I am pleased to have the opportunity to introduce the International Protection Bill 2015 to the House and look forward to engaging with Members as we progress the Bill. Its principal purpose is to reform the system-----
International Protection Bill 2015: Second Stage
On a point of order, I am sorry to interrupt the Minister, but I am concerned that this is a very important Bill and I would like to call a quorum because it is such important legislation.
The principal purpose of the International Protection Bill is to reform the system for determining applications for international protection in Ireland through the introduction of a single procedure. This delivers on the commitment given in the statement of Government priorities to legislate to reduce the length of time the asylum applicant spends in the asylum determination system and consequently in direct provision through the establishment of a single applications procedure. The Government has, therefore, singled out this aspect of our immigration and asylum system and given it special priority in order that it can be addressed with specific and timely focus under today's Bill. It is also intended that the Bill will be in compliance with the United Nations convention relating to the status of refugees and with the related EU directives on asylum procedures and qualification into which Ireland has opted.
The publication of the Bill and its early enactment and implementation is also a key recommendation of the report of the working group on improvements to the protection process, including direct provision and supports to asylum seekers, which I and the Minister of State, Deputy Aodhán Ó Ríordáin, established. The very welcome report was published on 30 June 2015. The Bill now responds to 26 of the working group's recommendations. I thank the Members of both Houses who contributed to the pre-legislative scrutiny of the general scheme of the Bill by the Oireachtas Joint Committee on Justice, Defence and Equality which issued an interim report in July.
The recent refugee flows to, and across, the Continent and the life-threatening risks being taken highlight the fact that the asylum and protection process is one that very much has a human dimension. Its application procedure has human beings and communities on both ends. The introduction of a new and streamlined procedure will help to remove some of the human stresses and strains that have arisen for all concerned under the present cumbersome and multi-layered application framework and its ensuing delays. We are all very familiar with these. A very real sense of who we are dealing with under the Bill and why we are doing so is conveyed by the fact that international protection can be secured either as a person who is eligible for refugee protection on the basis of a well founded fear of persecution in the country of origin, or as a person who is eligible for subsidiary protection on the basis of a real risk of suffering serious harm if returned to the country of origin. Under the Bill's proposed procedure, an applicant will make one application only and will have all grounds for seeking international protection and for being permitted to remain in the State examined and determined in one process.
In keeping with the Geneva Convention, persecution can arise under the Bill by reason of race, religion, nationality, political opinion or membership of a particular social group. Acts of persecution are defined in the Bill as constituting a severe violation of human rights. The term "serious harm" is defined to include execution, torture or serious threat to a civilian's life in a situation of armed conflict. The term "international protection" is defined as status in the State either as a refugee or as a person eligible for subsidiary protection on the basis of a declaration given under the Bill.
In broad terms, the introduction of the single application procedure will include the following benefits: Ireland's international protection system will be brought into line with other EU member states; there will be speedier processing of new applications for international protection; and there will be a significantly reduced time for applicants in direct provision accommodation and in its costs to the State.
Under section 6, changes will be made to current legislation. In particular, the Refugee Act will be repealed. Originally enacted in 1996, it has been heavily amended during the years and its provisions will be significantly updated by the Bill. The Bill will also see the revocation of a number of sets of regulations made under the European Communities Act in the period 2006 to 2015 for the purpose of giving effect in Irish law to provisions of EU directives in the field of asylum. I am very pleased that the Bill provides the opportunity to consolidate these aspects.
The Government is committed to a balanced migration policy. While the reform to the protection system will ensure Ireland effectively lives up to our international humanitarian obligations, the accompanying changes to the immigration laws will ensure Ireland is equally effective in enforcing deportations and border controls to prevent and tackle those wishing to enter and remain illegally in the country without proper cause. The Bill contains important new amendments to the Immigration Acts relating to deportation and border control and is also aimed at improving the effectiveness of legislative provisions dealing with the arrest, detention and removal of non-nationals against whom a deportation is in force; the removal from the State of persons refused leave to land, of whom there are more than 3,000 every year; the appointment of immigration officers in the context of the ongoing civilianisation of border control duties; and the designation of an approved port for the purposes of entry into the State.
The enactment of the Bill will involve key structural changes being made to the present administration of our asylum and protection regime. The Bill's repeal of the Refugee Act 1996 will effectively abolish the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. A new international protection appeals tribunal will replace the existing Refugee Appeals Tribunal, providing effective remedy against decisions taken on applications including a decision to refuse. The new tribunal will be independent in its functions and designed to enable the efficient conduct of its business and consistency in its decisions.
The Office of the Refugee Applications Commissioner will be replaced by a dedicated unit within the Department acting as the determining authority at first instance for applications for international protection. This unit will be known as the protection office. Existing staff and others experienced in the processing of protection applications, who are trained to UNHCR standards, will transfer to this office. The existing management team in the Office of the Refugee Applications Commissioner will also play a significant role in seeing through the establishment and functioning of the new office. Priority will be given to ensuring existing best practice and standards in the processing of asylum and subsidiary protection applications will be embedded and maintained under the new dispensation.
I will now turn to the architecture and provisions of the new Bill. In so doing I will point to its provisions, rather than go into detail section by section. An explanatory memorandum is also available. The Bill consists of 77 sections laid out in 13 Parts which are followed by two Schedules.
Part 1 of the Bill contains the usual commencement, interpretation and definition sections.
Part 2 of the Bill deals with qualification for international protection and consists of sections 7 to 12, inclusive. These provisions are intended to be in compliance with the EU directive which I have mentioned. The directive was adopted in 2004 and recast in 2011 to ensure a uniform status in the EU member states for refugees or persons eligible for subsidiary protection. The Bill has been prepared in compliance with the 2011 recast of the original directive.
Part 3 of the Bill deals with applications for international protection and consists of sections 13 to 25, inclusive. That goes into the detail about the preliminary interviews, and that if there is an unaccompanied minor coming, Tusla, the Child and Family Agency needs to be told that he or she is seeking to make an application. Obviously, we have got much better and have much better procedures in this country for dealing with unaccompanied minors. It is noteworthy in the current movement across the Mediterranean and through Balkans that there is a high percentage of unaccompanied minors.
Sections 15 to 17, inclusive, set out the procedure for making an application for international protection and giving permission to an applicant to remain in the State for the duration of the single procedure. Then there are various provisions, which allow for the issuing to an applicant a statement in writing specifying the procedures to be followed and on the taking of the fingerprints of applicants. Section 20 provides for grounds for the detention of an applicant under the supervision of the District Court. Section 23 provides that the Minister or the International Protection Appeals Tribunal may require an examination of an applicant's physical or psychological health, and there are various other sections in that part.
Part 4 of the Bill deals with the assessment of applications for international protection and consists of sections 26 to 32, inclusive. Section 30, for example, provides that protection against persecution or serious harm can only be provided by a state or parties controlling a state or part of a state, provided they are willing and able to offer protection which is effective and of a non-temporary nature. There are various definitions dealt with in that section.
Part 5 of the Bill deals with the examination of applications for international protection at first instance. Section 33 provides for the examination of an applicant by an authorised officer to determine first if the applicant should be given a refugee declaration and, if not, if the applicant should be given a subsidiary protection declaration. Section 34 provides that as part of the examination the applicant shall be subject to a personal interview. That is an important section. The various guarantees applicable to unaccompanied minors are set out, including that the interview is conducted by a person who has the necessary knowledge of the special needs of minors.
Part 6 of the Bill deals with appeals to the International Protection Appeals Tribunal and consists of sections 40 to 45, inclusive. These provisions are in compliance with the EU directive on asylum procedures. Section 40 provides that an appeal may be brought by notice in writing within 15 days of the sending of the notification of the recommendation at first instance to either refuse refugee status or to refuse both refugee status and subsidiary protection. There is also the possibility of the tribunal holding an oral hearing for the purpose of an appeal.
Part 7 of the Bill deals with the various outcomes for applicants for international protection. These provisions represent the watershed of the new applications procedure. In summary, in respect of an application for international protection which is admissible for processing in Ireland and is not subsequently withdrawn, the applicant concerned can have one of the following outcomes: refugee status, subsidiary protection status, permission to remain in the State, voluntary return to the country of origin or deportation order.
Section 46 provides for the giving of, and the refusal to give, a declaration of refugee status or subsidiary protection status. On the other hand, section 47 allows for voluntarily return to the country of origin.
Section 48 provides that the Minister shall, in the case of an applicant who is being refused international protection, consider whether the applicant should be given permission to remain in the State and provides that in making this decision the Minister shall have regard to the applicant's family and personal circumstances and his or her right to respect for his or her private and family life. This makes it clear that the Minister, in making a decision, shall have regard to the provisions of Article 8 of the European Convention on Human Rights.
Section 49 provides for the prohibition of return based on the refugee convention and the European Convention on Human Rights. Section 50 provides for the making of a deportation order. Section 51 provides a procedure for the revocation of international protection status, principally where the person is excluded from, or has ceased to be eligible for, international protection.
Part 8 of the Bill deals with international protection aspects and consists of sections 52 to 57, inclusive.
Part 9 of the Bill provides for matters relating to programme refugees and temporary protection of displaced persons. Section 58, for example, provides for the admission to the State of persons for resettlement which is usually in co-operation with the United Nations High Commissioner for Refugees.
Part 10 of the Bill deals with the International Protection Appeals Tribunal; Part 11 deals with transitional provisions which will be necessary, while Part 12 deals with more miscellaneous matters.
On Part 13, as intended by the Bill, an effective immigration and asylum system must ensure those entitled to a positive decision receive it as soon as possible. At the same time, we must also provide effective safeguards for removing those without the sustainable grounds for remaining in Ireland. The amendments found in this Part of the Bill, therefore, address, among other matters, a number of gaps in existing legislation in the area of deportation that have been identified in court proceedings.
In concluding the introduction of the Bill before the Seanad, I consider that it can simplify and streamline existing arrangements and provide applicants with a final decision on their application in a more straightforward and timely fashion and will also, as a consequence, reduce the length of time applicants spend in the direct provision system. At the same time, it will allow for the identification, at a much earlier stage, of persons who have no entitlement to stay in the State and who can safely return to their country of origin.
I thank Senators for their engagement with this important legislation. There is much more work to be done in terms of broader migration policy, but the Bill represents an important step forward in streamlining the asylum and protection provisions which will ensure the dignity of all concerned. In that spirit, I look forward to the debate of its provisions and the reforms which it can put in place. I commend the Bill to the House.
I welcome the Minister and thank her for bringing forward this legislation.
At the beginning, if I would make one appeal on this legislation, it would be that when we come to Committee Stage we might approach it in a flexible way because it is a complex issue which to some extent is changing day by day. As we watched the television pictures in recent times of the movement of refugees, it was, to say the least, a most shocking spectacle. Particularly when one looks at the children who were involved in those cases, one gets the sense that one wants to do something substantial to make our contribution. We should not in any way try to shirk the responsibility we should feel. In fact, it is in our tradition. It is expected of us that we would be to the fore when it comes to humanitarian policies. That is the way we should approach this legislation.
We have much to learn from the system in place heretofore and while there may be some good aspects to it, often under the radar there were matters that we should not feel to happy about. Unfortunately, for those who found themselves in inadequate situations, they tend to stay silent to some extent lest they might in some way endanger their immigration prospects.
That is understandable. It is like people going to America without proper documentation. Often they are wary and cannot look for their rights. To some extent they are in a hiatus while that is happening. In our particular case, those of us who were able to experience aspects of it could see some of the difficulties for people who were waiting for a long time to be processed and to have their cases concluded. It is possible that was allowed to continue for too long and it created, again under the radar, a degree of anger and dissatisfaction. When there is anger and dissatisfaction, people in that position may feel they are not respected members of society. That is the worst that can happen in such a case. Children have to be central to this legislation because they are always in the front line of suffering when issues like this arise. I am not just talking about the stream of thousands of people we saw on the move but even those in localities also. We need to be careful not to treat those children differently from the way we would treat our own children in Ireland. We must respect certain aspects of their privacy and of their security and that must form a central part of the Bill.
I hope the issue of family reunification will be looked at closely because I believe the majority of refugees want to be reunited with their families. To be ostracised from one's own family as a result of force, having been ostracised from one's own community and country, is very worrying. The headings in the Bill are right. What are the rights that should be considered? The fear of execution and so on is included. Nobody is suggesting the floodgates should be opened without thinking in terms of our own national security also.
I spoke yesterday in the House on the issue of what was happening in the Middle East and the concept of war taking over from diplomacy and dialogue. One of the reasons there are huge numbers of people on the move is because of what is happening in places such as Syria. I have grave doubts about bombing campaigns helping that situation. It will disrupt normal life, bring about killings and spawn a whole new generation of terrorists who in turn will drive ordinary people from their own countries. We all know that Europe in particular was not prepared for the movement that took place. It was clear that the European Union and its structures did not foresee the tsunami of people on the move which hit it. We still have not corrected this. Each state was asked to make a contribution.
This legislation provides precisely for us to deal with this issue in great detail. In dealing with it, we have to see how the people who come here will be helped to integrate into the new country of their adoption. That is particularly important. They have to be helped to integrate. I know many organisations doing great work in interacting with the new immigrants. They respect their culture, customs, religion and so on. All of these issues have to be a part of it. I am not saying that can be provided for in legislation, but the legislation should facilitate it because that will be vital for those people. We must bear in mind that those people must feel welcome in the community of their adoption. While we often hear some negative comments, by and large, the comments have been compassionate, positive and constructive. We must encourage that whether through legislation or through other policies or resources. It is important to do this.
I often think of the people who emigrated to America in the 1950s and earlier who were met with signs saying "No Irish need apply". That did happen and there is the photographic evidence. Some even went further than that and said "No Irish or dogs admitted". That is how serious it was. That is our history and we must ensure it does not happen again.
Some deportation cases of which we have heard have been heartbreaking. I accept that being on the outside and without knowing all the detail, we are just guessing the background, but I saw cases of people who had integrated into the local society, their children were going to schools, they were highly respected and members of organisations and yet were set up for deportation. Even if I put forward only one case, there have been many others. Those cases should never be allowed to arise in the future. There has to be a clear-cut methodology and we have to spell out the deportation process or voluntary return to the homeland. I think especially of deportation because while organisations can do a good job in ensuring a case is well put and people are defended, protected and have their rights looked after, many deportations have taken place in the middle of the night which I do not think is fair. If there is a possibility, as those people have said, that their lives would be in danger if they went back home, it is important we have a way of finding out how that is the case. It is not a matter of a simple registration when they come here. Often it is not easy to get that information from countries where there is turbulence and civil war. Can one imagine sending a mother with two or three children back to such a situation? When they go back one hears no more about them. Is it possible they would suffer, be tortured or even killed? Nothing should surprise us, given the depravity of ISIS and what it is capable of doing. The worst feature is that there are various factions in Syria and other places acting like warlords, all looking after territorial issues. There is no central consolidating feature. They are not like us with a democratic structure and a justice system and a methodology of having one's case heard. We need to be very sensitive in this area.
Being aware of the Minister's compassion in these areas, it would be great if we had a more fluid approach to Committee Stage in order that what comes out at the end of it might take on board all the potential dangers of people not being treated as proper human beings and not having their rights protected and vindicated.
I welcome the Minister who has been a regular visitor this week. I also welcome the Bill which is very important. It reflects what we should be doing as a society. It is putting into action both the report and the working group the Minister set up. Twenty-six of its recommendations are being activated through the Bill. It was in a statement of Government priorities dating back to July 2014 when the Government reaffirmed its commitment to dealing with this issue.
At that stage the Government reaffirmed in a very real way its commitment to dealing with this issue. I hope no one in this society would defend the current system of direct provision where people are within a structure or system for up to nine or ten years. Often, the reason is that people are appealing decisions that do not grant them permission to stay. Nevertheless, our society, community and people would not approve of a system, whatever the appeal mechanisms, whereby someone is left in limbo awaiting a final decision for such a length of time.
The Bill makes a real effort to address these concerns. The 26 recommendations reflected in the body of the Bill are welcome. Senator Labhrás Ó Murchú is the director general of one of our greatest organisations that has branches throughout the world. The organisation has embraced and looked after our emigrants. When they have found themselves in difficulty, they have been able to relate to music and a community in exile that is built around our greatest tradition, that is, music, as well as Gaelic games. Senator Labhrás Ó Murchú is well equipped to speak on this issue and to point out to us what our responsibilities should be. Some of the stories of posters declaring "No dogs, no Irish" did not only appear in America or faraway countries. They were in some European countries as well, even including our nearest neighbours. We must not behave like that in any way. I heard a father being interviewed on the "Ryan Tubridy Show" this morning. His child was on the "Late Late Toy Show". They had to put up with some horrendous racial abuse. The child is six years of age. Our society has matured in many ways. Those with a clear responsibility for making manifest the difference between right and wrong must ensure right always wins out.
The Bill puts right many wrongs. I sincerely hope it will pass through the House without delay. It is an absolute priority that this is signed into law as quickly as possible. I understand the point about taking a fluid approach to Committee Stage. However, I put it to the Minister that we cannot delay this in any way. It is not the panacea to resolve all our problems, but it is a significant step in the right direction. I believe it is probably the most ground-breaking legislation in this area in recent history. I commend the Bill to the House.
The Minister is welcome to the House again. We may have to rename the chair she is sitting in as the Fitzgerald chair.
That sounds good.
It is almost ten years since the last substantive legislation was introduced in this area. I am cognisant of what we are trying to do today. It is complex. It has been difficult for Members and the civil society organisations specialising in the areas of refugees, asylum and children's rights issues, from which many Members, including me, seek guidance and advice in advance of parliamentary debates, to analyse the intricacies of the Bill in the time that has been given to us. On the other hand, I appreciate the effort on the part of the Government to bring this important Bill to fruition before the Christmas recess.
I intend to focus my intervention and my engagement on the Bill to issues relevant to children and children's rights because I believe this is the area where I can add my expertise. In this regard, I thank the Children's Rights Alliance for its support in helping me to understand the complexities of the Bill.
Article 22 of the UN Convention on the Rights of the Child obliges Ireland to ensure that children seeking or holding refugee status, whether unaccompanied, should receive appropriate protection and assistance in the enjoyment of the rights of the convention and other applicable human rights treaties. The State is further obliged to assist a child in the tracing of his or her family and in obtaining information relevant for reunification. In circumstances where the child's family cannot be found, the child is entitled to the same protections as other children deprived of their families under the convention.
In 2006 the UN Committee on the Rights of the Child called on the State to "take necessary measures to bring [its immigration] policy, procedures and practice into line with its international obligations, as well as principles outlined in other documents, including the Statement of Good Practices produced by the United Nations High Commissioner for Refugees and Save the Children". As the Minister is well aware, Ireland will be examined before the UN Committee on the Rights of the Child in January 2016, in other words, in a few weeks time. It would be very disappointing if the provisions for children in this Bill were found by the committee to be wanting in respect of our convention obligations. My concern in this regard is further heightened by the fact that the key recommendations of the working group on direct provision in respect of children are not implemented in this Bill. It is disappointing that there have been no positive reforms for the 1,600 children currently in the direct provision system - they are the most vulnerable group of asylum seekers - despite a HIQA report in May 2015 identifying serious child welfare and protection concerns in a number of children and family services areas.
I realise it is outside the scope of the Bill, but the Minister knows of my view on the importance of having an independent complaints mechanism similar to that afforded to the Ombudsman for Children. I have raised the issue with the Minister for Children and Youth Affairs also.
I am also concerned about payments, particularly payments to children. They have not changed in 15 years. At the least, the payments should be brought in line with the qualified child increase as referenced in the working group report. I imagine that is a decision for the Minister for Social Protection but perhaps the Minister for Justice and Equality might advise the Seanad on the matter.
I welcome the provision in the Bill for the new single application procedure to streamline and speed up the application process. It is long overdue. Even ten years ago people were talking about the establishment of an independent protection appeals tribunal and the inclusion of child-specific forms of persecution as grounds for protection. These are referenced in section 7(2).
One substantive area I have difficulty with relates to the notion of the best interests of children and how this is dealt with in the Bill. I thank the Minister and her officials for their engagement in the past 24 hours to try to see how we can strengthen the relevant provisions and work together. Let us consider the provisions relating to the best interests of the child in Irish legislation. It was the current Minister for Justice and Equality who, during her previous role as Minister for Children and Youth Affairs at the time of the passage of the Child and Family Agency Bill as well as recently with the Children and Family Relationships Bill, put the key provisions relating to the best interests of the child into Irish law. I am keen to ensure we progress that legacy with this Bill.
Article 3 of the UN Convention on the Rights of the Child as it relates to the best interests of the child is clear. My difficulty is that the Bill only refers to the best interests of the child in a limited way, for example, in cases where international protection has been granted upon recognition of a child's status in the application of a medical examination to determine the age of an unaccompanied minor or in certain aspects of the conduct of protection interviews for unaccompanied minors. The working group report recommendation stated that the International Protection Bill 2015 should reflect the general principle contained in the Convention on the Rights of the Child to the effect that the best interests of the child should be a primary consideration in all actions concerning children.
I submitted an amendment yesterday, but I have since redrafted it to ensure that in introducing the idea of the best interests of the child as the primary consideration, nothing in this legislation shall affect provisions that are more conducive to the realisation of the rights of the child contained in other enactments or international law. For example, the European Court of Human Rights has asserted the importance of the child's best interests. It also stressed the importance of reuniting the child with his or her family unless it is not in the child's best interests. I have submitted an amendment to ensure that the best interest principle is subject to the obligations under the European Convention on Human Rights and the UN Convention on the Rights of the Child.
Another area about which I have concerns is training for authorised officers on children's rights. The working group report made clear that there should be a provision requiring decision-makers who take decisions in respect of children and those who interview children have received appropriate procedural and substantive training. This could be specific training on children's rights and certified qualifications in interviewing children. Perhaps that is something the Minister might address. I have not tabled an amendment on the matter at this point, but I will do so on Report Stage if I believe it is not being dealt with. Section 34(8) relates to how personal interviews by authorised officers may be dispensed with where the applicant is under the age of 18 years and he or she is of such an age and degree of maturity that an interview would not usefully advance the examination.
Will the Minister look at the Children and Family Relationships Act which includes the provision for a court to appoint an expert to determine and convey a child's view? I agree with the recommendation by the Children's Rights Alliance that the Bill should include a provision that section 34(8)(b) can only be exercised upon the appointment of an expert on the views of children. Perhaps that is something at which we might look.
Article 37 of the UN Convention on the Rights of the Child is very clear on the issue of child detention: "The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time". It was of great concern to me when I read section 20(1)(c) in conjunction with section 20(7). The latter provides that a child under 18 years can be detained as an adult if there are reasonable grounds for believing the person is not under 18 years. I believe this is a breach of the UN Committee on the Rights of the Child's general comment No. 6 which provides that in cases of uncertainty as to the individual's age, the individual should be given the benefit of the doubt and should be considered a child. I realise the Bill's provision has been inserted to protect a Garda who, using reasonable presumption, makes such a decision. In response, I have submitted an amendment that I hope will provide protection for children's rights and provide balance. I thank my group colleagues, Senators Fiach Mac Conghail, Marie-Louise O'Donnell, Averil Power, Katherine Zappone and Mary Ann O'Brien, who have supported the two amendments I have tabled for Committee Stage.
I welcome the Minister and the introduction of the International Protection Bill 2015. Others have spoken about the timing of the introduction of the Bill. It is unfortunate that every year and it seems to be a fact of life in the legislative calendar that we rush legislation at the end of the year and the calendar becomes overcrowded. It is unfortunate this year, in particular, that we have so many Bills to get through in a limited time.
Having said that, this is a Bill that is long overdue and that needs to be passed. It has been broadly welcomed in principle by NGOs working in the area. I acknowledge the presence in the Visitors Gallery of Sue Conlan of the Irish Refugee Council. It is reform that is very necessary which has been acknowledged by everyone. As the Minister said, this Bill is not the final step in reform of our immigration and international protection process. Clearly, there is a great deal more to be done by way of reform and this is an important first step. We are all conscious of the lengthy legislative history of this Bill and that it represents part of much bigger legislation that was at an advanced stage previously.
The aim of the Bill is to reduce the length of time an asylum applicant will spend in direct provision accommodation through establishing a single applications procedure. There is a good deal more in the Bill, but clearly a reduction in time is a clear aim or goal which we all welcome. We also welcome that it replaces what is a cumbersome and unwieldy framework for applications under the Refugee Act 1996, as amended. We are all cognisant of the need to ensure we underpin our commitments both nationally and at European level to deal with the migration crisis. All of us in this House have spoken about the dreadful plight of the desperate refugees we have seen in recent months fleeing Syria and Iraq in large numbers and at such terrible cost to themselves. We have also seen the dreadful deaths in the Mediterranean Sea. We are all very conscious, therefore, of the need for reform. The flaws in the current process have been well documented, but I will say again that delay is a major issue. Anyone who is familiar with the system of direct provision or has been critical of it has identified delays as a key issue.
It is welcome that the Bill has linked with the work done in this area by the working group on the protection process. As the Minister said, the legislation responds to the 26 recommendations made by the group. I commend my Labour Party colleague, the Minister of State at the Department of Justice and Equality, Deputy Aodhán Ó Ríordáin, who has been instrumental in seeking to achieve progress on the recommendations of the group. A key critique by NGOs which work in the area and whose input has been very helpful is that the Bill does not go far enough in implementing the recommendations of the working group. I hope we will see more progress on the other recommendations in due course.
As the Minister has said, the Oireachtas Joint Committee on Justice, Defence and Equality compiled an interim report on the Bill at the pre-legislative stage back in July. The benefits of the Bill are obvious. It will bring our law more closely into line with our EU obligations and the United Nations' convention on refugees. It will provide a co-ordinated framework and replace what is a fragmented system, which is welcome. The Bill will also tackle the issue of delay and provide a speedier and more efficient process, which is why, as I said, NGOs have broadly welcomed the Bill in principle and its introduction.
There have been quite a number of critiques of the Bill. I will identify some of the issues that have been flagged with us by groups such as the Irish Refugee Council, the Immigrant Council of Ireland, NASC and the Law Society of Ireland. It may be, given the limited time available, that we cannot see a way to change the Bill to respond to all the concerns. It is important to express them and look at how we can address them in future legislation or other policy mechanisms.
The recommendations made by the working group on the protection process should be implemented, although that need not necessarily be done through statute or this Bill. There should be more progress made on the other recommendations. Many groups have argued that the system of reception should have a statutory basis. There is a concern about statelessness which I know is something that has been worked on for some time.
Senator Jillian van Turnhout has raised issues about the adequacy of the protection of children's rights in the Bill as formulated, and concerns have also been expressed in this regard as it affects other groups. I note that the Law Society of Ireland, NASC and the Irish Refugee Council have referred to the difficulties with refugee family reunification. I know from speaking to colleagues who practise in this area that there is a great deal of litigation before the courts in respect of this area. It is very important, therefore, that we get the legislation right.
There is a concern that the definition of family in the Bill is too limited. There is also a concern that the time limits and procedures provided for may not adequately address people's need to be reunited with their families. There is also an issue with access to work for refugees or, I should say, for those in the system. I mean people seeking asylum and who have been in the system for a period such as six months. I note that section 16 states such persons are precluded from seeking work. Again, we should be able to look at the matter. Perhaps in other legislation we should look at how best to meet the needs of people to ensure they are not stuck in a system unable to work for lengthy periods.
I am conscious of the timing of this legislation in terms of the amount of legislation and business we must get through. I welcome this Bill as a first step in the much-needed reform of the international protection process. I thank the Minister for introducing the legislation in the House.
I welcome the Minister. Even though I have some grave reservations about some of the issues dealt with in the Bill, I still welcome the thrust of it. I concur with Senator Ivana Bacik that the Oireachtas seems to have a problem - it does not just apply to the Government - because each year as we approach Christmas and particularly as we reach the end of the Government's term legislation is rushed through. As always, rushed legislation is not good legislation. As I have only seven minutes in which to contribute, I will concentrate on two areas - separated children and the question of translation and interpretation.
Section 57(2) states that with regard to the relevant provisions of the rest of Part 8, "Content of international protection," the best interests of the child "shall be a primary consideration". I submit that the best interests principle should be fully enshrined in the legislation and that the definition of a separated child, as prescribed in the Separated Children in Europe Programme's statement of good practice, should be laid down in the primary legislation.
Clear and objective procedures on the assessment of the age of a child on arrival in the State should be laid down in primary legislation. Provision should also be made for this assessment to be made by appropriate and trained personnel. Currently, there is no statutory procedure for age assessment. This decision-making power must be exercised in accordance with the principles of constitutional justice and fair procedures and should include the right of review. Such principles require certain minimum statutory safeguards.
Section 24 is on the medical examination to determine the age of an unaccompanied minor. The section does not provide guidance on what factors a medical examination should take into account and the qualifications such a medical examiner should hold. In accordance with the UNHCR guidelines on best practice, there should be provision for the physical, developmental, psychological, environmental and cultural attributes of the child to be examined by independent professionals with appropriate expertise and familiarity with the child's ethnic and cultural background. Examinations should never be forced or culturally inappropriate. Particular care should be taken that the examinations are gender appropriate. The current proposals vest powers in the immigration officer with potentially serious consequences. For example, the power to detain could lead to the consequential detention of a minor as a result of a flawed age assessment. Immigration officers should be trained to recognise children at risk at the point of entry and to make decisions that are in the best interests of the child.
The proposed legislation should lay down clear and objective guidance on the assessment of the responsible adult for a separated child. In law, a child is either accompanied by a guardian or is a separated child - there is no in between. If the child is a separated child, it should be referred to the Child and Family Agency. The current proposals allow for the use of a responsible adult - see Part 3 which concerns applications for international protection - a term which may not protect the interests of the child and does not accord with Irish law and the purpose of which is unclear.
On the question of translation and interpretation, some but not all of this material was passed on to me by the Law Society of Ireland committee which wanted to examine this matter. They wrote to the Chairman of the Joint Committee on Justice, Defence and Equality, of which I am a member. They make a big issue of the translation and interpretation set-up. Given the huge importance of evidence on protection and leave to remain claims, particularly in the context of the credibility assessment of an applicant where in most cases such evidence is the deciding factor, it is essential that competent interpreters and translators are provided at all stages of the process. There is no legislation regulating translators and interpreters in Ireland, nor is there any national professional qualification on foot of a statute, or a practised direction from the courts. Translation and interpreting are unregulated in Ireland, which means that anyone who speaks English and another language can call him- or herself a translator or interpreter. That is not good enough and it is a flaw in the legislation.
I understand practitioners in this area also have concerns about the quality of the interpretation and translation services available at each stage of the protection application process. It is the Law Society of Ireland committee's view that the interpreters' and translators' professions should be regulated by the State to ensure adequate interpreters are provided and that the minimum standards are discussed, defined and enforced in this regard.
This is not an innocuous area. In a situation in which a misunderstanding arises because an interpreter does not collate and pass on precise information, a simple misinterpretation could prove to be a serious injustice to the person seeking help. It is absolutely crucial that qualified and regulated interpretation and translation services be provided at every stage of the international protection application system. Such services are essential in ensuring that there is effective and clear communication with all applicants at all stages of the process.
Section 18, "Statement to be given to applicant," refers to the Minister providing the person with a statement in writing - specifying in a language that the applicant may reasonably be supposed to understand - of the procedure to be followed and his or her rights and obligations. The emphasis should be on the importance of ensuring there is effective communication, and that the communication is in a language and form, depending on the levels of literacy of the person involved, which the person can reasonably understand. The people currently involved in interpretation are concerned about the quality and status of this particular provision.
Section 34 refers to personal interviews. This raises a further matter of serious concern about the requisite standards of interpretation in the application process. Section 34(4) states that the Minister's only obligation in this regard is to ensure the interpreter speaks a language that the applicant may reasonably be supposed to understand and in which he or she is able to communicate. That falls far short of what we require because a person can be turned out of the State on a misinterpretation or misunderstanding. In its submission on the Bill the Law Society of Ireland's committee considered that this minimum threshold does not hold the application process to sufficiently high standards. A more practical and effective test would be, at the very least, that both the applicant and interpreter ought to be able to understand and clearly communicate with one another without misinterpretation.
I intend to table amendments on Committee Stage. Broadly, my party welcomes this legislation, but I regret that it is all being pushed and rushed through in the final weeks before the Christmas recess. I suppose the Minister has to deal with the hand that is dealt to her and I can understand the problems she has.
It is not personal, but it frustrates us all.
I will be brief because I know that we have a long night ahead of us again. The Minister will have to take up residence in this House. I welcome the Bill which is another piece of reforming legislation from her, among others that she has introduced since entering government. The Government gave an undertaking to reduce the length of time for completion of the asylum seeking process. Heretofore, that delay was one of the main criticisms of conditions involved in the process.
We may not have sufficient time to debate this reforming Bill, but I know that the Minister and her staff have put much time and effort into its preparation. I want to concentrate on a couple of aspects of the Bill, particularly section 7. I welcome the inclusion of sexual violence and gender-based violence which may amount to acts of persecution. In its submission, the Immigrant Council of Ireland stated that domestic violence should also be specifically named in the Bill, but, as drafted, it is not. That would provide clarity for women that they may apply on these grounds also. We have seen the problems associated with domestic violence, both here and abroad.
The recommendation was also supported by the Joint Committee on Justice, Defence and Equality in its interim report. If that were done, it would be welcome. I suggest a change be made to the charging rules of the Director of Public Prosecution because everything concerning domestic violence has to be referred back to this office. A garda at the rank of inspector or higher should give direction to charge in cases of domestic violence. I am mentioning that issue in the context of this Bill, although it could not be included in the legislation before us.
Section 24 should include a definition for an unaccompanied minor. In addition, we must ascertain who is accompanying that minor. The relationship is important, because the person accompanying a minor into this country could be a trafficker. A recent television programme on sexual violence and prostitution showed young girls coming in from Romania, Bulgaria and elsewhere. They were being trafficked into this country and they cannot say "boo."
That brings me to the element of training authorised officers. If a person does not have specific training in how to recognise or analyse the adult, child or unaccompanied minor involved, specialised training is required. An unaccompanied minor will not be able to say what is going on, although I know that individual interviews occur. The child's rights should be protected in cases of trafficked minors, whether unaccompanied or accompanied by an adult. Senator Jillian van Turnhout spoke about how the rights of the child are identified. Sections 24, 35 and 52 to 56, inclusive, contain references to the best interests of and the rights of the child. However, the whole Bill should be child-proofed in every section. The definition of the United Nations High Commissioner for Refugees should also be part of the Bill, as should the UN Convention on the Rights of the Child.
Senator Jillian van Turnhout quoted from the submission on the Bill made by the Children's Rights Alliance, which contains so many good recommendations. Many of them are contained in the Bill, but others could be inserted also. As the Senator said, primary consideration should be given to the rights of the child.
The role of the Ombudsman for Children is important, as are the qualifications of the authorised officers and their relationship in the context of the complaints mechanism. These things should be incorporated into the Bill. All interviewing officers should be properly trained to deal with children, as well as identifying women who are victims of sexual and gender-based violence. Such officers must receive specific training and support in that regard.
I will revert to the issue of domestic violence later, but it is one that I would like to see defined and strengthened in the Bill. I congratulate the Minister on her introduction of the Bill which has been awaited for ten years.
Cuirim fáilte roimh an Aire. Tá go leor fadhbanna agam leis an mBille atá os ár gcomhair inniu.
To put it bluntly, Sinn Féin cannot support the Bill as it stands. We welcome a single application procedure but not an application procedure that ignores basic safeguards and ignores the rights of children. It is claimed that this legislation will create an efficient procedure for the processing of applicants for international protection. However, efficient procedures require a depth of thought and consideration that are completely absent from the Bill. Further, the democratic procedures required for effective scrutiny are being ignored in terms of the speed with which this Bill is being presented to the House and the disregard that has been shown to the organisations that submitted their considered opinions to the joint committee, and to the recommendations of the Government's own working group on the protection process, the report of which was published on 30 June 2015.
At best, the Bill is a work of incompetence. A cynic might say that it is not a matter of incompetence but, rather, a complete disregard for those who are weakest in Irish society since there are no votes affected in the Fine Gael constituency in respect of these matters. Where, then, is the influence of the Labour Party on the Bill? By agreeing to this legislation, the Labour Party has done a complete disservice to the weakest members of this society. It is astounding that the Minister of State, Deputy Aodhán Ó Ríordáin, is lending his legitimacy to it. Let us examine the Labour Party's claims. On the party's website it states, "Labour is the only party of social change." Despite the absolute vacuity of that statement, with this Bill, the Labour Party can state it is indeed a party of social change, a change in this Bill which represents a rolling back of previous protections provided in the Asylum Act of 1996 and a rolling back of ensuring those weakest in society are afforded basic and humane protections. It is certainly social change to render the inviolability of the home null and void.
The Labour Party also claims that "Labour has changed Ireland for the better, and has made our country a more modern, equal, and progressive place for everybody." This is hypocrisy. Is modernity reflected in the intrusive medical examinations on children, absent their consent, that are facilitated in the Bill? Is equality reflected in the fact that victims of domestic violence are equally fearful of reporting violence inflicted by their partners in case it removes them from basic legal protections and opens up the appalling possibility of deportation? With regard to progressivity, in the Bill persons seeking protection are seeing a progressive removal of minimum humane standards of international law.
In the statement of Government priorities for the period 2014 to 2016 the Government committed to treating asylum seekers with the humanity and respect they deserve. In the Bill we now see what the Government thinks asylum seekers deserve. They deserve to be treated arbitrarily by the Minister for Justice and Equality. They deserve to be removed from their homes in the middle of the night. They deserve to have their consent ignored and undergo an invasive medical examination. They deserve to have the unity of their family life destroyed and negated. These houses must be afforded the time needed to rectify these oversights and incorporate the expert opinions available to really make a difference to individual asylum seekers.
Sinn Féin stands in solidarity with the weakest in our society. It concurs with the opinions expressed by the experts and the Irish Refugee Council, NASC, Doras Luimní, the Children's Rights Alliance, the Immigrant Council of Ireland, SPIRASI and Women's Aid, which have all conveyed their concerns to us. I commend them for their work and recognise their input into this debate. They are part of the wider democratic process and it is a pity the submissions they made on this Bill were not used to strengthen the democratic legitimacy of our legislative process. Sinn Féin will be bringing forward a large number of amendments on Committee Stage in the hope the Minister will do the right thing. I hope the Minister of State, Deputy Aodhán Ó Ríordáin, will use whatever influence he has to assist in the latter being achieved.
There has been much talk about the recommendations of the working group and there has been approval for the fact that 26 of them have been taken on board, but there were 170 recommendations. Where are the rest of them and where are the key recommendations? All Senators across the House need to reflect on how and how many times direct provision was referenced in the Minister's speech. It is only referenced as a title of a report or in connection with the length of time people spend in direct provision accommodation. I have asked the Minister on a number of occasions where she stands on direct provision. Senators across this House have called for direct provision, as an institution, to be scrapped. We have said this institutionalised abuse needs to be ended forever as it is not tolerable but I do not see anything in this legislation that will get rid of the system of direct provision or change it significantly. All the Minister intends to do is reduce the amount of time people spend in direct provision accommodation. That is totally unacceptable to me and it should be totally unacceptable to the other Senators across this House.
Why have the opinions of the Ombudsman for Children and the Ombudsman who has responsibility for oversight not been taken on board? Why have the opinions put forward by the Oireachtas Joint Committee on Public Service Oversight and Petitions not been taken on board in this legislation? People took part in the working group in good faith and the Minister of State, Deputy Aodhán Ó Ríordáin, made laudable statements on his opinions on direct provision and the asylum process through the working group. My experience of working with people in direct provision centres is that they feel they have been conned, particularly those in the institution of direct provision who believe the system failed them and the process was merely a charade to kick things down the road. They have no faith whatsoever in the Department of Justice, Equality and Defence in this regard. What about the opinions on direct provision that were aired in these Houses? The Minister should go back and read the debates we held on the system of direct provision and look at what she said about it. She said it should be scrapped so how come all those opinions have not been taken on board in this legislation?
We have had an absolute farce in the past couple of days as regards another item of legislation from the Minister's Department and we see, again, that there are over 150 amendments from the Department on a Bill it has just presented. That is totally unacceptable and this is obviously a ham-fisted piece of legislation. It is not ready, it is half-baked and should be taken back. I will oppose taking Committee Stage tomorrow morning because we need a proper debate on the amendments the Minister is putting forward.
Other issues have been raised with us which need to be considered before the Bill is finalised and enacted such as the absence of any reference to the reception of people seeking international protection, the lack of clarity around the training or powers of an immigration officer at the frontiers where interviews will be conducted and a lack of independent oversight. Other issues are: the lack of any reference to the identification of vulnerable persons who may need greater assistance and care throughout the application process and the reception system; the lack of any gender-sensitive procedures and the absence of a particular reference to domestic violence as an act of persecution; the absence of any independent oversight of the Department of Justice, Equality and Defence in the carrying out of its obligations and duties; the very limited reference to the best interests of the child; the lack of a definition of an unaccompanied minor or a separated child; the inability of a child or young person to apply for international protection other than through an adult; the lack of independent legal advice for an unaccompanied child; and the inclusion of unaccompanied children in procedures which can lead to their application being deemed inadmissible, etc.
There are massive issues with the Bill and we will raise those issues on Committee Stage. We want to see the single procedure, but we cannot allow the Bill to be a Trojan horse that will leave those very vulnerable people who are seeking our aid and looking for our support at a time of huge strife in their lives in a worse position than that which they are in. I fear that this is what the Bill will do and I say this in good faith. We want to work with the Minister to make it a better Bill and to bring forward the single procedure. However, we have massive concerns about the remainder of the legislation.
I thank Senators for their contributions to the debate on this important and much needed Bill which has been called for over a very long period. Broader migration reform is also needed, but it was necessary to deal with these elements of policy at this point. One of the most important goals of the Bill is an asylum system which deals promptly and effectively with those who make applications for international protection.
It is important that we enact this legislation and I do not need to repeat the arguments. Most Senators and society in general will agree that we need a single application procedure as it has been a longstanding objective of ours to get into line with other European Union countries. I am conscious of the working group report and we have had a number of meetings with the people involved in it since its publication. It has been discussed a number of times at the Cabinet sub-committee and various issues are being progressed.
The Minister of State, Deputy Aodhán Ó Ríordáin, is making progress on various matters, including that of people in direct provision centres who have been deemed to be refugees and in need of housing, information and support. He has done very valuable work with those involved in the system of direct provision and has produced and is producing some very helpful literature for people.
The working group proposals are to be discussed by the Cabinet sub-committee on social policy next week. Many of the matters will be further progressed. In fact, progress has already been made, as those who know about the system will be very much aware. The members of the working group, when we met them, acknowledged that many decisions have been taken on individual cases since the group reported. People are well aware of this. There is further work to be done on implementing the recommendations made. It was always understood they could not be implemented overnight. There are a number of key recommendations that the Minister of State and I regard as priorities on which to make progress.
The proposed protection office to be established in my Department will have the objective of giving each applicant for international protection a comprehensive and clear outcome at first instance regarding all aspects of his or her application, including both international protection and permission to remain on other grounds. The efficiency and clarity that will be provided under these new arrangements will, contrary to what was suggested by some Senators, represent a significant improvement by comparison with the existing sequential system, which has effectively meant that people stayed in direct provision accommodation for long periods. Although there have been criticisms of the system of direct provision based on the standard of accommodation in some instances, as evident from the closure of a number of centres during the years, the primary criticism has concerned the fact that people are in the system for far too long. It is unacceptable. Staff working directly with people in the system state time and again that many of the problems with direct provision concern the length of time people spend in the system. The Bill intends to, and will, bring us into line with other European countries. This will mean that we will have a far more efficient system without losing any of the important elements about which Senators spoke.
Why would we want to introduce a Bill that does not protect rights? I have already spoken about how this Bill is coming from a human rights perspective and respects human rights, including children's rights, of course. Undoubtedly, there is a debate to be had on how exactly one would transpose into legislation such as this provisions on the best interests of the child and on whether this matter is already dealt with effectively. We must remember we now have a constitutional provision that puts the best interests and rights of the child very much to the centre. It recognises the child as an individual. All legislation is subject to this provision and will be interpreted accordingly.
There are very many positive aspects of the system that will not be lost. An example is the experience of the members of staff who have worked in the Office of the Refugee Applications Commissioner. They are very experienced in examining applications for international protection and considering the granting of permission to remain, as we must acknowledge. Senators have made comments about standards but all the staff have been trained to UNHCR standards. That will continue to be the case. I want to ensure the transition to the new arrangements is as smooth as possible and that the high standards pertaining to the quality of asylum decisions are maintained. The international protection appeals tribunal will provide for the smooth transfer of the tribunal members who are currently examining cases.
I am very conscious of the needs of unaccompanied minors. I carried out a study of them myself and met many of them some years ago at a time when they were being put into hostels around Dublin and were very vulnerable. I am thankful their circumstances have changed. We now have an excellent system under Tusla. I am continually surprised by the experience of these young unaccompanied minors who end up in Dublin having come from all parts of the world. There are far fewer than there used to be, but, as I stated, they are a feature of some of the new migration patterns evident in the Mediterranean. We must be very attentive to the needs of unaccompanied minors. The approach now taken by Tusla is that they are placed in foster homes and carefully looked after. That represents a massive change by comparison with the time when they were put into hostels when they arrived here. They were incredibly vulnerable to traffickers or others who wanted to exploit them. We have a very different set of circumstances now. Of course I want to ensure that in any legislation we introduce unaccompanied minors will be dealt with carefully and sensitively and that their best interests will be considered.
I thank the Senators who have welcomed the Bill. I certainly hope we can reassure them on some of the issues they raised when we proceed to Committee and Report Stages.
Will the Senators claiming a division, please, rise?
As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
When is it proposed to take Committee Stage?
Is that agreed?
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Cahill, Máiría.
- Coghlan, Eamonn.
- Coghlan, Paul.
- Comiskey, Michael.
- Conway, Martin.
- Cummins, Maurice.
- D'Arcy, Jim.
- Gilroy, John.
- Hayden, Aideen.
- Henry, Imelda.
- Keane, Cáit.
- Moloney, Marie.
- Mulcahy, Tony.
- Mullins, Michael.
- Naughton, Hildegarde.
- Noone, Catherine.
- O'Brien, Mary Ann.
- O'Donnell, Marie-Louise.
- O'Neill, Pat.
- van Turnhout, Jillian.
- Barrett, Sean D.
- Byrne, Thomas.
- Cullinane, David.
- Daly, Mark.
- Healy Eames, Fidelma.
- Ó Clochartaigh, Trevor.
- O'Brien, Darragh.
- O'Donovan, Denis.