The Bill before the House deals with three important areas. Its passing will fulfil a commitment in the Government's programme to bring into effect the Refugee Act, 1996, which has lain on the Statute Book, largely unimplemented and unimplementable, since its enactment. The Bill also sets out in statutory form the principles, powers and procedures governing an important element of general immigration law relating to the deportation process and gives statutory security to the other areas of immigration and residence law governed by the Aliens Act, 1935, and the orders made thereunder.
To put the Bill into context I will set out a brief history of immigration law and practice over the past decade or so. The Aliens Act, 1935, and the principal order currently in operation under it, the Aliens Order, 1946, have provided the legal basis for the operation of entry controls, residence requirements and removal procedures for non-nationals in the State. The 1946 order has been amended over the years, most extensively by the Aliens Order, 1975. During those years, in which Ireland was primarily a country of emigration rather than immigration, that code of law largely served its purpose. The primary and secondary legislation and the manner of its operation had survived occasional court challenges to various aspects. However, with the improvement in Ireland's economic position in recent years there was a growing perception of a need for more modern provisions that would reflect today's changed environment, socially and legally.
In the related area of asylum and refugee law, Ireland had been a party to the 1951 UN Convention on the Status of Refugees since its accession to the United Nations in the mid-1950s, but there emerged a growing need for a statutory procedure to reflect our international obligations which had been fulfilled on an administrative basis on the few occasions on which the need arose. In 1993, the Minister's predecessor, former Deputy Máire Geoghegan-Quinn, set about this work and prepared the first set of legislative proposals for a refugee Act. On the change of Government in 1995, the new Administration built on those proposals and brought forward the Bill which is now the Refugee Act, 1996.
With the increasing improvement in the Irish economy during the 1990s, there has been an increase in those wishing to come here to seek their fortune. Most of those who have come here have done so by the legal route, which for non-EU nationals means obtaining a work permit and a visa, where necessary, and the contribution which immigrants can make to the diversity of our social fabric is as significant and welcome as the mutual economic benefits to be gained. Alongside this inflow, there has also been a much smaller, but in relative terms, dramatic increase in the number of people entering the State illegally, many of whom on arrival or, more usually, some time after arrival in the State, seek asylum on the basis that they are in fear of persecution in their countries of origin.
There was a 100-fold increase in asylum applications in five years, from 39 in 1992 to 3,883 in 1997. The number of asylum applications being made per annum is not large in absolute terms. However, in comparison with our European neighbours on a per capita basis, it was the fourth highest in the EU in 1997, the latest year for which figures are available. More importantly from a domestic point of view, before the Refugee Act could be implemented, the numbers of applications had outstripped the capacity of the structures envisaged in the Act to deal with them.
This structural difficulty was two-fold. First, under the Act one person, the Refugee Applications Commissioner, must personally consider and make a recommendation on each of 4,000 cases or so per annum, with no power to delegate this function. Second, even if this difficulty was surmounted, all appeals from negative, first instance recommendations would have to be heard orally by the one Refugee Appeal Board provided for in the Act. The most cases the appeal board could hear in one year, sitting full-time and hearing two cases each working day, would be about 400, so unless there were a 90 per cent acceptance rate at first instance, a rate not achieved by any asylum process in the world, there would be another major bottleneck.
As a result of these difficulties, the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, started on a series of steps in line with his policy of ensuring that every non-national genuinely in need of the protection of this State is identified and recognised as soon as possible after arrival, so that they can immediately start the process of integration into Irish society and take up the rights to which they are entitled under the Geneva Convention on the Status of Refugees. The steps taken involve the following areas: staff resources, a dedicated refugee applications centre, improved administrative procedures and a refugee legal service.
As regards staffing, there are now 122 people dealing with asylum applications, as opposed to 14 when the Minister took office. In October 1988, following the Minister's initiative, a dedicated one-stop shop opened in Mount Street, Dublin, bringing together under one roof the staff of the Department dealing with applications, the Eastern Health Board which deals with the health, housing and social welfare needs of asylum seekers, the offices of the United Nations High Commissioner for Refugees and hearing rooms for the independent appeal authorities.
With the statutory procedures clearly unworkable and the volume of applications showing no sign of abating, the Minister set about creating a new administrative procedure, agreed in consultation with UNHCR, to allow the applications already on hand and new applications to be dealt with in a reasonable timescale, and with the important feature of a legally-aided review hearing before an independent appeal authority for applications rejected at first instance.
Earlier this year, the Minister signed the necessary order to enable the Legal Aid Board to provide full legal services to asylum seekers at all stages of the process. The Refugee Legal Centre, through which the Legal Aid Board provides this service, is also located in the one-stop shop.
Section 11 of the Bill, which proposes to amend the Refugee Act so as to make it workable, represents the Minister's fifth major initiative since taking office in the interests of ensuring that asylum seekers get a fair and expeditious hearing of their applications. The main features of the approach taken in section 11 are as follows: the changes will empower the Refugee Applications Commissioner to delegate functions, including that of making recommendations on asylum applications; the Bill replaces the single five-member Refugee Appeal Board with a multi-member Refugee Appeal Tribunal consisting of lawyers of at least 10 years' experience, each sitting alone to hear appeals and which reflects to some extent the position under the current administrative arrangements; some technical procedural changes are proposed so as to ensure that the Refugee Applications Commissioner will have responsibility for applications from the time they are made to the point where a final recommendation, after appeal, if any, is made, and to relieve the UNHCR of the burden of over-information. These latter changes are being made at the request of UNHCR which is concerned that if the present requirements in the Act were put into effect, it would be snowed under with more information than its Dublin office would be capable of handling. The changes ensure that the UNHCR will, on request, be able to obtain complete information about any case it wishes.
In line with the other 14 EU member states, and many other countries of potential asylum, provisions are being made for the gathering of fingerprint data from asylum seekers to detect and deter multiple applications in Ireland and other Dublin Convention countries. Modifications are included to the procedure dealing with the applications for asylum which the commissioner considers to be without merit. Finally, as an innovation, the Minister is taking the opportunity to set up a statutory refugee advisory board with representatives of refugee and asylum interests, relevant Departments and the Refugee Applications Commissioner. The UNHCR will have an observer role on the board. The board will provide regular reports every two years which will cover the operation of the Act, information and comment on asylum policy and refugees, proposals for amending legislation, and the practices and procedures of public and private bodies as they affect asylum seekers and refugees.
Once the Bill is passed, work will start on the detailed regulations required under the Refugee Act to flesh out the procedures. The Minister will also put in place with the Civil Service Commissioners the steps necessary for the process of recruiting the refugee applications commissioner and the chair of the refugee appeal tribunal. We can look forward to having our asylum procedures on a statutory footing, in fulfilment of the commitment in the Government's programme, by the end of 1999.
An essential concomitant of any fair and effective system designed to identify and recognise those who are in need of the protection of the State is that there should be a means of removing from the State those who are identified by that system as not being so in need. This is emphasised by the UNHCR, acknowledged by such commentators as Trócaire and the Irish Commission for Justice and Peace and recognised by most commentators on the question of refugee protection.
Not just in the context of asylum, but in the broader area of immigration controls generally, the need for an effective deportation procedure is also universally recognised. The courts have identified the duty of the Executive to protect the common good by the exercise of controls on the entry, residence and removal of non-nationals. Mr. Justice Geoghegan's High Court judgment and those of the Supreme Court in the Laurentiu case, for example, cited with approval a passage of Mr. Justice Gannon in the 1986 Osheku High Court case which characterised control of the entry of non-nationals into the State, their departure, activities and duration of their stay within the State as being in the interests of the common good, a fact "recognised universally and from earliest times". He went on to say that "the integrity of the State, constituted as it is of the collective body of its citizens within the national territory, must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution."
The position at present, however, is that in the wake of the Laurentiu case to which I have just referred, there is no statutory means of implementing the deportation element of the State's court identified duty. In that case the courts found that the manner in which the Oireachtas, in the Aliens Act, 1935, conferred power on the Minister to make secondary legislation governing deportation orders was inconsistent with the provisions of the 1937 Constitution.
In the Bill's approach to setting out new procedures, the two watchwords, drawn from the Laurentiu judgment in the High Court are principles and procedures. The principles guiding the deportation process are set out at section 3(3), which sets out who is liable to be deported – not, I should emphasise, lest there be any perception to the contrary, who must be deported – and at section 3(6), which lists the matters to which the Minister must have regard before making a deportation order in each case. The setting out in clear statutory form of these criteria and considerations is designed to ensure that individuals and their legal advisors are in no doubt regarding the circumstances in which the question may arise and the matters which they must address if it arises in relation to them. This is in line with the recommendations in the judgment of Mr. Justice Geoghegan in the Laurentiu case.
The section also spells out the procedures which must be gone through where the question of deportation is under consideration. First, unless a person has already been through a statutory procedure which involves its own notice procedures, he or she must be informed of the fact that deportation is under consideration and of the reasons on which a decision is to be based. There is an opportunity to make representations and an obligation on the Minister to consider them. These procedures are modelled on the administrative procedures which had for some years been in place in the Department in respect of the deportation process. I might mention that in the Laurentiu case the High and Supreme Courts both found that these procedures were proper in themselves and properly followed in the particular case.
The Bill sets out what is required of the person in compliance with the order in any case where, after the necessary consideration, a deportation order is made. In particular, in section 3(9)(b) there is a three month period of grace for an employee or business-person who is being deported after a stay of five or more years in the State. This applies except where the deportation arises out of criminal proceedings against the person. Only where the person fails to co-operate with the immigration authorities in complying with the order is there a question of detention for the purpose of achieving compliance. If a detained person takes court proceedings to challenge the validity of the order, the court hearing those proceedings can decide whether the person can be released for the duration and, if so, on what conditions, if any.
In section 4 there is an important but very rarely used power to exclude a person from the State – in effect to prevent such a person from ever coming here – for reasons of national security or public policy. This power is designed to prevent notorious war criminals, offenders against human rights or the like from seeking to come here. Its two most recent uses, one dating from the 1970s and the other from the 1980s, related to a Nazi war criminal who had property interests here and to a general in the security forces of the South African apartheid regime who is now, I believe, serving a lengthy prison sentence in South Africa. Such is the seriousness of the exclusion order and the reasons which would give rise to the making of it that the Minister considers it appropriate that there should be parliamentary review of each exercise of the power. For that reason section 12 contains a provision for the laying of each order made under this section before both Houses, with a provision that either House may annul it by motion passed within the specified number of sitting days.
The Bill is, as I have indicated, designed to set out in a clear and open way the principles and procedures in relation to one aspect of immigration law, namely, deportation. I need hardly persuade Senators that there is a need to do the same in respect of all aspects of immigration law, covering pre-entry procedures, entry conditions and procedures, residence requirements and so forth. Work is advancing in the Department on a major Bill to replace, modernise and codify the law on immigration and residence in the State.
The Aliens Act, 1935, is showing its age. It is no longer adequate to the needs of the modern Ireland. The Minister's plan is to overhaul this Act comprehensively by replacing it with a modern code of immigration law which will provide a solid legislative framework for the development and implementation of fair and sensible immigration policies to meet the changing needs of Irish society. The new legislation will also, of course, guarantee the rights of non-nationals in their dealings with the law. The intention is that this legislation will be ready for publication early next year. In effect, this will be the first ever fundamental review of the State's principal legislative measure on immigration and I have no doubt that it will give rise to an informed and considered debate both inside and outside the House.
The terms of the Laurentiu judgments in the High and Supreme Courts indicate that there is a potential for challenge to other areas of the Aliens Act and the orders made thereunder, based on the similar application of the successful arguments in that case. In order to guard against such a challenge between now and the enactment of these comprehensive proposals, section 2 of the Bill provides that the Aliens Orders made under the 1935 Act are to have effect as if they were Acts of the Oireachtas. This is a stopgap measure necessary to ensure that the State is able to continue to exercise controls on the entry of non-nationals and their residence in the State, pending the introduction of the comprehensive replacement legislation.
The Minister's officials have, in the context of the current Bill, engaged in a round of consultations with many of the non-Governmental organisations which concern themselves with refugee and asylum matters. Many of their concerns have been taken on board in amendments which have been made to the Bill in its progress through the Dáil. Others have been noted for addressing in the context of the comprehensive immigration proposals under development. I expect that many more interests will wish to express their views so that they can be taken into account in that process. The Minister would welcome any contributions which wish to address themselves to the wider immigration issues in order to ensure that the new comprehensive legislation will be as effective as possible in meeting the diverse requirements of today and the future.
It is important that the present Bill be enacted so as to pave the way for the implementation of the Refugee Act, to establish principles and procedures for the exercise by the State of the power to deport non-nationals and preserve certain existing controls in relation to immigration to and residence in the State.
I commend the Bill to the House.
