherwise, consistency cannot be guaranteed. There is no reason not to publish them. Almost every other country with such a procedure does so and there is no basis for not doing so. If the decisions are not published, there can be no confidence that the procedure is credible. It is important that the appointments to the tribunal be made in a transparent way. The point was made that they should be made by the Public Appointments Commission rather than via special provisions in respect of some members.

We have expressed concerns about the question of detention, in respect of which there are two provisions. One is for people who are detained at the point of entry, but there is no time limit on it. The only excuse given is that there are no stamps available to give people stamped documents. It is clear that one cannot reasonably deprive someone of his or her liberty for any length of time because one does not have the materials to provide the permits in question. There must be an absolute and short limit on the period of detention at the point of entry.

The UNHCR has made the point that detention must be a matter of last resort. To detain someone and to take away his or her liberty when he or she is not accused of an offence is a major denial of human rights. Detention should be used as a last resort and, if there is a necessity to try to locate people and to keep them in one place, other measures such as signing on and so forth should be used if possible. If detention must be introduced in respect of a small number of people, it should be borne in mind that the European Committee for the Prevention of Torture has repeatedly criticised the detention of asylum seekers, immigrants and so on in Irish prisons. Since they are not criminals and have not been accused of offences, it is wrong to detain them in prisons. They must be kept separate from prisons in non-penal institutions under non-penal regimes suitable for people who are not accused of an offence.

Chairman

I invite Senator Bacik to ask questions.

Senator Ivana Bacik

I am grateful to Mr. Farrell for pre-empting my question on the wide scope of ministerial discretion and the concern it would lead to arbitrary decision making, which he has answered eloquently.

Mr. Michael Farrell

We would be happy to answer any of these questions in more detail in written form.

Deputy Naughten described the marriage provision as a sledge-hammer being used to crack a nut. A similar provision was introduced in Britain. However, a recent decision in the British Court of Appeal in the case of Baiai v. the Home Secretary held that it was unreasonable to assume all marriages entered into by people who were not lawfully in the country were invalid. It further found that if the intention was to prevent marriages of convenience, a measure entrenching on basic human rights — the right to marry — would need to be based on evidence of marriages of convenience. This is not the problem in Ireland. The Crosscare Migrant Project made a submission to the committee regarding the Minister’s reply earlier this year when he stated that only 14 people have been refused residency based on a marriage to an Irish citizen that was not believed to be a genuine marriage. These are the only figures of which I am aware. There are no figures. To claim that all people who are in Ireland as protection applicants or on short-term visas instead of illegally cannot be trusted to enter into marriages is disproportionate where there is no evidence of a major problem to be dealt with.

Deputy Michael D. Higgins

What of the issue of credibility?

Mr. Michael Farrell

In my experience as a lawyer, I have encountered cases of people being judged on the credibility of answers to questions irrelevant to the fundamental issue of whether there was a threat to their safety. The UNHCR is of the opinion that to do so is wrong and we have spelled out that someone's credibility in terms of whether he or she is under threat should not be determined by answers to irrelevant issues.

Chairman

I thank Mr. Farrell. I would like to have done his and other submissions more justice, but today is unusual, as our guests would appreciate.

Mr. Maurice Manning

I thank the Chairman for his courtesy. We would be happy to answer any questions that have not been answered.

Chairman

The meeting will suspend until 6.15 p.m.

Sitting suspended at 3.45 p.m. and resumed at 6.20 p.m.

Chairman

We have heard submissions from three groups. We will now hear submissions from the Immigrant Council of Ireland, followed by Amnesty International, the Vincentian Refugee Centre and the New Communities Partnership. I welcome Ms Denise Charlton of the Immigration Council of Ireland to assist us in our consideration of the Immigration, Residence and Protection Bill 2008.

I draw everybody's attention to the fact that members of this committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee and the committee cannot guarantee any level of privilege to witnesses appearing before it. Further, under the salient rulings of the Chair members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I advise everyone that the procedure will involve each organisation making a brief presentation on the assumption that all members have received and read the submissions. We will invite each group to make a presentation. Presentations should be as brief as possible to allow time to tease out the issues in a question and answer session.

I invite Ms Denise Charlton to begin her presentation.

Ms Denise Charlton

I thank the committee for the opportunity to attend. The crucial importance of this legislation for everybody living, visiting and working in Ireland has been well versed. Our presentation is about the context in which the immigration Bill is set. While it is concerned with who gets to reside here and the associated rights, it is also very important in the context of the integration debate. This Bill is of immense importance in terms of the settling of migrants in Ireland, what facilitates this and what acts as a barrier to it, and how we avoid social exclusion and the negative consequences that have arisen in other jurisdictions. We believe that the separation of immigration and integration is false and that the navigation through the immigration system has immense consequences for the ability and capacity to integrate into Ireland and for Ireland's population and its future social cohesion and harmony. While acknowledging the efforts to comprehensively reform the immigration system, we must also say that unless this Bill is significantly amended the Government will not achieve its aim, set out in the programme for Government, of a clear and integrated approach to the process of dealing with foreign nationals coming to the State, staying here and, when necessary, being required to leave.

The Immigrant Council of Ireland is an independent NGO. It is also an independent law centre, one of the few in the immigration area. That primarily informs our submission and proposed amendments. I addition to that, we have consulted with internal and external legal advisers. The proposals we advocate are very much informed by the 10,000 individuals from Irish citizens to EU nationals to third country nationals who came to the ICI last year. This year we have already seen 2,000 people. Many of the queries are about the existing system but there are also queries about the proposed changes to the legislation. Most people come to us because of inefficiencies, lack of consistency, lack of transparency, inordinate delays, lack of an effective remedy and the high level of bureaucracy in the existing system. That has also been the experience of other service providers. We know from working with the committee that it is very often the experience of constituency offices. If we do not make major amendments to this Bill, the deficiencies in the existing chaotic system will not be addressed.

Our proposals for amending the Bill cover a wide range of issues. We will not, as suggested, go through all of those because we know the committee has paid excellent attention to them. We appreciate that. In summary, the areas of concern for our service users as the Immigrant Council of Ireland are as follows: the failure to set out clear immigration rules in primary legislation; the need for an independent appeals mechanism in the programme for Government; the lack of a provision regarding the right of family reunification; the impact of summary deportations; limitation on access to benefits and services for people deemed to be unlawfully present in the State; the impact of excessive ministerial discretion; failure to provide legal safeguards against refusal of entry; limits that the Bill places on access to justice for migrants; restrictions on the right to marry and international human rights obligations; long-term residency provisions which, under the Bill, do not provide real permanency of residency; the level of application of fees; and insufficient protection for victims of trafficking. Many of those issues were raised today but they were also raised by members of the committee in the first Stages of the debate in the Dáil. We hope the committee will consider our amendments. We will be happy to work with the committee on those proposed amendments during the question and answer session or at any other time.

I will highlight in more detail some of the issues of concern to us. Deputy Rabbitte asked one of the presenting organisations what three aspects of the Bill it would change. It was difficult to answer that question. We have set out clearly where we believe we can make a difference in the contents of the Bill. Of major concern to us, the committee and others, is what is not in the Bill, its failure to set out rules. In our submission we point out that the Bill fails to set out clearly the rights and obligations of migrants seeking to come to Ireland. The Irish Human Rights Commission described the Bill as a skeleton. We concur with that description. We do not know what the regulations will contain when they are introduced. We do not know whom they will affect. We do not know when they will be introduced. We are greatly concerned that this will affect major migration flows such as family reunification, one of the greatest flows within the EU, yet the rules will not be apparent and will not be clear. My colleague, Ms Becker, will expand on this issue.

Deputy Flanagan has rightly said family reunification has been one of the key issues for many of the groups presenting to us and taken up a lot of the air time devoted to the Bill. As it is being discussed today in the context of asylum and refugees under protection, we will point to some of the issues relating to migration.

We have concerns about provisions of the Bill which will not be enforceable or in respect of which there is no intention to pursue enforcement. Examples are sections 19 and 23 which deal with the arrival of and entry into the State of a foreign national in the State by way of approved ports. One must consider the implications these sections hold for cross-Border tourism. It can only be assumed, or hoped, the Government does not intend to enforce their provisions against tourists on a day trip to the Republic from the North. This example poses a number of serious questions as to who decides when the law should be enforced, and against whom, and when it is acceptable for the law to be broken.

Section 6(1)(a) of the Bill limits access to services for persons deemed to be unlawfully present in the State. As it stands, the legislation makes it an offence for somebody unlawfully present in the State to buy a stamp or catch a bus. Clearly, this is unenforceable; therefore, it is not a priority for the Immigrant Council of Ireland. However, the principle of a law being introduced in the knowledge that parts of it are unlikely to be enforced, without knowing how such decisions will be made, is a source of grave concern for us, as it is, I am sure, for members of the committee. We have proposed amendments to resolve these issues. In addition to what has been admitted and the question of enforceability, the lack of clarity throughout the Bill is a major concern for the council and our service users.

Again, I refer to the 10,000 migrants who came to the ICI last year in an attempt to have their situation clarified as regards availing of their legal and social rights. The lack of transparency and consistency makes it difficult for all, as well as creating hardship for individuals. There are examples of a lack of clarity throughout the Bill such as the fact that there is no mention of the rights and obligations of migrants seeking to come and set up a business here, as well as the requirement in section 36 to show long-term residency. The Bill refers to the need for residency applicants to show that they have made a reasonable effort to integrate but, again, we have to question what this means. What is the definition of "reasonable" and "integrate" and on what grounds can the Minister make a decision? What are the criteria and how do we set them out?

There has been much discussion about parts of the Bill which may be unconstitutional or in breach of human rights obligations and which I will not go through again. Particular attention has been paid to the provision which restricts the right to marry, restrictions on access to justice and the lack of an independent appeals mechanism, an issue on which Ms Becker will expand and in which there is great interest. We reiterate that it is mentioned in the programme for Government. A huge amendment is necessary to make the Bill workable.

Having outlined our initial concerns, I will conclude by reminding members that those who access our services do so without any funding from the State. If and when the Bill is enacted, there will be a huge job to communicate the changes being introduced. NGOs will play a huge role in that process. We hope there will be funding for the communication of information on the provisions of the Bill at that stage. I will now hand over to Ms Becker.

Chairman

At this stage I will invite members to ask brief questions as we have exceeded the time allotted for the presentation.

Deputy Denis Naughten

I thank the Immigrant Council of Ireland for its presentation and submission to the committee. Section 24 of the Bill deals with the arrival in the State of persons under 18 years of age. We spoke earlier of the difference between protection applicants — or asylum seekers — who are unaccompanied children and other unaccompanied children who enter the State as migrants. How big an issue is this? Does the ICI have any concerns about the HSE's responsibility, or lack of it, for migrants entering the State legally?

From an immigration perspective, the biggest problem is that there is not a clear road to residency. This evening, when I returned to my office, I learned that an applicant for long-term residency status had tried to make contact with me. The applicant applied last December and is waiting for approval in order to get a mortgage from the bank, which cannot be secured without long-term residency status. However, it will be a minimum of two and a half years before the applicant receives a decision from the Department.

What does the Immigrant Council of Ireland believe is a realistic maximum timeframe for the Department to process residency applications? What does it believe long-term residency should mean? Under the legislation, it means a figure of five years. Will the delegates comment on how we regularise those who have fallen out of the system? The council has dealt with a considerable number of such persons and there is an ad hoc system in place. The Minister has indicated that he intends to bring forward an amendment on Committee Stage to deal with the issue. If the council was drafting the amendment, what would it include?

On the right to marry, has the Immigrant Council of Ireland any idea how big an issue is marriage of convenience, which the Minister mentioned? We have heard from another contributor that the Department's figures show there have been 14 such cases. Does the council have any evidence, anecdotal or otherwise, to show how big an issue it is?

The existing provision on denying access to long-term residency status for an applicant who has drawn down a social welfare entitlement will be reintroduced in the Bill. In many cases such persons are legally entitled to welfare payments, having paid PRSI, but they are denied long-term residency status as a result. Will the delegation comment on this?

Deputy Pat Rabbitte

I will return to the inelegantly asked question as to what the priorities of the delegations would be. I accept it was a crude question, inappropriate to groups which have taken such a comprehensive approach to the Bill and the members of which do not see themselves ranking issues in that way. However, having read most of the comprehensive submissions, I thought it would provide a handy ready reckoner for our business if each of the groups could indicate their priorities to us. We would then know that if they were not given expression to in law, the Bill would be terrible. It would have been interesting to study the priorities of the three organisations at the end of the process.

On the proposal for an immigration appeals tribunal, can the delegation give us any international comparisons? Family reunification is an issue that is often raised in our constituency practices. There has been some relaxation in recent years. For example we must rely heavily on non-national labour to run our health services. Yet we expect a person to work in the health services and that his or her immediate family may not join him or her. Do I understand from the submission that this issue must be addressed in the context of regulations as distinct from the primary legislation and is that the best way to do it? The way that works in practice is that in this Bill as it stands the Minister reserves the right to himself from time to time to make regulations and even though there is a long-standing standing order of the House in terms of Members of Dáil Éireann having the right to vote down regulations, statutory instruments go through on the nod as long as they are consistent with the primary legislation. I wonder if that is the best way to deal with it?

Will the delegates comment on summary deportation? Are there circumstances in which summary deportation is regarded as inevitable and acceptable? How do we give expression to whatever that balance is in legislation?

Chairman

I agree with Deputy Rabbitte's approach in terms of setting out what the representative groups see as the fundamental points at issue in the Bill. It would be of assistance to the committee to see if there was a consistency among the representative groups on the defects in the Bill.

There is a general recognition that the current procedures are not at all satisfactory. What defects do the representative groups see in the proposed appeal procedure?

Deputy Pat Rabbitte

We are not suggesting to the representative groups that if they establish the three issues that are important above all others that we will ignore all the others. The way the system works is that Ministers are more likely to take on board amendments on the less important things than they are on the important things. The attitude of Mr. Hanan was that if he lists the three most important issues, that is what the members will take on board and not pursue the other important issues. That is not the point of the exercise. Ministers will take on board frequently amendments that are not a matter of life and death and will process them in the normal way. Are there issues of importance at the heart of the Bill?

Ms Denise Charlton

The point is well taken. We can address this question on the basis of the three priority issues that present at our services. We had planned to do that in Ms Hikka Becker's presentation and she had further developed three areas that had been addressed in the questions. I will hand over to Ms Becker.

Ms Hikka Becker

If we had to limit ourselves to the three main priorities, the first would be to enshrine a right to family unification in primary legislation. That addresses also one of the questions. We would like to see a right to family unification, subject to conditions in primary legislation in the same way as in the majority of EU member states, for example, through the transposition of the family reunification directive that applies in most member states. This is not a free for all. It applies under certain conditions to people who have a more long-term prospect of remaining in the State, people who have income, accommodation and so on to support the family. Exceptions must be possible there also. In general, the rights of migrants and their family members must be enshrined in primary legislation and then the regulations could interpret and further clarify the main principles.

The introduction of an immigration appeals tribunal is a priority. This is not proposed in the Bill. The main thing wrong with the proposed protection review tribunal from our perspective is that it does not apply to immigration decisions. We would then support the criticisms of our colleagues with regard to the detail and we have proposed detailed sections to be inserted into the Bill that would introduce an immigration appeals tribunal. It should be introduced through primary legislation.

Deputy Pat Rabbitte

Where else does that exist?

Ms Hikka Becker

It exists for example in the UK. I am not quite sure of the title but I think it is called the immigration and asylum tribunal and it deals with both immigration and asylum cases. In Germany, they deal with appeals through the court system. It is not something we are proposing for Ireland but a system is in place that deals with the merits of a complaint whereas in Ireland many migrants are forced to take a case to the High Court to argue that the refusal of their application for family reunification constituted a procedural error that the High Court is able to deal with by way of judicial review.

Deputy Pat Rabbitte

Is there a separate immigration appeals tribunal in any other EU member state?

Ms Hikka Becker

I can point to the system in the UK.

Deputy Pat Rabbitte

That tribunal is an integrated one and deals with the protection side as well.

Ms Hikka Becker

It does take both.

Deputy Pat Rabbitte

Would a tribunal dealing with both be acceptable to you?

Ms Hikka Becker

It would be. We are not saying there must be a separate tribunal but there must be a tribunal — whether it is an integrated one which administratively may make the most sense — that deals with both, ideally with separately and individually qualified members that deal with either or, but where the administration of the tribunal could be done jointly. That would be a detail to be sorted out at a later stage.

Deputy Denis Naughten

The issue is that it is seen to be independent of the Department.

Ms Hikka Becker

Absolutely. It must be seen to be independent and that the appointments to the tribunal would be independently made through an appointments commission. The decisions of the tribunal should be published so that precedent can be created and people will know for example what type of case has no chance or has a chance of succeeding on the advice of legal representatives, avoiding overuse of a tribunal mechanism. The third area we would prioritise would be the issue of summary deportations. The major concern we have is that the Bill removes the current procedure of notification of intention to deport, the ability to make within 15 working days representation as to why a person should not be deported and the taking into consideration of exceptional circumstances. That is of grave concern and we have come across a number of cases. We have for example a migrant worker who was here on a work permit, legally resident and contributing but who was attacked by Irish people with iron scaffolding bars. He suffered brain injury and could not renew his residence permit. Clearly the employer was not able to employ him and there was no longer a work permit to correspond to his residence permit.Under the proposed legislation, he would not have the possibility of even applying for a resident's permit on humanitarian grounds to allow him to recover and continue the medical treatment that he is still receiving today, four years later. After a long wait, that man was recently granted a residence permit pursuant to section 3 of the 1999 Act. That would no longer be possible.

That links with the provisions regarding trafficking. Under the Bill as proposed, a victim of trafficking would have no access to a residence permit on humanitarian grounds. Residence permits are only granted to people who contribute to the investigation or prosecution of a trafficking offence but where that is not possible or where there is clearly a humanitarian need in that somebody is highly traumatised and cannot be returned, there is no avenue open to the Minister to grant the permit.

Deputy Denis Naughten

Officials in the Department have made the point to us that the current system for notification allows someone to avoid deportation — they are given 15 days' notice — and that is the reason the Department is introducing this measure. How does Ms Becker address that conflict or can it be addressed?

Ms Hikka Becker

It can, yes. The Deputy should examine our proposals for an immigration appeals tribunal. We do not foresee a process where somebody would apply for, say, a residence permit, is refused, appeals that refusal, is refused that appeal, makes an application for permission to remain in the State on humanitarian grounds, is refused and appeals that again. We suggest that once somebody is refused, he or she can appeal and that as part of the appeal the appeals tribunal, as proposed by us, would deal not only with the question of whether the decision was correct but also whether there are other grounds on which residency should be granted. We are trying to combine all of that into the one decision.

We have also proposed that there should be the possibility of extending time to apply for renewal of a residence permit and the possibility of applying, in exceptional circumstances, for a residence permit even though the entry permit does not provide for that. People are granting entry permits without the permission to apply for a residence permit but where exceptional circumstances arise we say there would also be an opening for them.

Deputy Denis Naughten

We made the point earlier, and I know Ms Becker is aware of it, that the difficulty is that for someone to make the case for exceptional circumstances they must first know that they can make the case and, second, they must have the opportunity to make it. With summary deportation they can be picked up in Sligo, transported to Dublin and deported that day. The current system would facilitate those avenues but what is being proposed would not facilitate them in that the person would not have the opportunity, in theory, to complete an application form because once they are stopped on the street by a member of the Garda Síochána and found not to have proper documentation to show they are legally resident here, they can be deported immediately. Whether that is the case in practice we will have to wait and see but how do we address the officials' concern that people are absconding while providing the protection needed in respect of the case Ms Becker has outlined of someone who has been a victim of human trafficking?

Chairman

That will have to be the final question because there are time limits on the other groups.

Ms Hikka Becker

A number of sections would have to be amended. I refer the Deputy to our document, but they are sections 4, 26, 30, 32, 33, 40, 42 and 45, all of which deal with extension of residence permits, modification of residence permits and entry permits. In regard to each of those there must be a way back in and our amendment would provide for that, also for victims of trafficking where we have suggested an amendment allowing an application for permission to remain on humanitarian grounds.

On Deputy Naughten's earlier question about the arrival of children in the State and whether we have concerns about that, we have proposed an amendment to section 24, which is geared more towards protecting children who arrive accompanied. We would say that the State and the immigration officers must have the possibility of checking whether the person accompanying a child is authorised to do so. The current wording of the Bill refers to whether the adult is taking responsibility but we say that is not safe enough for a possible victim of child trafficking. That is our main concern in that regard. Otherwise, we share the concerns of the refugee protection organisations.

Deputy Denis Naughten

Would Ms Becker correspond with the committee regarding the third point in the submission? I ask that she outline in detail the points that should be taken into consideration regarding family reunification and what the Department would consider regarding the ability to support the family and so on.

Chairman

If that is possible it would be welcome.

Ms Hikka Becker

We might come back to the committee in writing with regard to the other question Deputy Naughten asked about access to long-term residency and concern about social welfare recipients being excluded and so on.

Chairman

I thank Ms Becker for making the presentation and her submission. It helps us in our consideration of the Bill.

I welcome the representatives of Amnesty International. I welcome Ms Fiona Crowley from Amnesty International and invite her to make a presentation. Ms Crowley was present for this session and the earlier session and will have a flavour for the type of interaction we seek.

Ms Fiona Crowley

Thank you, Chairman. Amnesty International welcomes the committee's consideration of this Bill and the important opportunity today to reflect on Ireland's immigration and asylum procedures and to try to ensure that they achieve the highest level of protection for and the securing of the rights and dignity of migrants and asylum seekers and other protection applicants.

In our submission we are conscious that a range of organisations are making submissions and are interested in the vast expanse of issues raised in this Bill. We confine our attention to the single protection procedure and the rights of victims of trafficking. We make some general points about the status of the international convention on the rights of migrant workers, given that Ireland has so far refused to sign that convention on the basis of what we believe is a fundamentally flawed argument. It would be useful for the committee to ponder that.

Amnesty International is an international organisation and we are conscious of the worst excesses in other jurisdictions. In many ways the Irish asylum system compares favourably with several of those of its European Union neighbours. For instance, in contrast to several European countries, Ireland has thus far not adopted a detention based asylum determination system and we make some comments on any future proposal in that regard. However, the measure must meet international refugee and human rights standards, not the worst practices in other states. Ireland is faced with a system whereby people who seek protection here meet a system that leaves them at risk of being involuntarily returned to situations of persecution. We need to examine the Bill in that light.

We welcome any positive provisions in the Bill but we are concerned that there are several provisions that need to be amended and a number of gaps that must be addressed if what we are aiming for are fair and effective procedures to grant protection to those in need.

I wish to respond to the matter raised by Senator Regan regarding the compliance or otherwise of EU measures with international human rights law. Amnesty International and a range of international experts, including the UNHCR and international NGOs, are deeply critical of the European asylum acquis and believe it is fundamentally flawed when compared with member states’ obligations under the refugee convention and other human rights standards. We can make available to the committee a number of Amnesty International documents setting out the terms in which the acquis is out of step. However, it is not just about the acquis. The committee should bear in mind that evaluation of the first phase instruments under the common European asylum policy is under way at present. The European Commission is preparing a policy plan setting out how the level of protection could be raised. In addition, the EU reform treaty may provide a more solid basis for ensuring compliance with human rights standards.

There are a number of proposals as well for relaxing the restriction on the ability of the European Court of Justice to rule on matters of interpretation of national law. We would like to see this Bill showing the way ahead and not adopting the minimalist approach that has been reflected in the first stage instruments. Harmonisation has also not been served by these instruments. The huge amount of discretion left to the member states, particularly in the asylum directive, simply has not worked if harmonisation is the objective. The Bill should also be seen in this light. We would like Ireland to take the opportunity to lead by example and legislate for the future. A common system across Europe can only succeed if it is fully compatible with international refugee and human rights law. We will be happy to furnish the committee with further information on this issue.

With regard to the directives the Bill proposes to implement, we realise that Ireland is obliged to legislate for at least the minimum standards in the three directives. However, these are just minimum standards and the Bill must go way beyond what is provided for in the directives. It should look to the refugee convention and international human rights law. We have made a number of recommendations in our response to the European Commission's Green Paper in terms of how the directives need to be amended, and they reflect our concerns regarding this Bill. We ask the committee to take due cognisance of the fact that the EU itself is at a crossroads, and to pay regard to the fact that the asylum procedures directive is probably the most problematic legislation in the EU asylum acquis adopted so far. In fact, we and a number of other NGOs at European level called for its withdrawal on the basis that it was simply unacceptable.

We welcome the concept of a single protection procedure for determining refugee status and Ireland's other non-refoulement obligations. This would generally be in the interest not just of the asylum seeker but also of the asylum authorities. However, our support for such a procedure would be conditional on procedural safeguards being enshrined in the Bill. We set out a number of proposals, as have our colleagues from the UNHCR and the other groups, in terms of the definitions provided in the Bill, which very much reflect the qualification directive, and in terms of the protection review tribunal. How that tribunal is appointed and operated must meet the criteria of independence, effectiveness, promptness and transparency and that is not adequately reflected in the Bill. In the context of the protection review tribunal, I ask the committee to refer to the UN Paris Principles. While they serve primarily as the basis for the establishment of national human rights institutions, Amnesty International firmly believes these principles provide a solid basis for the establishment of any redress mechanism where human rights violations are at issue.

We also echo the representations of other speakers today that section 95 of the Bill must be amended to provide for the automatic publication of decisions. This would address the inconsistency and lack of transparency in the current system. As a general point of principle, Amnesty International strongly opposes the use of safe country of origin notions and the adoption of lists of safe countries of origin in asylum procedures. We believe it is inherently discriminatory and, moreover, unworkable. In fact, this is one illustration of how harmonisation has not worked across the EU. All attempts so far at EU level to reach a minimum common list of safe countries of origin have failed due to lack of agreement and have shown the very politicised nature of the discussion, rather than examining these lists on the basis of human rights standards. We strongly believe no country can be labelled "safe".

With regard to a question raised earlier by a member of the committee, it is interesting to see the exclusion from the refugee definition of citizens of EU states. While it is a historical decision today, in 1993 the Canadian Court of Appeal actually granted refugee status to an Irish national. No EU member state can be considered safe because circumstances prevailing in a state are continually evolving and we must legislate for all circumstances. We have similar concerns about the use of safe third country concepts. These are included in our submission. We also echo the concerns expressed earlier by the UNHCR regarding applications deemed withdrawn. With regard to appeals against removal, we believe a core deficiency in the Bill is the provision limiting the inherent power of the courts to stay the deportation or transfer of an individual. There is no reason to delimit the power of the courts. Amnesty International and the European Court of Human Rights insist that the right to an effective remedy is critical. An effective remedy under Article 13 of the European Convention on Human Rights requires that the implementation of the measure impugned can be suspended.

We have particular concerns about the detention provisions in the Bill. We believe there should be a statutory prohibition on the detention of vulnerable people who have sought protection, including but not limited to, torture survivors and victims of sexual violence, pregnant women, families with young children, older people, people with serious medical conditions and people with mental health problems. This is in addition to the other measures we have outlined in our submission.

Finally, I will mention victims of trafficking. As we state in our submission, while we welcome the publication of the Criminal Law (Human Trafficking) Bill mentioned by Deputy Rabbitte, this is just one element of Ireland's obligations if it is to ratify the Council of Europe Convention on Action against Trafficking in Human Beings that it signed in March last year. This legislation is critical but what is needed is a comprehensive package focused on victim protection. We welcome the provision in the Bill that empowers the Minister to grant a victim or suspected victim of trafficking the recovery and reflection period in the State of 45 days. However, while we welcome the six-month temporary residence permit for victims of trafficking in section 124(7), we are concerned at the minimalist approach to it. The Bill provides that this residency is dependent on the victim's co-operation in the criminal investigation and prosecution, that is, there must be an investigation and prosecution and this provision is limited to the period of such prosecution. We have made further observations and concur with the Human Rights Commission that a package of legislation on victim support and assistance is required.

I noted Senator Bacik's point about the great interest of children's rights organisations in making representations to this committee. I urge the committee to facilitate that. It is not possible to flesh out all the Bill's implications for children in today's short session.

Finally, a simple step could be taken in the Bill with the inclusion of a catch-all clause expressly providing that nothing in the Bill will affect any obligation of the State under the refugee convention, the European Convention on Human Rights, the convention against torture and other international standards. I thank the committee for its forbearance. I hope I have not gone over time.

Deputy Denis Naughten

I thank Ms Crowley for her presentation. In her contribution, Ms Crowley mentioned the politicisation of the EU debate on safe countries. Can she elaborate on that point? At the outset, she said that throughout Europe there seems to be a procedure of detention-based protection systems. Other than Ireland, what countries do not adopt the detention-based system? Does Amnesty International have concerns that a third category of people is ignored in this legislation, namely, people with disabilities? In the trafficking legislation, a definition is provided concerning people with disabilities. In this legislation, however, there are two categories of people regarding either the immigration or protection processes, namely, those under 18 years of age and those over 18, but the issue of disability is not dealt with. That is a matter of concern given that this legislation emanates from the Department of Justice, Equality and Law Reform.

While each case must be dealt with on its own merits, what does Amnesty International consider as the appropriate timescale for processing an asylum protection application? As I said earlier, I came across one example where it took nine years for a decision to be made. It is totally unacceptable that people should be left in limbo for up to nine years while the Department considers the asylum application and the subsequent leave-to-remain application. I would be grateful if Ms Crowley could comment on those points.

Deputy Pat Rabbitte

I express my appreciation of Ms Crowley's presentation and her detailed written submission. She acknowledged that the Irish asylum system compares favourably with the situation in some other countries. She instanced in particular the fact that Ireland does not go down the road of a detention-based system. Is she saying, however, that this Bill opens the door to such a detention-based system? Is that her reading of the Bill?

Does Amnesty International have any experience of the performance of the Refugee Appeals Tribunal? Is it interfacing with people who have been through the process and have come out at the other end in whatever condition, or is she merely taking on board the criticisms we have heard from other organisations that have direct experience of it?

Chairman

Ms Crowley has strong views on the CEAS directive and is not in favour of the EU's position. I am not au fait with the matter and am not qualified to comment on it. However, Ms Crowley’s point is that, on the one hand, it is a good idea to have harmonisation so that people will know how they will be dealt with from country to country. On the other hand, she said that we must go further than the minimum standards set down by the EU. If everybody adopted a different type of approach, to a greater or lesser degree than the minimum, then by definition one would not have harmonisation. That is the point Deputy Naughten made.

Ms Fiona Crowley

Which point shall I take first?

Chairman

Take them in any order that suits you.

Ms Fiona Crowley

The politicisation question was in reference to the safe country list. This has been debated for a long time at EU level. No agreement has been reached on achieving a common list, which reflects the fact that there was a huge divergence of views as to what can be considered safe. Many countries are opposed to certain countries being considered safe, while others are in favour of it because of their political ties with a particular country. It supports our argument that the divergence of views in the debate itself means that one must make these determinations on individual assessments based on objective criteria, rather than deciding that a country of itself is safe just because it is that country.

Deputy Rabbitte also referred to the detention-based system. To address both questions, we do not feel the Bill provides for a detention-based system. There is provision for the Minister to make regulations to treat various categories differently. We very much hope that this would not be the intention behind the Bill. Aside from our concerns about the provisions for detaining people on immigration matters and so on, more generally provided for in the Bill, we hope the Government has looked at the experience in the UK and the Netherlands for instance. That shows that a detention-based system simply does not work. In our submission we have set out parts of a report that Amnesty International conducted in 2005 into the UK system, which shows that not alone are the rights of those detained flagrantly violated — as well as the huge physical and mental health consequences on individuals — but also the systems themselves do not lead to more efficient or effective determination procedures, with a high level of appeal and long delays. Therefore, it is unworkable in addition to being a flawed premise. If such a regime were ever to be considered, we have set out the procedural safeguards that would need to surround it.

We are concerned about the category of disability. Non-discrimination should of course be a guiding principle in this and other domestic legislation. Ireland has signed and plans to ratify the UN disability convention, which will apply not just to citizens but to anyone at the frontier of the State or in the territory of the State. If Ireland plans to ratify this convention it will have to review all its domestic legislation to ensure equality and non-discrimination provisions in respect of disability.

As regards existing legislation, it is interesting that under the Immigration Act 2004, which replicates previous positions, it is possible for an immigration officer to return a person who presents at the border with a mental disorder — they are pretty much required to do so. I believe it is defined as a "mental disturbance". That provision essentially obliges immigration officers to perform the role of a psychiatrist, as well as returning the person concerned onto the aeroplane or other carrier that brought him or her. Thankfully, this Bill contains no such provision and where it refers to the control of prescribed diseases, plans to treat people rather than returning them to an aircraft or boat.

As regards the Refugee Appeals Tribunal, we do engage with people although not to the degree that we used to. There is a plethora of competent NGOs working in the area but we do engage in what we call cases of imminent refoulement whereby people come to us and we make a representation. The committee may be aware of our interest in the female genital mutilation case that is currently capturing media attention. In reviewing decisions at first hand, we have seen the poor quality of decision making within the Refugee Appeals Tribunal. Very flawed decisions have been made on unfortunate bases.

Deputy Pat Rabbitte

Is Ms Crowley stating that the people speaking to Amnesty International are universally displeased with how it functions at present?

Ms Fiona Crowley

People come to us when they have been rejected at first instance. Obviously, people will seek our intervention in cases where there is no reason for us to intervene. I review many decisions. I am not saying they all are flawed. We look to not just the procedural fairness but also the merits of the case. If we are satisfied on both counts, we will intervene.

I cannot give a particular percentage of decisions that are flawed procedurally and on merit, but we see both. We see decision making that is of good quality and of very poor quality in terms of the procedures but also the outcome, if that answers Deputy Rabbitte's question.

In terms of the EU, possibly I have not addressed some of the questions, but if the committee so wishes I will respond in writing. Harmonisation is a good idea. Amnesty International supports the concept of harmonisation. We believe the Dublin regulation will be unworkable and unfair until harmonisation is secured. Sharing a burden of responsibility can only work if everybody has the same responsibility. Harmonisation is a good idea but we must look to international refugee and human rights standards. We sign up to these for a reason and it is because they represent the consensus of nations at the international level superseding European Union law. Moreover, this will work.

Chairman

Thank you. The discussion helps us in our bank of knowledge and we very much appreciate that.

I welcome Mr. Matt Byrne from the Vincentian Refugee Centre to make a presentation to the committee.

Mr. Matt Byrne

I thank the committee for having us. I came here with Mr. Turan Karpuzcu but he is feeling a bit ill and has had to step out. He sends his apologies.

I thank the committee for the opportunity to present our submission. I will not take up much of the committee's time. To give an idea of where it came from, we invited Ms Gráinne Brophy of the Refugee Legal Service to come to explain the Bill to our client group, which comprises refugees and asylum seekers. We merely wrote down the questions and problems that they identified in the Bill, and submitted these to the committee. It is direct from their mouths to the page and reflects their day to day issues.

Last year 5,000 people came through our doors in St. Peter's church in Phibsborough. From that, we have identified three main concerns of refugees — family reunification, separated children and long-term residency. They will echo what the other speakers have stated today. I will run through them quickly.

In the proposed legislation there are few references to family reunification. Our clients repeatedly refer to the lack of clarity in the process and as they cannot, by definition, return home to their own countries, this is an integration issue. If one's family is not there, one is alone and cannot be expected to focus on education, job seeking and so on. The current length of time for a decision is approximately 24 months. For our clients, this is an unacceptable length of time. It has led to marriage breakdown, it has led to family members being killed or dying while awaiting finalisation of the process. It places unacceptable strains on the refugee here and the family at home who often find it difficult to comprehend what is happening here.

It is very difficult to get information from the Irish Naturalisation and Immigration Service. We have had instances of some refugees being refused family reunification and never being informed of the decision. Our group recognises the family as the fundamental unit of society. This is enshrined in the Constitution. Refugees, as we see it at present, given this excessive time limit for decisions, are denied this right. Programme refugees are not entitled to family reunification. There is no automatic right for them. We would like to see a right to family reunification for programme refugees.

Minors can apply for family reunification for the parents but there are restrictions on siblings, which puts a strain on families in decisions over who will stay, who will come, who can come and what will happen. The decision-making process is unclear. We have no undertakings from the Department of Justice, Equality and Law Reform on the exact criteria. For example, where a refugee applies for his or her children who are under the age of 18 and who turn 18 while awaiting a decision, we do not have concrete guidelines to indicated whether the children are allowed to come or whether there has been a change when they reach the age of 18. Another common question is, what happens if a refugee is granted naturalisation while awaiting a decision on family unification. We have conflicting information from different people. Nobody has specified it in writing and it is difficult for us to give advice to people in that situation. Letters from the Department of Justice, Equality and Law Reform in Ennis give little information. In fact, they give no information on the stage of the applications which is quite stressful for our clients. They merely state that they are dealt with in chronological order and it takes approximately 24 months.

Deputy Pat Rabbitte

We find that hard to believe.

Mr. Matt Byrne

So do the majority of our clients. They often tell us that they know somebody who got it in three months or six months and who applied after them. While all this is speculative and subjective, if we cannot detail how the procedure works then people will feel resentful and stressed and ask why some people get it and not them.

Estrangement in couples is another problem the refugees have highlighted for us. This is mainly due to the length of time apart. The Vincentian Refugee Centre supports many refugees who are estranged. In addition, when the couple separates the status of the spouse reunited with the refugee is unclear as it stands. We are keen to see specific criteria to ensure fair and transparent decision making and an independent appeals process for people who are refused that.

With regard to unaccompanied minors, we run a homework club and we see many day-to-day issues through this. The children's' rights groups are looking to make a specific submission to, or have a meeting with the committee and I strongly recommend the committee facilitate them if at all possible.

The best interests of the child should be foremost in this area and minors should be given the benefit of the doubt when applying for protection within the State. Section 24 gives excessive power to immigration officers to determine the age of a minor on appearance alone. In that case we recommend that immigration officials receive the highest training possible to international standards. Safeguards should be in place to prevent the detention and treatment of minors as adults, protecting them from exposure to detention and the possibility of refoulement. It is disappointing that the legislation ignores issues such as age assessment, guardianship and care of the separated child. Applications from separated children should not be dealt with in the same manner as applications from adults.

The Bill gives long-term residency a statutory footing but the status is not permanent. As the committee will be aware, it is five years and renewable. For us, this is an integration issue. If a person's status in Ireland is not certain, he or she does not know what will happen and it makes it difficult to plan a life here.

While reference is made to the fact that immigrants must make reasonable efforts to integrate into Irish society, there are no defined guidelines as to what should constitute such efforts. The provision is extremely subjective. For a large percentage of our clients, the main focus of their daily efforts is on improving their education, language and vocational skills and qualifications. How are these efforts to be measured?

It is not enough to mention integration; we must also benchmark the required skills or knowledge necessary — which is probably impossible — otherwise the propensity for arbitrary decision-making is high, particularly when it comes to naturalisation applications. The Bill states that applicants must be self-sufficient without recourse to such publicly-funded services as are prescribed. Refugees who access services at the Vincentian Refugee Centre are unable to be self-sufficient due to what they have suffered in their countries of origin and are concerned that their long-term residency permits may not be renewed. The Bill should provide refugees with the opportunity to apply for permanent residency permits.

Deputy Denis Naughten

I thank Mr. Byrne for his submission. I know a little about the organisation he represents on foot of information imparted to me by my colleague, Senator Paschal Donohoe, who has visited the centre. Are all of the 5,000 people who have come through its doors refugees or asylum protection applicants or does the centre deal with members of the immigrant community outside the refugee process? I am interested in obtaining an idea of the type of people with which it deals daily.

The Irish Refugee Council stated that major difficulties exist because there is no certification process in respect of interpreters. Is this a daily problem for the people with whom the Vincentian Refugee Centre deals? What level of access do these individuals have to language classes? Members have been made aware of anecdotal evidence which indicates that immigrants are availing of literacy classes in order to learn English because they cannot gain access to English classes.

What type of system should be put in place in respect of residency? The major weakness with the legislation is that it does not provide a clear route towards long-term residency. What is Mr. Byrne's definition of long-term residency?

Deputy Pat Rabbitte

Mr. Byrne's submission has been helpful, particularly because the people upon whom the legislation will impact are outlining their priorities as they see them. The issue of family reunification is a recurring theme in the constituency work of Members of the Oireachtas. Mr. Byrne stated that, as it stands, the definition of family is extremely narrow and eurocentric and relates to the nuclear model. He went on to indicate that this is unsuited to global cultural variations in family structures. I imagine that is the type of sentence which causes loss of sleep and nightmares among officials in the Department of Justice, Equality and Law Reform.

What is Mr. Byrne recommending in practical terms? Far be it from me to speak for the Department of Justice, Equality and Law Reform — its staff would be horrified if I did so — but it would not be possible for us to take in the population of an entire village near the Zambezi River on the basis that the definition of what constitutes a nuclear family is not adequate. If the definition as it stands is not acceptable, what alternative is Mr. Byrne suggesting?

Deputy Finian McGrath

I welcome Mr. Byrne and thank him for his submission. He stated that 5,000 people availed of the services of the Vincentian Refugee Centre in one year. It appears the centre is extremely busy. Does it have the necessary resources and facilities to allow it to provide the level of services required?

When referring to the family, is Mr. Byrne alluding to the immediate family or to the extended family? Perhaps he could link his answer in that regard to his reply to Deputy Rabbitte's question. Mr. Byrne stated that the centre facilitates a number of homework clubs for children. Are these well attended? What percentage of those with whom Mr. Byrne deals are seeking permanent residency?

Deputy Seán Connick

I also thank Mr. Byrne for his presentation. On the 5,000 visits made to the centre this year, do they relate to the entire city or are there other centres that are receiving requests for information and assistance? Is the centre linked to other agencies? How might we identify the overall figure for people availing of services in this area?

Does Mr. Byrne see a need to deal with the issue of separated children under an entirely separate section of the Bill? Might it be dealt with at a later date under the forthcoming children Bill or should it be dealt with under this legislation? Some of the earlier submissions we received indicate that between 320 and 350 children went missing in recent years. This gives rise to serious concerns.

A friend of mine from New Ross is present in the Gallery and I am aware of the efforts people such as him and the others to whom the Bill relates invest in furthering their education. I would support any suggestions Mr. Byrne might wish to put forward in the context of making matters easier for refugees during the two to three-year period it usually takes to process their applications. Perhaps he could forward those suggestions to Deputy Finian McGrath or me, rather than Deputies Rabbitte or Naughten, in order that we might progress them.

Deputy Denis Naughten

I have no difficulty with Mr. Byrne doing so.

Deputy Seán Connick

Deputy Finian McGrath and I will do our best and we will discuss the matter with the Minister.

Mr. Matt Byrne

Approximately 90% of those who access our centre are refugees and asylum seekers. However, anyone who comes through our doors is welcome. There were 5,000 visits to the centre in 2007. Of these, a total of 678 involved new arrivals. The remainder were repeat visits, involving people who have accessed the centre over a period of years. The latter illustrates some of the deficiencies in the system in the context of integrating people. Individuals are returning to us year after year for assistance with completing forms, paying their ESB bills or making applications to universities or schools.

We receive a large number of queries about English classes. I have almost given up trying to get people into such classes. I try to put mothers with children in contact with mother and toddler groups in the hope that they will learn English by osmosis.

Deputy Denis Naughten

Why has Mr. Byrne given up on his efforts in this regard?

Mr. Matt Byrne

It is extremely difficult to access classes. While there is a very good service, there is a long waiting list. Many of our clients are single mothers with children and it is difficult to assist them in accessing child care services. This precludes them from accessing standard English classes.

Deputy Finian McGrath

Do their children have access to language support services at school?

Mr. Matt Byrne

I am referring to mothers with very young children. Many of our clients come from Dublin 15 or have moved from hostels into the Balbriggan or the Dublin 15 area. I am sure members will be aware of how difficult it is to get a place in a primary school in Balbriggan or Dublin 15. There are at least four children whom I cannot get into a school by hook or by crook.

Deputy Denis Naughten

Should those children have been in school last September?

Mr. Matt Byrne

Yes.

Deputy Denis Naughten

What ages are they?

Mr. Matt Byrne

Five, six, seven and ten, respectively.

Deputy Finian McGrath

Where do they live?

Mr. Matt Byrne

They live in Dublin 15. A report was produced on the situation recently and it is chaotic out there. The Educate Together emergency school in Balbriggan is moving further out because it did not have a permanent base in the Sunshine House there. Many of our clients cannot afford cars. I do not know how they will get their children to that school next year. That is an example of the issues we face.

I have yet to see what the criteria are for interpreters across the board. A number of our clients are interpreters in the Office of the Refugee Applications Commissioner and they tell stories that would raise the hairs on the back of one's neck. I am worried about the standards for interpreters. I spoke with an Ethiopian man earlier who received subsidiary protection after eight years. He asked me what it was and what it meant for him. Nobody, therefore, has explained to him what status he has and what he can do with it.

With regard to residency, the system focuses on the negatives rather than the positives in that an applicant must prove he or she is of good character and is taking English classes. However, how does one prove that? The process seems to be more exclusive than inclusive. The majority of those who access our centre are waiting to apply for Irish citizenship. Because the rules for citizenship and how the decisions are made are not clear, they are terrified to complain about their landlords in case it would be used against them at a later date. They are also terrified if the police pull them over for a road traffic infringement. They live in an unclear and uncertain situation which will not help them to integrate particularly well if they must ask how everything they do will affect their citizenship application.

With regard to the definition of "family", the Department of Justice, Equality and Law Reform will not lose sleep over what I have to say. Manuel Jordao from the UNHCR always gives out to me when I refer to the definition of the nuclear family. The Department will not change and it will not have to change. However, I would like it to accept that there are different family structures in different cultures. It is a stressful situation for a family that arrives here if a member is left behind. For example, a Kurdish family comprising two elderly parents and five children who are programme refugees told us that in their culture the youngest son takes care of the parents. He cannot come to Ireland because they do not have an automatic right to family reunification. They have tried and failed. If they have not contacted any committee member to try to get their appeal heard, I would be surprised. However, their family structure is completely disjointed. The husband is suffering severe mental strain, purely from the pressure his parents are putting on him. In a perfect system, I agree the definition of "family" should be tight. Not everyone can come into the country but that needs to be specified clearly and in language people understand so that they know when they get here what they are entitled to. It is difficult to explain to people who they can ask for and how they can ask for them because I do not know.

The homework club is for separated children and it is not as subscribed as it used to be. In early 2000 and 2001, it was full whereas now it has eight or ten students who come from hostels.

Deputy Denis Naughten

Is it funded by the HSE?

Mr. Matt Byrne

No, it is run by our centre. We felt the need for it. Six or seven volunteers come in and do homework with the children.

The first experience of children who arrive in the State will probably with an immigration official and I would like the UNHCR to be involved in the training of these officials. It is important that is included in the legislation.

Chairman

I thank Mr. Byrne for his presentation, which was very helpful, as he outlined concrete examples of the difficulties being faced.

The final presentation will be by the New Communities Partnership. I welcome the members of the delegation. I invite Mr. Issah Huseini to make a brief presentation which will be followed by questions.

Mr. Issah Huseini

On behalf of the New Communities Partnership and the entire immigrant community, we would like to thank all the committee members for giving us the opportunity to explore the Immigration, Residence and Protection Bill. We also welcome the publication of this landmark legislation in the hope that when it becomes law, it will provide much greater stability and a sense of security and belonging to all immigrants living on the island of Ireland.

The groups which appeared before us have made presentations on the same concerns we have about the Bill. I refer to the submission we made to the secretariat. Our first recommendation concerns international permanent residence as opposed to long-term residency. International permanent residence would give us much greater stability and we could set long-term goals in our lives because our community, like the Irish community, also wants the best for ourselves and our children. One cannot live here unless one applies for citizenship but every five years one must renew a long-term residency permit. That is a stressful process for families. For example, getting credit from a credit union is strictly based on the expiry date on a person's GNIB card. That is how difficult it is for people working, paying tax and living here to get credit to plan for their families. That is why we strongly recommend an option for permanent residence.

The second issue is that of family reunification. It has been mentioned that the definition of family is very narrow with regard to what we consider family. We believe that as we are living, working and paying tax in Ireland, we should get certain, clear-cut guidelines with regard to how long we must live and work here before we can bring a brother or invite a sister or father to attend, for example, the graduation of one of our children. We are at a loss because there are no clear-cut guidelines or procedures with regard to when we can invite members of our families to come and join us for either a short or long-term visit. We urge the committee to look into that issue.

The conditions with regard to visas and residency are another issue. Again, there are no clear-cut guidelines with regard to the conditions for people coming into the country. What happens, for example, if somebody applies for a visa and he or she moves here? There is a clause in the Bill saying people can be refused entry. In one situation Chinese research students who came here from China were told at the airport that their visas were fake and they had to return to China. Fortunately, one of the research students had a contact number for the Chinese embassy here which had processed their visas. The embassy intervened and contacted the Department of Justice, Equality and Law Reform. Eventually it was realised the visas were not fake visas, but genuine visas issued by the Irish embassy in China. This incident illustrates the power immigration officers have. Who would bear the cost if people have to return to the countries from which they came? There is not even any provision made for people to discover why they have been refused entry or to explain how they can appeal the refusal. This is just another of the concerns we have about conditions regarding procedures for visas and residency.

With regard to the requirement for the production of documentation, immigrants are aware that members of the Garda or immigration can, at any time, ask an immigrant or foreign national to provide proof of documentation. Failure to do so is an offence. However, who can tell who is a citizen? Looking at the four of us here and our colleagues in the gallery, who can tell which of us is an Irish citizen? Some of us have Irish nationality. It seems as if this can only be determined based on skin colour. If one cannot identify by looking at us which of us is an Irish citizen, then it must be difficult for the Garda or immigration to know who is Irish. We are concerned that this requirement could lead to racial profiling. If, for example, a garda stopped me on my way here and asked for my documentation and I told him I was Irish, he might reply he was not convinced I was Irish. What would happen then? As a foreigner, I would be expected to produce my documentation, but as an Irish person, I am not supposed to do that. What happens in such a situation? It would be difficult for me to prove to him that I am Irish, unless he was prepared to follow me to my home for me to show him my Irish passport. This issue is another of our concerns and we would like the committee to consider the matter.

The next issue concerns protection. Mr. Byrne mentioned family reunification and the rights of children whose parents are deceased, having been granted refugee status, to be given subsidiary protection and to be reunited with their relatives, for example, uncles, brothers or sisters. This provision does not exist currently.

The last issue concerns unlawful presence in the State which relates to undocumented migrants. Our hope is that when the Bill becomes law, it will offer a fresh start to every foreign national here. We hope the committee will see to it this happens by ensuring workable arrangements are put in place for the undocumented people who have been living here for up to ten or 15 years. They should be given the opportunity to start afresh and regularise their situation.

Chairman

Thank you. I now invite members to ask questions.

Deputy Denis Naughten

I thank Mr. Huseini for his presentation. I will put the same question Deputy Rabbitte asked the previous contributor on the definition of a nuclear family. Our debate is in the context of amendments to the immigration Bill. Mr. Huseini made the point that the definition of a nuclear family needs to be broadened. How would he define the family from the point of view of including it in the legislation?

He has made a detailed submission and touched on several issues that were not raised in previous submissions, one of which concerns the lack of consistency across Departments. The most significant gap in this regard currently probably relates to work and residency permits. Residency permits may be renewed on an annual basis initially, but work permits may be renewed biannually. This type of conflict needs to be addressed.

I have two other questions. Mr. Huseini gave an example of the children of deceased refugees, who perhaps died in a road traffic accident, and suggested they should be able to bring a guardian in, for example, an uncle, aunt or grandparent. Has he any practical examples of where this situation has caused a difficulty? Has such a situation arisen where the Department has not facilitated a guardian coming into the State to take care of those children, or have such children been put under the care of the Health Service Executive?

The point was made regarding the obligation on a non-Irish citizen to have identification on his or her person, including biometric data, and to how, in today's society, we define who is or is not an Irish citizen. We cannot do it on ethnicity or skin colour because, as in the example given, we have people in this room who are Irish citizens and if they must provide this information, they are being discriminated against. The Bill has created a bigger question that the Department must answer. If we are talking about the necessity for one element of the population to carry ID cards, must we talk about the whole population being required to carry ID cards, as is the case in many other EU countries? It will be interesting to get the Minister's view on that. Mr. Huseini articulated the point very well.

Deputy Pat Rabbitte

I agree that goes to the heart of the matter. I do not mean any disrespect to people who have sent in submissions or to those from whom we have heard today. Often, submissions come from people working with migrants or refugees and they present their convictions to us in respect of the new Bill. However, it is very helpful to get the kind of submission we have here because the New Communities Partnership is a very special kind of network that is obviously at the coalface in terms of how any change in the law might impact on people encompassed by that network. Obviously from what we have just heard, the route to permanency, which we discussed earlier, is a major issue for the New Communities Partnership. We have not had any indication from the Minister of his thinking on changing the temporary nature of the propositions in the Bill. As a result of today's hearings we would like to follow it up.

On the question of biometric data and the implications for invidious distinctions being drawn between residents in the country, etc., is the New Communities Partnership opposed to this kind of documentary requirement and biometric measurement because it applies only to the new Irish? If it applied to the population would it find nothing objectionable about it? I am sure the witnesses are familiar with the debate that has gone on, for example, in Britain about this issue. It is a divisive issue even within parties and so on. If it were to attract more public attention in this country than it has so far I am sure it also would be quite an emotive issue. In Britain ministers would have defended it, not least on security grounds. As a neutral country and bearing in mind our history etc., it is probably a less pressing issue for us. Nonetheless the Minister for Justice, Equality and Law Reform may well hold the view that it is an important dimension of all this.

Is there any moderation or amelioration of what is in the Bill that would be acceptable to people? We get two vehemently different views on this matter. One view believes there is no problem given that we all live in the information society and whether we like it or not these kinds of data on us are otherwise available. It is not possible to cross the street without being captured on a closed circuit television camera. The Garda has the right to access all an individual's telephone calls and so on. Is it purely the invidious distinction that it gives rise to that is the cause of the objection for the New Communities Partnership?

Deputy Finian McGrath

I welcome the witnesses from the New Communities Partnership. I commend them on their work and thank them for their submission. I will cover the broader issues before coming to the details. I understand it represents 64 organisations. How long is it in existence and how is it funded? Living in this country, what is the witnesses' experience of racism and discrimination?

Regarding the technical side of the debate on the Bill, I note the submission clearly defines the family. It also recommends that permission be granted to family members to enter and reside in Ireland for the purpose of enjoying family life where the principal visa or permanent residence holder can satisfactorily demonstrate that they are willing and able to provide full financial support. I have looked at its other recommendations, but that is a very sensible practical recommendation on which I commend and for which I thank the witnesses. We as legislators should use that definition.

The submission referred to a sense of belonging. Psychologically it makes life very difficult. Stress builds up and it affects the health of whole families. I ask the witnesses to expand on that point of not knowing exactly where one stands. The submission made a very strong point on employment. It stated that employers are reluctant to promote or invest in training people when they know they could be refused residency and be required to leave. I would like the witnesses to expand on that point.

The introduction referred to building integration into every aspect of public and administrative life in Ireland, which ultimately would benefit all those living and working in Ireland. What advice can the witnesses give members to develop that process? It is a very important point in the debate on immigration and on the Bill. We hear this point regularly in our clinics and in the broader community. We also need support and advice on how to lead and develop the process about which they talk.

Mr. Issah Huseini

My colleagues would also like to respond to some of the questions. Deputy McGrath asked about the network and how we are funded. We were set up in 2003 and were formally launched in 2005. Our initial funding came from the European Refugee Fund until last year when the Government began to fund the NCP. Currently we are receiving funding from the Government through the Department of Community, Rural and Gaeltacht Affairs and the Rowntree Charitable Trust in the UK. We are supported by the Dublin Inner City Partnership and Dublin City Council. The other city councils in Cork and Limerick give us support. They all give us support in terms of, accommodation, office space and other logistics. Those are our sources of funding and how we are supported.

Ms Samar Bennis

With regard to the question on our experience of racism and discrimination, I can talk about my own community. Most Muslim women are experiencing racism because they are wearing the scarves. Most of them could not get a job just because they are wearing the hijab. Others go to hospital, for example. One woman, who was delivering a baby, was left on her own because she could not speak English. It was really painful for her. However, because she could not express herself they made no attempt to help her by looking for an interpreter or something. The attitude was that she did not speak English and that was her problem. Those are the two examples of racism I can give.

Mr. Reginald Oko-Flex Inya

I again thank members of the committee for giving us this opportunity. Mr. Huseini has already outlined how we are funded and that funding just came recently. This organisation has been working for a few years purely on a voluntary basis. The New Communities Partnership has decided to work very hard to build the grassroots connection we have with the people who suffer these concerns.

Deputy Rabbitte asked us to define the family. I will repeat what Mr. Byrne said on this issue. In Africa and other places one finds that most service providers get into trouble when they meet people from other cultures because they address them with terms such as "my sister" and "my brother". It has long been part of our culture to define the extended family differently from the definition used in the western world. People tend to arrive here with this culture and they want to stick with it because it defines them — it is what they know. If integration is to progress, it would not be necessary to assimilate these people or tell them to drop this aspect of their culture. We should state exactly how we will work around it and integrate everybody. As we continually argue, integration should be a two-way process. It is not about one community dropping its heritage and accepting that of the other community as the norm.

In my home country of Nigeria one finds that people take care of their biological children as well as perhaps the children of an uncle or aunt or stepchildren. People will stand firm and say all of them are their children and one cannot differentiate between them. That is the type of culture from which we and most ethnic minorities come. On the question of how the NCP can help, the invitation by law makers to make this presentation offers us a golden opportunity. We work hard to maintain momentum on the ground and ensure we allow the voices of those on the ground who are not always visible to be heard. If these people are surprised, they will explode with frustration.

As Ms Bennis explained, people experience a great deal of stress. If one fails to get a job, for example, one experiences stress. Long-term residency permits expire every five years. If one's permit is about to expire, one will struggle to get a mortgage or loan from a financial institution. The institution will consider how secure one's position is in Ireland and whether one is likely to remain in the country for the next five years. It does not make sense to a financial institution to give money to a person seeking a five-year loan who has only one-year of residency left because there is no guarantee the money will be safe.

As ethnic minorities — the new communities have come here to stay — we ask for long-term planning. People with long-term residency permits should be able to obtain permanent residency after the first five year period rather than renewing it every five years. This would give them security to plan for themselves and their children in school who are affected by issues affecting their parents. If parents have a problem with residency, they will not leave their children when things are bad. Those who leave the country will take their children with them but these children call Ireland their home and are making friends here.

Mr. Cherif Labgreche

We consider the issue of biometric data from the perspective of its human impact, the practicality of implementing it on the ground, how people will accept the ID card and how one can distinguish between Irish and non-Irish people. This approach has been introduced in the United Kingdom and while it may work there, it may not work here. We must also consider the human impact in terms of those who are trying their best to integrate into Irish society. Are we creating a welcoming country or a policing country?

The introduction of ID cards will create tremendous confusion and fear among people and add to the suffering and stress of those living and working here. We have many questions about the proposals. For example, who will have access to this information? Even the Garda find it a difficult area and ask many questions about its implementation. It is a tricky issue. People are living in a fearful environment so all these issues need to be considered.

Mr. Issah Huseini

I will deal with some of the issues with regard to the definition of a family. In some countries in the European Union, for example, Belgium, those who are granted permanent residency have a right to be joined by a maximum of three family members. It does not matter whether they are immediate family members, an aunt or whatever. A similar position applies in the United Kingdom and there are examples of such rights being given across the European Union. It is not open-ended.

Deputy Finian McGrath

Did Mr. Huseini refer to Belgium?

Mr. Issah Huseini

Yes. It is important to understand that one cannot bring a whole village to Ireland. We know what women go through when they are pregnant or have new babies without any support. If we are out working all the time, they are left alone which is very traumatic. We cannot bring a family member here to give them support. That is one aspect of the family reunification issue.

Employment is a difficult issue because an employer will definitely not invest in me if he or she knows that in five years' time I could be denied permission to live here. This is a real difficulty. Under the Irish-born children scheme introduced in 2005 people were granted residency for two years. Last year, when they had to renew their residency some people lost their jobs due to a delay in getting a renewal. Employers believed they no longer had permission to stay and asked them to get a letter from the immigration bureau or they would lose their jobs. We know of such cases. Depending on who is working at the counter in the bureau, one might be given a letter indicating that the application for renewal is being processed and will be completed in some months.

Ms Samar Bennis

On the issue of delays, today we dealt with a case of a refugee who came here with his children when they were aged under 18 years. They are now over 18 and the father has been granted refugee status. They have twice been refused leave to remain and are in the process of a second appeal. However, they have not yet received an answer. Three children aged over 18 years are at home unable to work or study. After a long period of about two years they are still waiting.

Mr. Reginald Oko-Flex Inya

I ask members to look at our submission from the point of view that we are not trying to compare Ireland to any other place. We approach the issue from the point of view of the human impact of the law on those who will have to live under it. We are relating real life experiences, rather than asking whether the legislation conforms to other laws. We are talking about how it will affect the lives of people.

Chairman

One of the reasons the joint committee sought this type of discussion was to hear about real life examples. As members have no further questions, I thank the New Communities Partnership for giving the joint committee some concrete, real life examples. The discussion has been an eye-opener. I have learned a lot today. We appreciate the contributions of all the groups, including those who stayed here for the day such as the Irish Refugee Council.

The joint committee went into private session at 8.20 p.m. and adjourned at 8.25 p.m. until 2 p.m. on Tuesday, 8 April 2008