Refugee Bill, 1995: Committee Stage (Resumed).
Debate resumed on amendment No. 4:
In page 6, subsection (1), lines 16 and 17, to delete "in the opinion of the Minister," and substitute "in the opinion of the Appeal Board,".
—(Senator Mulcahy.)
I am delighted to see Mr. Faisal and Doctor Allen visiting us this morning and I congratulate them on the advances they made on behalf of their people over the years.
I am in an unusual situation with regard to this Bill because I am in sympathy with the Minister's point of view. There is a question of political accountability involved here. The other side of this equation and the swing of this pendulum could bring us to a point where a Minister can hide behind an appeal board decision. A deportation order is a highly political decision and carries with it political accountability. Ministers should be held responsible for their actions. Such a decision should be based on the judgement of a Minister. If the Minister makes a wrong decision, there are ways of dealing with this and there is accountability. If the appeal board gets it wrong, there is nowhere to go and Members of this or the other House would not be able to follow the matter through.
I accept Senator Mulcahy's argument about the importance of a hands-off approach from the Minister. I support the majority of his amendments but this one is different. It goes beyond the Geneva Convention. Even though a decision is a State one, the convention is not specific as to who should make it. Over the years I have criticised and objected to decisions made by the UK authorities to repatriate people to places where their lives were at risk. It is better that answerability should be to political heads in this instance than to the appeal board. Although Senator Mulcahy's arguments are substantial, they should probably be dealt with not in this section but in others. I would prefer to be able to challenge the decision of a Minister rather than that of the appeal board. In any case I do not see how under the Bill a decision of the board can be challenged. As a public representative, I would be happier if there was some comeback on a wrong decision made by someone. A wrong decision by a Minister is more easily dealt with than a wrong decision by an appeals board. An appeals board could have major Government representation and it would be easy for a Minister to influence it and to stand back from the fallout from an unpopular decision. I would prefer the way it is phrased in the Bill rather than the wording of the amendment, although I have a lot of sympathy with the arguments made by Senator Mulcahy.
Am I in order to ask a question on section 5 (2)?
We will deal with the amendments first.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 6, between lines 23 and 24, to insert a new subsection as follows:
"(3) Without prejudice to the generality of subsections (1) and (2), a person's life or freedom should be regarded as being threatened if, inter alia, that threat emanates from non-State agents, where the State is unable, or unwilling to prevent that person's life or freedom being threatened by such agents.”.
Amendment put and declared lost.
Question proposed: "That section 5 stand part of the Bill."
I want to speak about Senator Mulcahy's amendment No. 6 as regards the phraseology in the Act.
That amendment has already been discussed. The Senator may make a general point on the section.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
As regards the appointment of a commissioner, is there an equivalent person at present?
This will be a new office?
Perhaps the Minister might elaborate on that point.
The Bill will establish a new structure for asylum applications in which the application will be initially determined by an appeals commissioner, who will examine the case, the applicant having made an application. If the application is successful, the applicant will proceed to get refugee status. If the application is unsuccessful, they can appeal to the appeals board. If their application to the appeals board is unsuccessful and they say they will be deported, there is a final appeal to the Minister. There is a three part structure — an appeals commissioner, an appeals board and then the final authority of the Minister in the event of deportation.
Section 6 gives the Minister the power to appoint the commissioner. Will this be a new office or will it be attached to the Department of Justice?
We will create a new Refugee Appeal Board and an office of the refugee appeals commissioner. The person must have legal qualifications of seven years' standing — the details are in the First Schedule — because many refugee appeals have a legal content.
Apart from the legal qualifications, we have no other particulars about where the office will be established and what the remuneration will be. I want to clarify if somebody will be seconded from the Department of Justice.
If somebody is seconded from the Department of Justice it must be a qualified lawyer of substantial standing. A qualified person who will specialise will be appointed. There is no limit to the number of appeals commissioners. There may be one person to hear appeals in the Shannon area and another to hear them in the Dublin area. A similar situation applies in relation to the Employment Appeals Tribunal. The Act is flexible in that regard. We must deal with the current backlog and the increasing number of annual applications. The number of commissioners will depend on the number of applications and the backlog.
Will there be a separate office from the Department of Justice and will provision be made for the appointment of additional personnel there, or will it be a reorganisation of the present service?
Because the commissioner will be a person with specific legal qualifications, they are most unlikely to come from the Department of Justice because I am not aware of the availability of such a qualified person there. When the board recruits staff, some of them may come from the Department of Justice, but other people have also specialised in asylum and refugee law. It will be a new office, the staffing of which will be under the Minister for Justice, and normal Civil Service Commission rules will apply. We are talking about qualified persons. The Bill sets out the qualifications required by the commissioner and the chairperson of the board. The board will consist of one member from the Department of Justice, one from the Department of Foreign Affairs and two other members to be appointed by the Minister.
I am concerned about the backlog of applications. Do I take it there is little or no work being done in this area pending the establishment of this office?
The current situation, which is based on case law and on long standing administrative arrangements with the UNHCR, is that when a refugee application is made it is processed by a specific section of the Department of Justice, after the initial contact with immigration or the direct application to the Department of Justice. The files go to the UNHCR in London and to the Department of Foreign Affairs for their opinion and advice on the status of the person under the Geneva Convention. A final determination is made when all matters relating to the case have been examined. It is a lengthy process. Because the number of applications has risen dramatically in the past few years, there is a backlog of several hundred cases and a continuing increase in the numbers of people seeking asylum on a monthly basis in Dublin. I provided the Seanad with the relevant figures a number of months ago. However, if required, I can give the Senator an update.
My only concern is that there will be a stalling of that action with regard to the enactment of the legislation. They are being put aside——
No, they are proceeding. Since I assumed responsibility for this area, any files sent to me by the Department have first been the subject of examination and expert comment by the UNHCR. The number of cases being decided has accelerated during the past 18 months.
The Minister of State did not clarify the point relating to salaries.
If the Senator gives me time, I will obtain that information and provide him with it as soon as possible.
The Minister of State can see Members are anxious that the commissioner should be as independent as possible. I hope her officials will not take offence, but I congratulate the Minister of State on having moved the responsibility out of her Department. If, following the original application process, the commissioner rejects an appeal, it goes before the appeals board and will finally become the responsibility of the Minister and the Department. It is, therefore, essential that this position should be as independent as possible. Considering the First Schedule, I believe the Minister of State has achieved this goal. Perhaps she could urge the Department to set up the independent prisons authority, establishment of which was suggested 14 years ago. I like to avail of these opportunities to remind the Department that the hymn "A Thousand Ages in Thy Sight is Like an Evening Gone" is quite applicable.
The Senator will appreciate that I am Minister of State at the Department of Justice and my responsibility relates to this particular area. However, I will forward her comments to the officials in the Department who are very aware of the debate to which she referred.
The First Schedule to the Bill states that:
Members of the staff of the Commissioner shall be civil servants, within the meaning of the Civil Service Regulation Act, 1956.
That seems to clearly imply that the commissioner will not be a civil servant and will not be recruited from the Civil Service. Similarly, part 1 of the First Schedule states:
The Commissioner shall have had not less than 7 years' experience as a practising barrister or practising solicitor before his or her appointment.
On first reading this provision I understood it to mean "a practising barrister or practising solicitor" but it could now be interpreted as referring to someone with previous experience. I took the wording to mean a person currently practising or one who had been practising in the immediate period before their appointment.
I will consider tabling amendments to change the wording of the First Schedule, because it is crucially important that the person appointed to the position of commissioner has had day to day and recent experience of this convoluted area. I ask that the Minister of State consider the matter before we table amendments for Report Stage. Perhaps she might consider putting down an amendment on Report Stage to deal with the matter? The Cathaoirleach will state that we are not discussing the First Schedule, but it is closely allied to section 6 because the definition of "commissioner" refers to both. It is appropriate to make the point in that context. I ask that the parliamentary draftspersons consider the wording of the first paragraph of the First Schedule with a view to making it clear that it refers to a person who is currently practising or whose experience relates to the seven years immediately preceding their appointment.
The First Schedule sets out the requirements clearly. I do not believe that we can exclude people who have been civil servants at some stage in their careers if they possess the appropriate qualifications. To do so would be discriminatory. To my knowledge, staff in the Department of Justice do not have the qualifications required to serve as commissioner at present. The person who will be appointed in terms of meeting the requirements of the First Schedule will be someone of considerable legal standing and experience. I do not see how such a person could come from the Civil Service. My expectation is that the person will come from the ranks of those currently practising or working within the legal profession rather than from a Department.
One of the burdens I carry in life is that having been a student of Latin, the tenses etc. always attract my attention. The phrase "shall have had" implies a particular understanding in grammatical terms. I could apply for a job tomorrow, the requirements for which refer to a person who shall have had 20 years' teaching experience. However, I would not qualify if the job required a practising teacher. There is a clear difference between the two. I am not seeking to exclude civil servants from applying for the position of commissioner. For example, an individual on secondment from the Civil Service might be involved in work which would define them as a practising person in this area.
I contend that a person who, 20 years ago, worked in this area of the law for a period of seven years would qualify under the provisions of the First Schedule. This is not a matter of interpretation. It is stated in the current wording and is not the intended meaning. There-fore, the words should be changed. We should not make a big deal out of changing the wording. Words do not mean what a Minister states they mean; they take their meaning from the English language. In this case the term "shall have had" means exactly that and refers to any period in a person's life. It does not mean that they should be currently practising, nor does it refer to the period immediately prior to appointment. I ask that the wording be improved so that it assumes the Minister of State's intended meaning.
The wording in the First Schedule is very clear and states:
The Commissioner shall have had not less than 7 years' experience as a practising barrister or practising solicitor before his or her appointment.
Equally, I would not like to rule out a qualified barrister who worked in the Refugee Agency or a person who worked in a faculty of law who specialised in refugee law. The requirement involves a very clear qualification in relation to practice as a barrister or solicitor. It does not preclude these people from having other kinds of experience. The person who can apply for this appointment will be one with particular legal experience. However, the requirement does not preclude them from having worked in a university or non-Governmental agency where they specialised in this area. I will examine the matter, but I have no fears about the type of person who will be appointed. The First Schedule is very clear in that regard.
I wish to make a final point on this issue. I will be brief because we will deal with it again later. The meaning of the Schedule would not be changed if the words "before his or her appointment" were deleted. The Minister of State stated that the requirement refers to a person who is practising or has relevant experience in this area. The Schedule should also state this because it will relieve any anxieties. As it stands, the Schedule might refer to a person who had experience of practising as a solicitor or barrister in the past. That person may never have practised law in this particular area——
No, it is specifically stated later in the Schedule.
Yes, in part 6 of the Schedule. However, experience and practice are two different things. This debate proves that the wording is unclear. The words must be altered so that they assume the meaning that the Minister of State intends.
The Minister said there could be more than one commissioner——
No, they would be working with the commissioner.
So there is only one commissioner?
I thank the Minister for clarifying that.
But they could have offices located in different areas.
Yes, they could hold hearings in, say, Shannon or Dublin.
The Minister made an analogy with the Employment Appeals Tribunal or the Valuation Appeals Tribunal. Those bodies include practising barristers or solicitors who exercise their functions independently of the Minister. We must not get too hung up about the fact that the commissioner must have vast experience of refugee law. There is not a huge Irish refugee case law; — the law is very limited and could be learned relatively quickly.
We need a series of commissioners — they are only appointed for three years — in order to build up a body of experience so that several people will have expertise in this area. It can be a profoundly difficult and complex area of law and the commissioner may have to examine questions relating to international refugee law, the Dublin Convention etc. I hope one person will not be continuously reappointed as refugee appeals commissioner but that several people will hold the job for three years, although I do not rule out a second or third term per se.
Section 6 states the commissioner will exercise his or her functions independently of the Minister. The great advantage of appointing a practising barrister or solicitor is that they are trained to think judiciously or quasi-judiciously in an everyday context. A practising barrister or solicitor can bring that special skill to the table in terms of examining legal concepts. If Senator O'Toole tables an amendment proposing the commissioner should be a practising barrister or solicitor, I will support it, otherwise, as Senator O'Toole said, the possibility is that someone working in the Department with the relevant experience would be appointed, which none of us wants.
This is one of the most important issues in the Bill because the calibre of the commissioner is crucial to the functioning of these proposals, and I do not grudge the time spent discussing it. I read this section. I take the points made by the Minister but this should be written into the Bill rather than left to the understanding of this or subsequent Ministers.
One could play around with the wording of the First Schedule and including the words "immediately before his or her appointment" would change the recruitment section. Why does the Minister not take the time to include a few sentences there if she feels it is necessary? I know one does not want to pin it down too tightly, but it seems bizarre to have seven paragraphs in the First Schedule referring to the procedure and ritualistic aspects and just one sentence dealing with the requirements for the commissioner when the calibre of the commissioner is crucial. I urge the Minister to take her time over the phraseology in order to get it right. I support Senator O'Toole's general approach.
The principal criterion for appointment to other legal offices, such as judges, is in general — and Senator Mulcahy can correct me on this — experience as a practising member of the appropriate section of the legal profession. Similarly, in this Bill the criterion for qualification is substantial experience as a practising member of either branch of the legal profession. Given how the legal profession regulates itself and educates its members, the objective is to provide a person of suitable and sufficient calibre — as is the case in the appointment of judges — to carry out this very important office appropriately. Requiring appointees to other posts in the past to have a substantial period of legal qualification has, in general, ensured the appointment of a very high calibre of person. The objective of the requirement for a substantial period of legal qualification is to ensure the appointee to this office is of substantial calibre.
Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Amendments Nos. 7 and 9 are related and both may be discussed together.
I move amendment No. 7:
In page 7, subsection (1) (b), line 5, to delete "where possible".
Let us move from high and mighty to more down to earth matters and talk about people who arrive from darkest Africa, farthest China or Cuba, where they were persecuted, and are interviewed by an immigration officer. At the most basic level, that person should be informed of his or her rights under the 1951 Geneva Convention as interpreted by our refugee legislation.
I accept it is not possible or practical to have translation facilities instantly available in every language at every frontier. However, the phrasing of the subsection, which states "the immigration officer concerned shall inform a person referred to in paragraph (a), where possible in a language that the person understands.." is too vague and broad. There should be a mechanism to refer such a person to a linguist after a period of time so they could be informed of their rights under the Geneva Convention in a language they understand. The words "where possible" give too much of an out and should be deleted.
I revised this section in the 1994 Bill which stated "where necessary and practicable". In the discussions on the 1994 Bill, a number of Senators and Deputies made the point that "where necessary and practicable" did not put the highest onus on us to provide interpretation facilities. We consulted the draftswoman who advised us the current wording places the highest possible onus on us to provide translation facilities, subject to the points the Senator made.
For example, if someone arrived at Shannon on a dawn flight from Ethiopia, where there are 26 major languages, it would be impossible to guarantee interpretation facilities in the one language he spoke. The process is subject to an arranged interview at a specified time; it will be possible within that period to have identified which language the person speaks and to arrange interpretation facilities.
In terms of the Department working with the NGOs, there have been no considerable problems in this area. Since I have come into this Department we have produced a series of leaflets at Shannon Airport, with which Senator Daly will be familiar, which are in eight major world languages, including advice on where to contact the Red Cross and various NGOs.
We are conscious that it is important that an asylum seeker be facilitated with regard to language. I am happy that the highest possible onus is placed on the provision of translation facilities. It is very important for a people's case that they understand what is happening and they have access to translation. The Department now has a panel of translators available, both in Ireland and from the UK. It has not given rise to significant problems in recent times. Four-fifiths of asylum seekers present not at ports but at the Department of Justice, having earlier arrived in the country. It is, therefore, possible to provide in a more orderly way for translation facilities.
The option presented in the previous Bill is the best. The provision here is unimplementable unless there are multilingual immigration officers. It is interesting to note the different language the parliamentary draftspeople choose to use. For example, in terms of the commission, the language stipulates that the Minister shall cause to have laid before the House; it does not ask the Minister to do so. However, section 8 (1) (b) states that "The immigration officer concerned shall inform... where possible in a language that the person understands". This is unimplementable unless the emigration officer happens to have the language of the person coming into the country. If it is unimplementable it should not be written in the Bill, rather it should state: "It shall cause to have the person informed in a language that the person understands".
The Minister's point is better met by accepting Senator Mulcahy's amendment. Somebody must interpret where possible. In the age of information technology everything is possible, including ensuring that the person's language is made available. However, it may not be practicable at a specific point. The elimination of the words "where possible" places every onus on the authorities so that if there is a challenge the judge will determine whether or not every possible attempt was made to have implemented the spirit of the provision. However, as it is currently worded, one could argue indefinitely as to its meaning.
Section 8 (1) (b) states: "The immigration officer concerned shall inform a person...where possible in a language that the person understands..." The Minister has explained that it will not happen in this way, rather it will be some person with access to translation who will inform the person. The wording should be changed to tidy this up. It is one of the loopholes that will be used if the legislation is challenged. Any lawyer will argue that his client did not understand. There is hardly a Member who has not received letters from Irish business people in overseas gaols advising that they were arrested and tried in languages they did not understand. Accepting Senator Mulcahy's amendment makes the Minister's position clearer. In addition, the requirement on the immigration officer is incorrect and should be changed.
I support Senator O'Toole and Senator Mulcahy on this. As it is read it seems almost like a joke. I know it is not intended to be a joke and that it is intended to be very serious. However, the phraseology appears to be bizarre. The words "where possible" should be deleted. I would have no problem with inserting a phrase like "as soon as shall be practicable in a language the person understands".
What happens logistically in a situation like this at present? If under section 8 (1) (a) the person arriving seeking protection against persecution or requesting not to be returned or removed cannot establish linguistic communication in the first instance, what then happens? Is there sign language?
I have visited Shannon Airport and met with the officers who deal with such applications. Four-fifths of applications are made directly to the Department of Justice, where the asylum seeker has been in the country for some time and presumably managing in a language context. In the case of an arrival at a port, the immigration officer is not making a decision and has no function other than to receive the person presenting as an asylum seeker. A range of leaflets in a series of international languages is made available to the person.
There have been problems from time to time. For example, in one instance people expecting to land in Canada landed at Shannon and took some convincing that they were in Ireland rather than Canada. However, the experience of the immigration officers — I have discussed it with them — has been that most people have knowledge of at least one of the major languages — even if it is only a few words — in terms of their origin and the location of the country they are travelling to.
If the words "where possible" are deleted, an absolute onus is placed. The 1994 Bill used the words "where necessary and practicable". When it was debated it was considered that these words constituted a narrow view which would not place a high onus on the Department and immigration officers to facilitate asylum seekers as much as possible. The inclusion of the words "where possible" is on the advice of the parliamentary draftswoman as placing the highest possible onus on the immigration officers to have a communication with the asylum seeker.
However, this in no sense determines the outcome of the case. What then happens is that the asylum seekers make themselves known. This is followed by a process of interview, examination of the case by the appeals commissioner and the involvement of the appeals board. These steps are all by subsequent arrangement; they do not take place at the point of arrival at 4 o'clock in the morning at some airport or port.
We are dealing with the initial reception point here. Most asylum seekers go directly to the Department of Justice. We are seeking to provide the highest possible onus that the refugee or asylum seeker has the possibility of communication by means of leaflets and the training of immigration officers, which is ongoing over the past 18 months with the assistance of the UNHCR and others, including the Refugee Council and the Red Cross. We seek to ensure that, as far as possible, asylum seekers are allowed to make their initial applications and contact. To delete the words "where possible" would result in an officer having to have the kind of language expertise to which Senator O'Toole referred. This section is an advance on what was considered in the earlier Bill as being necessarily narrow and restrictive in the way the language was then phrased, which stated: "where necessary and practicable". It was considered to be more restrictive than the words "where possible" which places the highest possible onus on the immigration officer and in facilitating the asylum seeker.
I do not doubt the Minister. Will she take us through the small number of cases where it is not possible? What steps happen until such time as presumably communication can be established along the line?
This has never proven to be the case. I spent some time visiting the immigration officers in Shannon where there are approximately 230,000 landings. From my discussions with them, their greatest difficulty — it was not significant — was that some people arriving in the country were presenting as asylum seekers when this was not what they wanted. Senator Daly will be familiar with these occurrences. They were seeking the right to enter the country for a period of time. They were not asylum seekers and did not wish to present themselves as such; but perhaps because they were confused and uncertain, this was the direction in which they were led. Subsequently, it became clear that this was not their desire. There is no record of a situation where communication was totally impossible.
The only other situation I can envisage is the arrival of unaccompanied children. In the past year we have had two such arrivals and it is a growing phenomenon in the case of European asylum seekers. Even in those two cases it was possible to establish communication with the minors and take them to the relevant health board. Communication has not been a problem in practice.
The broader question of communication in the context of the hearing and appeal and so forth is of enormous significance and we have arrangements in place to cater for such cases. We have a panel of interpreters and contacts in London and we have been able to facilitate those who needed such facilitation.
If this situation has not previously arisen the Minister of State cannot give an example of what might happen. However, she must have a scenario in mind to deal with the situation if it arises. One hopes the worst case scenario will never happen, but it could, because one does not know what will happen in Europe and the rest of the world in due course. Is it fair to ask the Minister of State what she envisages happening if this clause has to be implemented?
We are in the process of implementing a training procedure for immigration officers and it has already substantially improved the service provided. We also propose to expand the number of languages in which advice and information is available. That work is ongoing. The main focus must be on the training of the immigration officers to understand their role under the Bill and to carry out their duties in a way which facilitates the asylum seeker. In Shannon a huge amount of work is done by the immigration officers and the local NGOs, who have built up considerable expertise in this area over the past 25 years. Training of immigration officers is the key to ensuring that the reception services are appropriate.
I support the amendment. Having dealt with the immigration officers in Shannon for over 23 years, I wish to put on record their integrity and humanitarian compassion. At times they have been singled out, unjustly and unfairly, for vilification. It occurred in the other House and I will not go into the matter now.
We are endeavouring to put legislation at the disposal of immigration officers to enable them to do what is required of them. It was most unfair to immigration personnel at Shannon to have singled them out for vilification and attack. They have been working under legislation provided by the Oireachtas which we know is inadequate. They are people of outstanding integrity and reliability. They have lines of communication with the Irish Red Cross in Ennis, other local organisations, the health board and the local employment office.
The problems in Shannon escalated with the arrival of Aeroflot and the consequent huge traffic through the airport, especially between the former Soviet Union and Cuba. When discussing legislation such as this we need to look forward and to provide the additional resources required for immigration personnel to deal with these problems as they arise. Indeed, the problems that will arise in the future might be more complex, so the amendment is worthwhile and the Minister of State would be wise to accept it.
Incredible work has been done in Shannon, whose immigration officers have dealt with a wide variety of people. I am a member of the Irish Red Cross and statistics show that the people who sought asylum at Shannon between May and November last year were from Angola, Gambia, Somalia, Iraq, Russia, Cuba, Romania, Iran, Algeria, Latvia and Albania. In Dublin, Romanians, Bosnians, Zaireans, Russians, Ethiopians, Algerians, Sudanese, Albanians and Turks have sought asylum. An incredible cross-section of people is dealt with and it is amazing that communication is achieved with people from such a wide variety of countries.
The reason I put down this amendment providing that asylum seekers should have complete access to language and translation facilities is that the number of refugees seeking asylum in this country is likely to increase substantially in future years. Already this year the number has increased by 400 per cent and it is continuing to grow. In addition, Germany is talking about the rest of Europe sharing the refugee burden. That means that Ireland will have to take in a percentage of the thousands of people who seek and obtain asylum in Germany. If more refugees are coming to this country the least we should do for them is ensure that they have proper language facilities. I hope the Minister will accept this amendment. The Independent Senators and Senator Daly have stated clearly why we should have such facilities for asylum seekers arriving in our country.
The phrase "where possible" is appropriate in the context of the Bill. It is a substantial improvement on the Bill that was presented by a former Minister, who is a member of the Senator's party, and it reflects and deals with the situation of asylum seekers.
We are taking our share of refugees from the former Yugoslavia, particularly from Bosnia, and will continue to so do. A number of people are arriving in Ireland at present on the basis of family reunification so we are taking our share of the burden in consultation with the UNHCR with whom we work closely. The Bill provides for the right of asylum seekers to the same standard of service as that to which Irish citizens are entitled. Many native Irish language speakers might like the same service from the public service, at any time of the day or night, as the Senator is seeking.
In the last five years people from 59 countries have sought refugee status in Ireland. We must have an organised and efficient system, with well trained immigration officers, a panel of interpreters and leaflets in different languages. The refugee agencies, which deal with the problems of refugees on a day to day basis, come regularly and routinely to the Department of Justice when they encounter a problem. This area is not a problem but it needs to be provided for and upgraded through training on a continuous basis. This is not a problem area, but it needs to be specifically provided for and upgraded, through training, on a continuous basis. The situation set out in the Bill is in the best interests of both the immigration services and the asylum seekers.
Amendment put and declared lost.
I move amendment No. 8:
In page 7, subsection (1) (b), line 8, after "solicitor" to add—
"and to receive independent advice prior to making an application under this section and that he or she is entitled to consult the High Commissioner, and may contact an independent agency which assists refugees and asylum seekers".
Given the large number of people seeking refugee status and asylum in Ireland, it is important that they be informed of their right to consult a solicitor — which is already provided for in the Act — the High Commissioner, which is already provided for in the Bill, and a refugee agency. There are several such agencies working in this area principally, the Irish Refugee Agency, the Irish Refugee Council, Rescue Trust, etc.
There should not be a problem with this amendment. Since the Bill provides that the immigration officer must inform two people, why not add an independent agency which assists refugees and asylum seekers. Obviously, these agencies perform great work before and after people apply for refugee status. If the Minister would agree to amend the Bill in this way, I would be very happy.
Again, the Bill sets out a clear situation where the refugee or asylum seeker is given information about his or her entitlement to consult a solicitor and the High Commissioner. As I said earlier, the information leaflets, which are published and available at ports and airports in a series of different languages, also include references to the Irish Red Cross and other NGOs. I do not see that it is necessary to include that in the Bill.
While the Irish Red Cross and the UNHCR are statutory bodies, various NGOs which deal with refugee matters have no basis in statute. Hopefully, this Bill will continue in existence for a long time. There may be other bodies which will come forward to provide services and some bodies may cease to exist or may be transformed into other bodies, so I do not honestly see the necessity to include this in the Bill. The UNHCR and the Irish Red Cross have a statutory basis and a particular structure puts the commissioner in a different category.
We have been working on a set of guidelines in the Department of Justice in the context of the establishment of this Bill for the reception of asylum seekers in Ireland, and the matter has been the subject of an interdepartmental working group with the health boards and reference to the various NGOs. I am satisfied that we are in the process of putting into place a substantially improved reception system with the coming into force of this Bill. I do not see the need for this amendment. What it seeks is already provided for in the literature and the guidelines which are given to emigration officers, community welfare officers and others working in this area.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment No. 9 has already been discussed with amendment No. 7.
I move amendment No. 9:
In page 7, subsection (2), lines 20 and 21, to delete "and possible".
Amendment put and declared lost.
An Leas-Chathaoirleach
Amendment 9a is out of order as it involves a potential charge on the Revenue.
Amendment No. 9a not moved.
Section 8 agreed to.
SECTION 9.
Government amendment No. 10:
In page 8, subsection (2) (b), line 18, to delete "or (16), as the case may be,".
This is a technical amendment. It deletes a phrase which is meaningless as a result of a Report Stage amendment in the Dáil to section 9 (16).
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 11. Is there a mover for amendment No. 11?
I do not have Senator Honan's authority to move it.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 8, subsection 4 (b), line 36, to add "without the consent of the Minister".
Section 9 (4) (b) prohibits an applicant from seeking or entering employment or carrying on any business, trade or profession during the period before the final determination of his or her application for a declaration. One of the best ways for an asylum seeker to detraumatize himself or herself, to begin leading a normal life again or simply to pass the time of day constructively is to work. I can see why in some cases it would be desirable that certain asylum seekers might not be entitled to work, for example, if it came under a manifestly unfounded regime or if there were public policy reasons for not letting a certain type of person work, etc.
The Minister should give herself an out. There should be a mechanism whereby an asylum seeker can apply to the Minister and state that he or she is a bona fide asylum seeker who wants to work, has been offered a job and is prohibited from doing so by this section. If we added the words "without the consent of the Minister", it would give the Minister an out and enable certain people to enter employment. I would be interested in the Minister's response, and I hope it can be positive on this occasion.
At an early stage in the debate I gave my views on ministerial action and accountability and asked Senator Mulcahy not to press a particular amendment and that is how he proceeded.
He has now put forward an eminently reasonable proposal. I know, from experience, that there is much interest in this section. I recall meeting an asylum seeker from South Africa who was qualified in a number of areas in which work was available in Ireland — I think he was an immunologist. He was not allowed to work and was grievously embarrassed at having to claim dole unnecessarily when he could have made a contribution to this country when there was much to be done.
The present legislation does not allow for such situations. The Minister should test and check these circumstances. If a person could make a contribution and find employment, that would answer many questions about him and allow him dignity and self-esteem. There can be no reason for objecting to this.
I ask the Minister not to tell us why a person should not be allowed to work, because the amendment is not about that; it concerns whether a Minister should have discretion to allow it. That is the only issue on which we need a response and I ask her to provide it — not to tell us why a person should not be allowed to work but why a Minister should not have discretion to make a decision along the lines suggested by Senator Mulcahy. I strongly support the amendment because an important part of preserving the dignity and self-esteem of a person seeking asylum is permitting the right to work. It is an internationally recognised fundamental right and it should be allowed to a person seeking the support of the State in this way. I ask the Minister to accept the amendment.
I find myself supporting Senator O'Toole's reasoning again, partly because of what he says about the impact on identity and personality of the opportunity to express oneself in one's craft or activity. To give a specific example, writers are often persecuted on grounds of belief and conviction. If a writer was a refugee under the terms of this Bill and wanted to write while in this country, in so far as it could be policed, would he be prohibited without any further qualification from continuing to practice the craft which is an integral part of his identity? This would not necessarily intrude on anyone and it may even be useful or valuable to this country. How can one put a blanket prohibition on anyone "carrying on any business, trade or profession" without any possibility of modification in the light of specific circumstances?
I also urge the Minister to accept this amendment. Senator Lee's case was hypothetical but I have had practical experience in this area. A large part of the health service is run by doctors from the third world. Refugees sometimes come here and in one case in which I was involved, a couple were unable to get employment for nearly four years. Their main concern was that they felt themselves a grievous burden on the State, but as well as that their professional skills were deteriorating because they were not in a position to work. For servicing our hospitals we relied on people who were not refugees but were from the same country, yet these people were not in a position to take up employment for a long period. I ask the Minister seriously to consider this amendment. In most instances we try not to allow Ministers to make all the decisions but in this case we are giving the Minister the power to decide.
I also have given much thought to this area. There are two arguments. The first has been made by Senator Henry and Senator Lee, but the other side of the issue has created problems in other European countries. The solution to the problem outlined by Senator Henry is speed. When this Bill comes into force there will be a structure in which an applicant's case can be determined with reasonable speed so they are in a position to work or not to work. At present the major problem with the structure is delay and the huge backlog which exists. Undoubtedly, the case which took four years and referred to by the Senator is not untypical of such cases, although we are trying to process the backlog of files as quickly as possible. The solution is to introduce a new structure which will provide for a speedy determination of whether someone is a refugee.
As to our position, we have to strike a balance in the Bill between affording the asylum seeker rights and entitlements under the Geneva Convention and the same rights and entitlements to which Irish people are entitled from the social welfare, health and education services. We also have to look at what the negatives may be in the introduction of a right to work. The greatest difficulty is that asylum seekers may be used to depress wages. For instance, groups of asylum seekers from a particular country may be brought here to work and leave before their hearing is determined, having worked for a contractor at low wages. This possibility may sound remote to Senators, but in some European countries immigrants or asylum seekers may be used by unscrupulous contractors and employers for low wages and when the job is finished they will leave the country before the appeal process is determined. The Department of Enterprise and Employment has a particular concern in this regard for the protection of Irish labour and working conditions and one must balance the two. If this power is given to the Minister, I envisage huge pressure being brought for an additional set of appeals in relation to working.
The restrictions are in relation to "carrying on a business, trade or profession during the period before the final determination of the application is made". In response to Senator Lee, no one is prohibited from writing, because in general that takes place in a different context to the carrying on of a business or profession. The solution to the problem of the writer or of the doctor to whom Senator Henry referred is to have a speedy determination of the appeals process. If a person has arrived as a refugee and is in fear of persecution, there will be a period during which he or she must sort things out before entering the labour market. The negative possibility is that our labour market would be abused by unscrupulous contractors or employers bringing in people to finish a job who then leave the country before a determination is made. We must take the balance into account and protect the Irish labour market.
I thank the Minister for her reply. No one wants to see the Irish labour market in any way distorted, but I do not think the Minister would suggest that the current figure of 400 applicants will do that. If the number of applicants ever goes into the thousands, Ireland will have a bigger refugee problem than a distortion of the labour market.
That, however, is a peripheral point; the primary issue is time limits. Although the Minister said she anticipated the speedy resolution of asylum applications, there are no time limits in the Bill as drafted. I will later move an amendment which does provide time limits, and if I had an assurance from the Minister that asylum applications were going to be dealt within a specific period it would be easier to consider withdrawing the amendment.
However, I do not know what the Minister's attitude will be to my proposed time limits or to my amendment providing for an appeal from the Refugee Appeals Board to the High Court on a case stated point of law. If she is totally against time limits on the consideration of applications, she cannot have it both ways because she opens up the possibility that people who apply for refugee status would be left for months, and possibly years, with nothing to do. There is nothing more degrading for any human being than not being able to work. The Minister comes from, in theory, a socialist party. Karl Marx said that the very essence of mankind is that he or she works and that he or she recreates his or her world——
The Fianna Fáil Party is espousing Marxism. This is very encouraging.
Collection boxes will be made available shortly.
I am happy to share my expertise on the philosophy of Karl Marx with the Independent Senators. They can read my thesis on the subject any time.
I find it strange that this Minister is going against the fundamental human right of a person to work. If the Minister indicated that she is prepared to accept my amendments imposing time limits on the decisions by the refugee commissioner and the appeal board and if I knew that the maximum period for consideration would be, for example, one year, it would be much easier for me to ask the House to withdraw this amendment. I am not happy with what the Minister has said so far. It is not acceptable that any human being could be left without work for years.
The Minister of State is quite right to say that speed will be important when dealing with these cases. It will make a great difference in a substantial number of cases. I understand Senator Mulcahy's concern about imposing time limits. The problem is that everything is not in our hands. We will have to deal with agencies and countries abroad, so we are not in a situation where speed here will solve everything. The argument is plausible in many cases but it does not apply to all. We are concerned about the prolonged cases.
The Minister mentioned the possibility of the introduction of slave labour in this country. The provision mentions the consent of the Minister. I find it difficult to believe that any Minister, regardless of the pressure brought to bear on them, would allow people to be employed in substandard conditions for very low wages. Requiring the consent of the Minister as well as a time lag should ensure adequate protection against such an occurrence.
I want to follow on from Senator Henry's point. The Minister of State's response that Ministers would come under pressure amounted to saying that we cannot trust the Minister——
——to take the right decision in light of the information available to him or her. It may well be that the Minister is right but we cannot act on that assumption. This amendment simply seeks to give the Minister discretion and not to compel the Minister to accede to any of these demands. It may well be that only a minority of them should be acceded to in the light of the information and circumstances of which the Minister would have cognisance. The Minister shook her head but it seems to me that the essence of the argument is that the Minister cannot be trusted to do the right thing.
I do not know the current situation with regard to the speed of applications. However, the number of applicants is rising rapidly and is likely to rise further. We have led a charmed life in this country in that we have little experience of immigration in comparison with other European countries. We have been seen as a relatively poor country with high unemployment and emigration. Our circumstances are changing independently of pressure being put on us by Germany and others in the European Union to play a more active role in this regard.
The resources allocated to this sector will have to increase to assist in the effective implementation of the legislation, but demand will also increase. There is no way that the Minister or anybody else, with the best will in the world, can guarantee that over the longer term the supply of resources will keep pace with the demand. There is a big question mark about speed. I take the point that speed would be a major factor, but none of us can predict it in the light of the variables. A blanket prohibition, without any possibility of modification in the light of circumstances, seems far too harsh.
The Minister said the provision would not affect writers. The words used in the section are "seek or enter employment or carry on any business, trade or profession". I presume that writing for gain comes within one of those descriptions. As a university lecturer, it might come to my attention that a refugee has entered the country whom I would be anxious to have talk to my students because he or she has a knowledge of circumstances which is unrivalled in my Department and could impart genuine information to my students. I may want to employ that person to give a number of lectures and pay them a modest amount. Am I prohibited from doing that under the terms of this section?
There is evidence of a considerable trade in very cheap labour in Europe. A change to the legislation may encourage unscrupulous people to target low paid employment. We are not talking about people giving lectures; we are talking about people working. A number of cases have already been brought to the attention of the Department of Justice. In the Shannon area refugees or asylum seekers have been offered work at extraordinarily low rates of pay. This gives rise to great and genuine concerns here and throughout Europe, particularly on the part of the European Trade Union movement.
I am not talking about genuine asylum seekers and the poor unfortunate who may be used by unscrupulous contractors. I am talking about the existence of a trade in exceptionally cheap labour involving organised contractors who seek to abuse the asylum procedures. This is a genuine fear. I accept many of the arguments made but they must be balanced by a concern to protect this country from the introduction of dubious labour practices through the asylum procedure.
As Senator Henry said, the asylum procedure takes a period of time at present. Hopefully, this will be reduced considerably when the new legislation and structures are in place. The introduction of scope for ministerial initiatives in the area may mean that pressure could be brought to bear and unscrupulous contractors will target this country to bring in extraordinarily cheap labour for use during the asylum process and subsequently leave the country. The people who will suffer are Irish workers and the unfortunate people who are used by the contractors.
We have a view in Ireland that asylum is entirely benign. I am afraid there are people in Europe and the United States who have used it in a most unscrupulous way to exploit unfortunate people. We have to protect ourselves against such exploitation taking place here. We offer the same rights as those to which Irish citizens are entitled in terms of social welfare and access to training, particularly language training, which most asylum seekers identify as the key requisite to becoming employable, and access to education and social services. I understand the sentiments which the Senators are expressing and I sympathise with them. However, it is fraught with a certain amount of difficulty and may have unforeseen consequences.
I find the Minister of State's response quite contemptible. On this side of the House we have made every attempt to be as reasonable as possible in dealing with our arguments. The arguments the Minister of State has just made are the reasons why a person should not be allowed to work. That is a decision for the Minister of the day to make. As my colleague Senator Lee said, the Minister of State has given only one reason why a Minister should not have the discretion to make the judgment she has just made. The Minister of State tells us all the reasons why a person should not be allowed to work, which is fine because no one is arguing against those reasons, although they are hypocritically based.
If the Minister of State wants to mention the international trade union movement or international experience generally, one has only to look at wetbacks in California, illegal aliens in New York or Turkish people in Berlin. The one thing common to them all is that local legislation does not allow them to work legitimately and, consequently, they are set up to be victims of exploitation. We are trying to stop that from happening.
If a person can be employed as a professional in an area of work available to him or her, he or she will not be available to work for half a crown an hour in some illegal black economy operation. The Minister has made no attempt to take our arguments on board. I find it contemptible and I refuse to argue about it any further. It is not treating this House with dignity. We asked the Minister of State to say why a Minister should not make the judgements she has just made in each individual case, but the only argument she came back with was that a Minister could come under pressure. That is what the job of every one of us in here is about.
I share Senator O'Toole's fundamental argument that all we are asking for is the inclusion of the words "without the consent of the Minister". The Minister may come under pressure, but it is a Minister's job to resist pressure where it ought to be resisted in the national interest. Nobody wants extra or excessive competition against indigenous labour, that is the case everywhere. That would also put pressure on the Minister if she had to take a decision. That concern would loom large in the mind of any Minister taking a decision of this sort. The phrase "without the consent of the Minister" has nothing to do with the specific issues that have entered the argument. It simply allows a Minister to adapt to specific circumstances rather than imposing blanket circumstances.
When I cited the case, which is not a hypothetical one, of wishing to engage a lecturer or someone like that, the Minister of State said we were not talking about that. However, this is a blanket prohibition, so how am I or anybody else supposed to know what we are talking about if there is no provision in the legislation to allow for differential judgement? From what is written down here, I would not have guessed, although maybe I should have, that that was not part of the intention at all.
There has to be more finesse in the phraseology or else there has to be a conditional exit from the totality of the judgement. That is all I am asking for. I am not for one moment impugning the Minister of State's motives, quite the contrary.
I listened carefully to what the Minister of State had to say. Having worked in America myself — and having seen the way people from some other countries who were trying to become legal citizens there were exploited, although they were not refugees — I can understand what the Minister of State means. We are just asking the Minister to be in a position to make exceptions.
Naturally, I am best able to give examples from the medical profession. I remember that an international expert fled here after the Prague Spring. This man had incredible expertise and we were all trying to get him satisfactorily registered so that he could work here until he eventually went back. Sometimes a person would be in a position to make an extremely valuable contribution to us for the length of time they were here.
This amendment is literally just to give discretion. I do not believe that Ministers will give in to whole factory loads of slave labour being set up down the country because representations are made by some unscrupulous factory owner who wants people to work for £1 an hour. It is extremely doubtful that the Minister would give in to that sort of pressure.
I appreciate that Senator Lee and Senator Henry are presenting exceptional cases and in the context of what they have said I will undertake to review the matter and talk with the draftsperson again. They should be under no illusion, however. Refugees in London who are highly qualified journalists and so on, do not get work on top class UK newspapers at high rates of pay. Many of them are cleaning out bedrooms and doing other low grade work at low levels of pay because there is an unscrupulous exploitation of asylum seekers. This has been well documented on various television programmes. There is another category of people who are illegal immigrants to different countries, but in the context of this Bill we are talking about asylum seekers. We have to be careful.
I accept the exceptional examples that Senators have offered, including where a university is in a position to offer some work to somebody. However, the kind of work that is made available to most asylum seekers in many jurisdictions is based on extreme exploitation of their availability as cheap labour. I am sorry that is the reality because it is highly objectionable.
Senators must be extraordinarily cautious about allowing Ireland to be targeted by unscrupulous people who use asylum legislation to benefit from the misery of others. We must protect ourselves and any future Minister for Justice from that possibility.
I will examine it to see if it is possible to produce an initiative on Report Stage which would go some way towards meeting the Senators' concerns. Equally, however, that must be balanced by protecting this country from being targeted so that asylum seekers here can be abused for low wages. I would not be a party to that happening in this country.
As the Minister of State is aware, the difference between here and the UK is that we did not seek the Protocol to exempt ourselves from the European Social Charter. That kind of exploitation is covered by law in this country. Will the Minister of State introduce an amendment on Report Stage? That is the crucial issue for us because we either have to deal with this today or accept the Minister of State's good intentions on Report Stage. We need to know what the position is at this point.
Having listened to the views on both sides, one must agree with the Minister of State that in no circumstances can we allow any door open to permit the exploitation of refugees or asylum seekers. We must also accept, however, that there will be occasions, as outlined by Senator Henry, when somebody will be in a position to make a professional contribution and where exploitation is not involved. The Minister of State said she would look at it on Report Stage to see if she can obtain a wording to facilitate what has been expressed by Opposition Senators. I do not know if it is fair to pin the Minister of State down to saying that she will actually introduce it, but we should allow her the opportunity to consider it carefully. The Opposition will have the opportunity to move an amendment on Report Stage and their argument has validity.
I am alarmed at the way this debate is going. The Minister of State's point seems to be that if she lets somebody work, then it is possible they will be exploited.
But when they are in the country it is possible they will be exploited anyway. It is possible that they will be on the black labour market and, because of that market's nature, the Minister will not know about it. If employers knew that a refugee applicant had to have the consent of the Minister, the Minister would be in a stronger position to know where each of those people was being employed and to monitor the employment conditions. This amendment would strengthen the safeguards against the exploitation of asylum seekers.
Senator Lee gave the example of a writer and Senator Henry gave the example of a talented medical practitioner who had a high level contribution to make. Every human being is equal in their own integrity. If a refugee's only ability is to make beds or work in a restaurant, they have a right to work equal to the nuclear physicist or the talented writer. A manual labourer should not be deprived of work. If the Minister of State wishes to put forward an amendment which will allow certain well educated people the right to work but not the lumpen proletariat, that is not acceptable. Human dignity is equal in each person.
The Report Stage is not supposed to be a major stage in the debate of a Bill. The Minister of State has already given a commitment on the ordre public issue. How many issues will be postponed until Report Stage? People either have a right to work with the consent of the Minister or they do not. The Minister of State should give a clear indication that she will consider an equal right for all regardless of their status.
I am surprised we have arrived at such an adversarial position on this matter. I do not consider the Independent Senators regard themselves as being in Opposition as such. We accept a great deal of what the Minister of State says about exploitation. We do not support exploitation. I do not believe Ministers would consciously lend themselves to exploitation. Perhaps we put excessive confidence in Ministers. I do not mind if the amendment includes a proposal to require Cabinet agreement to ensure that a conscienceless or unpolitical Minister would not behave in a manner contrary to their own political interests. I have sufficient faith in the political antennae of Ministers to assume they are highly unlikely to behave in a manner contrary to their perceived self-interest.
We are not putting forward the position the Minister of State is arguing against. She seems to accept in principle some of the points we have made. We seek a degree of flexibility in the phraseology which the Minister can interpret on the basis of the information available to the Minister.
We did not cite our examples because of discrimination between the privileged and the proletariat but because of the greater likelihood that the type of person we are talking about is in a position not to be exploited. If the Minister wants to exercise judgment along those lines she should do so. However, the fundamental question is not about slave labour but about the powers with which a Minister can be entrusted. I do not see why we have to be adversarial about it.
I wish to take issue with Senator Mulcahy on the point that Report Stage is less important than any other stage. Report Stage is critical. It allows a considered response to the Committee Stage debate and allows a Minister to have the draftsman carefully examine wordings and their implications. It is important to have wordings examined because legal interpretations may reveal that a certain wording does not meet what is required. The Report Stage is no less important than any other. On many occasions Ministers have returned to the House on the Report Stage of a Bill with amendments which address Members' concerns. The Minister of State should carefully examine the suggestions made and include them in the Bill if possible.
The examples I gave were of people I knew. Senator Mulcahy is right that everyone should be in a position to work and, if possible, work should be made available. The Minister of State is right to stress that cheap labour may be sought and it is likely that abuses could take place. The examples I gave were ones from which I felt the country would gain and the individuals themselves would benefit.
I find Senator Mulcahy's remarks surprising. I recall his party being very involved in considering certain people who could invest substantial amounts for a passport as being more acceptable and being subject to a speedier process than asylum seekers.
We are trying to provide for a speedier process for asylum seekers to have their cases dealt with. Not everybody involved in the asylum process is benign and interested in the welfare of asylum seekers. In Europe and North America there have been substantial abuses on the basis of making cheap labour available by certain unscrupulous contractors who use asylum seekers. We should protect Irish workers and asylum seekers in this country, who will have access to social welfare rights on the same basis as Irish citizens.
In the context of Senator Lee's and Senator Henry's contributions I will undertake to examine the matter with the parliamentary draftsman to see if it is possible to reach a more satisfactory arrangement which meets the Senators' concerns. However, I do not envisage Ireland becoming a target for unscrupulous providers of asylum labour.
A number of worrying cases from the Shannon area have been referred to us. This should be a matter of serious concern to Senators. The Senators referred to giving a person with a talent in a particular field who has the capacity to earn an income an opportunity to contribute to the country. Many such people in other jurisdictions do not get jobs commensurate with their skills. They end up cleaning out hotel bedrooms for slave labour wages.
We are trying to establish a humane and clear system for asylum seekers so that there will be a reasonably clear and speedy determination of their applications and that, once they are granted status, they will be in a position to fully participate in Irish society. In the meantime the Bill will enshrine in law the same rights of access to welfare, education and health as Irish citizens have. In practice the needs of many asylum seekers who have come here, and whom I have met on many occasions, relate to language training and skills in particular areas. I have had a great deal of personal contact with Bosnian refugees who have come to Ireland. I am pleased that because of the arrangements which have been made for them, many of them are now entering the labour market. Some of them are working in companies such as Intel. I do not know if any of them are working in organisations like Senator Quinn's. Many of them live in west Dublin and they are beginning to participate in the labour market, having been given an opportunity to acquire appropriate language and education skills. They participate, not on the basis of being exploited but on the same level as Irish citizens. I will examine the issue and report back to Senators on Report Stage.
I find it difficult to accept the Minister would place our arguments in the same context as the passports for sale row. The views of those of us on the Independent Benches were well known at the time.
I was referring to Senator Mulcahy's comments.
We are speaking on an amendment with some level of responsibility. Nobody denies the success stories of the systems in place at the moment and that people's needs may be more in the language, training or welfare areas. Nobody is arguing against this. Our point is that there are people who can make a contribution. If we go completely one way or the other, people are likely to be exploited or to be unable to make a contribution. If we insert the words "without the consent of the Minister", the Minister will determine whether people's needs are in the language, training or welfare areas, whether they are likely to be exploited or whether they have particular skills, expertise or professional qualifications which we need and could use.
All that is required is for the Minister to take seriously the argument we have put for the last hour. All she has to do is to say she will take our views on board and come back with an amendment instead of her woolly reply that she will consider the matter. She clearly gave us her side of the story and people have no argument with most of her points. However, she has not dealt with the specific narrow issue about which we are talking. We need and are entitled to a commitment from the Minister that she will introduce an appropriate amendment. It is in her gift to do so, she can do so and in that sense we can trust that she would do so.
I gave an undertaking to examine the situation. I must, at least, consult with the Minister for Enterprise and Employment because his Department is responsible for labour regulations. I cannot give the Senator an open commitment but I can give him an honest commitment to examine the issue to see if his concerns can be addressed. I can say dishonestly what the Senator wants me to say, but I must be honest and say I must consult with the Department of Enterprise and Employment.
The Minister is raising a red herring. Of course we expect the Minister to consult with the Minister for Enterprise and Employment, but will she introduce an amendment following that consultation?
Amendment put.
The Committee divided: Tá, 17; Níl, 18.
Tá
- Bohan, Eddie.
- Daly, Brendan.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Henry, Mary.
- Kiely, Rory.
- Lanigan, Mick.
- Lee, Joe.
- McGowan, Paddy.
- Mulcahy, Michael.
- Mullooly, Brian.
- O'Kennedy, Michael.
- O'Toole, Joe.
- Ormonde, Ann.
- Quinn, Feargal.
- Wright, G.V.
Níl
- Belton, Louis J.
- Calnan, Michael.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- D'Arcy, Michael.
- Enright, Thomas W.
- Gallagher, Ann.
- McAughtry, Sam.
- McDonagh, Jarlath.
- Magner, Pat.
- Maloney, Seán.
- Manning, Maurice.
- Neville, Daniel.
- O'Sullivan, Jan.
- Reynolds, Gerry.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
Tellers: Tá, Senators Fitzgerald and Ormonde; Níl, Senators Cosgrave and Magner.
Amendment declared lost.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
Amendments Nos. 13, 15, 16 and 17 are related and may be discussed together. As the relevant Senators are not present, amendment No. 13 will not be moved.
Amendment No. 13 not moved.
I move amendment No. 14:
In page 9, subsection (8), paragraph (b), line 8, after "State" to add "which would be considered a serious non-political crime in the State".
While I appreciate the sentiment behind this amendment, I am of the view that the existing words in the provision have the same intended meaning as those in the amendment and are sufficient in themselves. This matter was discussed with the Parliamentary Draftswoman who assured me that the standard to be applied when considering whether a crime is serious or political in nature is the standard of law and practice in this State.
If the Minister of State is providing assurance that the draftspeople are satisfied that the wording in the Bill is better than that contained in the amendment, there is no need to press the amendment.
The definition of those who may seek asylum has been expanded to include people's sexual orientation, gender, membership of a trade union, etc. A serious crime such as rape falls into a different category than those of draft evasion or desertion, for example, which might be a crime under the statutes of certain countries. There is no difficulty with that distinction in the context of the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 9, subsection (8), lines 9 and 10, to delete paragraph (c).
I move this amendment on behalf of Senators O'Toole and Norris. The Senators and I have great concerns about this matter. For example, how much effort must a person make to establish their true identity for it to be considered unreasonable——
I must point out that amendments Nos. 16 and 17 may be discussed in conjunction with amendment No. 15.
I have had greatness thrust upon me. Senators Norris and O'Toole are concerned that people will be too easily put to one side by a garda or immigration officer because they are not in possession of suitable identity papers. How much information is required before it can be stated that an asylum seeker has not made a reasonable effort to establish their true identity?
There is a necessity to draw a fine balance between facilitating the rights of an asylum seeker and respecting those of a society to protect itself against abuse by a bogus asylum seeker or a criminal seeking asylum. Regardless of the means used to travel to this country, which may have involved the use of false documentation or identity papers in another country, the essence of the application process is that once an application for asylum is made, the person involved must reveal their true identity. There is no reason for their failing to do so at that point. A person must disclose their entire story in order that a judgment can be made as to whether they are a bona fide asylum applicant.
There is no difficulty with accepting a situation where a person must enter this country through subterfuge by using false documentation or a false identity. However, once they enter into the application process and have been interviewed by immigration officers or gardaí, there is no reason for their not revealing their true identity. At that point they have nothing to fear from our society. It is important that the gardaí and immigration officers, who are also gardaí, should have the power to seek the identity of asylum applicants. Such information may be necessary in order to protect Irish society. Early last year, for example, a person who escaped from another jurisdiction and had been convicted of rape applied for asylum in this country. Therefore, a balance must be struck between facilitating legitimate asylum seekers and protecting our society. That is what the section seeks to do.
I understand the Minister of State's explanation. From our understanding of the provision as it stands we were worried that a problem would arise in this area, because when they arrive at their destination people are often urged to destroy documents which may be used as incriminating evidence. However, I agree that when people arrive in the State they must make reasonable efforts to establish their identities. With the training to which the Minister of State earlier referred, I am sure immigration officers will be sympathetic to the fact that people are fleeing stressful situations. I hope that these people will be given a reasonable length of time to rest assured that they are in a place of safety and can disclose information they withheld before entering the country.
Amendment, by leave, withdrawn.
Amendments Nos. 16 and 17 not moved.
I move amendment No. 18:
In page 9, subsection (8), line 16, to delete "prescribed place" and substitute "suitable prescribed place other than a prison".
Many people have expressed concern about the term "prescribed place". The Minister of State is aware that "prescribed place" will generally mean prison. As I stated earlier, the Red Cross Society has dealt with many asylum seekers in the past in Ennis and Dublin. There appear to have been very satisfactory methods of dealing with such people. However, there have also been cases where people went to prison for a prolonged period of time and suffered as a consequence of being there. A Chinese man who was involved in the Tiananmen Square massacre was detained in Mountjoy Prison for months. An African man suffered a great deal of racial harassment in Mountjoy Prison and had to be moved to the training centre.
We know from other jurisdictions that prolonged detention has a serious detrimental effect on asylum seekers. On 26 February 1995, Mr. Abijou Tilaye, a 39 year old Ethiopian asylum seeker, committed suicide in a detention centre in Wurzburg in Germany. He and his wife, who was also being detained, belonged to the Amhara ethnic group which, according to human rights organisations, is subject to persecution in Ethiopia. He had been detained for exactly six months when he died. A further six suicides were recorded in Germany in 1995, including one on 16 August. The conditions of detention and fear of deportation have resulted in suicides and attempted suicides, even by juveniles, in a number of other countries including Austria, the Netherlands, Switzerland and the United Kingdom. I could quote other cases where people either committed or attempted suicide. We must take seriously the importance of prescribed places. I would like to see further definition of "places of detention".
I appreciate the Senator's remarks but the case to which she referred took place in Germany rather than Ireland. Very few people are detained in Ireland under the provisions of the Aliens Act and any such detentions are generally for a very short period of time. As the Senator will know, there is a high demand for prison places in Ireland and it would be surprising if the Department opted to use many places for considerable periods of time for asylum seekers. In the later provisions of the section, anybody who is detained — such as the example I gave earlier of a person who escaped from another jurisdiction where they were serving a sentence for rape — must be brought before the court every ten days.
The structure we are proposing in this Bill is rather different from what Senator Henry envisaged in relation to countries such as Germany where there are general detention holding centres. We do not have such arrangements. Under working guidelines, the reception of asylum seekers is generally handled by the community welfare officer in a particular area — generally on the basis of providing bed and breakfast accommodation. Where there are genuine queries in relation to somebody's identity such that immigration officers and/or the Garda feel it is appropriate they be detained, the place of detention would be a prison or similar place. However, if they are held for more then ten days they have to appear before the courts. This section is reasonable in the context of striking a balance between the reception of asylum seekers and the need to provide appropriate protection for Irish society in the very rare number of cases which occasionally arise.
I take the Minister's assurance they will be very rarely used. Putting people in places of detention such as Mountjoy Prison has grave dangers for them due to the extent of drug abuse there, which is reported among 30 to 60 per cent of prisoners. There have been cases where those detained in Mountjoy Prison have had to be transferred to the training unit, which is to be a drug free unit for the general prison population. I presume they would be detained in the training unit unless the case involved drugs.
I will have to take the Minister's word that it will be used sparingly because it is not a place for people with a traumatised background, fears of their cultural identity being interfered with or difficulties with communication. It would be better if training centres and youth detention centres could be used for these people. There are many violent men in our prisons and there is very little segregation, even for remand prisoners. I would be greatly cheered if I thought asylum seekers were going to be put into remand or drug free centres, but the fact they will most likely go to the main Mountjoy Prison is very serious. I understand how it might be needed, but it would be better if the powers of detention were in the hands of the courts rather than an immigration officer and a garda.
I reiterate it is not customary practice to detain asylum seekers in prison except in a very small number of cases. One of the elements of the list of prescribed places is that they are secure, which obviously applies to prisons, training centres or a local Garda station with detention facilities. A number of countries have purpose built detention facilities but I am opposed to us going down that road because I envisage us handling the vast majority of asylum cases through the reception facilities I mentioned earlier, that is, the provision of accomodation through the health boards on the same basis as that which is provided for homeless persons.
I assure the Senator that when the regulations are set out in relation to prescribed places we will take into account the points she made. I reassure her that while very few people are now detained, where people are detained there are provisions in the Bill whereby they have to be brought regularly before the courts. I assure the Senator there is no desire to occupy valuable and needed prison space with asylum seekers except in very rare circumstances. The one which came to my attention since I have been a Minister was the case of someone who had escaped from prison, having been convicted of rape and imprisoned. It was appropriate they be detained to protect Irish society. Similarly, if we have reason to believe the asylum seeker was involved in drugs or an escaped war criminal, we would have to detain such a person in a secure place. The Senator made a number of useful suggestions in regard to the list of secure places, with which I have no difficulty.
Is it an innovation that an immigration officer or garda can send a person to a prescribed place such as a prison without going before the courts?
There is such a provision under the existing Aliens Act. The cases to which the Senator referred of asylum seekers from China and Libya were quite a while ago. People are only detained now when it is clearly necessary and, in general, for only short periods of time. I accept that prison is not an appropriate place for an asylum seeker. It would be a last resort where there is a clear need to establish the identity of the person and perhaps protect Irish society while the identity is being established.
In the recent past the authorities have been much better about this aspect of asylum seeking. With more regular reporting to the police every day we may be able to keep this at a minimum. It is dangerous to be in prison. People are put into safe custody, yet we saw what happened with the unfortunate girl last night who had only just gone into prison.
We must watch this area carefully. It is not easy to judge who is a threat to national security while standing in the airport at Shannon. I hope it will be used infrequently. It is very serious to give people the power of detention over others. While they must be brought before the courts every ten days, this is a long period of time when one is sitting in prison. I have only visited prison; fortunately I have not been detained there.
To have immigration officers and gardaí determining questions of national security, public order and serious non political crimes worries me. It may also worry them when they are asked to make these decisions. I therefore hope it will be kept on a minimal basis. I will withdraw the amendment.
I share Senator Henry's concerns. While being largely reassured by the Minister, there are two points. In the first instance, not every immigration officer may at all times share the Minister's personal ethos on how this should operate because this is a long term measure. Second, ten days detention may appear a short period to us in retrospect. However, it is a long period of time for an innocent person caught in those circumstances. It should, therefore, be used sparingly.
The use of the word "serious" has been used — for example "serious non political crime". The word "serious" frequently occurs in draftsmanship. I was ruled out of order earlier when I wanted to raise the issue of serious sexual assault under section 5 (2). What is meant by "serious"? How does an immigration officer or anybody else determine what is serious? What kind of latitude does the use of the word allow for the interpretation of these clauses?
One must consider the entire section. We are considering a process that has a number of different elements to it. In the first instance, what is being asked for in section 8 is where the immigration officer or member of the Garda Síochána has a "reasonable cause" and must act accordingly. The reasonable causes are described. Second, under section 9, regulations must be made with regard to the place of detention. When making them I will bear in mind the fair points which have been made by Senator Henry. The regulations should set out how somebody who is detained is going to be treated. Third, in the context of this Bill, one must have reserved powers which strike a balance between the need to protect ourselves and the need to meet the justifiable and human rights of the refugee asylum seeker. Powers are, therefore, given to the gardaí and immigration officers where they have reasonable cause.
An examination of the general body of our laws will show that people like gardaí and immigration officers act in reasonable ways with regard to other laws. We have an ongoing programme of training with UNHCR. Given this, I am confident that there would be no abuse of the powers granted under this section. An abuse of such powers would be expensive in terms of using up otherwise needed prison places when the guidelines for the reception of refugees have set out a structure which involves a community welfare officer, contact with various organisations etc., and which is working well. I reassure the Senators with regard to this area.
I call on Senator Quinn. The amendment is to be withdrawn.
I am pleased the amendment is to be withdrawn, because overall the Bill is progressive and in danger of being called a liberal Bill. We are making a good attempt to make it the best Bill that is possible. However, we must not go so far in trying to improve it that we weaken ourselves on the odd occasion where it may happen. The Minister is to be supported where the Bill provides that an immigration officer or a member of the Garda with reasonable cause suspects that an applicant poses a threat to national security or public order, etc. It would be wrong for us to remove the right to place such people in jail if we have to do so in the urgency of the moment. It is highly unlikely it will ever be used, but we should have it in our possession if only to deal with occasions when we come under threat.
Amendment, by leave, withdrawn.
Government amendment No. 19:
In page 9, subsection (10) (c), line 46, to delete "concerned".
This amendment removes a superflous word which remained following an amendment to this subsection on Report Stage in the Dáil.
Amendment agreed to.
Amendment No. 19a not moved.
I move amendment No. 20:
In page 10, subsection (14) (a), line 54, to delete "10 days" and substitute "8 days such periods not to exceed two months in total".
The purpose of the amendment is to ensure some control and parameters. I propose that the detention periods should be for eight days and they may be continued but for a period not exceeding two months. It is self explanatory and has been debated on a number of previous occasions.
In the 1994 Bill the detention period was for 21 days. In the debate at that time contributors felt this was excessive, a view which I shared. On balance — a word that is perhaps being overused today — we considered that a period of ten days was appropriate. Detention is under the supervision of the courts. These powers may occasionally be necessary, especially in cases where somebody is from a remote area and it is difficult to make inquiries within a certain period of time.
These powers of detention are not generally availed of, and have been decreasingly availed of over the past 18 months. A period of ten days is reasonable. I hope the Senator will accept my view on this.
It may be reasonable, but I am conscious of the Minister's remarks earlier on the need for speed and moving matters onwards. The problem is not so much with the period of ten days but with the possibility of continuing the process indefinitely. How will the Minister enforce her commitment to a speedy determination of events?
The amendment seeks to ensure that the courts do not impose an indefinite period of detention. The District Justice can only continue to permit detention if he or she is satisfied that the conditions warranting the detention continue to exist. Again we are applying tests of reasonableness and due cause to a potential continuing action by a District Court, which would have to be exercised on the basis of information and case law. It is a court process and the courts will take it very seriously.
I seek additional information. I am not aware of the experience to date in dealing with that section of the previous Act. What tends to be the average period of detention in those circumstances?
Existing detentions are implemented under the Aliens Act and there are no time restrictions on such detentions. Alternative structures have evolved with the help of the UNHCR and the NGOs. Practice in this area has evolved and improved dramatically over the last five years. The situation of the 1980s no longer applies because our knowledge, training, expertise and the assistance of NGOs have changed our outlook on how we deal with this.
Periods of detention are relatively short. The person can go into bed and breakfast accommodation but might have to remain in contact with the Garda or the immigration services. Those structures are working extremely well. There was never great recourse to detention but the law under which it currently applies is the Aliens Act and that does not provide for a time restriction, which is why from time to time one sees appeals being brought to the courts.
This provision would restrict detention and impose a structure. A District Justice acting under this section of the Bill would have to do so in a way that is appropriate both to the Constitution and the principles of natural justice, as is the case in other court proceedings.
Amendment, by leave, withdrawn.
Amendment No. 24 is related to amendment No. 21 and both may be discussed together.
Government amendment No. 21:
In page 11, subsection (15), lines 15 to 17, to delete "and a person referred to in subsection (2) shall not be entitled to remain in the State under that subsection".
On Report Stage in the Dáil these subsections were amended to confine their application to persons outside the State. They no longer apply to persons who are already in the State. The amendments tidy up the wording of the two subsections.
These issues were raised by the UNHCR with regard to section 9 (15). The provision deals with circumstances in which persons can be excluded from the State and from the opportunity to make an asylum claim. While the provisions as drafted were based on provisions in the UN convention, I re-examined the wording and proposed amendments. The concerns expressed by the UNHCR related to the fact that subsections (15) (b) (i) and (ii) were an application of the exclusion clauses of the convention. They pointed out that the recommended and generally accepted practice was that these clauses should not be used to exclude persons in the first instance from the asylum process but that the person should be admitted to the examination process which would allow their case for refugee status to be weighed against any case for exclusion on the basis of the exclusion clauses. I was anxious that the Bill would honour the spirit as well as the letter of the convention and I agreed to amend the provisions in accordance with the UNHCR's wishes.
Amendment agreed to.
Amendment No. 23 is related to amendment No. 22 and both may be discussed together.
I move amendment No. 22:
In page 11, subsection (15) (a), line 18, after "the" where it secondly occurs to insert "individually named".
I am delighted that the Government has seen the problem in this subsection and that it has graciously followed in my footsteps and put down an amendment to cater for the problem I identified. I am sorry to sound pompous but perhaps we are allowed to be now and then.
All the time for the Senator.
Under the Aliens Act, 1935, the Minister is empowered to make an aliens order which would affect the entire population of a country. These orders are known as exclusion orders and the Minister of State would agree that there would have to be a very strong reason for one to exclude every citizen of a country.
Under a recent European Council regulation, EC 2317/95, the European Union has adopted a policy of maintaining a common list of countries where visas will be required. This regulation is applicable in Ireland and the fear is that under this provision of the Bill the Minister would be able to make such an order in relation to refugees. The decision comes down to choosing the better wording — that of Senator Mulcahy or that of the Government. My wording is preferable because the phrase "individually named" is clear and precise. The Minister can make a clear exclusion order under the Aliens Act against a particular person. Ministers for Justice have made such orders on many occasions. They are a statutory instrument of one or two lines stating that Mr. XY of country ABC is hereby excluded from Ireland. That can properly be described as an individually named exclusion order. The Government's wording "relating to particular aliens" has the same effect but I prefer my wording on this occasion.
I ask the Senator to be as gracious as I have tried to be in meeting the point he made and withdraw his amendment in favour of the Government's. The Government amendment was drafted by the parliamentary draftsman. Exclusion orders must be placed before the House and it is not a process that is undertaken lightly. Visa applications have nothing to do with this legislation so I will not discuss them. I ask the Deputy to accept the wording of the parliamentary draftsman.
Amendment put and declared lost.
Government amendment No. 23:
In page 11, subsection (15) (a), line 19, after "1935," to insert "relating to particular aliens".
Amendment agreed to.
Government amendment No. 24:
In page 11, subsection (16), line 26, to delete "or is not entitled to remain in the State".
Amendment agreed to.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11.
Amendment No. 25 not moved.
Amendment No. 26. Amendments Nos. 28 and 34 are related to amendment No. 26. There-fore, amendments Nos. 26, 28 and 34 may be discussed together. Is that agreed? Agreed.
I move amendment No. 26:
In page 13, between lines 33 and 34, to insert a new subsection as follows:
"(9) Where a person who arrives at the frontiers of the State makes an application for a declaration pursuant to section 8 and where the Minister refers the said application to the Commissioner, the investigation of the said application by the Commissioner, shall be concluded within a period not exceeding six months from the date of the said application.".
This morning, in the context of whether an asylum seeker would be able to work, the Minister indicated that she hoped the procedures for the processing of asylum seekers would be speeded up, speedy or words to that effect. However, I think the Minister will agree that there are no specific time limits in the Bill, which raises the possibility that asylum seekers could be kept for considerable periods of time while their applications are being considered.
The number of new applications for refugee status in 1995 was 424. If there is only one refugee commissioner and he or she starts with a backlog of several hundred applications, it is not inconceivable — on the contrary, it is well possible — that before long a large backlog will arise.
Unfortunately, we have seen queues for medical treatment, drug treatment and almost every State service. Sometimes those queues are shortened, but sometimes those delays can go on for years; that is a fact of life. Providing for a period of six months in which the commissioner must examine a refugee's application is not too short a period. There should be some onus on the commissioner to make a decision and, in fact, the amendment does not state that a decision in any event must be given within the six months. It states that the investigations by the commissioner should be concluded within six months. To be consistent with her earlier comments with regard to speed, etc., I hope the Minister will be able to accept this amendment.
I have great sympathy with the sentiment which gives rise to these amendments. Nobody would seek to justify the long delays that exist in our present system for processing applications for refugee status. The present system was put in place in the expectation that it would have to deal with a few dozen cases a year. Last year's intake of applications was 424 and so far this year, that is, up to yesterday, there have been 366 applications, which would give an idea of the level of increase. The UNHCR offices in London, which assess the cases for us under the existing arrangements, are simply snowed under with work at present.
The aim of the Bill is not just to put the fulfilment of our convention obligations on a statutory footing, but also to establish the institutions of the refugee applications commissioner and the Refugee Appeal Board with an adequate structure to deal with applications within a reasonable time. Work has already started on the process of putting the necessary staffing arrangements in place. However, to restrict these bodies to a rigid time limit is, in my view, a recipe for injustice potentially greater than that caused by the delays which exist at present.
The amendments are silent as to what should happen at the expiry of the period. There are two choices, but either one would work to unjust effect in different sets of circumstances. If the default is to be that after six months an applicant is deemed to be a refugee, all the unscrupulous abuser of the system needs to do is refuse to turn up for interviews or adopt obstructive delaying tactics in order to be confirmed. If the default is that the applicant fails, we can all see how unfair that would be, because in many cases the honest application of a person with a well founded but complex claim can take more than six months to establish, particularly where the applicant comes from a country which has experienced civil war and where many of the records may be unavailable or destroyed. Either way some people would suffer, but without some meaningful consequence of exceeding the time limit, there is really no point in providing a time limit.
In the nature of things, dealing thoroughly with an application is time consuming and we are under no illusion as to what is involved. First, there is the need for the refugee applications commissioner to have the applicant interviewed at length and in detail so as to establish the precise nature of the claim. The applicant may well — and, if present experience is anything to go by, frequently does — wish to submit written evidence, argument or documentation to support the claim. The commissioner must establish to the best degree possible in the circumstances the position in the country of alleged persecution, and that is another process which can take time and be fraught with difficulty, particularly, as I say, if the applicant comes from a country which has experienced war or civil war.
I agree that the uncertainty of waiting for a decision can be a source of trauma and worry to an applicant, but in the meantime the needs of the asylum seeker are looked after in terms of social welfare payments, housing, medical needs, etc., at no inconsiderable expense to the State. Each applicant is secure in the knowledge that the application will be dealt with as thoroughly as possible and reassurance must go in large measure to soften the worry of waiting for a decision.
The whole function of the Bill is to vastly improve and overhaul the system, and I am quite confident that we will be able with the proposed resources to substantially reduce the time taken to decide cases.
I am not convinced by what the Minister said. Time limits have been introduced in a number of areas of the State's responsibility, such as planning applications, etc., for the very reason that people are entitled to have a time frame within which decisions will be made which concern their lives or property. If the Bill does not provide for a time limit, it would include the possibility that applications could be put on the long finger. The Minister may say that this will never happen but that is not the reality. The reality is that matters can get bogged down in State bureaucracy and can go on for months or years. In such cases people are left in limbo.
I must reiterate that in her opposition to allow refugees to work this morning, the Minister said there would be virtually a guarantee that these items would be dealt with speedily. I am not saying that six months is a sacrosanct period, but surely some period of time could be included in the Bill which would give an outer limit for the conclusion of investigations because it is a safeguard to the person.
By the way, it would assist the civil servants who are examining the matter also in that they would have a deadline to work to which would concentrate their minds. I think the Minister will agree that that is certainly an advantage in the planning process. When one knows an appeal period is up and a decision must be made, decisions are made and people can go on with their lives. The fact that the Bill does not provide for a time limit is a serious flaw and I feel strongly about that.
I do not agree with Senator Mulcahy on this issue. I see the grave danger of an injustice taking place where information, which might have to be obtained outside the country and over which the commission would have no control, would have to be available to make a decision. If all such documentation is not available, it is likely the decision will be cautious and the person will not be allowed in as a refugee. Senator Mulcahy knows only too well that even in the planning area not all applications for planning permission are settled within two months — further information may be requested and in some cases it can take years to obtain. If a strict deadline is imposed, there is a grave danger of not one but several injustices. I fully agree this should be done as speedily as possible and the commissioner should be held accountable by the Minister to ensure that happens, but I see a lot of danger in enshrining it in law.
Including rigid time limits in the Bill would be a mistake, given the wide variety of circumstances outlined by the Minister. However, I have much sympathy with Senator Mulcahy's position that having a time limit as a guideline to what is deemed to be normalcy would strengthen the principles underlying the legislation. I do not doubt the Minister's commitment to the speedy resolutions of these problems. She has said the resources will be provided and I am sure they will be in so far as it lies under her control. However, the scenario we sketched this morning is as plausible as any other — the demand will increase quite sharply; it would have done so even in the absence of this legislation and it probably will increase even more as a result of it. If this is the case, there will be conflicting demands on resources and if there are no time limits, the pressure on the staff to deliver results within a particular period will not exist. As a result of resources not keeping pace with demand one could find in a few years that, however inadvertently, the delay is beginning to accumulate once more. Without imposing it rigidly, it should be possible to find a phraseology to the effect that beyond a certain period, an explanation should be furnished to the Minister as to why the case had not been resolved. I do not see that this would subvert the principles of the Bill; rather, it would reinforce it.
I draw the Senator's attention to the fact that the commissioner and the appeals board have to make an annual report which will be laid before the Dáil. The objective of introducing this Bill is to produce a structure which will operate efficiently, fairly and with much greater speed than the existing structure. Rather than by imposing rigid time limits, I think excessive delay, if it occurs in the future, will be dealt with through the provision that the work of the commissioner must be reported on and comment can then be passed on it. If undue delays occur, the office of the commissioner and the way in which this person is carrying out his or her work can be criticised. What the Senator is proposing may work as much to the disadvantage of an asylum seeker as it may potentially work to his or her advantage. I do not see the purpose of the proposed time limits if they do not have a consequence. The Senator's amendment is silent on that and there are problems with the consequences in either direction.
I understand the sentiment of what the Senator says and I have been critical of the delays in the procedures. This is central to the question of justice, and Senator Mulcahy should remember that the commissioner must be a member of the legal profession with considerable standing and experience. While we have cases of people on remand, many defence and prosecuting attorneys say that in the interests of justice it is necessary to have time to go through a case. I would not like this to be arbitrarily short-circuited or to have an axe brought down on the process. While Senator Mulcahy thinks this will benefit applicants, it may in fact work to their disadvantage.
Amendment put and declared lost.
Section 11 agreed to.
SECTION 12.
Amendments Nos. 26a, 27 and 27a are related and may be discussed together.
Amendment No. 26a not moved.
I move amendment No. 27:
In page 14, lines 16 to 19, to delete paragraph (c).
This section deals with manifestly unfounded applications, which have caused a significant problem for many countries and are a matter of concern for UNHCR, as they create delays and difficulties for genuine applicants. The UNHCR is adamant that the convention concept of the refugee should be actively upheld in each country which is party to the convention. The executive committee of EXCOM has drawn attention to this problem.
The subsection Senator Mulcahy wished to delete is intended to cover a situation where there is strong evidence that the person made an application for asylum for a reason unrelated to a fear of persecution — for example, investigations — might reveal that he or she made an application for economic reasons, using Ireland as a backdoor to gain access to the United Kingdom. This matter has already arisen under other sections, particularly since the common travel area for Irish citizens and free movement to the UK is of great significance to many Irish people. For that reason I oppose the amendment.
Amendment put and declared lost.
Amendment No. 27a not moved.
Section 12 agreed to.
Sections 13 to 15, inclusive, agreed to.
SECTION 16.
Amendment No. 28 has already been discussed with amendment No. 26.
On a point of order, I missed that.
I stated that amendments Nos. 26, 28 and 34 were being discussed together. I understand a list of the amendments being grouped together was circulated.
May I state why I do not believe they should have been grouped together? I do not know who did so. One of the amendments relates to a time limit for the refugee commissioner, the other to a time limit for the appeal board. In so far as they both relate to time limits they are similar but they refer to different aspects of the Bill. I will be unhappy if I am stopped——
I suggest to the Senator that he should have made that point on amendment No. 26. I will allow him to speak briefly, but it is unusual.
I move amendment No. 28:
In page 15, subsection (1), line 47, after "13" to add—
"and the Appeal Board shall consider the said appeal within a period not exceeding six months from the date of the said appeal".
If the Minister accepted this amendment it would merely mean that the appeal board would have to begin its consideration of the appeal within a period of six months. The amendment does not say the actual determination would have to be made within that period. The words used are "shall consider the said appeal". I fail to think of circumstances where, in light of all the research done by the refugee commissioner, it would be impossible or difficult for the appeal board to begin to consider the appeal within six months. I would like a response from the Minister.
I will ask the Minister to respond, but the amendments have been examined and both talk about time frames.
I do not want to make the same argument I made in relation to amendment No. 26, but essentially it is the same. As I said earlier, I do not favour a rigid time limit in this area. It does not serve any purpose. I would reiterate that reports must be laid before the House. If in subsequent years there appears to be a lapse in the way the legislation is being implemented, it will be open to Members of this House and of the Dáil to raise those matters. That is the appropriate approach. Refugees and asylum seekers receive an enormous amount of public attention. There will be a keen public interest in how the roles under this Bill will be performed and there will be quite a degree of media and political consideration of how the tasks are performed. I do not see the need for time limits.
Amendment put and declared lost.
Government amendment No. 29:
In page 17, subsection (11) (b), line 12, to delete "Subparagraph" and substitute "Subparagraphs".
This is to correct a minor grammatical error in the text.
Amendment agreed to.
Amendment No. 30 not moved.
I move amendment No. 31:
In page 17, between lines 25 and 26, to insert a new subsection as follows:
"(12) (1) For the purposes of an oral hearing (if any) under this section, the Appeal Board shall—
(a) direct in writing any person whose evidence is required by the applicant to attend before the Appeal Board on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,
(b) direct any such person to produce any specified document or thing in his or her possession or control.
(2) In any hearing before the Appeal Board, the applicant shall be entitled to call witnesses in support of his or her application, and the rule against hearsay shall not apply to proceedings of the Appeal Board.".
This is a key amendment which encompasses an important proposal. What will be the nature of hearings before the Refugee Appeal Board? It is proposed that the applicant can be legally represented but we do not know what format those hearings will take. The Bill does not state whether the applicant will be entitled to call witnesses. We do not know what rules of evidence will apply or where the burden of proof will lie. None of these matters is dealt with in the Bill.
The various tribunals set up by the State obey different laws of evidence in relation to the rule against hearsay. Some tribunals accept hearsay evidence informally while others do not. The courts do not accept hearsay evidence, save in certain specified circumstances. This is a practical matter. If somebody needs to show the appeal board that they are being persecuted, they will have to call evidence because there may well be cases where they are not believed or where the circumstances of their persecution are in a far flung region of the world which is outside the knowledge of everybody present except the applicant.
Will the applicant be able to call a witness from that country, an international expert or other evidence of a documentary nature concerning persecution? That is why I have put down this amendment. The first part provides that the appeal board shall direct in writing any person whose evidence is required by the applicant to appear before it. Essentially the applicant will be able to summons a witness to attend and give evidence on his or her behalf and produce any document or thing in his or her possession or control specified in the direction. This provides for a subpoena in written form.
The second part of the amendment provides that the applicant shall be entitled to call witnesses in support of his or her application and that the rule against hearsay shall not apply to proceedings of the appeal board. I suggest that the Minister of State consider accepting this amendment in order to even the playing pitch between the asylum applicant and the officials.
Where the refugee commissioner has made a report stating that a person is not the subject of persecution and there is no persecution in a certain country, what contrary evidence would be allowed under the Bill as it stands other than that of the applicants themselves? These items should be addressed and I ask the Minister to consider amending the Bill in this way.
I object to the amendment and I do not agree with what Senator Mulcahy has said. My understanding of the Bill is that we are not talking about levelling a playing pitch. There is one playing pitch and everybody is playing the same way. The commissioner could be considered as being sympathetic and not adversarial, as Senator Mulcahy seems to suggest.
I have been on the Employment Appeals Tribunal for many years and it has almost turned into a court of law with barristers and solicitors on each side. It is totally at variance with what was intended when the tribunal was established because it has some of the things Senator Mulcahy has mentioned. How can one summons witnesses to support a person who has arrived from Iran or Iraq? How can one subpoena Saddam Hussein to prove he is persecuting people? We will create such an amount of work if we accept Senator Mulcahy's proposal that we will be worried about delays of six years rather than six months.
Senator Neville has pointed out difficulties but Senator Mulcahy's concerns are that natural justice can be seen to be maintained at all costs. Our old friend public policy is back again in this section. We had a long discussion on that earlier. It seems that — for example, in subsection (13) — if there was something relevant which could be called and might be of use to the person, it might not be called because a member of the Government might consider it would be better if it were not brought before the commissioner. Am I right in reading it like that? The anxiety is to be sure that justice for the individual will take precedence because these cases are being held in camera so they will not be reported.
I am surprised and astonished by Senator Mulcahy's contribution. I wonder if he actually understands the hearing process by which somebody is granted refugee status. The proceedings are not adversarial and are not intended to be a court of law. They involve people who arrive in this country and have a story to tell about being subjected to such persecution in another state that they have had to leave that state. Inevitably, a great deal of the information they give, and on which judgments are based, is hearsay.
As Senator Neville pointed out, if we had to go to courts of law to prove that persecution existed in Iran, I cannot envisage the elaborateness of the procedures and the time it would take. While the amendment may be well intentioned, the consequences would be utterly disastrous. They would defeat the entire purpose of the type of structure we have put in place to enable somebody to tell their story to a legally qualified person who makes an initial judgment on it. In addition, an appeals board composed of independent people, and another legally qualified person of even more experience, hear an appeal followed by a further appeal to the Minister for Justice.
At the beginning of that process, the Senator proposes a structure in which one would need somebody like Justice Marshall of the United States or some court of the United Nations acting to hear it. What the Senator has suggested is so extraordinarily elaborate as to defeat the purpose and intention.
When reading asylum seekers' files I take a great deal of hearsay into consideration about conditions in a particular country. However, I cannot phone Saddam Hussein or others whose reputations are not particularly great, to ask whether they do the kind of things mentioned in the files. I must rely on information from the UNHCR, the Department of Foreign Affairs and the Department of Justice about what conditions are.
I appreciate the good intentions of the Senator's proposals but they would defeat the purpose. This is not intended to be a court of law peopled by legal heavyweights with international despots giving evidence against unfortunate asylum seekers. It is meant to be a process which will hear their stories and give them due process in three clear steps.
The Minister of State says she is surprised by my amendment, but I am shocked by the anti-democratic nature of the Minister of State.
I am not surprised, of course, by the anti-democratic nature of Senator Neville's comments.
Is anyone else allowed to speak?
I am merely asking that a witness to somebody's persecution can come along to the appeal board to give evidence on their behalf. It is very serious if the Minister is so undemocratic that she has a problem with that.
An Leas-Chathaoirleach
Senator Mulcahy should not use such emotive terms. We can have a reasonable debate on the issue.
I am not undemocratic, either.
On a point of order, I am astonished. This Bill is the most liberal refugee legislation currently in Europe or anywhere in the world. It is wrong to suggest that the work by all parties in this House, including the Independent Senators, and in the Dáil — not just in this session but in earlier sessions — that has gone into this legislation, which has been widely welcomed by the NGOs and by political parties, is fundamentally undemocratic just because it will not be a court of law on the scale and style of our Supreme Court. That is not undemocratic; it is being practical in the interests of asylum seekers.
I never called the people responsible for drafting the Bill undemocratic. What I said was undemocratic was the Minister of State's attitude and objection to what is the most basic law of natural justice, which is called audi alteram partem.
That is completely unfair. It must be ruled out of order.
Both sides are entitled to be heard.
An Leas-Chathaoirleach
Senator Mulcahy should be allowed to make his contribution. Other Members will have an opportunity to respond.
If, for example, the refugee commissioner decides against an applicant, it is not clear that all the sources of his information will be available to and at the disposal of the applicant. It may well be that the sources of information of those who would seek to deny the applicant would be far greater than that of the applicant's.
The Minister of State may shake her head, but an appeal obviously involves a case where the applicant has been turned down by the refugee commissioner. So, of necessity you are into an adversarial system because the applicant is seeking to overturn that decision. It is a basic human right to be able to call a person in support of the proposition that one is seeking to advance. It really is the end when the Labour Party seeks to exclude people from giving formal evidence before a board or tribunal.
That is completely false and untrue. The Senator should withdraw it.
I certainly will not with-draw it.
It is nonsense. The Senator is making a fool of himself.
An Leas-Chathaoirleach
These comments are hardly relevant to the amendment.
I would have to debate that point with you, a Leas-Chathaoirligh, because the Minister said there was absolutely no need for an applicant for asylum to bring a witness to the appeal.
Is it necessary? What is the Minister saying? Let us hear it.
The 1994 Bill, on which this Bill was based, was introduced by a distinguished member of the Senator's party who was then the Minister.
Stop playing politics, stick to the words.
I do not know if the Senator was a member of Fianna Fáil then.
Then the Senator is partly responsible. This Bill had its genesis in a Bill introduced in 1994 by the then Fianna Fáil Minister. It went straight into Committee where it was the subject of extensive comment by a committee of the Dáil. As I explained in my introduction, the current Bill was based on careful consideration of the points put forward by the NGO community, the UNHCR and by Members of the Dáil, including comments by the then Minister for Justice, a member of the Senator's own party.
The Bill has been widely hailed as a considerable and liberal advance. It is not meant to provide for courts of law at every stage of a refugee hearing. I doubt whether the Senator understands the position that many refugee applicants find themselves in. They are not particularly well off people who have come to this country seeking a refuge. The object of the Bill is to give them fair hearing and due process under a statutory framework. It is not to provide for an awesome, adversarial court structure of the type the Senator described.
There are grave dangers in the proposals the Senator is making. Where, for instance, a refugee tells a story about persecution and torture — of which I read a fair number — who will be the witnesses? The primary witnesses would obviously be the torturers. Is the Senator suggesting that we will have to produce those people in Ireland?
The Senator is creating a monstrous situation in these proposals which is far from my intention in introducing the Bill or that of a member the Senator's party who introduced the earlier version of the Bill.
I understand the Senator is a legal expert. I am not a lawyer but I understand he has strong feelings about the legal profession being involved at every stage of this process. I have to look to the interests of refugee applicants. We have tried to provide the best legislative structure and we have been assured by many that is what we are presenting.
Senator Mulcahy wishes to allow the legal profession to take over this tribunal and turn it into a monster, as it has done with other tribunals, with lawyers on both sides drawing fat fees.
I object to the points made against the Labour Party. I am proud it is my colleague the Minister of State, Deputy Burton, who has presented this fine Bill. It is a radical improvement on the Bill presented by the last Government. The Minister of State has personal experience of working in the Third World, has a personal commitment to work on behalf of refugees and knows what she is talking about.
I am shocked that Senator Mulcahy, a practising barrister, fails to understand a fundamental area of law in terms of an appeal such as this. It is simply the second tier of a process by which we can establish whether a person is entitled to refugee status. To equate that with the adversarial nature of a high level court of law is fundamentally wrong.
An Leas-Chathaoirleach
I remind Senators that comments about political parties are political and, as such, are not relevant to the amendment being discussed.
The signatories to the Geneva Convention have solemn obligations. Under this Bill the Refugee Appeal Board will be the final arbiter of whether a person has been persecuted or is suffering persecution in their own country. It is not acceptable that the Minister of State would seek to deny the basic right of a person to call a witness in support of their case.
The Minister says I am trying to create a legal monster and accuses me of not understanding the Bill. Subsection (11) (c) states:
The Appeal Board shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Appeal Board in person or through a legal representative or other person.
The Minister already envisages legal representation in some cases, yet she accuses me of trying to create a legal monster.
I take issue with Senator Neville's comments. He claims the Employment Appeals Tribunal is a legal monster. Has he forgotten that many people who come before that tribunal present their own cases or are represented by trade unions?
I have been a member of it since 1988 and I can assure the Senator of it.
Not true. It is undemocratic of the Minister of State to refuse an asylum applicant the right to bring a witness in support of their application before the appeal board.
The Senator does not understand it.
The Minister of State has to accept that legal representatives may already be present under subsection (11) (c). If legal people are present why can witnesses not be present? She counters this argument by saying that we want to subpoena Saddam Hussein. Refugee applicants have more sense. If Saddam Hussein ever received a summons to the Refugee Appeal Board he would not hot foot it here from Baghdad.
If a person was to seek refugee status as a result of the events in Tiananmen Square, for example, it might be a necessary proof for the applicant to have a witness to confirm they saw the person in Tiananmen Square.
The Minister of State claims to counter my argument on the basis that this matter has been thrashed out at length in the Dáil. This House is entitled to add its contribution to improving the Bill. The debate is not over. I pay tribute to the former and present Ministers for Justice for the good work done on this Bill. However, the Bill is only as good as its end product. We are not in a talking shop; we are here to improve the Bill.
If the Minister seeks to exclude witnesses from this tribunal——
She is opposing my amendment.
That is not the same thing.
The Senator should read his amendment.
Will the Minister of State confirm that, as it stands, the Bill does not permit witnesses?
Section 11 specifically deals with that. I would expect that I might be extended the usual courtesies. I have worked hard on this Bill and I have experience of refugee cases. I have sought in the Bill to address primarily the needs of refugee cases and not the need of the legal profession to make another killing out of another sector of society. I am sorry if that offends the Senator but that is the case.
It does not offend me at all.
Paragraph 12 of the Second Schedule provides that the appeal board shall determine its own procedures and business. Subsection (11) of the section allows the appeal board to summon who it thinks fit or sufficient. I have every confidence that when devising its procedures the board will make suitable provision to enable appellants to notify it of potential witnesses who can be summoned by the board under that subsection, if it is of the view that the request is reasonable and the witness is reasonably likely to be able to appear. It cannot be expected to hold off making its recommendations indefinitely because of an applicant requiring the attendance of a witness who cannot in practical terms appear.
The asylum process is about telling a story, much of which, by its very nature, cannot be absolutely verified because the people involved may be dead or in prison in another jurisdiction. It is about hearing the story and deciding if, under the Geneva Convention, there is a sufficient case to warrant granting asylum status. It is not meant to be an adversarial and aggressive court type process.
That is not in my amendment.
The board has clear powers set out in the Bill. The qualifications of the board will ensure due process is observed.
It is helpful to study the Bill before proposing amendments. Subsection (11) provides specifically the right to bring witnesses to the appeal board.
It is in subsection (11) (a) (i). It is not my job to take the Senator by the hand and lead him through the Bill. However, if that needs to be done so be it. The subsection states:
[The Appeal Board may] direct in writing any person whose evidence is required by the Appeal Board to attend before the Appeal Board....
What is that other than calling witnesses? Subsection (6) also gives the board the power to request the commissioner to make further inquiries with regard to the matter before it. The Bill already goes a long way to provide procedures by which justice may be served in terms of an individual application and can do no more.
I am delighted to give a lesson in reading Bills to my solicitor friend, but——
I do not need any lessons from the Senator.
If she reads the first, second and third lines——
A little common sense goes a long way too.
Section 11 (a) (i) states that the Appeal Board may direct in writing any person whose evidence is required by the Appeal Board..." It does not say "by the applicant". I am sorry if the Senator did not read this correctly.
The amendment also contains the words "the Appeal Board shall direct."
The amendment states that "the Appeal board shall direct in writing any person whose evidence is required by the applicant..."
The Bill does not curtail this.
Where in the Bill is it proposed that an applicant should have power to bring a witness before the appeal board? The Minister failed to answer this question. She pointed out, ably assisted by the girl who would take me by the hand, that the appeal board itself——
I object to that remark. I am entitled to be addressed by my proper title.
An Leas-Cathaoirleach
It is not appropriate for Senator Mulcahy to refer to another Senator in those terms.
They were her words, not mine. She said she would take me by the hand.
I did not call myself a girl. I deserve the same entitlement as Senator Mulcahy. I always refer to him as Senator and I deserve the same courtesy.
I refer to Senator Gallagher as Senator.
What Senator Mulcahy said was degrading and demeaning and nothing short of sexist, which is perhaps not surprising.
An Leas-Cathaoirleach
I ask Senator Mulcahy to refer to Senators by their proper title.
Senator Gallagher said she would like to take me by the hand.
I did not say I would like to.
She did not say that. She said if she had to she might.
I said if I had to I would.
That was a sexist thing to say.
An Leas-Cathaoirleach
Senator Mulcahy, we must return to the amendment and arguments relevant to it.
Will the applicant be entitled to bring a witness before the appeal board? The Minister may prevaricate and try to destroy my argument by saying what a wonderful person she has been during her history of dealing with refugees.
The Minister said she has worked in this area and that I do not know what I am talking about.
She is entitled to say it because it is the truth.
An Leas-Cathaoirleach
May we please have an orderly debate? Senator Mulcahy should not invite interruptions.
I will not invite interruptions. What is the Minister's objection in principle to an applicant asking a witness to come before the appeal board of his or her own volition in cases where the appeal board might disagree? It is a different matter if the witness will not or cannot come.
This will be rejected if they do not have evidence.
Senator Mulcahy's amendment does not give them the choice.
I have not invited any interruptions. If a witness is willing to come before the appeal board to support an application, he or she should not be hindered from doing so. As I understand the Bill, the only person who can come as a witness is a person who is directed in writing by the appeal board to attend because his or her evidence is required. I believe there is a possibility that the Bill is a breach of natural justice because it does not allow an equality of say or evidence for both sides. This is why I put down the amendment. I did not do so to trivialise the matter.
The Minister may say this procedure is not adversarial but it could be. We should not exclude this possibility. The appeal board will hear appeals against recommendations of the commissioner. The board may lean a certain way and may be inclined to believe the report of the commissioner. By appealing, the applicant will obviously not agree with this report and will want to contradict it. He may have to bring in a witness and evidence to do so. This is common sense. I ask the Minister to please allow for the possibility of bringing in witnesses. If she does not, she is open to the charge of being undemocratic. I cannot put it in more forceful terms than that.
It is essential we understand the appeal board as being impartial. If we are going to mistrust it before we even set it up, we are in serious trouble. I understand Senator Mulcahy's concerns. Am I correct in thinking that the section allows applicants to bring any witnesses or evidence they consider relevant before the appeal board? I do not want to be accused of taking Senator Mulcahy through the Bill by the hand. One offer to do this has already been refused. If we do not have this understanding of the section, we are acting as if the appeal board has judged the case before it has heard it and is in opposition to the applicant.
This is a process whereby refugee applicants tell their stories. There is a series of steps in the process and every element of it is governed by the Constitution and the rules of natural justice, from the point at which the immigration officer or the official in the Department of Justice receives an application to when the commissioner examines the case and the appeal board hears it. We are not talking about a major fantastic legal structure but about the provisions of the Geneva Convention being implemented. At present some processes are excessively legalistic and are an enormous cost to the taxpayer. All of us, even lawyers, recognise this reality. We are trying to put in place a reasonable and liberal system which will give the greatest opportunity to applicants to show they meet the requirements of the Geneva Convention and that they merit the status of refugee. Many people who come here have no further contact with the countries they have fled. Judgment must be made as to whether what they say is reasonable or unreasonable on the basis of their stories.
Senator Mulcahy has created in his mind a structure which is far more elaborate than is required to meet the practical needs of asylum seekers. The Bill contains the right to an oral hearing. It provides for a right with regard to witnesses. The appeal board is properly and carefully constituted and must act in accordance with the rules of natural justice and the Constitution. The structure of the board has received a great deal of praise not just in this country but elsewhere. If there proves to be shortcomings in this structure, they can be rectified before the courts. I warn Senator Mulcahy against an excessively legalistic structure for hearing asylum seekers. The NGOs, which sought the right to legal representation, did so in order to ensure that somebody got a fair and proper hearing. That is what the structure of the Bill is about. It is not a court of law.
The point Senator Mulcahy seems to be making is that the applicant cannot necessarily call a witness whom he or she feels would be in their interest and that it is the appeal board which sets everything in motion as distinct from the applicant. Section 16 (11) (c) states that the "Appeal Board shall enable the applicant.....to be present at the hearing and present their case to the Appeal Board in person or through a legal representative or other person". Could "other person" include any witness the applicant chooses to call to make the best possible case they can?
When a person arrives in the country and tells their story about why they consider themselves a refugee, they may do so with the assistance of a NGO or with some legal assistance. The process involves telling the story; it is not necessarily a matter of calling witnesses. Many refugee stories cannot be checked out in great detail and that is the reason the UNHCR is called on for advice. That is why it is a process in which a story is told and examined to see if it is consistent with the Geneva Convention. There are a series of mechanisms in this Bill, including the final mechanism of humanitarian consideration by the Minister if all the other mechanisms have been exhausted. This is the best process, but it should not be an excessive court of law process.
We do not wish to cast a reflection on the Minister of State. We appreciate her sincerity and desire to put the best possible legislation in place. A lot of work has been done already, but many valuable contributions must still be made to improve the legislation.
I am concerned that if an application from a refugee is disallowed after it is checked by the commissioner and the refugee has to apply to the appeal board, some new evidence could come to light during that period, which could be one or two years, or somebody might be prepared to give evidence at the appeal who may not have been before the original commissioner and the board could be unaware of that fact. The applicant should have the right to call a person in their support. It appears from reading the section that the applicant already has that right. However, there is ambiguity about it and it should be clarified.
The approach, not the structure, is not dissimilar to the appeals section in the Department of Social Welfare, where somebody examines the situation independently. Those of us who have dealt with that appeals section know it is independent and that it makes good decisions. It is not a legalistic system. I have accompanied people to the appeal, which is held informally. There is a comparison between the spirit of the appeal board and what happens in the Department of Social Welfare at present.
As Senator Neville knows, the appeals officer is careful to point out that this is the person's appeal and that they are entitled to bring someone to support their claim. They receive notification to that effect. That is written into the social welfare legislation. However, does the appellant in this case have the same opportunity to bring someone to support them? There is ambiguity about this section.
Section 16 (11) (c) states: "The Appeal Board shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Appeal Board in person or through a legal representative or other person". Section 16 (6) states: "The Appeal Board may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the Appeal Board with such further information as the Appeal Board considers necessary within such period as may be specified by the Appeal Board". The essence of making the case is the refugee applicant's statement as to why they are a refugee. That is the kernel of what both the commissioner and the appeal board must study.
The Minister is making a mistake because this is not the original hearing but the appeal from the refusal.
The context in which an application occurs is somebody telling a story as to why——
That has been done already.
——they qualify for refugee status. The appeal board is independently constituted in terms of its functions under the Act. It is required to act in terms of natural justice and of our Constitution. The board is not excluded from hearing anything the refugee applicant wishes to put forward either initially or subsequently. The purpose of the board or the commissioner is not to reject all applications. The purpose of all the different mechanisms is to hear the story and then to make a decision in the context of this Act, the Geneva Convention, our Constitution and natural justice. I do not see where the problem is.
I am not sure if the Minister presented subsection (c) as an enabling section to bring in a witness. The words "or through a legal representative or other person" suggests a representative capacity, not a witness capacity. Can an applicant bring a willing witness before the appeal board?
There is no preclusion of that anywhere in the Bill. Refugees go through the process, present their story and make reference to people who may be able to support it. It is an integral and natural part of the refugee applicant process that some people may make reference to particular people who can support their case. However, in many cases they do not.
Perhaps we can conclude the debate on this issue because I may have been acting under a misapprehension. The Minister of State stated that an applicant should not encounter problems if they wish to bring a witness before the Refugee Appeal Board because they are not excluded from doing so. I was seeking to include it to avoid ambiguity. Why is the Minister of State opposing a simple amendment which would clearly delineate the power of an applicant to bring a witness before the board? That is the issue. I am not trying to score points; I am attempting to include in the legislation the right of an applicant to bring a witness before the appeal board.
If that is the Senator's intention, it is not reflected in the amendments he put forward.
I will frame a simple amendment for Report Stage to the effect that nothing shall preclude an applicant from bringing a willing witness before the appeal board in support of their case. I hope I can remind the Minister of State of her willingness to permit the appearance of witnesses before the board during the debate on Report Stage.
Amendment put and declared lost.
An Leas-Chathaoirleach
Amendments Nos. 32 and 33 are related and may be discussed together.
I move amendment No. 32:
In page 17, line 36, after "private" to add—
"save that the Minister shall permit the High Commissioner to attend such oral hearings in an observer capacity".
I thank the Minister of State for tabling an amendment which reflects the one I put forward. The Bill contains no provision requiring that the High Commissioner be present at an appeal hearing. It is important that the ambiguity be eradicated in order that the High Commissioner can observe these matters in a confidential way.
An Leas-Chathaoirleach
Is the Senator withdrawing amendment No. 32?
Is there a reason that the Government amendment is better drafted than my own?
Yes. The Senator might be tempting fate by asking that question. However, I will preclude myself from commenting in that regard. I support the principle of the amendment. It is perfectly acceptable that the High Commissioner should have access to appeal hearings. I would not intend that it be otherwise. The Senator identified a matter which I will be glad to put beyond doubt by clarifying the position. The High Commissioner should have an automatic right to attend at appeal hearings and should not require the Minister's permission to do so. It would be inappropriate for the Minister to be seen to have any say in the conduct of an appeal, except in matters which were clearly within the competence of herself or the Department. Accordingly, I request that Senator Mulcahy withdraw the amendment in favour of the Government amendment, which was drafted by the Parliamentary Draftswoman to meet the Senator's concerns.
On reflection, the amendments have equal technical merit.
There should be a vote on that assertion.
There is an inconsistency in the fact that the Minister of State wants the Minister to be proactively involved in other areas of the Bill. The amendment suggests that the Minister should gain a say in whether the High Commissioner attends meetings of the appeal board. However, for the sake of peace and progress, I with-draw the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 33:
In page 17, between lines 36 and 37, to insert the following subsection:
"(15) Notwithstandingsubsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings.”
Amendment agreed to.
Amendment No. 34 not moved.
I move amendment No. 35:
In page 18, between lines 4 and 5, to insert a new subsection as follows:
"(17) (a) Immediately after the determination of an appeal by the Appeal Board, the applicant if dissatisfied with the determination as being erroneous in point of law, may declare his dissatisfaction to the Appeal Board.
(b) The applicant, having declared his dissatisfaction, may, within 21 days after the determination, by notice in writing addressed to the Chairperson of the Appeal Board, require the Appeal Board to state and sign a case for the opinion of the High Court thereon within three months of the date of receipt of such notice.
(c) The case shall set forth the facts and the determination of the Appeal Board and the applicant shall transmit the case, when stated and signed to the High Court within 7 days after receiving it.
(d) At or before the time when he or she transmits the case to the High Court, the applicant shall send notice in writing of the fact that the case has been stated on his application, together with a copy of the case, to the Chairperson of the Appeal Board.
(e) The High Court shall hear and determine any question or questions of law arising on the case, and shall reverse, affirm or amend the determination in respect of which the case has been stated, or shall remit the matter to the Appeal Board with the opinion of the Court thereon or may make such other order in relation to the matter as the Court thinks fit.
(f) The High Court may cause the case to be sent back for amendment, and thereupon the case shall be amended accordingly, and judgement shall be delivered after it has been amended.
(g) An appeal shall lie to the Supreme Court from the decision of the High Court.".
I cannot claim credit for drafting this amendment. It involves the right of a person who comes before the Evaluation Appeals Tribunal to appeal a case to the High Court on a point of law. The Minister of State may argue against this right of appeal on the basis that there is an inherent jurisdiction to appeal, or go to the High Court by way of judicial review, against any decision made by a quasi-judicial body. It would not be desirable that appeals from the Refugee Appeals Board should go to the High Court for a full rehearing. However, it should be open to an applicant to proceed to the High Court on a point of law.
The wording of the proposed amendment is drafted almost word for word from the drafting of the appeal on a point of law from the Evaluation Appeals Tribunal. I do not intend to compare the two bodies. My aim is to state in simple English the power of an applicant who feels that he or she is being denied the right of appeal to the High Court on a point of law. I hope the Minister of State can accede to this request.
The Senator made a reference to not comparing the two bodies. The Refugee Appeals Tribunal and the Evaluation Appeals Tribunal are very different. The decision of the evaluation tribunal is final. The appeal board makes a final recommendation to the Minister. If the recommendation is negative, the case becomes subject to the exercise of humanitarian leave to stay. It is further subject to possible court proceedings in an appeal against any deportation order. The Senator stated that he did not intend to compare the two bodies, but the structure on which his amendment is based imports the structures of one body into the other in an inappropriate way. I ask that the amendment be withdrawn.
An Leas-Chathaoirleach
Is the amendment being pressed?
It is, and without further debate. I believe it inappropriate that there is no right of appeal to the highest court in Ireland, which has full original jurisdiction under the Constitution for every area of activity of tribunals. It is inappropriate that the Minister of State should seek to deny this right to applicants——
I am not denying anyone their rights.
That is exactly what the Minister of State is doing. She is seeking to deny this right to applicants, given that the High Court has full and original jurisdiction in Ireland.
Amendment put and declared lost.
Section 16, as amended, agreed to.
SECTION 17.
Amendment No. 36 not moved.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."
Section 24 deals with "programme refugees". I wish to clarify whether the families of such refugees are covered under section 24 or section 18. Will the Minister elaborate on the section?
The Bill gives programme refugees the same rights as ordinary asylum seekers. If the question which the Senator is raising relates to family repatriation or reunification for programme refugees, that is proceeding. Is the Senator referring to a particular difficulty? There is a programme for family repatriation for programme refugees, both Vietnamese and Bosnians, which is proceeding. The Bill gives full refugee entitlements to programme refugees. That clearly means that the family repatriation and reunification arrangements apply. The specific reunification arrangements are a matter for agreement under the terms of the programme refugees arrival in this country. I would like to be helpful to the Senator if he has a specific problem in mind.
I feel the whole issue of programme refugees should form the basis of separate legislation. I was surprised, to say the least, at the inclusion of section 24, which seems intended to include some cover for programme refugees in the legislation. The whole issue of programme refugees needs to be put on a statutory basis. The Minister stated earlier there was a likelihood of further refugees arriving here and we would be expected by the High Commission and the international community to continue our role in relation to programme refugees.
The Minister will be aware there is quite an amount of overlapping and duplication between the Departments of Justice and Foreign Affairs in this area and there is a need to put the issue of programme refugees on a statutory basis. I thought about adding four or five sections to the Bill but that might be the incorrect way to do it. There is a multiplicity of organisations dealing with this matter and there is a need to set out on a statutory basis how it will be dealt with in the future. In saying that, I am not taking from the work which has been done up to now and the co-operation between the Civil Defence, Red Cross, Department of Foreign Affairs and other bodies which advise on programme refugees, health matters, education and so on.
Section 18 deals with families of refugees but I do not see similar provision in section 24, which is why I felt it was appropriate to raise this matter under this section. I am not endeavouring to be difficult but to be helpful. We need advanced, progressive legislation in this area and to streamline the situation, because various Departments are involved in different capacities with little overall, clear, statutory responsibility. I strongly suggest to the Minister to see if this can be remedied before Report Stage, although I doubt it could be in the available time. I urge the Minister to examine the possibility of drafting new legislation to put the area of programme refugees on a statutory, streamlined basis.
I realise a limit has to be placed on the extent of the "family". However, is there any possibility in exceptional circumstances of including someone more distantly related than the nuclear family grouping? I ask that because of a couple of cases which I heard about in the United Kingdom. One was a Rwandan woman, the only member of whose family remaining was a cousin in Great Britain — I know the Minister is well aware of the appalling situation in Rwanda as she visited it. Attempts were made to expel her because she had come from Belgium, which was the easiest route from Rwanda to Europe. She was expelled under the third safe country legislation but was eventually allowed on appeal to remain as this was her only relative. In a similar case, a Somali national was allowed stay because none of his nuclear family remained alive in the country from which he had come. It was felt on psychiatric grounds that he was in grave danger of a serious nervous and physical breakdown. Does this section allow for such exceptional cases?
I understand the type of cases to which the Senator referred. The Minister has discretion to exercise humanitarian powers under the Bill. For example, I came across one or two cases where a person whose entire family was killed wanted to join their boyfriend, who might become their husband eventually, in this country. A number of such situations arise, particularly in relation to Bosnia where, because of the extent of the killing, people's remaining connections may be strictly non family. Those cases will be examined with a great deal of humanitarian concern.
If the Senator wishes to bring an individual case to my attention, she can do so. A number of such cases have been brought to our attention by NGOs, including the Refugee Council. However, it should be on the basis of the Minister exercising humanitarian powers rather than complicating matters in the Bill, because the power exists and the cases which arise are examined very carefully.
I thank the Minister for saying I can bring individual cases to her if necessary. In fact, the only case I have had dealings with recently was someone who wanted to leave here and go to Sweden where the remaining members of their family were. Our problem was to get Sweden to accept them, which they eventually did.
I am sure it has already occurred to the Minister that "family" is defined differently in different cultures. We seem to be defining "family" in terms of our narrow understanding of it. I support what was said by earlier speakers. It might be useful if those involved in defining "family" at least reminded themselves of the way it is defined in the culture from which refugees are coming as it may have different psychological consequences for them.
The Minister can correct me if I am wrong on this, but the Refugee Appeal Board does not appear to have any role in deciding whether family members should be admitted — that is only a role for the commissioner and the Minister.
I will explain how the structure works in practice, which might be helpful to the Senator. Somebody who is given refugee status, either by way of being a programme refugee or an asylum seeker, may then apply to have members of his or her family reunited with them in Ireland. It is open to people who arrive in Ireland to seek asylum here. If a father of a family gets asylum he can subsequently apply to have members of his family join him here. This is the way the process works. At that stage it is not a matter for the appeals board or the commissioner. It is a question of the family reunification arrangements applying.
I was not seeking clarification on that. Under section 18 (1), when permission is sought the Minister "... shall cause such an application to be referred to the Commissioner". It is envisaged, therefore, that the commissioner will have a role in determining whether or not a family member can join, yet there is no appeal from the commissioner to the appeal board in the sense that there was an appeal from the commissioner's decision in the first case when an application was being made. I agree with Senator Lee's point on the differences of family concepts. It does not appear that adults — people over 18 years of age — are entitled to have their mother or father join them.
Ms Bruton
Over 18 years of age? Will the Minister of State clarify?
Section 18 (4) (b) defines dependent member of the family as "any grandparent, parent, brother, sister, grandchild, ward or guardian of the refugee who is dependent on that refugee or is suffering from a mental or physical disability...".
This is a watered down entitlement as opposed to the more immediate family members outlined earlier in the section. Is that correct?
I do not wish to enter into a debate with the Senator, but the family provisions here have been substantially expanded on the 1994 Bill to meet the comments made by NGO groups to make the scope of the Bill broader. There is general satisfaction with the arrangements. In addition, there is a right for the Minister to exercise a humanitarian right of entry to the country in the case of people who may not have in the strict legal sense a family relationship. The role of the commissioner would be to determine that the family member was such and it would be a question of getting evidence of verification if possible. With regard to programme refugees, where there are frequent applications for family unification, there is a process of trying to obtain sufficient evidence that family members are such.
Are families of programme refugees covered by the proposed legislation?
We have just completed an interdepartmental committee and study on procedures regarding asylum seekers, which includes consideration of programme refugees. To have further legislation with regard to programme refugees would require a Government decision. No such decision has been made at present.
The Minister of State should seek Government approval to prepare legislation to deal with this issue. It is haphazard at present. Groups of people come together under loose arrangements which have never been set down in statute. The matter needs to be sorted out.
I will consider the Senator's request. However, at present, programme refugees and the arrangements for them are broadly set out in Government decisions which are fairly broad and flexible. The Refugee Agency operates on a non statutory basis to deal with the needs of programme refugees. I will speak with the Senator about the argument in favour of putting the agency on a statutory basis. I would not be entirely convinced on the matter but I would be happy to discuss it with him. It is not a matter for this Bill.
We have completed the interdepartmental review of the reception arrangements which also cover programme refugees. The new arrangements are being put in place which are, essentially, the community welfare officer being effectively the designated officer in each county with regard to asylum seekers and programme refugees — in addition to the Refugee Agency in their case. This is an appropriate type of arrangement. Perhaps some time should be allowed to elapse to see how it works.
My fear is that the provisions were included in this section and in section 24, which is related, in an effort to bridge a gap. In addition, when the Bill was drafted, the Minister did not have the benefit of the interdepartmental report. I am tempted to draft amendments for Report Stage to extend section 24 by perhaps four or five additional sections. The Minister of State will advise that she must get Government approval for this. We know how long this will take, in addition to getting the administrative detail together.
An opportunity has been lost in this Bill. The Minister of State has the benefit of the interdepartmental report, her own experience, the advice of many who have dealt with this issue over the years and her comment earlier on the likelihood that Ireland would play a continuing role in the devastating international refugee crisis. We have played a limited part in addressing it and will be required to play a greater role in the future. In order to do so the legislative issue must be tackled, rather than addressing it on an ad hoc basis through committees. With advisory committees and many NGOs making their contributions it should be possible to draft new sections to add to the Bill or to otherwise seek to get approval for a new Bill. The way to proceed would be to extend the Bill by three or four sections.
The arrangements on programme refugees are flexible. They are by way of Government decision which allows fairly instant reaction to, for example, a crisis in a country, and allows continuing flexibility with regard to the reception of further people under the programme. For example, we received 40 more programme refugees in the last fortnight.
I would be happy to discuss the matter with the Senator. I am not aware of strong representations by the NGO community to have this placed on a statutory basis. The focus of the interest of the NGO community and of refugees has been the quality of the arrangements with regard to their accessing social welfare, health and education. I would concentrate resources on those areas rather than at this stage seek another Bill.
I am endeavouring to assist the Minister of State to avoid much of the red tape she would have to go through to get a Government decision on a new Bill. She already has approval for this Bill and it could easily be extended by the addition of a number of sections to put the operation of the programme refugees — I do not like that title — on a statutory basis. While it is fair to say that the operation has been flexible and can be adjusted to meet changing situations, it would be far better to put it on a legal basis. I doubt that any Member of the House would object to that and I expect the Minister of State would be enthusiastic. I do not wish to discuss the history of tensions between Departments but such a course of action would ease that problem and statutorily define who was responsible for what.
I am still somewhat concerned about the discretion of the Minister under this section in relation to dependent family members. Section 18 (4) (a) does not appear to provide for an appeal or questioning mechanism against the absolute discretion of the Minister in this regard. It states:
The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
I do not have the same experience as the Minister of State in dealing with the refugee situation. However, I heard of one case of a refugee whose father remained in the original country of persecution. The refugee had secured refugee status in Ireland but the then Minister did not allow the refugee to bring the father to Ireland even though the father was dying. Unfortunately, the refugee could not return to the country of persecution and made strong representations to the Department of Justice asking permission to bring the parent to this country. The refugee either got no reply or did not receive a satisfactory one; the person was left in limbo. This person's father may die and he does not have a last chance to see him. That is a most difficult situation to accept.
This section is a little dangerous in that there is no means whereby the refusal of a Minister to let in a dependent family member can be questioned. I agree there must be an end to the chain and decisions must be made by somebody. However, in this instance there does not appear to be even a review mechanism. The list of refusals is not published and there is no intention to do so. If 100 people apply for their parents to be allowed into this country and 99 are turned down, there is no way the public can be made aware of that, except perhaps by way of parliamentary question. There is no specific reporting procedure.
I am a little unhappy with this section because it appears to give the Minister and the Department too much discretion.
I bow to Senator Mulcahy's greater legal knowledge. I am bemused because the intention of this section is to permit the reunification of families. In that sense it is a liberal section which was based on advice from a number of organisations. The Minister's decision, as is the case with all ministerial decisions, is subject to review by the courts. Nothing can remove that right. I am not sure what case the Senator is referring to or when it took place, but I am not aware of any case of a refugee being refused the right to be reunified with their dying parent or the right to travel to a parent who was ill. I would be interested to know the details of the case and when it occurred.
I mentioned it briefly on the last occasion the Bill was before the House. I will get the details and forward them to the Minister of State.
I am not familiar with it.
We have discussed this section in detail. Is the section agreed?
Question put and declared carried.
SECTION 19.
Amendment No. 38 is related to amendment No. 37 and both may be discussed together.
I move amendment No. 37:
In page 20, subsection (1), line 44, after "confidential" to add "only if the applicant so desires".
This relates to the protection of the identity of the applicant as opposed to the confidentiality of the appeal board. Various arguments were made to me that the appeal board hearing should not be confidential and that the proceedings should be open and in public. I disagreed with that. The hearings should be private as it in the interest of the applicant.
However, I am not convinced that it is in every case in the interest of the applicant that their identity should be kept confidential if the applicant wishes it to be known that they have sought asylum. The words I propose to add are "only if the applicant so desires". They would have the effect of giving the freedom of choice to the applicant as to whether his identity is kept confidential. If there are public policy reasons why the identity of the applicant should be kept confidential I would like to hear them. I will not be dogmatic in my approach to this section but it is important that the onus should be on those seeking to deny the applicant his right to publicise his application. In other words, the onus rests on the people who wish to suppress the news of the application.
I do not fully understand subsection (2), which states:
(2) Subject to section 9 (15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast except with the consent of that person and the consent of the Minister which shall not be unreasonably withheld.
Does that mean that the consent of the Minister shall not be unreasonably withheld, or does it mean that the consent of both parties shall not be unreasonably withheld? I presume it refers only to the Minister. If that is the case, why should the Minister be in a position to decide whether confidentiality should attach to the application? Amendment No. 38, which would delete the words "and the consent of the Minister (which shall not be unreasonably withheld)" would bring that more in line with section 19 (1). In general, we need to know the public policy reasons behind this section.
This whole section worries me a great deal and I think it is draconian.
We are not discussing the section now, but amendments Nos. 37 and 38.
I will keep to the amendments. The particular one that I am worried about is amendment No. 38, where, as Senator Mulcahy has already said, the consent of the Minister is needed before any case shall be published in a written publication. I have all the arguments about how important it is that the asylum seeker or refugee should be protected from unscrupulous journalists who would pressurise them into revealing more about the case than the person would wish, and that the family at home may be at risk. Indeed, we are all aware of reported cases where the applicant has asked that his or her identity not be disclosed. We have seen television reports of an applicant sitting with his or her back to the camera, etc., so some people have real and genuine fears that either the knowledge of the person's identity could bring them harm even in Ireland or those whom the applicant has left behind could have trouble as a result of the applicant's presence in another country being revealed. We know that cases where members of a refugee's family, their friends or political associates who remain in the country from which the refugee fled have been persecuted are real.
Why the Minister should have to give his or her consent is not clear to me. I feel the provision is far too broad and could be open to constitutional challenge. Article 40.6.1.i of the Constitution proclaims:
The right of the citizen to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure the organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order morality or the authority of the State.
This section of the Bill is not in tune with that at all. The reason I feel we must look at it so carefully is that often it is only as a result of media attention that an asylum seeker's or refugee's right to stay here is brought to the public's attention, and it is only because of the attention the public gives to the matter that decisions may be made in the person's favour.
The case of Muhammad Massari arose recently in the United Kingdom. As the Minister is aware, he was a refugee from political persecution in Saudi Arabia who was not doing anything to overthrow the state or subvert public order in the UK as far as I know. Unless there had been media attention in the case, I think the man would have remained unknown in Leeds, Bradford or wherever he was staying. However, he was a very severe critic of the Saudi royal family and the British defence industry, which relies heavily on selling arms to countries such as Saudi Arabia, is a strong lobby. In fact, since the Gulf War, Saudi Arabia has bought a huge amount of arms, so much so that its citizens must pay income tax for the first time ever. A leaked memo from Vickers, a company that hoped to sell Challenger tanks to the Saudis, revealed the Saudi royal family's annoyance with the fact that Mr. Massari was being given refugee status in Britain and stated that it could lead to the loss of the contract. Ways were sought to get over the Saudi royal family's displeasure and it was decided that Mr. Massari could go to another safe country, Dominica, a tiny island in the Caribbean. Mr. Massari did not have to go there in the end but it was only because the whole case came out in public. I read about it in The Economist of 13 January 1996 and it was widely reported in Britain.
Situations could arise in this country where commercial considerations could perhaps be taken into account and the whole story regarding a refugee would not get into the public press. The person seeking refugee status might not object to that; in fact, the applicant might be glad to have the political situation in his or her country of origin highlighted further, but I think an enormous discretionary power is given to the Minister here in allowing the non-reporting of cases.
I quoted the Constitution, but one need only think of cases which were reported in the courts last year. In one such case Judge Flood spoke of the importance of the media and said that the presence of the media in court, their fair and accurate reporting of any proceedings and subsequent fair comment on any legal issue, evidence or persons involved in the administration of justice is an indispensable aid to the system of justice. He added that the due administration of justice is itself a matter of public interest and, hence, a proper subject of fair comment by the media. I know this matter is not about the courts but it has to do with justice and natural justice, and I think it very important that a Minister should not be in a position where he or she could muzzle the reporting of such cases.
I said I thought it could be in contravention of the Constitution, but I ask the Minister where this provision stands under Article 10 of the European Convention on Human Rights, which again would consider that section 19(2) does not adhere to the freedom of expression. I ask the Minister to look at this matter again, because I really think it is not in the spirit of the Bill, which I think is very liberal.
We discussed the section which referred to members of refugees' families. I have not seen such clarity and such a large number of people included as part of a person's family in a Refugee Bill. Senator Lee is quite right is saying that we must look at what constitutes the family in other jurisdictions and traditions. One could get one's cousins, mother, uncle and aunt into the country — it is very well done.
Section 19 (2) is too broad and is out of character with the rest of the Bill. If the applicant does not mind his or her name being published, we will be able to protect them for a while from unscrupulous journalists; but if the applicant thinks his or her position or cause can be improved by allowing the publication of the case, it is important that it be publicised.
It is also important that we should be in a position to learn of the situation in other countries. I feel this may be a hampering restriction on our ability to get knowledge of the serious situations which arise in other jurisdictions. I have no need to tell the Minister because she has plenty of experience in looking at areas where refugee problems have arisen. Publicising refugees' cases can be difficult under some of the more repressive regimes.
It could arise as in the Massari case. For commercial reasons — for instance, a major beef contract, as beef is the order of the day — pressure might be brought on a Minister or the Government to make sure the case was not reported because it would be inconvenient for the country involved, although I am sure the Government would be able to resist such pressure. I ask the Minister to accept our amendment to remove the necessity to have the consent of the Minister before the case is made public, if the applicant so consents.
I appreciate the points made on the other side of the House but I do not support the amendments. There appears to be some misunderstanding — it is only the identity of the applicant which requires to be protected under section 19, not his or her story or circumstances. It is worthwhile to hear the reasons these people fled their countries or whether they were tortured — that certainly should be published and made known because we can all learn from it. However, the identity and name of the person in question must be protected, otherwise he or she may be sought out by the country from which he or she fled, or the applicant may be abused by another source. The reason people flee their homeland and seek refugee status is usually fear and it is most unlikely applicants would want to publish their names. Their background and story can be made known but their identity should be protected, which is why I support the section as it stands.
I share Senator Henry's worries, if they are justified in the light of what is intended here. I also support the amendment to section 19 (1) to add the phrase "only if the applicant so desires". The principle underlying this legislation is to improve the circumstances of refugees and enable them to enjoy a better life. This section concerns the protection of identity of applicants, which I support, but there is a danger that protection may become concealment. If we are in fact concealing the identity of the applicant for reasons other than the welfare of the applicants, I would be dubious. The case has not been made as to why identity should be concealed if the applicant is happy or even anxious to have that information become public if he thinks it will assist his case. He may be wrong about that; but is he not likely to be the best judge in all the circumstances of what is in his interest, given his situation? The authorities here are taking on themselves the right and authority to judge what is most appropriate in the applicant's circumstances.
We should agree to the amendment to allow publication "if the applicant so desires"— I do not think "only" is needed. It is perfectly reasonable that publication should not be without the consent of that person, but adding the Minister brings in a different dimension of considerations and it is not clear that they have been established as yet. Perhaps the Minister will produce reasons why this has been included but as things stand I support the amendments.
Like Senator Gallagher, my interpretation of the section as it stands, as opposed to what would happen if it were amended, is that everything can be reported except the name and identity of the person. The country of origin, the details of his case and any other information made available can be published. As has been said, there are cases where it is in the interest of the applicant not to be exposed and it may also be in the interest of others, such as his family. Unscrupulous journalists might persuade someone to disclose his name even though that might be against the interest of himself or his family at home. I can envisage cases where disclosing the name would have an adverse affect on members of his family in this country and his country of origin, so from that viewpoint I do not agree with the amendments. I am satisfied that all other information can be disclosed, including the country of origin. It is that rather than the person's name which is the key factor when discussing these cases — what matters is where the repression takes place. There are precedents for this — the X case was well aired without the name being published and there are other such cases.
In that case the person did not want her name exposed. I am talking about cases where the person does want their name brought to light.
The Minister cannot withhold that unreasonably — she must have a reason.
An Leas-Chathaoirleach
Senator Henry has the floor.
It depends what one describes as unreasonable. If Mr. Nelson Mandela had come here about 15 years ago and we had a great deal of trade with South Africa, Mr. Mandela might want his name made public but for some reason best known to ourselves we would not want to rock the boat, so we would simply state that a person from South Africa was seeking asylum here and give details of the case. That would not have the same impact as if we made clear that Mr. Mandela was the applicant.
The problem may be that the person is the focus of a political movement of which the other country is afraid. Mr. Massari's name would not have mattered but for the fact that he was so critical of the Saudi royal family and how well known this was in Saudi Arabia. The name can matter, "That which we call a rose/By any other name would smell as sweet" notwithstanding. In some of these cases the name is the key factor and it is essential that is known. I do not like to criticise another jurisdiction, above all Mr. Michael Howard MP——
I have said enough about him in the past.
As far as I am concerned, Senator Henry can criticise him anytime.
In Mr. Massari's case, it was because his name was known that it was clear he was being moved on for commercial reasons. It would not have meant the same if it had simply been a common Arab name — it was the fact that it was this man, who wanted his case known. My concern is with cases where the applicant is the focal point.
To give another example, if Mrs. Aung San Suu Kyi came here the Burmese Government would not be enthusiastic. I am sure we would grant her refugee status, but if we kept her anonymous it would mean nothing compared to what it would mean if she was given refugee status for the person she is. I have no knowledge that she intends to come here, I gather she is sticking fast where she is in Burma.
The name may be important; not disclosing it might be concealment and that might be done because we wanted it concealed, not because the applicant did. Perish the thought that any Irish person, for base commercial reasons, would try to conceal someone's identity if he or she wanted it brought forward. However, we are taking a power from someone we are proposing to help, which we should allow them to have. It takes from them the power to stand up and say "I am here; I got out of that place" and describe what it was like. It is a message to those back home not to worry. If we insist on people remaining anonymous, we are taking much from them.
I do not anticipate that Ministers will constantly deny people the right to be identified. There will be a time lag with all these cases regardless of haste. There will be plenty of time for us to protect people from unscrupulous journalists, who apparently are all over the place. I understand Senator Neville's point about the X case, but in that case the person did not want to be identified. The Irish courts and press have been extraordinarily good about preventing people who do not want to be identified from being identified. The Irish media in general has been enormously responsible and one rarely hears complaints about references to people whom courts said were not to be identified. It is totally different from other jurisdictions where, regardless of what is said, the person will be identified. I do not like this section. It conceals a person's identity rather than giving them a chance to express fully what they mean.
I reiterate what Senators Gallagher and Neville have said, which is that this is about the identity. It is not about the story, the person or the issue for which they have left the country being identified and written about. This relates to the identity of the person. It goes without saying that there should be the agreement of the applicant and the consent of the Minister, which may not be unreasonably withheld. The Minister, as always, must operate with due regard for natural justice and, in this instance, with due reasonableness.
We have had no less than three instances within the last five months where the revelation of an applicant's identity has become an issue. In one instance the news room of one element of the media contacted the embassy of the country of origin of two asylum seekers inquiring about their case. That embassy subsequently contacted my Department seeking further information about the applicants. By contacting the embassy in this way the journalist concerned was alerting the foreign Government to the fact that two of their citizens had sought asylum here. This could have resulted in the families of the asylum seekers, at the very least, being questioned in the home country.
In another case we have been advised that the publication of details of other asylum seekers in a newspaper alerted the authorities of the home country and the family's house was raided. The third case, which the Senator may recall, involved the two deserters from the Russian army. Most people having seen their photograph, regarded their beards as remarkably long and well kept for people who were in an army and both men looked remarkably well fed for people who had just deserted a war. Nonetheless, they were presented.
I want to come back to the point about South Africa. I was secretary of the anti-apartheid movement for a long time. I am personally aware of the hysteria with which many South Africans in Dublin protected their identity while they are in exile here because of the extraordinary complication of exile politics. All we are seeking to do is prevent somebody from being abused. We are not preventing the story from being told. Where somebody agrees, the Minister may not unreasonably withhold consent to the identity, and the story may be told.
Exile politics can be complex and pressures can be brought to bear on applicants. We can leave aside the unscrupulous journalist, who is everybody's favourite character in this section, and just examine the realities of exile politics in different countries of exile politics. We have some larger exile communities here. There may be pressure on people from their own community for certain revelations to be made, which they may not actually want to reveal. They may be quite glad that a discretion exists at a certain level where they may indicate that they wish a Minister to provide that the story should not be told.
We are talking about the identity of the person. There are sufficient situations where the disclosure of identity is potentially damaging to the individual and the individual's family back in the country of origin. We are simply trying to ensure that confidentiality is available to the applicant.
I appreciate the Senator's doubts in relation to the Massari case in the United Kingdom. We are a republic and these are our laws. We operate under our laws and administration. To my certain knowledge, there has never been a suggestion that a case similar to the Massari case has arisen in Ireland. In any event that case went to a court of law. I am not aware of any similar provision under our court arrangements unless the applicant was to go forward to the judge and say it is most important that this case be heard in camera for a variety of reasons.
I ask the Senator to have some confidence in our own Constitution and history of administration which has not indicated any abuse or situation similar to the situations to which the Senator has referred in other countries. I am quite confident that will remain the case.
I do not know whether to respond to what the Minister has said because I would like to make some general comments on the section, although they do pertain to the amendments.
An Leas-Chathaoirleach
General comments should be reserved for the section.
I will try to speak to the amendments. The Minister mentioned the Massari case and the appeal to the courts. In the reporting of incest cases and similar cases, we have provisions whereby the identity of people can be protected, whether or not they want it.
I am inclined to disagree with Senator Henry. This Bill is for the benefit of the applicant and not international causes, which are not the business of the Refugee Appeal Board or any applications under the legislation. I accept Senator Neville's point that there could be a danger to people in the home or persecuting country if the identity of the applicant was revealed here.
There appears to be a contradiction between subsections (1) and (2). The Minister said that in the Massari case there was an appeal to a court, and of course court matters can be reported. Would section 19 (2) prohibit the reporting of a court case if, for example, there was a judicial review of a decision of the Refugee Appeal Board or the Minister? These issues should be clarified.
Progress reported; Committee to sit again.
An Leas-Chathaoirleach
When is it proposed to sit again?
At 2.30 p.m. next Wednesday.
