Immigration Bill, 1999: Committee Stage.

NEW SECTION.

I move amendment No. 1:

"In page 3, before section 1, to insert the following new section:

1.-This Act shall not apply to an unaccompanied non-national under the age of 18 years.".

There was some debate on Second Stage on the applicability of the measures in the Bill to children, particularly unaccompanied children, arriving in the State. The Bill, without being amended by the suggestions we believe will come from the Minister in relation to the Refugee Act, remains exclusively a deportation measure. Great concern was expressed by a number of non-governmental organisations at the scope of this Bill. Many Members, including myself, underscored those concerns during the debate on Second Stage. Those concerns would be particularly heightened in respect of children, that is, persons under the age of 18, which is the definition of children now incorporated into our domestic law under the Children Act.

In order to avoid doubt and create clarity, I would like the Minister to accept the amendment which propose that the Act should not apply to unaccompanied non-nationals under the age of 18, so that children arriving in this State without adult support could not be deported hotfoot without access to proper counselling supports and whatever other measures would be required to ensure that their human rights, in accordance with international law and common decency, are vindicated. I hope the Minister will have no difficulty in accepting the amendment.

I should have said that amendments Nos. 2, 49 and 62 are related and can be discussed together.

I will amplify further in that case. Amendment No. 2 simply provides that the Act shall not apply unless the application of the Act would be in the child's bests interests. I presume there might be circumstances where the Minister would be able to find that it would be in the child's best interests for this Act to have application, so that the inclusion of the clause in the second amendment I am proposing would be the safer course.

I have read and heard many comments to the effect that this is a deportation Bill and nothing else. That statement is untrue. This legislation runs across the gamut of immigration law. There is no democracy that I am aware of that does not have immigration laws.

There is no reason in principle why a non-national should be immune from deportation or exempted from all other provisions of immigration law, as amendments Nos. 1 and 2 propose, simply because a person is under the age of 18. It cannot be the case, for instance, that a convicted non-national drug smuggler should be ineligible for deportation because he or she is only 16 or 17 years of age. There may be other factors among those set out at section 3(6) of the Bill which, when taken into account, will dictate that in particular cases such a person should not be removed from the State.

The protection of unaccompanied non-national minors in the State as set out in section 8(5) of the Refugee Act, 1996, ensures that in every case where such a person arrives in the State the local health board is informed and the provisions of the Child Care Act, 1991, thereupon come into play. The health board's role includes determining on behalf of the child whether an asylum application should be made and the pursuit of such application as necessary, but it is, of course, much wider, extending to every aspect of the child's welfare.

Among the amendments to the 1996 Act, which I will be proposing later on Committee Stage, there will be one to extend the provisions to deal with unaccompanied non-national children who are already in the State when they come to notice. This is the more usual way in which such cases have emerged in practice.

Pending the coming into operation of the main provisions of the Refugee Act, the procedure envisaged by section 8(5) and its proposed amendment are already being operated in practice on an administrative basis. The usual circumstances in which such children come to notice are that they present themselves at the Refugee Application Centre in Lower Mount Street in Dublin. This one-stop-shop for asylum seekers, which was established on my initiative, also houses an Eastern Health Board centre and any such child is immediately brought across the lobby to that centre.

The phenomenon of unaccompanied children is a small but growing one. It did not feature before 1996. It may interest Deputies to know that so far, since the beginning of 1996, 33 unaccompanied minors have applied for asylum, all but five of whom came to notice at the Refugee Applications Centre or, before it opened its doors, at the head office of my Department.

I do not accept the logic underlying amendment No. 1 which assumes that there are never circumstances where such a person who has been refused asylum or who has not applied for asylum should not be returned either to the country of origin or the country where his or her parents, guardian or other relatives are living. Of course, every decision whether or not to remove such a child from the State must be taken carefully and all relevant factors taken into account, including what the situation will be in the other country.

That is what the list of factors set out at section 3(6) will achieve. The decision in any one case should not be dictated by any assumption that merely because the economic climate in the country of return is not as healthy as that in the western world, the return should not take place. Social workers dealing, for instance, with the question of inter-country adoption are at pains to decry this sort of West-centred assumption which seeks to justify the flow of children from developing to developed countries without regard to cultural, social and other equally important factors in the upbringing of a child, which should not be overridden by economic considerations.

In this context, it is noteworthy that the Hague Convention on inter-country adoptions, the ratification of which my colleague, the Minister for Health and Children, Deputy Cowen, is working on, is based, among other things, on the premise that inter-country adoption represents a subsidiary means of child care, to be resorted to only where a child cannot be cared for in a family in his or her own country. In relation to non-national children whose parent or parents are being deported, there is no good reason the rest of the family should not also be subject to the same provisions.

In the case of each child, the same careful consideration must be given to the factors set out in section 3(6). Those factors include the provisions of paragraph (a), the age of the person, paragraph (h), humanitarian considerations and, in particular, paragraph (c), which, if Government amendment No. 3 is accepted, will cover domestic and family circumstances. These provisions secure the interests of the child in each case and thus are in compliance with our international obligations. Accordingly, amendment No. 2 is superfluous.

The amendment to amendment No. 62 inserts a provision that exempts minors from detention pending deportation and deals with cases where guardians of minors may be in custody by ensuring the local health board can play its role. This is modelled on a similar provision in the Refugee Act. I am satisfied this is an appropriate way to meet the concerns of Deputies and of the non-governmental organisations with whom officials of my Department have had fruitful discussions. I acknowledge the role of the non-governmental organisations in this regard.

The purpose of amendment No. 62 is twofold. As well as dealing with the exemption from detention of persons under 18, it sets out court procedures for the review of detention where procedures that challenge the validity of the order have been instituted.

After the publication of the Bill, my officials had a series of fruitful discussions with a number of organisations which deal with asylum and refugee matters. While the Bill is not directed at asylum seekers in particular, but is rather a general immigration measure, it is to be expected that such organisations would have concerns relevant to the Bill. Several of them were at pains to point out that they recognised it was a general measure and asked that their comments be treated as concerned only with the Bill's provisions as they apply in the asylum context. Members will be aware of this since this committee has had a series of evidence-taking sessions involving many of the same organisations. I mention this by way of preliminary to the content of these amendments which reflect comments made during those discussions.

The proposed subsection (4) to be inserted by this amendment addresses the question of deportation detention for persons under 18. I have followed the provisions in this regard in the Refugee Act, namely, section 9(12) of that Act. Paragraph (a) of the subsection exempts people under 18 from detention. Paragraph (b) deals with cases where there is uncertainty as to a person's age. If there are reasonable grounds for believing the person is not under age, the immigration officer or a garda may act on the assumption that the person is an adult.

Paragraph (c) covers the position where a detained person has underage dependants. In such a case, the local health board is to be notified immediately. This enables the health board to assume its child care responsibilities in relation to young dependants who might otherwise be unminded. The new subsection (5) which this amendment proposes to insert is another borrowing, with some adjustments, from section 9(10)(b) of the Refugee Act.

Several non-governmental organisations expressed the concern that the provision at section 5 (4)(b)(3) required that a person who challenged the validity of a deportation order be detained for the duration. This was neither the effect nor the intent of that provision but it is no harm to spell out in the Bill a specific procedure which makes it absolutely clear that the question of detention in such cases is a matter to be determined from time to time by the court hearing the review proceedings. The provision enables the court, in deciding whether a person in detention may be released, to make the release subject to whatever it thinks fit, including a requirement to reside in a particular place or district, to report regularly to a Garda station, or to surrender any travel documents or passport.

I must make a number of important points in relation to section 5 generally. It has been misrepresented by a number of commentators as indicative of a wish on the part of officialdom to detain asylum seekers wholesale. This is nonsense. Apart from the fact that there is no such desire, the provision expressly permits detention only in circumstances where a person already the subject of a deportation order has failed to co-operate with the order, in other words, only as a last resort after the person has been asked to report at a specified time and place and has failed to do so.

The purpose of detention under the provision is only so that removal can be achieved and the duration of that detention will be until removal is achieved. The deportation order is simply an essential ancillary to the order for use where co-operation is not forthcoming and the deportation order cannot be achieved otherwise.

As to Deputy Higgins's amendment No. 40, the requirement at paragraph (a) of section 3(6) to have regard to the age of the person necessarily encompasses whether a person is under 18. The Deputy's amendment is therefore tautologous.

I emphasise again that the Bill is not what has been painted by some. It is a general immigration measure. It covers the entire gamut of immigration and residence law from arrival at a port to removal from the State. The fact that it deals in some detail with one facet of immigration law, that of deportation, does not and should not detract from the broad compass of the Bill. The emphasis of the debate on Second Stage may have suggested that it should have been called an asylum Bill, in that little regard was paid to the fact that it is intended to deal with the full range of circumstances in which deportation arises as a possibility, including the removal from the State of convicted sex criminals. I make these general points to emphasise it is not what it has been described in some quarters.

As I said on Second Stage, I disagree with the Minister's presentation of the Bill as an immigration Bill. Immigration denotes coming into the country and, hopefully, a certain welcoming attitude. This Bill has nothing to do with that; it is essentially a negative measure. It deals with deportation and exclusion orders. We have tried to broaden the scope of the Bill to ensure effective human rights measures are inserted, and in our dialogue with the different organisations - the Minister rightly paid tribute to the non-governmental organisations - that has been the thrust of their request. If the Minister is hell-bent on proceeding with this measure, fundamental safeguards should be enshrined in the Bill, and that is the thrust of the amendments put forward by Deputies Howlin, O'Sullivan and myself. We welcomed the Minister's commitment on Second Stage to take on board substantial portions of the 1996 Refugee Act, but effectively we are debating Committee Stage in a vacuum.

The age requirement is fundamental. The UNHCR has a strong view on that issue. Unaccompanied refugees who are minors are vulnerable in any circumstance. They are displaced people who are entering a country where their culture is not appreciated, there is a different language and a different tradition. They have been uprooted and in some cases they are unwanted, as we see in Kosovo. They are extremely vulnerable. Nobody is more vulnerable than an unaccompanied minor. That is the reason I support the amendment tabled by the Labour Party which is trying to ensure the Bill does not apply to people under 18 years of age. It is difficult enough for adults in such circumstances but we must take cognisance of the additional vulnerability of children.

In relation to our amendment No. 40, the Minister made the point that subsection (a) takes due cognisance of the age but there is no commitment in that regard. We must be more specific and, with that in mind, I tabled amendment No. 40. This should not apply to anybody under 18 years of age.

The Minister's reply again indicates the interaction between the Refugee Act and this legislation and highlights the importance of having all the information before us relating to this issue.

On the specific amendments before us, we want to ensure that the rights of anybody under the age of 18 are protected in this legislation. Our amendment is based on the UN Convention on the Rights of the Child and on securing the rights of people under 18. As Deputy Jim Higgins said, these people are particularly vulnerable when they are in a strange environment and they must be excluded from this legislation. There is a general policy in British legislation of not deporting people under 18 and the same probably applies to legislation in other countries. We are endeavouring to ensure that the concerns expressed to us by NGOs and others with a particular interest in this area are reflected, in so far as is possible, in the legislation.

It is important that the country secures the rights of children. In the Constitution and in our general approach we have given a strong commitment, in word if not in deed, to the protection of children. That must be reflected in our legislation, including this Bill which deals with particularly vulnerable people under the age of 18.

I am disappointed with the Minister's initial response to the amendments we tabled. His response in respect of unaccompanied children is to ask about juvenile drug pushers. That indicates a mindset which is more departmental than that of the Minister. When the Refugee Bill was passing through both Houses the Minister made a series of good contributions outlining, from a civil libertarian perspective, the safeguards a measure such as that Bill would require. Unfortunately, the culture of the Department of Justice, Equality and Law Reform now seems to be all pervasive in that when it thinks about the notion of an unaccompanied child it thinks about a juvenile drug pusher, and that in order to ensure we do not have juvenile drug pushers coming into the country we should have this rather draconian measure. That phrase has been used by many independent observers. Such a perspective is not appropriate.

I want to make a number of points about the Minister's contribution to date. He said children will have protection because the health board will be notified. Will that apply in all circumstances? I want the Minister to give me categorical assurances in that regard.

There is clear provision for exclusions in this measure and there are open-ended suggestions that give rights to the Minister, for example, the determination of public policy that will determine the criteria for exclusions, which might not always measure up to what most of us in this House will find acceptable. Under section 3(g) and (h), a person to whom leave to land in the State has been refused or a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State may be subject to a deportation order. They are two of the categories the Minister outlined.

I understand the Minister has already made regulations under other enactments that require transit visas for certain categories of non-nationals. Presumably those categories of non-nationals from designated countries will be in breach of the conditions imposed on them in respect of landing and could be subject to immediate deportation or a refusal to land in the first instance, and that might include unaccompanied children.

Will the Minister give me a categorical assurance that in circumstances where a child arrives in the State from a country designated in his own regulations without the proper documentation - God knows the circumstances that might be involved - that child will be welcomed into the State, his or her presence will be notified to the health board and he or she will be given proper care and support? Where is the legislative protection to ensure that happens in every case?

In relation to exclusion orders under section 4(2), we are talking in terms of the criteria under which the Minister may, if he considers it necessary, exclude people from the State. One of the criteria in section 4(1) is public policy. Could it be public policy to exclude certain categories of people and certain nationalities, and will that in all instances exclude children? Is it open to the Minister to determine public policy and how it applies to children? How will that impact on our obligations under the UN charter?

I winced a little at the Minister's comments on the flow of children from less developed countries; I hope I am quoting him correctly. When I was Minister for Health I had responsibility for the Adoption Board and in the course of that responsibility I met many Irish parents desperate to adopt children. In many instances they adopted non-nationals from less developed countries such as Romanian orphans or Chinese children and provided loving homes. We have to be measured in any comment we make about a flow of children from less developed countries.

There are serious questions of a moral nature that need to be balanced; I know many children were adopted from here in the immediate aftermath of the war, and all those circumstances were not perfect. There have been circumstances where children were rescued from abject poverty and misery from orphanages where nobody cared for them and given loving homes here. That is not a blanket good or bad policy and it should be better nuanced than the Minister's comments seem to indicate, that this was an immigration Bill proper as opposed to a deportation Bill.

The common understanding of immigration policy would be to set out the criteria for the acceptance of immigrants into the country. Perhaps there could be a scheduling of countries, a quota system or a skills level which this economy might need and which would give people extra merit. We have no such immigration policy.

The Deputy is straying from the amendment.

I am responding to the Minister's comment that this is an Immigration Bill rather than a deportation Bill. If the Minister is allowed to make that assertion, it should be refuted by those members of the committee who wish to do so.

This Bill was characterised as an emergency measure to plug a loophole in the ability of the State to deport non-nationals because the initial section of the Aliens Act was found to be unconstitutional. While it has grown legs since then, they have not yet fully developed because we have not seen the full contents of the Bill as the Minister has not produced his amendments. I characterise it as a deportation Bill. There are worrying aspects to it which should not apply to unaccompanied children. The argument that if we do not apply the Bill to unaccompanied children, teenage drug pushers will regard Ireland as a Mecca is inappropriate.

It must be made clear that the legislation does not dramatically alter the previous position. Deputies Howlin and Higgins were in Government and if they felt strongly about changing immigration law in so far as it related to deportation or any other matter, they had the opportunity to do so. They also had the opportunity to implement the Refugee Act, 1996, but they failed abysmally to do so. I will implement the Refugee Act, 1996.

It is disingenuous to imply, as has been done on a number of occasions, that both Deputies have a monopoly on compassion for children and refugees and that I have none. Nothing could be further from the truth. I was probably the first politician in Europe to state that we would take in refugees from Kosovo. It was acknowledged by many other countries that we were among the first European countries to do that. That does not compare with the picture the Deputies have been trying to paint in their attempt to personalise the situation.

The human rights measures, to which Deputy Jim Higgins referred, must be adhered to. Ireland has adhered to its obligations under the 1951 Geneva Convention since its ratification. That approach continues to be adopted.

On behalf of my civil servants, I emphatically reject Deputy Howlin's description of the Department of Justice, Equality and Law Reform as all-pervasive. The officials work extremely diligently and compassionately in a difficult area. None of them has an agenda which is inhumane. They are all conscientious public servants who do their best.

Children will be referred to the health boards because that has been the administrative practice. There is no legislative provision to ensure that will happen pending the introduction of the Refugee Act, 1996, which I am committed in the short-term to introducing. There will be provision in the legislation when implemented which will ensure that where it appears to an immigration officer that a child under the age of 18 has arrived at the frontiers of the State the health board will be informed. The health board to be informed will be the health board whose functional area includes the place of arrival.

The Refugee Act, 1996, is not yet law.

Once the Refugee Act, 1996, is implemented, there will be a statutory obligation. In the meantime, I have ensured that there is an equivalent administrative commitment to do the same thing and that is what is done in practice. In other words, I am anxious to ensure that children arriving in the State are given the best possible care and consideration from the moment of their arrival. That is the least that could be expected of me and that is what I am doing. To try to insinuate that I am doing otherwise is a gross disservice not just to me but to the people to whom I have entrusted the operation of this procedure.

Some people may object to the terminology I use, but I cannot help that. Whatever language is used, the interests of children arriving here from any other country are of paramount concern. I trust I have explained the situation and that Deputies are satisfied in that regard.

The Minister has given a clear commitment to the committee that section 3(1)(h) of the Bill is not intended to baldly apply to children in that they cannot be refused entry if they do not have the proper documentation or visa requirements.

I assure Deputy Howlin that cannot be the case.

Legally, there is no protection for an immigration officer acting in accordance with the law, which will allow such a child to be deported hotfoot without notifying the health board or anyone else, until such time as the Refugee Act, 1996, is enacted.

I have given two assurances to Deputy Howlin.

The assurances are fine but the law will determine it if we accept it. On the basis that the Minister does not intend this Bill to apply to children - he is making administrative arrangements to ensure it does not apply to children - will he accept the amendment which makes it a statutory obligation?

I cannot accept the amendment for the reason I have already outlined. It is not possible for me to give a blanket exclusion from the provisions of this legislation to a person because he or she is under 18 years of age. Every possible compassion and care will be exercised and the health board will be notified. I am bringing into play the provisions of the Refugee Act, 1996, to make it a statutory obligation that the health board will be informed. In the interim I can be trusted to ensure that the health board is informed and that the child is given the best care the State can furnish. I cannot go any further than that.

I will press the amendment.

The Minister refuses to accept amendment No. 40 on the basis that it will not apply to people under 18 years of age because of subsection (6)(a) which deals with the age of the person. I want to enshrine in the legislation a provision to ensure the Minister has regard to whether the person is under 18 years of age. The Minister makes the argument in relation to amendment No. 62 that it shall not apply to a person where it is believed the person is under 18 years of age. That relates to detention, but I am talking about deportation.

Under subsection (6)(a) the Minister must have regard to the age of the person. The fact the individual is a minor would weigh heavily on the mind of any Minister examining the situation. We must acknowledge that Ministers for Justice, Equality and Law Reform are not ogres and that they will exercise their discretion in a humane way.

Would the Minister take into account the age of a person if that person was 80, rather than 18 years of age?

That is a relevant point. The fact that a person is 80 years of age would weigh on any Minister's mind. That is a strong argument for why we should not specify the age to be taken into consideration. The provision in subsection (6)(a) is more appropriate.

It is not good enough for the Minister to say there is no particular responsibility for children.

I did not say that.

The Minister suggests the elderly should be equally looked after. We spent almost two years enacting the Child Care Act which gives special rights to children because they are recognised as being particularly vulnerable. Many international conventions protect children. It is right and proper that they are looked after in a special way as distinct from 20, 80 or 90 year olds.

As regards amendment No. 62, I welcome the softening of the line on the detention of children. If the Minister has decided to modify it to recognise the specific vulnerability of children, perhaps he would also accept that this measure is not appropriate for unaccompanied children. They have a particular need which would be best expressed in a different legislative measure.

It is difficult to state it any further but I will not have words put in my mouth. I stated that people of 80 years of age, for example, would have to get special consideration, but I did not say whether that was an equivalent consideration. I have made abundantly clear my concern for children in the context of this debate and the measures to be undertaken.

There are circumstances, such as culture or family reunification, where it can be in the child's interest to be reunited with his family. It should be recognised that children have special requirements but that should not mean a blanket ban on people under the age of 18, which is what the Deputies are seeking to achieve. The measures I am proposing are succinct, compassionate and fair and the Minister of the day will operate them in that manner.

Amendment put.
The Select Committee divided: Tá, 6; Níl, 8.

  • Ahearn, Theresa.
  • Higgins, Jim.
  • Howlin, Brendan.
  • Mitchell, Olivia.
  • O’Sullivan, Jan.
  • Perry, John.

Níl

  • Ardagh, Seán.
  • Cooper-Flynn, Beverley.
  • Hanafin, Mary.
  • McGennis, Marian.
  • McGuinness, John.
  • O’Donoghue, John.
  • Ryan, Eoin.
  • Wright, G.V.
Sitting suspended at 1.05 p.m. and resumed at 2:30 p.m.

I move amendment No. 2:

In page 3, before section 1, to insert the following new section:

"1.-This Act shall not apply to an accompanied non-national under the age of 18 years unless the application of the Act to that person would be in the child's best interests.".

Amendment, by leave, withdrawn.

Amendment No. 3 is out of order.

On amendment No. 3——

It is not in order to discuss it.

This illustrates the nonsensical nature of the matter. The amendment is out of order because, according to a letter I received from the Chairman, it refers to refugees, a matter with which the Bill is not concerned. However, the Minister indicated that he will introduce a tranche of amendments to make the Bill relevant to refugees. Is that not a nonsense?

It will be dealt with later.

This underscores my attitude this morning. It detracts considerably from proper consideration of the Bill and it is inappropriate. How will the matter be addressed?

It will be taken on Report Stage, by recommittal if necessary.

Deputy Howlin wishes to change the definition of a refugee. The only way this can be done is by changing the definition already contained in the Refugee Act, 1996, which would mean amending existing legislation.

Is that what the Minister proposes to do?

It is not what I propose to do. I propose to amend the Refugee Act, part of which is operational - for example, the part dealing with the Dublin Convention which includes the definition of a refugee. There is in operation a legal definition of what constitutes a refugee. This, in turn, is closely modelled on the 1951 convention, which we ratified.

I wish to make two points, although I know this discussion is out of order.

We covered this matter at great length this morning.

We did not. This amendment is out of order because the Bill does not deal with refugees, although it will when the Minister tables his amendments. This amendment will then be in order. Is that not a nonsense?

No it is not. What we are doing is perfectly in order.

It is an unfair procedure if we table an amendment to the Bill which would be in order had the Minister tabled his amendments in time.

The Minister's amendments would have been out of order if they had been put before the committee now as we do not have an instruction from the House.

Should we wait for that instruction?

We have already taken a decision on that.

That is the net point. The Chairman has said I can recommit this amendment on Report Stage, on which I can then make one contribution.

Yes, a recommittal is possible.

That emphasies my point even more strenuously. The option available to me is to accept that we will debate this amendment on Report Stage, which allows me one contribution, or that we recommit it to Committee Stage to go over the same ground. This seems like a bad way of making law.

That is the reason for the recommittal of amendments.

To cover up for the lethargy of Departments who have not submitted their amendments on time?

Amendment No. 3 not moved.
Question proposed: "That section 1 stand part of the Bill".

Is section 1 agreed to?

I have no option but to accept it. However, I do so under the most strenuous protest. I would like an acknowledgement from the Minister that this is not best procedure.

The point is——

If the Minister were on this side of the House, he would be doing cartwheels.

If Deputy Howlin wants to compliment my performance as Opposition spokesman, that is his affair.

The Minister was not bad.

Thank you. The Deputy is not so bad himself.

I am saying in this section I will bring forward amendments to the Refugee Act, 1996. When I do so, there will be nothing to prevent Deputy Howlin from tabling amendments to my amendments. That is within his powers and he would be in order to do so. Since we are not discussing the amendments to the Refugee Act, 1996, but rather other aspects of immigration, it is perfectly in order to discuss aspects of immigration and to leave the question of refugees to a later time as far as definitions are concerned. To be fair to my officials, they have specific instructions from me. They did not get up one morning and decide to implement the Refugee Act or what the amendments would be. They are trying to implement their specific instructions as quickly as possible. Deputy Howlin has been a Minister over a considerable period, and he knows the difficulties in drafting technical amendments to legislation. There is no point in my trying to give him a lesson in this.

Question put and agreed to.
SECTION 2.

I ask Members to stick to the point. We have strayed greatly already. Amendments Nos. 4, 5 and 6 are related and may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 3, subsection (1), line 30, after "made" to insert "prior to the 3rd day of February, 1999 and".

This amendment deals with section 2. I find this section extraordinary. It will take some time for the Minister to explain what is envisaged by the Bill stating that "every order made prior to the passing of this Act under section 5 of the 1935 Act, other than the orders or provisions of orders specified in the Schedule to this Act shall have statutory effect as if it were an Act of the Oireachtas".

This is a very neat sentence that gives validation to orders passed which have been struck down by the High Court as unconstitutional. The Minister has used powers under the Aliens Act, 1935, which is the Act referred to. On 22 January the High Court struck down as unconstitutional section 5(1)(e) of that Act, which gave the Minister for Justice the power to make statutory orders providing for the deportation of non-nationals. This Bill seeks to retrospectively validate orders made since that decision by the Minister for Justice. I was gravely concerned, and I raised the matter in the House, as the Minister will recall, that he was purporting to make fresh orders under section 5 of the 1935 Act. He is now seeking the protection of this section to retrospectively validate his actions taken since then.

I find that disquieting and expect the Minister to give a full explanation for it. When I raised this in the House previously, the Taoiseach stated that the advice of the Attorney General in the matter had been received and the orders made by the Minister were valid. Obviously, that advice was not forwarded to me, but the Minister should explain why it was necessary to make those orders, why it is now necessary to bring in legislation that retrospectively validates them and state whether he is certain they are not subject to constitutional frailty, like the initial section of the Aliens Act. Amendment No. 4 states:

In page 3, subsection (1), line 30, after "made" to insert "prior to the 3rd day of February, 1999 and".

Amendment No. 6 bridges the legal vacuum which will allow fresh orders to be made under this Act in the six month period so that there is statutory power to make them, rather than make them and seek retrospective statutory authority to do so.

The decision of the High Court was clearly available to the Minister. It seems extraordinary, therefore, that these orders should be made and that we should seek to use this legislation to validate them. We are seeking to put some legal value on this section, and amendment No. 4 seeks to ensure retrospective legislation is not used to validate legislation that has been made with the clear knowledge of the decision of the High Court. It makes no sense that the Minister should seek to do this retrospectively.

Amendments Nos. 4 and 6 are opposed, and Government amendment No. 5 is a drafting amendment. Section 2 is a precautionary measure taken in the wake of the High Court decision. This is to offset any possibility that the finding of the court in relation to the power of the court could, in another case, be extended, by analogy to powers of the Minister under the Aliens Act to make orders relating to other aspects of immigration and residence of non-nationals. This would have very serious consequences for the operation of immigration and residence controls generally, not just at ports and airports but within the State. The Attorney General has advised that as a precaution against that eventuality it would be prudent to put in place a provision along the lines proposed in section 2. This section is essentially an interim measure designed to protect the aliens orders in the short-term. In the event of the appeal in the Laurentiu case succeeding, it may well prove not to be necessary. It would be remiss of me, having regard to the seriousness of the possible consequences, to fail to take this measure. There remains the possibility of the appeal to the Supreme Court, at present awaiting the delivery of a reserved judgment, being unsuccessful.

By the short-term, I mean the period between now and when I bring forward the comprehensive legislative proposals for a complete replacement of the Aliens Act, 1935 and the orders made thereunder.

Is the Minister telling us there will be a new Aliens Act?

There will be a new Immigration Bill, which I have already flagged. I do not like the term "aliens", I find it inappropriate. Things were different in 1935. It is safe to say that while it is all we have now, that Act is not a satisfactory basis for a modern immigration and residence policy. As I indicated on Second Stage, I want a legislative framework which facilitates the implementation of sensible and fair-minded policies in this area and all concerned to know what to expect from the law and what the law expects from them. I aim to put in place a comprehensive code of immigration law, which pays clear and obvious respect to the protections society requires and to the human rights of the individuals whose lives are touched by the law. This Bill is a first, interim step on that road. Work is advancing on these proposals and it is my intention to have them before the Government before the end of the year. I cannot predict when a Bill on the considerable scale required will become law but it is my intention to have proposals before the Government before the end of the year.

There are questions of other legislative priorities that may arise in the meantime which place demands on the resources of the parliamentary draftsman and the Oireachtas. Therefore, it would be wrong to impose a six month lifespan on section 2 as proposed by amendment No. 6. The process of introducing a further Bill to extend the life of the section would delay bringing forward my comprehensive proposals.

Subsection (1) gives all aliens orders, except those listed in the Schedule to the Bill made before the passing of this legislation, the force of law as if they had been enacted by an Act of the Oireachtas. The exceptions include article 13 of the 1946 order, the provision impugned by the High Court in the Laurentiu case. To include that in the compass of the provision would have been inappropriate so it has not been included.

The other aliens order excluded from the scope of subsection (1), and thus not given the force of an Act of the Oireachtas, is the Aliens Visas Order, 1999, which I made on 3 February 1999. The reason for this exception is to allow me flexibility to make further orders under the 1935 Act making changes from time to time to the list of countries whose individuals do not require visas and whose nationals are required to have transit visas. Far from having any sinister undertones, the opposite is the case. I trust that is now clear. The power to make amending orders will not exist in relation to the aliens orders which are given the effect of an Act of the Oireachtas by subsection (1). I regard that section as fixing the Aliens Order, 1946, and its amending orders in their present form until a new legislative base for immigration law is put in place.

Members may agree it is desirable that the Minister should retain the power to decide by order who should or should not require a visa to enter the State. A visa requirement is usually introduced in circumstances designed to curb the flow of illegal immigrants or such potential flows. It can be done quickly and effectively by the making of an order as is the case at present. In addition, to ensure the protection of the common travel area with the UK and conformity with our EU partners in relation to the common visa list, it is necessary to have an expeditious procedure for handling this process. Any additions or deletions to the visa list are carried out in consultation with the Minister for Foreign Affairs.

I am aware that Deputies Howlin and O'Sullivan have tabled a resolution under section 5(8) of the Aliens Act, 1935, seeking to annul an order made by me on 3 February 1999 - the Aliens (Amendment) No. 2 Order, 1999, Statutory Instrument No. 24/99. This order restates with some amendments the provisions regarding leave to land in the State and some other matters. Those changes are necessitated in part by this legislation and, in part, include necessary changes to the leave to land rules which I intended to introduce. That order is to be subject to section 2 of the Bill and given the effect of Statute when the Bill becomes law.

I am anxious to ensure that I am not in breach of the procedures of the House or of this committee by anticipating the debate on that resolution. I will confine myself to pointing out that the order was made in consultation with the Attorney General's office under the provisions of the Aliens Act, 1935, which were not impugned by the High Court in the Laurentiu case or any other case. They were not even the subject of argument before the courts. I am satisfied there was nothing improper in the making of this order but it was necessary as an interim measure in light of the evident risk that further judicial review proceedings might seek to undermine the basis for immigration controls within the State.

For this reason I oppose amendment No. 4 which seeks to exclude the Aliens (Amendment) No. 2 Order, 1999, from the scope of section 2(1). If the Deputies wish to attack the order - it looks as if they do - they may pursue the matter by means of a resolution which they have tabled. It would be inappropriate to do so by means of amendment No. 4 which would put at risk the existence of immigration controls.

The Minister's actions are wrong. His reasoning is unsound and is a challenge to the supremacy of Parliament. In essence he has stated that he introduced a regulation which he is retrospectively validating in section 2 of the Bill. Unless there is a compelling reason for the introduction of that regulation, it is not only contemptuous of the will of the Oireachtas, which has not yet expressed its opinion on section 2, as belatedly accepted by the Minister, but also of a decision of the High Court in the Laurentiu case heard before Mr. Justice Geoghegan in which judgment was delivered on 22 January 1999.

In that judgment Mr. Justice Geoghegan spells out the limitations of the Minister in acting without the consent of the Oireachtas. Mr. Justice Geoghegan stated that, in line with the views expressed by the Supreme Court, the Minister could not have a legislative power in relation to deportation unless some policy or principles on foot of which he is to act are set out in the parent Act. He also stated that, in his view, the Oireachtas did not legislate for deportation but merely permitted the Minister for Justice, Equality and Law Reform to legislate for deportation.

In the same judgment Mr. Justice Geoghegan stated that even if he was wrong in the view that specific principles or guidelines as to the deportation of aliens have to be set out in the Act, it is still the case that a general power conferred on the Minister of a kind now conferred by article 13 of the 1946 order should be conferred by the Act itself and not by a statutory instrument such as the 1946 order. In other words, the Minister is not entitled to confer on himself the power to deport as in article 13.1 of the 1946 order. Such a provision would have to be included in an Act of the Oireachtas.

Mr. Justice Geoghegan also stated that the power to require an alien to leave and to remain thereafter outside the State, if the Minister deemed it to be conducive to the public good, is not in any sense a purely regulatory or administrative matter, though it is also that. Article 13.1 contains substantive legislation and is prohibited by Article 15.2 of the Constitution. Accordingly, Mr. Justice Geoghegan granted a declaration that section 15(1)(e) of the Aliens Act, 1935, is inconsistent with the Constitution and does not form part of Irish law.

Subsequent to the decision of 22 January, and notwithstanding the clear admonition of the High Court, the Minister introduced an order to change the regulations on asylum seekers trying to enter the State - the so-called leave to land regulations were amended. It was wrong of the Minister to introduce those regulations without statutory approval. The Minister stated that he presumes the Oireachtas will retrospectively validate the regulations, but that does not afford the Oireachtas or this committee their proper roles and functions. It confers the responsibility for primary legislation on the Minister, something which is specifically struck down by the Geoghegan judgment. If there was an urgent reason for taking such action, we have not yet heard it. If there was no such emergency, the Minister should have the good grace to legislate for such amendments and policy as he sees fit through primary statute law.

I find it difficult to understand how Deputy Howlin can say he has not yet heard an explanation. I spent at least ten minutes explaining precisely what I did and why I did it. The legislation before the committee follows the principles set out in the Laurentiu judgment. With respect, Deputy Howlin is misinterpreting that judgment. In that case, the court struck down article 13 of the Aliens Order, 1946, in the context of section 5(1)(e) of the 1935 Act.

I am relying on the reasoning behind it.

In those circumstances, I find it difficult to agree with the arguments advanced by Deputy Howlin. There appears to be an assumption in some quarters that everything was struck down but I have explained that that was not the position. It is perfectly in order for me to come before the committee and the Dáil and to ask them in an open, transparent and democratic fashion to comply with section 2(1) of the Immigration Bill, 1999. Indeed, I cannot think of any other way by which I could achieve that objective. It is open to members to disagree with the general principle but to say that I am not obeying the judgment of the court is to take matters too far. The principles set out in the case itself are those I seek to encapsulate in the current legislation.

With regard to the issue of 'leave to land' to which Deputy Howlin referred, it is not something which relates to asylum seekers alone. The Deputy would accept that. It concerns the power to admit a person to the State or the common travel area at issue, be they asylum seekers, immigrants or tourists. It is a vital power and one necessary to ensure public security. Section 2 ensures that such power will not be endangered. I would be acting very irresponsibly if I acted in any other way on this matter.

I draw the Minister's attention to the central point made by Deputy Howlin, namely that Mr. Justice Geoghegan's judgment was a very narrow one. Mr. Justice Geoghegan turned down other applications made by Mr. Laurentiu; for example, he refused his claim for refugee status. The judgment related to the applicability of section 5(1)(e) of the Aliens Act, 1935. The judge stated clearly that if his interpretation was correct the present scheme clearly contravenes Article 15.2 of the Constitution.

Article 15.2 stipulates that the Oireachtas has exclusive powers for the making of laws for the State, although provision might be made by law for the creation or recognition of subordinate legislators or for the powers and functions of such legislators. The judge went on to state that even if his interpretation was wrong and specific principles or guidelines for deportation had to be set out in the Aliens Act, it remained the case that a general power to make deportation orders of the kind conferred by article 13 of the Aliens Act, 1946 should be conferred on the Minister for Justice, Equality and Law Reform by the 1935 Act itself and not by a statutory instrument such as the 1946 order.

In other words, the Minister is not entitled to confer on himself the power to deport as contained in article 13.1 of the 1946 order. Such a provision would have to be contained within the Act. Mr. Justice Geoghegan stated that article 13.1 contained substantive legislation which was prohibited by Article 15.2 of the Constitution. Why did the Minister and the Government not appeal the judgment further?

The Deputy was not present earlier when I said that we appealed the Laurentiu judgment from the High Court to the Supreme Court. The court has reserved judgment on the matter but I anticipate that it will be handed down soon.

There is a certain degree of obfuscation here but the net point is that the Minister does not, in my view, have the power to make the orders he made subsequent to Mr. Justice Geoghegan's judgment. It is clear that the Minister does not have the legislative authority to do so because we are now retrospectively validating those orders through this subsection. Will the Minister explain why it was necessary for him to make such orders which, to put it kindly, are vulnerable to constitutional challenge in the absence of legislation debated and enacted by the Oireachtas?

The reason we are here at all is that the court, in the Laurentiu judgment, made it very clear that the power conferred on the Minister for Justice, Equality and Law Reform by the Aliens Act, 1935 whereby the Minister could operate by way of regulation in relation to deportations was not consistent with the 1937 Constitution and should be done through primary legislation. That is precisely what I am doing. I am introducing primary legislation to confer that power on the Minister because the High Court judge stated it was not constitutional for me in the context of section 5(1)(e) to do otherwise. That is why I am proceeding in this manner.

Deputy Howlin asked why, if only one part of the order was struck down by the court, I felt it necessary to insert section 2(1). The simple reason for that is that I want to avoid any doubt whatsoever. I accept that the reasoning behind the judgment is capable of being extended to include the other provisions of the 1935 Act.

Any sensible reading of it would achieve that.

That is exactly the reason I am advancing for section 2(1). The Aliens Orders are made under valid provisions of the Aliens Act and the provisions before us give the protection of an Act of the Oireachtas to them. There is absolutely nothing wrong with that. I am following the court's judgment and could not do otherwise. I have not just followed the judgment of the court, I have taken the Attorney General's advice on the matter and that is as I have outlined. This is the reason I am proceeding in this way. I am satisfied it is as sound as I can make it.

We are now coming to the reason for introducing the section. The section is at odds with the principles enunciated by Mr. Justice Geoghegan, which are that the Minister may not make primary law by way of statutory instrument or deportations. This is such an important issue that the will of the Oireachtas is required to be determined. The Minister should make clear his intentions and introduce as part of a statute the regulations he wishes to validate. It is at odds with the principles enunciated by Mr. Justice Geoghegan for the Minister to say the statutory instruments are invalid because the will of the Oireachtas is not determined and that he will include a sentence which reads "that which is invalid is hereby declared invalid". We are not debating the contents of the statutory instruments being validated. Where are the specifics the Minister purports to validate? Let us debate their merits and demerits.

It is not acceptable for the Minister to say he needs the protection of primary statute to deport people and that he will include a sentence in this section which reads that every order made prior to the passing of this Act shall have statutory effect as if it were an Act of the Oireachtas. This is not the correct way to determine the will of the Oireachtas on deportation primary principles, the principles enunciated by Mr. Justice Geoghegan. Will the Minister accept the section should be omitted and that the Bill should incorporate the principles that surround the processing of landing procedures and so on, which are being regulated by way of statutory instrument and suspect, to put it mildly?

Apropos what Deputy Howlin said about the vulnerability of what the Minister is doing in terms of retrospection, etc., I draw his attention to Mr. Justice Geoghegan's judgment declaring section 5(1)(e) of the Aliens Act to be unconstitutional. He said it was unconstitutional because of the failure to set out policy or principles on foot of which such orders are issued. What has changed in the interim in terms of the Minister setting out policy principles? All we have received is a promise to insert in the Bill, before the conclusion of Committee Stage, a section before section 11 on this issue.

The Oireachtas has this facility, not the Minister.

Exactly. The Minister is embarking on the same course of action in setting down procedures for deportation in the absence of fundamental policy principles. He is saying that he must set out his policy principles before he dares to introduce further measures to give effect to deportation orders.

We are, in effect, retrospectively forfeiting our right to be involved with the Minister in setting down policies and principles. We are saying that everything is grand and we will endorse everything without having decided on the basis for these principles. This goes against the spirit and letter of the judgment. I concur with my colleagues in questioning the Minister in this regard.

Every contribution is prefaced by the presupposition that the orders referred to in the section are invalid. They are not invalid.

Is the Minister validating them?

They are not invalid because the court judgment dealt with article 13 of the Aliens Order, 1946, which I have excluded from the Schedule. I explained that the reason I am giving legislative effect to the remainder is that I am aware of the possibility that the finding of the court on the power to deport could in another case be extended by analogy to the powers of the Minister under the Aliens Act to make orders relating to other aspects of immigration and residence of non-nationals.

Sections 3 to 12 set out the principles to which Deputy Higgins refers. Section 3 refers precisely to what the Minister may do by order. Other sections indicate that I am following the letter and spirit of the Laurentiu judgment. I have made no bones of the fact that this is a holding measure to ensure that while the new legislation is being developed we will continue to have some form of immigration controls. The alternative is to have no immigration controls. Deputy Howlin is indicating that he does not accept this. It at least runs the risk of having no immigration controls for the reasons I have outlined. Because the risk is so real, it would be irresponsible of me not to do what I propose.

Sections 3 to 11 replace the deportation provisions which were struck down. By setting this out in primary legislation, I am doing precisely what the court said I should do. It is not as if I have many alternatives available to me. It is not a "pick and choose" scenario, it is a difficult matter. However, I must take the option available to me. As this is a holding measure and I am developing comprehensive legislation, it is my wish that the legislation will not be on the Statute Book for too long. This is a relatively good and fair stopgap measure.

The Bill makes no attempt to validate deportation orders under article 13 of the 1946 Order. This, in turn, means if I wish to deport a person in respect of whom such an order already exists and was not executed, I would have to follow the detailed procedures set out in the Bill when enacted. I hope this alleviates Deputy O'Sullivan's concerns that I would be in a position to do the opposite.

This is a fundamental point. The Minister's last contribution made a more reasoned argument, that this is a temporary measure. There is a need to deal with the vacuum created by the Geoghegan judgment in the Laurentiu case. I seek to vindicate the importance of recognising the supremacy of the Oireachtas. The Minister has not accepted that but perhaps he will listen to my next point about orders made subsequent to the judgment.

Amendment No. 4 proposes that orders be encompassed in primary legislation from at least 3 February when this Bill was published. It is contemptuous of the judgment and, more importantly, of the Oireachtas for the Minister to make policy without the imprimatur of the Oireachtas. Regulations signed by the Minister subsequent to the judgment and, in particular, those signed subsequent to publication of the Bill, should be incorporated in the Bill so that we can debate the principles. That is what the Oireachtas should be doing.

Having spent four and a half years in Government, I know that many Members on the other side of the House would prefer if the Oireachtas did not debate policies or make decisions. Some feel we are here to rubber-stamp decisions and that it is the Executive which is the legislator. Responsibility for such matters lies with the Oireachtas under the Constitution. Committees of the Oireachtas were set up to provide not only Opposition Deputies but backbenchers of Government parties with the chance to ensure that the will of the people shapes and forms law. That is why this principle is so important.

Principles dealing with important matters such as deportation should be established in primary statute, debated in the House and enacted. The Minister could then act on those principles. For him to introduce section 2, which is a retrospective validation of orders, after the Bill has been published is a blow to the independence and primacy of the Oireachtas.

This legislation indicates that I acknowledge the supremacy of the Legislature. The Executive can propose legislation but it must be passed by both Houses of the Oireachtas. If worthwhile legislation is presented from any quarter I assure the Deputy that I will not be slow, in the public interest, to accept it nor will I be petty in that respect.

The Laurentiu judgment relates only to deportation procedures. The advice I have received is that the order of 3 February was properly made. If Deputy Howlin, or any other Deputy, has problems with this or any other legislation, there are procedures which they may invoke to move a resolution to try to strike it out. This legislation follows the Laurentiu judgment. I am putting in place primary legislation and setting out the principles and policies dealing with the subject matter of the Bill. I believe the procedure which I have adopted is correct

Amendment put and declared lost.

I move amendment No. 5:

In page 3, subsection (1), line 30, to delete "prior to" and substitute "before".

Amendment agreed to.

I move amendment No. 6:

In page 3, subsection (1), line 32, after "effect" to insert "for a period of 6 months".

Amendment put and declared lost.
Question proposed: "That section 2, as amended, stand part of the Bill."

We should delay the legislation on this point but I do not propose to do so. This section strikes at the rights of the Oireachtas to have primacy in this matter. It retrospectively validates regulations which should be incorporated in the Bill and debated by the Oireachtas.

They were not invalid.

Invalid or not, the principle is that it is the Oireachtas which makes the law, not the Minister. Secondary legislation which impacts on people's fundamental rights should be debated and accepted by the House.

The Oireachtas can accept or reject regulations. In those circumstances, the primacy of the Oireachtas is not only being observed but is being respected. One must remember that the orders concerned were not held to be invalid and could have remained as such. The Legislature is being asked, through this section, to give them the primacy of legislation. I cannot see how else I could have shown more respect to the House.

The Minister could have introduced the change by way of amendments to this Bill so that they might have been debated properly. It is disingenuous of the Minister to suggest that the procedure by which it is possible to annul a regulation within a tight timeframe is a proper way of dealing with such a matter. The only opportunity available to my party to have such matters debated is during Private Members' time. Far too much secondary legislation is being enacted. In a matter as important as this, where the High Court has debated the principles involved, it is quite wrong that we should simply rubber-stamp the Minister's regulations and give them the effect of primary statute law.

A man convinced against his will is of the same opinion still.

Question put.
The Select Committee divided: Tá, 8; Níl, 7.

  • Ardagh, Seán.
  • Ellis, John.
  • Hanafin, Mary.
  • McGennis, Marian.
  • McGuinness, John.
  • O’Donoghue, John.
  • Ryan, Eoin.
  • Wright, G. V.

Níl

  • Ahearn, Theresa.
  • Browne, John (Carlow-Kilkenny).
  • Higgins, Jim.
  • Howlin, Brendan.
  • O’Sullivan, Jan.
  • Perry, John.
  • Shortall, Róisín.
Question declared carried.
NEW SECTION.

I move amendment No. 7:

In page 4, before section 3, to insert the following new section:

3.-Any notice or similar document or information required or permitted to be given to any person under this Act or the Act of 1935 shall in so far as possible be given to the person in a language which he or she understands.".

The reason I tabled this amendment is that I felt there was something missing and I wanted to ensure that the documentation and information given to the appropriate person is comprehensible. I presume the Minister has no difficulty in accepting the amendment.

Amendment No. 25 is more extensive than Deputy Howlin's amendment. It concurs with the language requirement but it also proposes to delete the following, "notify the person concerned in writing of his or her proposal and the reasons for it" - lines 37 to 39 of subsection (3)(a) - and substitute "ensure that the written order and the reasons for it are delivered to the person named in the order by a person authorised by the Minister and that the order is presented in a language understandable to the person to be deported".

One of the provisions of the Refugee Act, 1996, not implemented is the right of asylum seekers to be informed of what is happening in a language they understand at the point of making their claim and the right to consult a solicitor and the UNHCR.

When I saw this Bill I was amazed there was no reference to this fundamental requirement to ensure vitally important data on the welfare of the person and his or her future is delivered in a language the person understands. It is so fundamental from a human rights point of view that everything possible should be done to ensure adequate interpretation and translation facilities are available.

The other part of amendment No. 25 relates to the requirement to have the order delivered to the person named in the order by a person authorised by the Minister. I realise people may decide, when they know an order is to be made, to absent themselves to evade the order. On the other hand, there is the danger that an order may go to the wrong address or may not be received by the person named and he or she may, therefore, be unaware of it. When invoking an order as fundamental as a deportation order, in such grave circumstances there should be a requirement to have the order delivered in person by a person authorised by the Minister.

It is a fundamental principle that a person should understand what is being said and done to him or her in terms of deportation. Interpreting the Minister's body language, he accepts this. If he does not, I would be amazed. It is fundamental that this is included in such legislation. It is important in terms of the Refugee Act and the rights of those seeking asylum that they understand what is going on. It is vital that people understand what is happening in the deportation process.

If someone says they do not understand, how is that dealt with?

That is a difficult question. In practice we always try to ensure that we use a language the people concerned understand, if only for the reason that it would be futile to do otherwise.

I accept the thrust of amendment No. 7. I support the principle of conveying written information of a significant nature to a person in a language he or she understands. That may surprise some people. In the interests of fairness and transparency, it stands to reason that a person should understand notifications leading to possible decisions which affect them. Decisions are conveyed in clear, simple language to facilitate understanding, and there are provisions in the Refugee Act, 1996, regarding the provision of information, where possible, in a language the person understands. I will bring forward an amendment on Report Stage based on the proposals put forward by Deputies Howlin and O'Sullivan. On that basis I ask them to withdraw amendment No. 7.

Amendment No. 25 is opposed. This provision of the Bill comes into operation at the time the Minister is proposing to make a deportation order against a particular individual. It is a proposal; no order has been made against the person at this stage. It is the beginning of the process. The Minister is required to notify the person of the reasons for this proposal and the person will be afforded the opportunity to make written representations or have such representations made on his or her behalf. It is not possible to provide the person concerned with a copy of the order as it has not been made and may never be made. The Minister, before determining whether to make an order, must have regard to the provisions of the Bill, in particular section 3(6) and the prohibition of refoulement.

Provisions for delivery of notice are set out in section 6. This section provides that notice may be served on a person by delivering it to him or her or sending it by registered post to the address most recently furnished by him or her. This is a standard method of delivering notices. It had been the practice to request the Garda to deliver notice in person of the intention to make a deportation order and decisions on the making of a deportation. However, while that may have been possible in the past, it is no longer practical and it would otherwise necessitate a huge involvement of Garda time and resources. It is a requirement for every non-national to provide details of address or change of address to the Garda Síochána for registration purposes under article 11 of the Aliens Order, 1946.

It is likely that one of the first matters regarding a person who comes to the attention of the authorities under this Act would be to establish an address for them. Registered post is the standard method of serving notices. Provision is also made for personal service which can be used when a person is already available at the offices of the Department and can be given notice there and then. It has been the practice to serve a person's legal representative with a copy of a notice and it is open to a person, under subsection (6)(b), to furnish the Minister with the address of their legal representative, if any, for service. The Deputy's amendment would require me to serve an order on the person in question before the order is made, but clearly that would not be possible.

Amendment, by leave, withdrawn.

Amendment No. 44 is consequential on amendment No. 8 and amendments Nos. 38, 39, 42 and 45 are related. It is proposed that all these amendments be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 8:

In page 4, subsection (1), line 5, after "Subject to" to insert "the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and”.

The purpose of this amendment and its consequential amendment, No. 44, is to express the prohibition of refoulement as a general precondition to the making of a deportation order rather than as a matter to be taken into account when deciding whether to make the order.

While the difference in practical terms is probably minimal, I am satisfied that because of the all-encompassing nature on the prohibition of refoulement as set out in section 5 of the Refugee Act, 1996, it is better in principle to express the connection between that provision and the deportation process in this amended way. The manner in which the Bill as at present expressed treats refoulement might give the casual reader the impression - an entirely wrong one - that having had regard to the fact that a particular return would be a refoulement, a Minister for Justice, Equality and Law Reform may, nonetheless, have the power to make the deportation order. By taking out the reference to refoulement from the list of matters to which the Minister must have regard and by making the entire process subject to section 5 of the Refugee Act, 1996, the possibility for that sort of misinterpretation is removed.

Amendment No. 45, which is an alternative to amendment No. 44 and the related amendments Nos. 38, 39 and 42, are all opposed. They seek to introduce provisions which would, in effect, make a number of international instruments part of Irish domestic law. These international instruments are for the most part instruments to which the State is a party. The State complies with its obligations under instruments to which it is a party either because its laws are consistent with such instruments or the State operates domestic law or otherwise acts in a manner consistent with those obligations. The instruments are, however, not part of Irish law. In the case of instruments which it is intended to ratify, it may be necessary to legislate before ratification in order that the State's domestic laws are fully compliant with the instrument in question.

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which reference is made in amendments Nos. 38, 42 and 45, is a case in point. The legislation necessary to enable Ireland ratify that instrument is currently awaiting Report Stage in the Seanad. Of course, the principles enshrined in those instruments to which the State is party are matters to which any Minister will have regard in determining whether to make a deportation order. Those matters are already encompassed by the comprehensive list of factors in paragraphs (a) to (l) of subsection (6) and particularly paragraph (h) on humanitarian considerations. That list is sufficiently flexible to encompass the current range of our international obligations as well as to cover obligations the State may assume under any future such instruments to which it may become a party without the necessity for the ratification of such a future instrument to require the list to be amended by an Act of the Oireachtas.

I could not, however, accept the open ended and ill-defined expression in amendment No. 38 which would oblige the Minister to have regard to any international human rights instrument irrespective of whether the State was a party or even a signatory to it. The same amendment refers specifically to Article 33 of the 1951 Geneva Convention relating to the status of refugees. This reference affords a good illustration of the relationship between Irish domestic law and our international obligations. That article deals with non- refoulement. Our international obligations arising from that article are not implemented by adopting the article as part of Irish domestic law. The approach has been to enact section 5 of the Refugee Act, 1996. There are undoubted similarities between Article 33 of the UN Convention and section 5 of the Refugee Act, 1996, but it is the differences which are more significant in the context of these amendments. Article 33 confines itself to refugees. Section 5 applies to any expulsion or return irrespective of whether the person is a refugee. Article 33 contains an exception clause permitting refoulement for a refugee who may be a danger to the security of the country in which he or she is or, having been convicted of a serious crime, is a danger to the security of that country. The Irish domestic law provision contains no such exclusion clause. It is accordingly proper to say that Irish law gives effect to the international obligation in question rather than that the international obligation is incorporated into Irish law. That is the technique whereby Ireland honours its international obligations generally in this sphere.

To the extent that the amendments refer to instruments to which Ireland is already a party, they are unnecessary because the provisions of the Bill are consistent with those obligations. To the extent that they refer to instruments to which we are not a party, they are premature since the process of ratification in each case would establish to what extent our laws are consistent with the instrument in each case and to what extent legislation is needed. That process, as I have indicated, is taking place already in relation to the UN Convention against Torture.

I note that none of the Opposition amendments that deal with international human rights instruments mentions one relevant such instrument to which Ireland is already a party. I refer to the Dublin Convention which is extant and under which Ireland reaffirms its commitment to the 1951 Geneva Convention on refugees which guarantees, along with the other parties to the Convention, that an asylum application made in any Convention country will be heard in one of them.

Can the Minister explain what he understands by the principle of non- refoulement?

The statutory definition of refoulement is set out in section 5 of the Refugee Act, 1996. It provides that a person will not be expelled from the State or returned in any manner to frontiers or territories where, in the opinion of the Minister, the life or freedom of that person would be threatened for the usual reasons - race, religion, nationality, membership of a particular social group or political opinion. Section 5(2) goes on to state that without prejudice to subsection (1) a person’s freedom would be regarded as being threatened if, inter alia, in the opinion of the Minister the person is likely to be subject to a serious assault including a serious assault of a sexual nature. It means that there would be no power to expel an individual back to a country where it is felt the individual would be returned to the situation from which he or she had attempted to escape in the first instance. It will be clear to all Members that there are very clear and cogent reasons for that.

The rule is recognised in international law and has been for a considerable time. It would be recognised in any civilised refugee legislation. It also applies to regulations relating to refusal to land. It is a protection for the person concerned.

I thank the Minister for that explanation. Under the terms of the Bill as presented, the Minister must simply have regard to the principle of non- refoulement under the existing section 3(6)(j) which he now proposes to supplant into section 3(1), deleting section 3(6)(j). It is my belief that the principle of having regard to an important right should be converted into a clear prohibition along the lines set out in the Refugee Act. That is why we have tabled amendments Nos. 38 and 39. If there is an omission and we should amplify the list of Conventions to which we should have regard, I would not object to doing so. Amendment No. 38 proposes to insert the following subsection:

"(6) Notwithstanding any other provision of this section, the Minister shall not make a deportation order in relation to a person if the effect of so doing would contravene or carries a substantial risk of contravening any international human rights instrument. . . ".

That is an important principle which should be enshrined in the legislation. Amendment No. 38 goes on to instance the UN Convention relating to the Status of Refugees, Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

Amendment No. 39 proposes to insert the following subsection before subsection (6):

"In particular, notwithstanding any other provision of this section, the Minister shall not make a deportation order in relation to a person who is a lawful resident if the effect of so doing would contravene or carries a substantial risk of contravening Article 13 of the International Covenant on Civil and Political Rights.".

The Minister mentioned that covenant. According to advice I have received to date the compliance of the Bill with the covenant is dubious. The covenant is binding on us - I understand we have ratified it. Therefore, it is incumbent on the Minister to ensure the Bill implements the covenant fully. Amendment No. 39 gives the Minister the opportunity to copper-fasten this matter and to avoid doubt.

I would be concerned if the Minister had difficulty accepting my amendment. It is a legally binding instrument of international law which must be complied with. I do not see the difficulty in complying explicitly with it in the way I have expressed.

On amendment No. 38, it is an important part of the legislation to ensure no deportation order could contravene international human rights instruments, particularly those which I have laid out in amendment No. 38. I have no difficulty accepting the Minister dropping subsection 6 (j) and supplanting it in subsection 3 (b)(i) but it is too naked and limited in itself.

I would like to explain my aim in tabling amendments Nos. 42 and 45 which concern section 3 (6). Subsection (6) states "In determining whether to make a deportation order in relation to a person, the Minister shall have regard to-" and it sets out a list of criteria to which the Minister must have regard, including the age of the person. Earlier I sought to insert whether the person is under 18 years of age. The following criteria are also included: the duration of residence in the State of the person; the domestic circumstances of the person; the nature of the person's connection with the State, if any; the employment, including self-employment, record of the person and the employment, including self-employment, prospects of the person.

I seek to insert that the Minister should also have regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and subsequent Protocols; the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment of 10 December 1984 and the Convention on the Rights of the Child of 20 November 1989. To date we have laid every emphasis on the rights of the child.

I also wish to insert another subsection so that in making a deportation order the Minister shall have regard to "Article 3 of the European Convention on Human Rights, the Convention against Torture and Article 7 of the International Covenant on Civil and Political Rights". The Minister has said that he will not accept these amendments because we are seeking, in effect, to make international instruments part of domestic law. He said that although we have signed up to them they have not been enshrined in domestic law. Surely that is a contradiction. If one signs something, one signs into the spirit of it. In signing these instruments or articles, we gave a commitment that in dealing with nationals that come within the remit of these international instruments, we would have due regard for and take cognisance of the spirit of their contents.

I am appalled at the interpretation and narrow attitude adopted that although we said we would have due regard to the particulars of the instruments which we signed, we are not prepared to enshrine this commitment into legislation. It is fundamentally and inextricably intertwined with the procedures before the committee today. This is a mind-boggling contradiction. We have signed up to these instruments but when it comes to having due regard and recognition for them, we are not prepared to recognise them in domestic legislation, even in aspirational terms.

I wish to refer to when we dealt with the human rights legislation and the submission from Amnesty International. It made a strong case that legislation in the field of human rights and on the matters covered by this Bill should be embedded in human rights principles and in international covenants on human rights. Deputy Howlin and I are seeking to do that with our amendments, as is Deputy Jim Higgins with his amendments. In amendment No. 39 we refer to an international covenant which I understand we have ratified and in the other amendments other conventions which we have signed but not yet ratified are referred to.

It is a fundamental principle of human rights that we should ensure this legislation, which inevitably deals with people's movement from one country to another, should be fully cognisant of and in compliance with these international conventions. We are seeking to achieve that with these amendments. These fundamental principles should be fully written into the Bill and that will happen with the acceptance of these amendments. I hope the Minister will respond positively.

I am open to correction but it seems that the Minister's amendment achieves the objective of the other amendments tabled by the Deputies. Perhaps I am wrong. Deputy O'Sullivan mentioned the human rights legislation. The Constitutional Review Group, of which I am a member, has also examined our responsibilities in relation to international conventions which we have signed. It was pointed out to us that the Constitution is supreme and the incorporation of those responsibilities has implications for our laws. From the Minister's explanation of his amendment, it seems the objectives of the other Deputies are fulfilled by it.

On the substantive issue of refoulement, the Deputy is correct. My amendment does precisely what Deputy Howlin sought on that matter. It will now be a pre-condition of a deportation order that an individual cannot be transported to a country where he would be subjected to the kind of threats which would have made him a refugee. That is also the case in relation to an individual being returned to a country from whence he or she could be transferred on to a country where these threats could again become real. As Deputy McGennis stated, the substantive matter has been addressed by my amendment. That was the issue first mentioned by Deputy Howlin.

On the other issues, I have explained the position. When Ireland becomes a party to international instruments, clearly it observes them in the spirit, often through the introduction of domestic legislation. There is a grave difficulty in relation to conventions which are not yet ratified because it is difficult to tell what kind of procedures and legislation would be required to adapt Irish law to those measures.

I have set out at length my position and I have listened very carefully to the contributions of Opposition Deputies on international obligations and the manner in which they might be reflected in domestic legislation. The best I can do is to reconsider this in the light of the arguments which have been put forward. I see some merit in what Deputies are saying. There should be some reference in the body of the Bill to international instruments, or to those which have a direct bearing on this area. I see merit in the argument and for the sake of the legislation it would be best for me to talk with the Attorney General on this matter, to put to him the arguments which have been made and see whether it would be in the overall interests of the legislation to make some appropriate amendments. I ask Opposition Deputies to await those consultations, and I will try to bring forward amendments which might be acceptable if those consultations prove fruitful.

I suggest that we agree to amendment No. 8. What is the provision for revisiting our amendments which will probably not be reached in the body of the Bill today and which it will not be possible to discuss again because we will have discussed them if the Minister brings back a new amendment?

We can discuss them on the sections to which they refer.

Amendment agreed to.
The Select Committee adjourned at 4.12 p.m. sine die.