Immigration Bill, 2002: Committee Stage (Resumed).
Section 3 agreed to.
NEW SECTION.
Government amendment No. 12:
In page 6, before section 4, to insert the following section:
4.–(1) A non-national shall not–
(a) enter the service of an employer in the State, or
(b) be in employment in the State
except in accordance with an employment permit granted by the Minister for Enterprise, Trade and Employment.
(2) A person shall not employ a non-national in the State except in accordance with a permit granted by the Minister of the Government aforesaid.
(3) A person who contravenessubsection (1) or (2) shall be guilty of an offence and shall be liable–
(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or
(b) if the offence is a contravention of subsection (2), on conviction on indictment, to a fine not exceeding €250,000 or to imprisonment for a term not exceeding 10 years or to both.
(4) It shall be a defence for a person charged with an offence undersubsection (3) consisting of a contravention of subsection (2) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (2).
(5) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence undersubsection (3) is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.
(6) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary–
(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found there, and
(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under subsection (3).
(7) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.
(8) Any person who–
(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (5),
(b) fails or refuses to comply with a requirement under this section, or
(c) gives a name or address which is false or misleading,
shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both.
(9) A member of the Garda Síochána may arrest without warrant any person whom the member suspects of having committed an offence undersubsection (8).
(10) In this section, ‘place' includes any dwelling, any building or part of a building.
(11) This section does not apply to a non-national–
(a) in respect of whom a declaration under section 17 of the Refugee Act 1996 is in force,
(b) who is entitled to enter the State pursuant to section 18 or 24 of that Act,
(c) who is entitled to enter the State and to be in employment in the State pursuant to the treaties governing the European Communities (within the meaning of the European Communities Acts 1972 to 2002),
(d) who is permitted to remain in the State and who is in employment in the State where that employment is in accordance with a condition of that permission that the person may be in employment in the State without an employment permit referred to in subsection (1).
(12) Article 4 of the Aliens Order, 1946 (S.R. & O., No. 395 of 1946) is hereby revoked.
(13) In this section ‘contract of employment', ‘employee' and ‘employer' have the meanings assigned to them by the Terms of Employment (Information) Act, 1994.".
This amendment is by way of an advance party, so to speak. It brings forward, in a simple and relatively unrefined way, the principle which will be covered in much greater detail by the Bill on employment permits being developed under the aegis of my colleague, the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney.
It has long been a source of concern that there is a great legal imbalance between employer and employee when it comes to the law on the employment of non-nationals. No right-thinking person can agree that it is fair that, while it is an offence for a non-national in general to be in employment without an employment permit, the employer can take such staff on with absolute impunity. The new section in this amendment redresses that imbalance. It sends a clear message to employers that exploitative activity of this nature is unacceptable and will not be tolerated.
The Department of Enterprise, Trade and Employment will not knowingly grant an employment permit where the employer in question is attempting to substitute personnel from outside the European economic area for Irish or other EEA personnel. Not to have a legal sanction against an employer who is illegally employing non-EEA personnel would mean there would be no effective legal sanction to counter undesirable labour substitution. This would certainly help to erode the social consensus in support of legal economic migration, which has been in existence here in recent years. In time this could constitute a threat to social equilibrium at local level. In that context, the Irish Congress of Trade Unions has expressed concerns regarding labour substitution to the Department of Enterprise, Trade and Employment, and has reiterated these concerns in the context of the current partnership talks.
Subsection (1) of the new section simply restates the current law – at Article 4(1) of the Aliens Order 1946, which will be revoked by subsection (13) – making it an offence for a non-national to take up or be in employment unless there is an employment permit issued by the Minister for Enterprise, Trade and Employment. This restriction does not apply to all non-nationals.
Subsection (11) lists the categories of non-national that are exempt from the employment permit requirement and whose employment therefore is not encompassed by this provision. These categories are: recognised refugees – paragraph (a) – and members of their families who have been admitted to the State to join them – paragraph (b); programme refugees admitted under section 24 of the Refugee Act, which is also covered in paragraph (b); EU nationals, nationals of the three additional states of the European economic area – Norwegians, Icelanders and citizens of Liechtenstein – and Swiss nationals, all of whom are entitled to participate in the Irish labour market by virtue of our membership of the EU or other international agreements; and other non-nationals whose permission to remain in the State includes a condition that they may work without an employment permit. The latter category includes those who, though not refugees, have been given permission to remain in the State for reasons of a humanitarian nature as well as those whose basis for remaining in the State is that they are parents of Irish citizen children.
Subsection (2) is new law. It makes it an offence for an employer to employ a non-national to whom this section applies unless the Minister for Enterprise, Trade and Employment has issued an employment permit. I am sure Senators will agree it is right that we should take this legislative opportunity to redress the imbalance that has hitherto existed. It makes no sense that, in the context of what can be seen as an exploitative relationship, the person doing the exploiting should go unpunished.
A measure of the relative degree of wrongdoing on either side of the contractual relationship between employer and non-national employee in this situation can be seen in subsection (3), which specifies the punishments. For the employee, the offence is minor, triable summarily in the District Court and subject to a maximum fine of €3,000 and/or 12 months' imprisonment. The employer offence, on the other hand, can be prosecuted either as a summary offence or in the Circuit Court on indictment. If prosecuted on indictment, an employer may be fined up to €250,000 and may in addition face a prison sentence of up to ten years. This approach reflects the Government's view that there is scope for an employer to commit wrongs of a considerably greater magnitude than those committed by an employee. I accept, of course, that this is not likely to be the situation in all cases.
The effect of the defence set out at subsection (5) is to place an onus on all employers, before they employ a person, to carry out reasonably thorough checks to satisfy themselves either that the prospective employee, if a non-national, does not need an employment permit or else that an employment permit has been obtained.
The fact that employing non-nationals without employment permits will now be a criminal offence – and potentially one of great seriousness – makes it necessary to ensure that sufficient powers exist to enable such offences to be identified and detected. Accordingly, subsections (5) to (9) of this new section provide powers for a garda to search premises, by warrant of the District Court if necessary, to prosecute for the obstruction of such searches and to arrest an obstructer without a warrant.
This amendment is, as I have said, an interim measure while the development of the main Employment Permits Bill continues between the Department of Enterprise, Trade and Employment and the parliamentary counsel to the Government. I am pleased to have been able to facilitate my Government colleague by bringing forward this interim provision. Its presence in the Bill underlines the seriousness with which the Government generally views the exploitative behaviour of employers and gives a clear signal to those who are taking advantage of vulnerable people. We are saying with this legislation that we will not tolerate this form of abuse and we will say it again in an even more targeted way when the new Bill comes on stream. I commend the amendment to the House.
An Leas-Chathaoirleach
As amendments Nos. 1 and 2 to amendment No.12 are related, both may be discussed together.
I move amendment No. 1 to amendment No. 12:
In subsection (3)(a), to delete “both, or” and substitute “both”.
I have no difficulty with the idea of legislating to prevent the employment of illegal persons, but the provision in this section is extreme. Many Irish people have worked illegally in other countries over the years. We need controls, but we also need balance and this section is not balanced. The penalty in subsection 3(b) is excessive and is anti-business in nature. The Minister said the Government intends to publish a Bill on employment permits. There should be a proper system for economic immigration into this country, involving the issuing of green cards. Until that is done, we should not be heavy-handed with employers.
Many people come here as economic migrants, which was the only reason Irish people went to other countries. We should have a fair system. The current system is not fair, it is restrictive and the issuing of work permits means that employees are indentured to one employer. We recently saw the case of the Brazilian workers who suffered extremely bad employment conditions. When they had to give up that work, they had to return to Brazil. They could not seek other jobs here without getting additional work permits. That system is too restrictive.
We need to allow asylum seekers to work after a reasonable period and we need to do more to help countries whose people have to emigrate for economic reasons. We need to do more about our overseas development aid, which we recently cut back substantially. All those things should be in place before we become heavy-handed in the manner being employed here.
Amendment No. 1 to amendment No. 12 seeks to allow for the fine, which will not exceed €3,000, and the 12 months' imprisonment because that is reasonable. However, subsection (b) is unreasonable and amendment No. 2 to amendment No. 12 seeks to eliminate it.
As an employer who has employed permit holders, I would be delighted to see this provision included in the Bill. I am only too well aware of employers who have exploited this system and agents who seek permits under false pretences. Those permits are then sold on, thereby duping innocent people – if they can be called that – entering this country. There is a huge trade in permits. I became aware of an example today in my own business when I was approached by somebody with a false permit. The law needs to be draconian to bring home to employers that they cannot have someone on their premises who is not employed in the correct fashion.
It is anything but anti-business. It is pro-business in that it ensures that employers operate on a level playing field and cannot avoid looking after employees they bring into the country by, for example, not paying taxes on their behalf or failing to get proper tax clearance certificates for them. I am aware of cases of employees still paying emergency tax after eight months on the books.
A draconian law would have a similar effect to the penalty points system in transport and would lead to this whole area being tightened up. People pay heed to the law when it is severe. Having seen at first hand the abuses that can take place in what can best be described as the market in permits, I welcome the measure.
I agree with the sentiments expressed by the Minister and Senator Morrissey. Business is undermined when some employers do not play by the rules. Senator Tuffy referred to economic migrants. As we have a common travel area with Britain, this does not really arise, but, as is clear from the inscription on the Statue of Liberty, the United States actively encouraged economic migration from this country.
I agree with Senator Morrissey's point on minor penalties. It is not just a question of the law being heavy handed. The judge in each case will decide what is appropriate in the circumstances. By and large, judges do not act in a heavy handed manner. As far as I have observed, they rarely avail of maximum penalties. A fine of €1,000, €2,000 or €3,000 is of no consequence to the employers in question and will not deter them from taking risks. The case for this section is well founded.
In 2001 some 2,600 work permit employees changed employer and the figure is likely to exceed 3,000 in 2000. There is no question, therefore, of people being handcuffed to a particular employer. If the measure was draconian or anti-business, I would be the last to propose it. One must distinguish between legitimate business and unfair business. Those who obey the rules deserve to be protected from competition from those who flout the rules.
On the issue of bonded labour, which was the phrase used, one has to bear in mind that somebody who is working collusively with an employer in a workplace, be it in a domestic situation, a hotel, a small business or even a farm or stud farm, is immensely vulnerable to being exploited and is in a position to have his or her wages driven down and the right to join a union severely curtailed. He or she is also effectively open to being expelled from the country for the slightest act of insolence or disagreeability towards the employer. The provision is protective of employees because to allow employers to exploit employees or face small penalties compared to significant economic gain would give rise to grave difficulties and would expose employees to serious exploitation.
While I accept the penalties on indictment are severe, one must remember that for a case to go on indictment the Director of Public Prosecutions would have to be of the view that it was of such seriousness as to warrant a jury trial and that the penalties available in the District Court were not appropriate for it. It is hard to think of a particular case which could involve imprisonment. If, however, somebody running a large vegetable farm, for example, was found to have employed 25 people in appalling circumstances for a long period, that person should face very serious penalties, especially if it was to transpire that the employees had the threat of exposure or being dumped out of the country held over them every time they asked for economic justice. This measure is good news from an employer perspective, but even better news from a worker perspective.
I would be more inclined to accept the Minister's comments on the issue of collusion between an illegal alien and an employer if people had more options to come here to work. These options are limited under the current system.
On the points made by Senator Morrissey, employers need employees, which is surely the primary reason an employer would employ someone. The Senator is confusing the issue of exploitation with those raised in the amendment. It is a different matter. We had the recent case, for example, of Brazilian workers being exploited, despite having permits. We also have underage children working, yet we do not take such a heavy-handed approach to their employers.
If we had a proper green card system and a system which allowed asylum seekers to work, these provisions would be more acceptable. I agree we should do more to protect employees' rights, but that is a different issue.
Some 40,000 work permits were issued in 2002, of which 16,500 were renewals. This means 25,000 economic migrants entered the country in 2002 and were facilitated with work permits, a very significant inflow. I ask Senator Tuffy to have regard to the interests of workers here, who have to be protected against unfair competition. Whereas one might reasonably argue that in working the individual act of an individual illegal migrant is understandable and is motivated by economic need, the cumulative effect of employers taking on people whom they can exploit and whose wages they can keep down because of the inequality of bargaining power is to enable employers to drive down the general level of wages which ought to be paid in a particular sphere and to undermine organised labour's capacity to defend the rights of legitimate workers in those fields.
The amendments are misconceived and it is appropriate to hold out to employers very serious sanctions in order that they do not doubt that the State will not tolerate under any circumstances a deliberate breach of the law by employers in circumstances where, until now, the only person committing a criminal offence has been the unfortunate employee.
Amendment to amendment, by leave, withdrawn.
Amendment No. 2 to amendment No. 12 not moved.
I move amendment No. 3 to amendment No. 12:
In subsection (9), after "the member" to insert "reasonably".
An arrest should be allowed on the basis of reasonable suspicion, not on mere suspicion. This is also a requirement of the European Convention on Human Rights. I would like the Minister to comment.
The Office of the Attorney General advised that, as was decided in the case of The People v. Quilligan by the High Court, reasonableness was inherent in any provision empowering a member of the Garda to arrest a person on suspicion of having committed an offence. However, in so far as the Senator's amendment underlines that fact and reminds those who exercise this power that they must act reasonably, I have no difficulty in accepting it and I thank her for tabling it.
Amendment to amendment agreed to.
I move amendment No. 4 to amendment No. 12:
In subsection (11), after "This section does not apply to a non-national" to insert "who is entitled to be in the State and in particular to a non-national".
The section lists four exceptions but it is wrong to allow only those reasons and not to provide for other possibilities. The purpose of the amendment is to protect a non-national who is entitled to be in the State for a reason other than those listed. I ask the Minister to comment.
The amendment would create open season on the labour market by providing that all non-nationals entitled to be in the State would be free from the obligation to obtain an employment permit. The wording would exempt all non-nationals and then particularise a group of non-nationals, somewhat redundantly, who would be exempt on particular grounds. Thus, many non-EEA nationals who would come here on a holiday or a short study course, for example, would, under this amendment, be potential employees in the State and would be entitled to take up work as the opportunity arose.
The Senator will be delighted to know my speaking note suggests this is a buccaneering, free market approach and, in so far as that shows a change of heart on her behalf, I would almost be sympathetic to it. However, there would be chaos if everybody who came here for a holiday or study course could take up employment. It would not have a beneficial effect.
Many changes have been made to the rules governing work in the State for non-EEA nationals, which have considerably eased restrictions on entering the workplace, but there is also a need to provide sufficient safeguards to protect the best interests of the domestic workforce. The freedom of movement of EEA nationals and their dependants is not an absolute right but is subject to public policy concerns and this applies to EEA nationals and their dependants who come here to work. We are some way off global freedom of access to the Irish workplace and the Irish Congress of Trade Unions, in particular, would agree the amendment would not be in the interest of Irish workers.
Amendment to amendment, by leave, withdrawn.
Amendment No. 12, as amended, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
The section is heavy handed for the reasons I have outlined. The penalties are too high, despite the reasons given by the Minister, and I do not accept the section on those grounds.
This is a standard form section, which is inserted in most cases where provision is made for an offence that can be committed by a body corporate and the intention is to extend liability not to the piece of paper and the seal of the company, which can hardly be put in a dock in court, but to the person who makes the decision, that is, the director or officer of the company who brings about the illegality in question and breaches criminal law.
It is a standard form provision and it would be strange if the company alone stood capable of being prosecuted, especially if it were a £2 company, while the rich person who might have made significant profits off the back of exploiting labour in these circumstances and who directed the affairs of the company could walk away scot-free. That is the purpose of the section and it would be a mistake to delete it from the legislation.
I misunderstood what we are discussing. I do not object to the section.
Question put and agreed to.
SECTION 5.
I move amendment No. 13:
In page 6, between lines 21 and 22, to insert the following:
"(a) in section by the addition of the following subsection:
‘(4) The Commissioner and the Tribunal shall, if they or either of them reject an application for refugee status, and if so requested by the applicant, make a recommendation to the Minister on whether or not protection should be afforded to the applicant by way of humanitarian leave to remain in the State'.".
My colleagues and I would like a provision inserted in the section that would give the Refugee Applications Commissioner and the appeals tribunal discretion as to whether to recommend leave to remain in the State. The current position is that if a person has strong humanitarian grounds that fall short of refugee status, these bodies cannot make recommendations and he or she is at the mercy of the Department of Justice, Equality and Law Reform. The amendment would provide for more fairness. There may be grounds that the Refugee Applications Commissioner and the appeals tribunal wish to recommend to the Department to allow people to stay.
The position is that this happens on occasion but it is entirely informal and, strictly, ultra vires for a tribunal member to express such a recommendation. However, the view of the tribunal member in such a matter is irrelevant since he or she is there to determine one fact only, that is, whether the applicant who is appealing to the tribunal is entitled to be considered a refugee. An entirely separate procedure follows a rejection of an appeal. The individual in question is written to and notified of the rejection and is informed that he or she has the right to make an application to remain in the State on a humanitarian basis.
In those circumstances representations made by the failed appellant are carefully considered on an individual basis by officials advising the Minister and by the Minister himself or herself. I do not see why we should begin to blur the distinction and ask the tribunal, whose job is to determine appeals on a point of law for the purpose of the 1951 convention, to rove outside its function and express policy or humanitarian opinions. It is not employed to look at those issues. Strictly speaking, if it was receiving evidence, it might be argued in so far as it was not directly relevant to its sole and primary function – to determine people's status under the convention – it might be trespassing outside its remit.
If one is appealing against the applications commission decision, one wants a hearing where the issues are straightforward and narrow, where one's lawyers understand them and are not under pressure to bring extraneous matters, such as the state of one's health, family circumstances and so on, before the tribunal, even though they might well inspire the Minister to exercise his or her humanitarian powers under the Act. If a statutory entitlement was to be established on the part of the tribunal member to make recommendations of this kind, the scope would be widened, de facto, of all tribunal proceedings to sweep in every factor which could be relevant to the humanitarian aspect. The tribunals would be lengthened and people asked to deal with questions twice when once would be quite sufficient.
Senators may be aware that there are negotiations at Justice and Home Affairs Council level of the European Union for a proposed Council directive on minimum standards for the qualification and status of third party nationals and stateless persons as refugees and as persons who would otherwise need international protection. This proposal sets out minimum standards relating to eligibility criteria for refugee status and subsidiary protection in the European Union and the entitlements of the persons who qualify for such protection. When the proposal is fully adopted by the Justice and Home Affairs Council other than refugee status, it will, in effect, define a protected status other than refugee status other than under the 1951 convention which states can offer to persons found to be in need of such protection. It is expected that the proposal will be adopted by the middle of this year.
Some tribunal members informally express an opinion. If I was to formalise this into a statutory regime, they would have to amplify the scope of their hearing to deal with all humanitarian concerns as it would be unfair to give them a function and at the same time not allow the party to provide the material to them to exercise that function. The present situation is quite satisfactory. If and when the European Union comes up with a subsidiary protection code, that, too, will have to be transposed into Irish law in a manner which will go some way towards addressing the Senator's concerns.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 6, between lines 30 and 31, to insert the following new paragraph;
"(b) in section 8(1)(a)(i) after ‘after' by the insertion of ‘such person has had a reasonable opportunity for access to legal advice subsequent to'.”.
This amendment would allow an asylum seeker the opportunity to get legal advice before being interviewed on arrival in the State, which is reasonable. We recognise in our legal system that people should have the right to legal advice. We should secure this for persons, particularly asylum seekers, who are very vulnerable when they get here. Distressing circumstances may have led to their coming. The amendment is reasonable.
This amendment is opposed. The interview conducted by an immigration officer under subsection 8(1) of the Refugee Act, 1996 takes place where a person arriving at the frontiers of the State seeks asylum and is for the purpose of establishing certain basic facts: whether the person wishes to make an application for a declaration under section 8 of the Refugee Act, 1996 and, if he or she does so wish, the general grounds upon which the application is based, the identity of the person, the nationality and country of origin of the person, the mode of transport used and the route travelled by the person to the State, the reason the person came to the State and the legal basis for the entry into or presence in the State of the person.
Where necessary and possible, the interview is to be conducted with the assistance of an interpreter. A record of the interview is kept by the immigration officer or authorised officer conducting it. I do not see how the information requested at this interview requires access to legal advice. It is very straightforward: "Who are you? What is your nationality or place of origin? How did you come to Ireland and by what form of transport? Why did you come to Ireland? Have you got a passport, visa, work permit or anything that may show a legal basis for entering the State?" That is within the range of questions that an immigration officer would ask any intending entrant to the State.
It is only where the person indicates that he or she is seeking protection, or otherwise indicates that a fear of persecution underlies his or her unwillingness to go back that he or she is told, as required by section 8(1) of the Refugee Act, of the possibility of applying for asylum. If the application is made, clearly the person is one who must be admitted to the State under section 9 of the Refugee Act, 1996. Every immigration officer is given training to ensure he or she is fully aware of the requirements of the Refugee Act, 1996. The UNHCR has also participated in training in this area.
Once the person seeks asylum he or she is subject to the provisions of the Refugee Act, 1996 and will have access to a fully independent investigation body, the Office of the Refugee Applications Commissioner, a fully independent appeals body, the Refugee Appeals Tribunal, and legal representation at both investigative and, if necessary, appeal stage. He or she is also entitled to consult the UNHCR representative to Ireland. Under section 11(8) of the Refugee Act, 1996 an asylum seeker is given written notice of these and other entitlements and obligations that apply to the investigation of an asylum claim.
The practicalities of the proposed amendment would require the permanent presence of a legal representative at each port and airport in the State where non-nationals are authorised to enter. I am satisfied that a legal representative is not required to mediate an interview under section 8 (1)(a) any more than such a service is required where an application is made “in-country” at the Office of the Refugee Applications Commissioner where the vast majority of applications are made. The amendment advocates a system that is unnecessary and wasteful of resources that are better deployed in the investigation of the application.
The present arrangements were adequate to meet the stringent human rights standards of Deputy Joan Burton when, as Minister of State at the Department of Justice, Equality and Law Reform, she piloted the Refugee Bill through the Oireachtas. If section 8(1) was good enough for her, then it is good enough for me.
This would be a reasonable measure. The Minister said most people present themselves at the Office of the Refugee Applications Commissioner to apply for asylum. However, it is different for someone who has just arrived in the country. We are creating barriers for those applying for asylum. It would be helpful for them to have legal advice as they are asked about the legal basis for their presence. Making them aware of their legal rights would be a positive step.
If the Senator looks at the section, far from being a barrier, it is facilitating. It requires certain matters to be drawn to the attention of potential asylum seekers. We could have a situation where no interview could take place under the section at Dublin Airport, Dún Laoghaire or anywhere else unless a lawyer was present.
To make any sense of the amendment it would be necessary for the immigration officer to draw to the attention of the person that they could have a lawyer present and to give them lists of lawyers. Asylum-seekers are hardly going to say that they want eminent senior counsel or solicitors known to them. It would mean in effect that the whole process would grind to a halt and any capacity to make a fairly instant appraisal of the situation or to sort out whether they were dealing with an application for asylum or not would have to be deferred until lawyers became involved in the issue.
That then carries with it the unmentionable factor of cost. How much would it cost to have a solicitor summoned to Dublin Airport at half past one in the morning to deal with one person who has come in on a flight? We cannot have a situation where there is just one lawyer who is a State employee. We would immediately be told that it would have to be a lawyer of choice quite independent of the whole procedure and presumably it would have to be somebody chosen from a panel. The implications of paying lawyers' fees to people to get up out of bed to explain a very basic interview to an asylum-seeker would, in my view, be equally frightening in economic terms. I am opposed to the proposal.
Amendment, by leave, withdrawn.
Government amendment No. 15:
In page 6, between lines 30 and 31, to insert the following paragraphs:
"(b) in section 9, by–
(i) the substitution in subsection (2) of the following paragraph for paragraph (b):
‘(b) the date on which his or her application is withdrawn or deemed to be withdrawn under this section or section 11, or',
(ii) the substitution of the following subsection for subsection (4A) (inserted by the Illegal Immigrants (Trafficking) Act 2000):
‘(4A) (a) An applicant shall inform the Commissioner of his or her address and of any change of address as soon as possible.
(b) Where 5 working days have elapsed since the making of an application for a declaration and the applicant has not informed the Commissioner of his or her address, the application shall be deemed to be withdrawn.',
(iii) the substitution in subsection (7) of ‘subsection (4), (4A) or (5)' for ‘subsection (4) or (5)',
(c) in section 11 (inserted by the Immigration Act 1999) by–
(i) the insertion in subsection (1) before ‘section 9' of ‘this section or',
(ii) the substitution in subsection (8) of the following paragraphs for paragraphs (e) and (f):
‘(e) the duty of the applicant to co-operate with the Commissioner and to furnish information relevant to his or her application for a declaration,
(f) the obligation of the applicant to comply with subsections (4), (4A) and (5) of section 9 and the possible consequences of non-compliance with this subsection including the possibility that his or her application for a declaration may be deemed to be withdrawn and that the Minister may refuse to give the applicant a declaration,
(g) the possible consequences of the failure of the applicant to attend an interview under this section.',
(iii) by the substitution of the following subsections for subsection (9) (inserted by the Immigration Act 1999):
‘(9) An applicant may withdraw his or her application for a declaration by sending notice of withdrawal to the Commissioner.
(10) Where an applicant does not attend for interview with an authorised officer under this section on the date and at the time fixed for the interview then, unless the applicant, not later than 3 working days from that date, furnishes the Commissioner with an explanation for the non-attendance which in the opinion of the Commissioner is reasonable in the circumstances, his or her application shall be deemed to be withdrawn.
(11) Where–
(a) it appears to the Commissioner that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her application for a declaration, or
(b) the Minister notifies the Commissioner that he or she is of opinion that the applicant is in breach of subsection (4), (4A) or (5) of section 9,
the Commissioner shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 10 working days of the sending of the notice) whether he or she wishes to continue with his or her application and, if an applicant does not furnish an indication within the time specified in the notice, his or her application for a declaration shall be deemed to be withdrawn.',
(d) in section 13, by–
(i) the insertion of the following subsection after subsection (1):
‘(1A) Where an application for a declaration is withdrawn or deemed to be withdrawn pursuant to section 9 or 11, then–
(a) any investigation under section 11 shall be terminated,
(b) the report referred to in subsection (1) shall state that the application has been withdrawn or deemed to be withdrawn, as the case may be, and shall include a recommendation that the applicant concerned should not be declared to be a refugee, and
(c) no appeal under section 16 shall lie against a recommendation under paragraph (b).',
and
(ii) in subsection (3), by–
(I) the insertion after ‘includes a recommendation' of ‘(other than a recommendation pursuant to subsection (1A))',
(II) the insertion of the following paragraph after paragraph (d):
‘(e) Where a report under subsection (1) includes a recommendation pursuant to subsection (1A) that the applicant should not be declared to be a refugee, the Commissioner shall, as soon as may be, furnish the report to the Minister.',
(e) in section 16, by–
(i) the insertion in subsection (1) after ‘a recommendation of the Commissioner under section 12 or 13' of ‘(other than a recommendation pursuant to section 13(1A))',
(ii) the substitution of the following for subsection (2A):
‘(2A) Where an applicant fails, without reasonable cause, to attend an oral hearing under subsection (10), then unless the applicant, not later than 3 working days from the date fixed for the oral hearing, furnishes the Tribunal with an explanation for not attending the hearing which the Tribunal considers reasonable in the circumstances his or her appeal shall be deemed to be withdrawn.
(2B) Where–
(a) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or
(b) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4), (4A) or (5) of section 9,
the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 10 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.',
(iii) the substitution of the following subsection for subsection 9:
‘(9)(a) An applicant may withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal and the Tribunal shall, as soon as may be, notify the Minister and the Commissioner of the withdrawal.
(b) Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal.',
(f) in section 17, by the insertion of the following subsection after subsection (1):
‘(1A) Where an application is withdrawn or (other than pursuant to section 22) deemed to be withdrawn, or an appeal under section 16 is withdrawn or deemed to be withdrawn, the Minister shall refuse to give the applicant a declaration.'.".
This consists of a set of amendments to the Refugee Act, 1996, which are designed to address the problems of abandoned cases in a way that preserves the standards of fairness to individual applicants of the present arrangements but at the same time improves on the efficiency of the system, an improvement which is in the interests of asylum-seekers as a whole and in the interests of the taxpayers who fund the system.
A feature of the Irish asylum process is the high proportion of cases where the independent Refugee Applications Commission is unable to complete the investigation of the asylum claim because the applicant turns out to be unavailable. Over 6,000 applications were withdrawn last year alone, a figure equivalent to 52% of all asylum applications lodged in 2002. Some 12,677 interviews were scheduled between January and December 2002. I want to make it clear that these are scheduled in circumstances where the preparation is done by the official in question. Very frequently, arrangements are made for lawyers and interpreters to be present. These arrangements are made and a time is provided in very dignified and decent circumstances in the ORAC offices in Dublin. Of the 12,677 interviews, only 5,997, that is 47%, proceeded. Of those who did not show for interview, a total of 1,380 failed to attend again on the second time of asking. That is the equivalent of 12% of all asylum applications lodged in 2002. Senators will perhaps be surprised to hear that in some cases the investigation of the asylum claim cannot even get off the ground because the applicant, having made the claim at the point of entry in the State, subsequently fails to attend at the Office of the Refugee Applications Commissioner.
The number of cases on hand where it has become apparent to the commissioner that the application cannot be processed is 992 and that number is rising all the time. This is a situation which was not envisaged by the framers of the legislation but is one of the realities of the asylum process that must be addressed now in this set of amendments.
The time within which these cases are being dealt with is coming down very quickly. I was at a Bar Council seminar recently where a complaint was made that the process was happening too fast rather than too slowly, which had been the old complaint. Applications are currently being considered which were originally made in October and November of last year. As the process speeds up, what are we to do in the face of a 46% no-show rate?
That present process deals in a very fair but not always particularly efficient way with asylum claims that are not pursued by the applicants. The Act requires quite properly that each applicant be called to interview as part of the process of investigation. Each interview has a number of overheads as well as the commissioner's authorised officer who has spent a considerable amount of time preparing for the interview by examining the file and carrying out necessary country of origin research. In other words, if a person says that they are from, for example, Nigeria or Somalia, the officer dealing with the case has to read up on the political situation in the country concerned or whatever form of persecution is suggested and be well-informed so that he or she can ask intelligent questions and can understand the answers and put them in context.
The applicant is entitled to have a legal representative present at the interview and there will often be an interpreter present. Support staff in the commissioner's office will also be involved. One of a suite of purpose-designed interview rooms will be reserved for the meeting. All those resources are funded by the State and that is as it should be.
The applicant is notified in writing at the address which they supplied to the commissioner, or the latest address which the commissioner is aware of, well in advance of the interview and they are informed of the place and time of the interview. The applicant's transport costs are met by the community welfare officer. If the applicant had been the subject of direct provision in, for example, Tullamore, their transport costs are made available in advance. The reception and integration agency provides overnight accommodation in Dublin where that is necessary, where for example, the interview is scheduled for early in the morning.
I want people to understand the present situation. Unfortunately some television broadcasts show historical footage of crowds outside the old Mount Street office as indicative of the situation. A very different situation exists now. There is a very humane arrangement in Burgh Quay in terms of accommodation, seating and a ticket system. People are not treated unfairly or inhumanely; every possible arrangement is made for people who want to pursue their claim, including travel, overnight accommodation where necessary and all the arrangements, including the provision of lawyers, which I mentioned earlier. If the applicant does not turn up, obviously the State resources committed for the interview are completely wasted.
The Refugee Act, section 11(9) requires that he or she be given another chance and another interview must be arranged involving the commitment of the same amount of resources for a second time. Only if there is a second no-show and the commissioner arrives at the conclusion that the applicant has no further interest in seeking asylum does she accordingly recommend that the applicant should not be declared to be a refugee. It is not just during the first investigation that this occurs. While it is during that stage of the process that most abandoned cases occur, Senators will be surprised to know that 11% of appeals made to the Refugee Appeals Tribunal are also withdrawn.
Some €45 million of taxpayers' money is being spent on the processing of asylum applications, including the provision of legal advice and other immigration functions. With such high withdrawal rates it is certain that considerable resources are being wasted on individuals who have no interest in actively pursuing their asylum applications. Senators will be aware that there is a consistent and substantial volume of asylum-seekers who simply make their original application and then disappear into the woodwork.
I also remind Senators that this all takes place against a backdrop where from the earliest stage in the process every applicant is told, almost invariably in a language that he or she understands, of the obligation to co-operate with the investigation and to keep the Refugee Applications Commissioner informed of every change of address. All letters are sent by registered post in order to ensure delivery, yet still the commissioner and her staff face a high proportion of abandoned cases and no-shows. We must have in place a system for investigating asylum claims that gives each applicant a fair chance to make his or her case and to assist the commissioner in investigating the application. I believe that we can maintain the proper standard of fairness but do so in a way that allows for more efficient deployment of resources in the investigation of claims, allowing for more claims to be brought to finality in a quicker time. That is in the interests of all asylum seekers and particularly of those who are refugees, who will be recognised more promptly as such and will thus be able to take up the rights and entitlements afforded to them in Ireland at the earliest opportunity.
Let us now look in detail at the set of amendments to the Refugee Act proposed in the amendment before us. As an aid in that process, I recommend to Senators the unofficial restatement of the Refugee Act, incorporating all its amendments to date, which has been available on the Department's website for over two years, well in advance of the recent Statute Law Restatement Act.
There are three amendments proposed to section 9 of the Refugee Act. The first of these, which replaces section (2)(b) of that section, is a merely technical amendment consequential on subsequent amendments to the Refugee Act in this package dealing with applications deemed withdrawn. We will deal with these in a moment.
The second amendment to section 9 is the first element of substance in the package. It replaces the existing subsection (4A) of section 9, requiring the applicant to keep the commissioner informed of a current address. The innovation is at paragraph (b) of the new subsection, which deals with the situation where an application for refugee status is made but no address is given and the applicant is never heard from again. By that new provision, an applicant who does not have an address in Ireland when applying has five working days – in effect, a week – within which to give an address to the commissioner.
It is natural that someone who has just landed in Ireland and made an application for asylum to the immigration officer at the port would not have an address to supply at that time, but the supports to applicants provided through the Reception and Integration Agency mean that within a day or two every applicant will have an address – even if only that of a reception hostel – to provide to the commissioner. Without an address, the commissioner is helpless and there is no point in her staff wasting futile effort in the application. No step can be taken because no notice can be given to the applicant, so this provision means that the application in those circumstances will now be treated as withdrawn. This provision will allow the commissioner to dispose of the growing number of cases of this kind already on hands – in the region of 900 at present, some dating back over two years – without further expenditure of resources.
The third amendment to section 9 makes it an offence, punishable by a fine of up to £500, €635, or up to a month in prison, to fail to supply an address or a change of address. Whereas this is a criminalising step, I make no apology for making this omission an offence. If it is the responsibility of the asylum seeker to assist in the investigation of the application, as is abundantly clear from authorities ranging from the United Nations High Commissioner for Refugees to our Supreme Court. For an asylum seeker to hold himself or herself incommunicado and aloof from the asylum investigation is, to my mind, an abuse of that process and of the hospitality afforded by the State.
It can safely be said that most asylum seekers are allowed to stay in the State only because they have made an application in circumstances where, but for the application, they would be rightly refused permission to enter or remain in the State. The position is, therefore, as follows. If a person comes to Ireland claiming asylum, he or she obtains certain privileges on that account. They can invoke this panoply of procedures, but we are imposing a co-relative obligation to keep the asylum process – which they have invoked – voluntarily, informed of their whereabouts in order to ensure that there is a clear duty on them to co-operate with the process.
The next three amendments are to section 11 of the Refugee Act. The first of these is to subsection (1). It is merely a technical amendment and we will come to the substance of it later.
The next amendment deals with the terms of the notice – to which I have already referred – given to all applicants, almost invariably in a language they understand, setting out how their asylum claim will be investigated, what are their entitlements in that process and what are their obligations in that process. The new provisions are concerned with the last element – their obligations in the process – and are there to warn them of the consequences of failure to co-operate, which later provisions of this amendment will spell out. The purpose of this notice is to ensure fairness – in this case, fair warning of the consequences of non-participation in the investigation of the claim.
We now come to the substance of this set of amendments, replacing the existing provisions dealing with "no-shows" at interview with new subsections (9), (10) and (11). The new subsection (9) spells out that an applicant may withdraw the asylum claim. While applicants have been voluntarily withdrawing their applications all along, it is no harm to have the fact of withdrawal and the process for achieving it set out in statutory form.
The new subsection (10) addresses the situation where the applicant fails to attend for interview. Unless the applicant has a reasonable explanation for not turning up and gives it either before the date fixed for the interview or within three working days after the no-show, there will now be no second chance. All applicants will be told that they should attend for their interview or their claim for asylum will be at an end. Ample notice is given for interviews and times and dates are provided. There is normally plenty of opportunity to rearrange if enough notice is given of a pressing reason – for example, medical reasons – that a particular date cannot be met.
Even if advance notice cannot be given in any particular circumstance, there is still a fair opportunity to offer an explanation after the date has been missed. If an applicant's child got sick on the day, for example, or if there was a domestic or personal emergency, such as the applicant being admitted to hospital, he or she would have a period – three days after the event – to offer an explanation. After that, however, there must be an end to the matter. This subsection provides that end. Failure to attend for interview is a direct demonstration of the applicant's lack of co-operation with the asylum investigation process and is dealt with in a direct way by subsection (10).
The new subsection (11) fittingly deals with more indirect forms of non-co-operation in a less direct fashion. The form of non-co-operation of the kind referred to in paragraph (a) will generally, but not always, manifest itself when a letter to the applicant about some aspect of the claim for asylum is returned by An Post marked “not known” or “gone away”.
Paragraph (b) covers a situation where the Minister becomes aware that the applicant is missing. This may come about because the Reception and Integration Agency notes an absence from assigned accommodation or the Garda Síochána may indicate that an applicant has not been observing a requirement to report once a week to a member of the force under section 9(5) of the Refugee Act or discover, in the normal course of events, that an applicant is no longer at the address supplied. In any such case, once the Minister passes this information to the commissioner, he or she will write asking the applicant whether they are still pursuing their application. In the event of no reply to this “one last chance” being received, the application is deemed withdrawn.
I will take this opportunity to alert Senators of my intention to bring forward a Report Stage amendment to paragraph (b) of the proposed new section 9 (11) – as inserted by paragraph (c)(iii) of this amendment. At present, the amendment provides that one of the forms of non-co-operation which could lead to an application being deemed withdrawn is where the person is found in breach of section 9(4) of the Act of 1996. Paragraph (b) of subsection (4) of that section prohibits an applicant from entering employment or carrying on a business, trade or profession during the period before the final determination of his or her application. Although this amounts to a serious breach of the terms on which asylum is being sought, it is not my intention that the withdrawal provisions of this amendment should apply in these circumstance as such breaches do not necessarily result in the person being missing or unco-operative.
The amendment I will bring forward on Report Stage will make clear that the provision will apply in respect of paragraph (a) of section 9(4), that is, where the applicant leaves or attempts to leave the State without the permission of the Minister. For the same reason, I will also be bringing forward a similar amendment to the proposed new section 16(2B), as inserted by paragraph (e)(ii) of this amendment. I want to make it clear, therefore, that engaging in work will not be a ground upon which the application will come to an end because it might be that a person for some reason – out of foolishness or ignorance of the law, for example – would be tempted into a casual act of employment in breach of the provisions and it might be unfair in those circumstances to say that that brings down the guillotine on that application in its entirety. However, if somebody leaves the State without permission, that is an end of his or her application. There cannot be a situation where people can come to Ireland, make an application and then go to Britain or somewhere else without informing the Minister or obtaining his or her consent to do so and still claim to be an asylum applicant in Ireland.
The amendments to section 13 of the Act set out what is to happen when an application is withdrawn by the applicant or deemed to be withdrawn. The first of these, the new subsection (1A), spells this out in detail. First, naturally enough, the investigation ends. Next, the report on the investigation, which is prepared in all cases, includes a recommendation that the applicant not be declared a refugee. Finally, no appeal lies from that recommendation. This is a perfectly logical arrangement. If a person withdraws a claim, it makes no sense that they could appeal their own decision. Similarly, if they act, or rather fail to act, in a way that leads to the inevitable conclusion that they withdraw their claim, it does not make sense that they could appeal against their actions or omissions.
There is a further reason for this. The appeal tribunal exists to deal with cases which have already substantially been heard. If somebody does not proceed with a case, allowing them an appeal would effectively turn the appeal tribunal into an office of first instance where it would have to go through all the same procedures again. In those circumstances, that would pervert the process of an appeal.
The second amendment to section 13, which amends subsection (3) of the section, follows through the logic of that consequence by ensuring that where the application is withdrawn or deemed withdrawn, the negative recommendation is sent straight to the Minister. There is no need, unlike the normal case, to wait for the appeal period to expire.
Section 16 of the Refugee Act contains the provisions dealing with appeals and is amended in three respects in this group of amendments. The first is consequential on the fact that no appeal will lie from the negative recommendation given where an application is withdrawn at first instance. The second puts in place provisions similar to those for the first instance investigation where the applicant appears not to be co-operating with the appeals process. As with the first instance, an applicant who is not responding to letters, has left the country or is otherwise not at the address supplied or is failing to meet a requirement to report regularly to a garda will be sent a last chance letter. Failure to respond results in the appeal being deemed withdrawn. I will bring forward a further amendment to the proposed section 16(2B) which will restrict its application to the cases covered by paragraph (a), that is, where the applicant leaves or attempts to leave the State without the permission of the Minister.
The final amendment to section 16 replaces subsection (9), which at present provides that an applicant can withdraw his or her appeal. The new provision, as well as including that right, spells out the consequences of an application being withdrawn or deemed withdrawn. The tribunal terminates the appeal and the matter goes straight to the Minister with the original negative recommendation which had been the subject of the appeal.
The last amendment of this group, which refers to section 17 of the 1996 Act, deals with the final outcome of an application that is withdrawn or deemed to be withdrawn. The outcome is that unlike the position where the Minister has discretion under section 17(1)(b) of the Refugee Act to grant a declaration of refugee status where the recommendation is negative in the normal course, under this amendment the Minister must refuse to grant a declaration where the negative recommendation arises out of a withdrawal or deemed withdrawal. An applicant whose application has been disposed of in this way may seek the Minister's permission under section 17(7) of the Act to make a fresh application. However, each such application has to be considered in the light of the applicant's previous history of co-operation with the investigative process. The door is not completely slammed shut. One may make a fresh application, but that application would be considered with some circumspection where there had been a history of failure to co-operate with the first investigative process.
This set of amendments demonstrates the Government's approach to the asylum process and the offering of protection to refugees. The approach is characterised by a number of features. First, we are committed to honouring our obligations under the Geneva Convention and to giving the protection of the State to those who need it. Second, we are committed to a fair system that gives every opportunity to each person seeking genuine protection to get that protection. Third, we will deliver that fairness as quickly and efficiently as we can. Fourth, we will deal robustly as well as fairly with abuses of the asylum system.
We owe it to refugees in need of Ireland's protection to make sure they get protection and we owe it to taxpayers to ensure that they get protection through an efficient and fair system that also deals effectively with claims that have no merit. That is what the amendments deliver and I commend them to the House.
We will deal with the 28 amendments to amendment No. 15 before putting the amendment to the House.
I move amendment No. 1 to amendment No. 15:
In paragraph (b)(ii), in the proposed new subsection (4A)(b), to delete “5 working days” and substitute “2 months”.
The time limit in the amendment is unreasonable. I accept the Minister's point that it is necessary to promote efficiency and prevent the waste of resources. We need quicker processing of applications for the benefit of asylum seekers, but a five working day time limit is too tight. It does not allow for any latitude. We propose a time limit of two months. It is more reasonable. The Minister says asylum seekers will have the means to have an address, but that will not always be the position and we should provide for such situations. Two months is the right time limit.
I am shocked by this amendment. The State is being more than accommodating in dealing with this problem. If somebody is seeking asylum, it is in their interest, and those of the State and taxpayers, that we have an efficient system for doing so. The Minister has described travel and overnight accommodation arrangements. What more can any Department or country do to expedite this matter? The last thing we want to see again is footage such as that shot in Mount Street a number of years ago. The situation now is far more dignified. It is perverse to propose an amendment that would extend the time to two months and draw out the asylum procedure. These people are not working and they must want their asylum applications to be expedited. I cannot understand this proposal.
I agree with Senator Morrissey that a two month period is grossly excessive. I cannot imagine what could happen in the remaining seven weeks which could not happen in the first working week or five working days. I might consider, before Report Stage or perhaps when the Bill is brought before the Dáil, varying the five days upward, but I could not agree to a term of two months. That would be to make a nonsense of the system.
Matters have improved dramatically. This might not have been clear to the Senator when she put down this amendment. The Refugee Appeals Tribunal is now dealing with applications made originally in October and November of last year. To permit a two month delay for people who are falling by the wayside would undo all that good work and send the wrong signals to asylum seekers, society at large and to the people who have worked extremely hard – I pay tribute to them for that – to get the system running so smoothly and quickly. To tell them, when they are obliged to deal with a case within, effectively, two or three months as a matter of course, that the applicant can take two months to decide to give an explanation for why they did not attend for an interview would be to introduce an imbalance into the process.
I will consider whether the five days is too short a period, but there are no circumstances in which I will make a significant enlargement. I will certainly not consider a two month period.
Acting Chairman
Is Senator Tuffy pressing her amendment?
I hope the Minister considers revising the time period upwards and making it reasonable. This is not about forcing a delay in the asylum application process. The idea is to allow for circumstances where an asylum seeker might not be able to comply. This provision, with other restrictions in the section, puts up barriers to asylum seekers. Everybody wants to speed up the application process. Asylum seekers do not want the process to be delayed unnecessarily, but the amendment is to allow for circumstances where it might not be possible for them to comply. We are not suggesting that there should be no time limit, merely that it should be reasonable. I urge the Minister to revise the time period upwards to a reasonable level. However, I am prepared to withdraw the amendment at this stage.
In case I have misled the House, the effect of the amendment would be to allow a period of two months for the person concerned to establish an address at which he or she could be contacted. If I allowed that period to take effect, effectively, many people would be at liberty to keep us in the dark as to where they were staying and remain at large in our society for a two month period. One could not exist in Ireland for two months without having some address, especially when the RIA will provide overnight accommodation instantly as of right. Allowing people a two month period to find an address at which they propose to be corresponded with would not add anything to the system. It would merely lead to further chaos.
Is the Minister saying he would consider increasing upon the figure of five days?
Acting Chairman
The Minister said he would consider it, yes.
Amendment to amendment, by leave, withdrawn.
I move amendment No. 2 to amendment No. 15:
In paragraph (b)(ii), in the proposed new subsection (4A)(b), after “withdrawn” to insert “unless the applicant is accommodated under direct provision in which case it shall be the duty of the Minister to inform the Commissioner of the applicant's address”.
If the Minister has provided accommodation for an asylum seeker, it is his duty to notify the commissioner of the address.
I oppose this amendment because it would introduce another stage of bureaucracy. If a person was fixed up with direct provision, somebody would have to notify the Department of Justice, Equality and Law Reform and the Minister, in turn, would have to notify the Refugee Applications Commissioner of the address of the individual. This would add two bureaucratic steps to what is fairly and squarely the obligation of the applicant. Persons in direct provision will have access to relevant materials and will already have been notified of their obligations under the system. Why should responsibility be cast upon the Minister? If he or she did not find out where individuals were, the system would fall down because he or she would fail to notify the commissioner of the location of a person.
We have to employ common sense and grasp the following: if one comes to Ireland seeking asylum, one is undertaking a series of obligations, one of which is to co-operate fully with the asylum process. We are not going down the road the Tories are suggesting in Britain of putting people in detention, or the Australian route. We have taken the position which I support of leaving asylum applicants at liberty within our society, free to move here and there and spend their time as they wish. We have provided for them with direct provision of accommodation. However, the corollary of this is that the onus is on the asylum applicant to provide information for the Refugee Applications Commissioner in order that he or she can correspond with him or her. This strikes a fair balance.
If the Minister was detaining people in centres around the country – a move which nobody in this House would advocate at this point – I could appreciate him or her being obliged to notify the Refugee Applications Commissioner of where a person is. However, since the person is, effectively, at liberty, though obliged to reside in the accommodation provided by the State, it is reasonable to require him or her to keep the commissioner fully up to date as to where he or she is at any given point.
I oppose this amendment. If it was approved, it would effectively enable people to play cat and mouse with the Department of Justice, Equality and Law Reform and lead to a never – ending circle. The Minister outlined the exorbitant number of applications withdrawn, that go missing or fail to materialise on even a second occasion. If we oblige the Minister to find addresses – people probably have multiple addresses – it would only serve to increase delays and costs. We have been told that the system is costing the Exchequer €45 million.
When people arrive on our shores, we, rightly, have obligations. Equally, however, they have duties to comply with the procedures we put in place. For these reasons I am very much opposed to the amendment.
Amendment to amendment, by leave, withdrawn.
I move amendment No. 3 to amendment No. 15:
In paragraph (c), in the first line, to delete “(inserted” and substitute “(as amended”.
This is to correct a typographical error.
I am grateful to the Senator for tabling this amendment. She is correct, there is a typographical error and I propose to amend it by leave of the House.
Amendment to amendment, agreed to.
Acting Chairman
I hope we can move through the other amendments as quickly.
I move amendment No. 4 to amendment No. 15:
In paragraph (c)(ii), in the proposed new paragraph (e), to delete “the duty of the applicant to” and substitute “the desirability that the applicant should”.
It would be wrong to insert a legally binding duty on the applicant to co-operate with the asylum process. We accept that there is a duty to co-operate, but it is a moral one, not one that should be written into statute. This provision, with others in the section, is over the top.
Acting Chairman
I urge everybody to speed up the processing of the Bill, otherwise we will not get through all the amendments. As this a technical matter, a matter of judgment, I call upon the Minister.
Briefly, I am opposed to this amendment. I do not think our provision is over the top. The Bill casts a legal duty upon asylum applicants to comply with the law. It is not a moral duty. I am not legislating for morality but for a crisp, firm, legal duty. This is not a desideratum, to use a Latin phrase, but a sine qua non. As far as the policy of the Act is concerned, there is a clear unequivocal legal duty. In some cases a failure to comply with it is punishable. Once the process is invoked an asylum applicant must see it through.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
We move on to amendment No. 5 to amendment No. 15. Amendment No. 18 is related and they can be discussed together.
I move amendment No. 5 to amendment No. 15:
In paragraph (c) (iii), in the proposed new subsection (10), to delete “3 working days” and substitute “one month”.
A person should have a chance to come to a second interview. That right has been taken away. One month would be a reasonable time limit. Three days will cause difficulties for some people. I wish to hear the Minister's comment on our amendment. The same point is relevant to amendment No. 18.
I am against this. The primary onus is to notify in advance that one is not turning up for an interview. This is what I would expect from someone acting in good faith. The three day period provides a period of grace after the interview to deal with unexpected domestic difficulties that might arise on the day. If I say the period is one month then nobody will notify in advance, nobody will notify within three days and the system will foul up, so I am against it.
If one is to bring this to its logical conclusion the taxpayer is going to pay out €90 million instead of €45 million. There will be twice as many non-shows as the Minister has already indicated. I am delighted this Minister is here today and that we do not have the Minister we had in 1996 framing this legislation.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
We move on to amendment No. 6 to amendment No. 15. Amendment No. 19 to amendment No. 15 is related and both can be discussed together, by agreement.
I move amendment No. 6 to amendment No. 15:
In paragraph (c) (iii), in the proposed new subsection (10), after “withdrawn” to insert, “: provided that if such reasonable excuse is subsequently furnished the Commissioner may deem the application to have been revived”.
Given that the Minister has not accepted the amendment to allow for a one month period of notice, it would be reasonable to allow the applicant to give an excuse after the date concerned. It is not to make this the norm but, rather, to allow for exceptional circumstances. I do not have any problem with trying to improve procedures, to speed them up and make them more efficient but one has to have a certain amount of latitude.
Acting Chairman
Amendment No. 19 is the same.
It makes the same provision in regard to this section.
Again I am opposing it. The purpose of this is to provide clarity and certainty. If I were to accede to either of these two amendments, I would be saying that there was a further period in every case in which people could re-open the case. The term used in the amendment is "reasonable excuse is subsequently furnished". We would then see people going down to the Four Courts to determine whether an excuse was reasonable or not, bringing a massive potential for delay.
What I am saying is that once an interview is fixed one will be notified of it in advance and have all the period right up to the interview itself to cancel that interview on reasonable grounds. There will also be a period of grace after the interview to explain why one did not show.
It has to be emphasised that this hearing is a matter of central importance. It is not something for the idle convenience of someone to attend if he or she has nothing better to do. It is a solemn occasion where one is putting to the State the grounds for application. One simply cannot say that one can do so in his or her own time and he or she will come back later and explain why he or she did not turn up on reasonable grounds. This would create an area of uncertainty in which every file would have to remain open and if there was an argument as to what was or was not a reasonable ground we would all end up in the Four Courts disputing the issue with the Refugee Applications Commissioner not to extend the time.
These are strict time limits and they are meant to be understood as such because, as I have said already, this is a solemn occasion in which a person has invoked the protection of the State, claiming the protection of the 1951 Geneva Convention. The date upon which the application is made to the applications commissioner is of central importance in that process. It is not just some casual interview in a relaxed process, it is a solemn occasion into which significant resources are put by the State. I am not content to have a situation that can be dealt with casually by people who feel they can get away with delaying, frustrating or drawing out the process.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
We now proceed to amendment No. 7 to amendment No. 15. Amendments Nos. 8, 20 and 21 to amendment No. 15 are related and will be discussed together, by agreement.
I move amendment No. 7 to amendment No. 15:
In paragraph (c) (iii), to delete the proposed new subsection (11) (a).
What is the meaning of failing to co-operate? It is a vague concept and is very one-sided. It is unfair that a person's application could be deemed to be withdrawn. This is particularly so when the time limits are taken into account. I am totally opposed to this new concept. This subsection should be deleted.
In regard to amendment No. 8 to amendment No. 15, it is unfair that the Minister is allowed to determine non-co-operation. This subsection should be deleted.
As I said in my opening comments on this entire amendment, the duty to co-operate is being put in a central place by these amendments. Senator Tuffy asked what constitutes a failure to co-operate. It is a bit like an elephant; it is easy to know it when you see it but it is a lot more difficult to define it. I do not intend to set out in written form all the conduct that could or could not amount to a failure to co-operate.
All of this is subject, first of all, to the obligations of the officials who operate the system to respect the law first and the Constitution second. Secondly, if it were to be abused in any way or if undue advantage were to be taken of the term "failure to co-operate" and it were stretched to deal with cases unfairly, I have no doubt that the courts would correct the situation very promptly.
Amendment to amendment, by leave, withdrawn.
Amendment No. 8 to amendment No. 15 not moved.
Acting Chairman
Amendments Nos. 9 and 22 to amendment No. 15 are related and may be discussed together.
I move amendment No. 9 to amendment No. 15:
In paragraph (c)(iii), in the proposed new subsection (11), to delete “shall” and substitute “may”.
The purpose of this amendment is to allow for a certain amount of discretion. The section as it is obliges the Minister to send out notices to lead to applications being withdrawn. That could be an unfair determination. It would be more reasonable to use the word "may" rather than "shall".
I simply oppose this. If somebody is not co-operating, why would the commissioner of the tribunal not follow up the matter or take action on foot of it? The insertion of crisp language in the use of the term "shall" makes clear to the person contemplating whether he or she should co-operate the consequences of failure to do so.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 10 and 23 to amendment No. 15 are related and can be discussed together.
I move amendment No. 10 to amendment No. 15.
In paragraph (c)(iii), in the proposed new subsection (11), to delete “10 working days” and “2 months”.
The purpose of this amendment is to allow for a reasonable timeframe. I submit that ten working days is a very short time to allow the applicant to respond. We do not know what circumstances could arise leading to the applicant not responding within ten days. Two months is a more reasonable period. The overall time limits in this section are unreasonable.
The Senator is asking to extend the time limit, but surely we should be seeking to reduce the length of time. I am sure the applicant will be in the country and the circumstances for the applicant making an appeal are not going to change. I do not understand why they could not make that appeal within ten days. I doubt the value of increasing the period to two months. I do not understand the motive for extending the period of an appeal mechanism. Surely it should be about reducing, not extending, the period.
The two month period is quite unreasonable. Given the amount of time taken by the RAC and the RAT to deal with these cases two months would be entirely disproportionate. There may be some case for a very narrow incremental adjustment from ten working days. I will consider that on Report Stage. Nothing of the order of the Senator's amendment commends itself to me.
Senator Morrissey has raised the issue of speeding up the process and I do not disagree with this. We must allow for circumstances where people may not be able to comply with the requirements. Most asylum applicants want their case to be speedily dealt with. If we are worried about people who will delay the system we should have a proper green card system in place.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 11 and 24 to amendment No. 15 are related and can be discussed together.
I move amendment No. 11 to amendment No. 15:
In paragraph (c)(iii), in the proposed new subsection (11), to delete “sending” and substitute “receipt”.
I believe the time should run from the time of the receipt of the document rather than from its sending by the commissioner. It seems unfair to run a time limit from the time of the sending of a document in case there is a reason for a delay in the document being delivered.
I am opposed to this amendment because it would not work. If the applicant is unco-operative, and this is the kind of case we are dealing with, he or she simply has to deny receiving the notice or attempt avoiding receipt by failing to provide information about a change of address. This would effectively undermine the entire asylum process and would only serve to reward the unco-operative applicant.
If receipt rather than sending was the trigger, then the organs of the State dealing with this matter would never know with certainty when the clock started ticking. That being the case, it would be almost impossible to prove in court compliance with the statutory time limits. It would be a matter of speculation as to whether something was eaten by the dog, mislaid or not delivered. I cannot envisage circumstances where it would be possible for the State to enforce this law to say the time started on one date and ended on another. That would not work.
When one is dealing with cases of non-co-operation it is more sensible and rational to have a verifiable date from which the clock starts ticking, rather than leaving it to the non-co-operative person to establish this.
Legal precedent holds that one has seven days to reply from when a letter is sent, not seven days from when one receives a letter.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 12 and 25 to amendment No. 15 are related and can be discussed together.
I move amendment No. 12 to amendment No. 15:
In paragraph (c)(iii), in the proposed new subsection (11), after “withdrawn” to insert “unless a reasonable excuse in that behalf is subsequently furnished”.
This amendment is important if there are to be time limits and the consequences for failure to co-operate are as was outlined. We should allow for a person to give a reason. What happens if there is a postal strike? There can be unusual circumstances as to why a person may not be able to co-operate.
I am opposed to this amendment for obvious reasons.
Amendment to amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 13 to amendment No. 15 is consequential on amendment No. 14 to amendment No. 15. The amendments can be discussed together.
I move amendment No. 13 to amendment No. 15:
In paragraph (d)(i), in the proposed new subsection (1A)(b), to delete “refugee, and” and substitute “refugee.”.
I propose these amendments because I feel there should be a right of appeal in circumstances where the commissioners can deem an application withdrawn for failure to co-operate. It is unreasonable not to allow an appeal in these circumstances.
This would allow an applicant to appeal against his or her own decision to withdraw an application or against his or her own actions in failing to pursue an application. That would be unreasonable. It would also have the effect of turning the Refugee Appeals Tribunal into an investigating body of first instance. If there was no material for it to consider except that which was put before it and seen by officials of the State for the first time in the course of the appeal, that, in effect, would make it into a tribunal of first instance. In those circumstances, I am opposed to and unable to accept the amendment.
I wish to comment on the Minister's points. This provision, together with the concept of failure to co-operate, will result in cases ending up in the courts. This measure is restricting asylum seekers' rights and is unfair. I will withdraw the amendment, but I will be raising the matter again on Report Stage.
Amendment to amendment, by leave, withdrawn.
Amendment No. 14 to amendment No. 15 not moved.
I move amendment No. 15 to amendment No. 15:
In paragraph (d)(ii), after “in subsection (3)” to insert “(inserted by the Immigration Act, 1999)”.
This is a technical amendment in respect of which I would like to hear the Minister's reply.
This amendment is well made and correct. I accept it.
Amendment to amendment agreed to.
Acting Chairman
Amendment No. 17 to amendment No. 15 is related to amendment No. 16 to amendment No. 15 and they may be discussed together by agreement.
I move amendment No. 16 to amendment No. 15:
In paragraph (d)(ii), to delete the proposed new clause (I).
This amendment is consequential on the Minister's proposal to curtail the right of appeal. I would like to hear his comments.
We are opposing this amendment. This, effectively, is an amendment to achieve the purpose of allowing applicants to appeal against their own decisions which we regard as patently illogical. Allowing people to appeal against the consequences of their own actions is equally untenable. If it were the case that the State unfairly deemed something to be a failure to co-operate, the State knows that it would face correction by the courts, but we cannot have a situation where a person fails to co-operate, knows what the consequences are, has been fairly and amply warned of them and then wants to appeal against the consequences of that failure to co-operate.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 17 to 25, inclusive, to amendment No. 15 not moved.
Acting Chairman
Amendment No. 26 to amendment No. 15 is related to amendment No. 16 and they may be discussed together.
I move amendment No. 26 to amendment No. 15:
After paragraph (e)(ii), to insert the following new subparagraph:
"(iii) the insertion in subsection (3) (as amended by the Immigration Act, 1999) after "under section" of " 12 or".
The purpose of this amendment is to provide for a right to an oral hearing of a manifestly unfounded appeal under section 12. We believe the current appeals system is unsatisfactory and unfair. I would like to hear the Minister's comments.
The effect of the amendment would be that where an asylum application had been found, on investigation at first instance by the independent Refugee Applications Commissioner, to be manifestly unfounded, the applicant should be entitled to an oral hearing. I do not agree with this proposal. If anything the system should be made more rigorous rather than being loosened in the manner suggested.
Let us consider the plain English meaning of the expression "a manifestly unfounded claim for refugee status". It means a claim to be recognised as a refugee that is made by a person who not only is not a refugee at all but that fact is obvious on the most cursory investigation; in other words, a claim that is self-evidently devoid of merit.
Where the Refugee Applications Commissioner recommends that an applicant for refugee status be refused under section 12, on the basis that it is manifestly unfounded, the applicant, notwithstanding that the commissioner could find no merit in his or her application, is given an opportunity to make an appeal to the Refugee Appeals Tribunal on the papers.
In making its decision, the tribunal will have before it any submissions made by the applicant and the material supplied by the commissioner in the course of the investigation. Before deciding on the appeal the tribunal, if it considers that it needs further information on certain aspects of the case, may use its powers under section 16(6) of the Refugee Act 1996 to request the commissioner to make further inquiries and to furnish the tribunal with such further information as the tribunal considers necessary within such period as the tribunal may specify.
This is, by any reasonable yardstick, a fair appeals mechanism for cases which are found at first instance to be devoid of substance and manifestly so. The manifestly unfounded nature of these cases will often emerge where the applicant has failed to co-operate with the investigation of his or her claim, has told lies, failed to turn up for interviews or has generally failed to produce any evidence that he or she is in need of protection. The second pair of eyes provided by the independent member of the tribunal is a more than sufficient safeguard against deserving cases slipping through the net. Should the tribunal disagree with the recommendation of the commissioner, that recommendation is set aside and the case is remitted to the commissioner.
It is not necessary and it would be undesirable to permit an oral hearing in such cases. It is difficult to see what value exists in providing an oral hearing where the applicant has so clearly failed to come anywhere near the required standard.
Amendment to amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
