I welcome the Minister and his officials. Amendments Nos. 9 and 10 are related. I propose that Amendments Nos. 9 and 10 be discussed together by agreement.
Immigration Bill, 1999: Committee Stage (Resumed).
I move amendment No. 9:
In page 4, subsection (1), lines 8 and 9, to delete "and to remain thereafter out of the State" and substitute "for such a period as may be specified in the order and without prejudice to the right to re-apply for permission to re-enter the State".
This is the contentious section with deals with deportation orders in relation to the people who have to remain out of the State. Section 3 states:
(1) Subject to the subsequent provisions of this section, the Minister may, by order (in this Act referred to as "a deportation order") require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.
My amendment seeks to have those people excluded from the State "for such a period as may be specified in the order and without prejudice to the right to reapply for permission to re-enter the State". It is too absolute to give somebody the red card to exclude him from the State, without the possibility of ever again re-entering the State, irrespective of how the person might present his credentials, how the situation may have changed, or of how human rights considerations in his own country might have changed. The section is too rigid and too definitive. To bring the shutters down and say there is not any possibility of this person re-entering the State is excessive.
I support Deputy Higgins' amendment. My amendment No. 10, which would have the same effect, states:
In page 4, subsection (1), lines 8 and 9, to delete "and to remain thereafter out of the State".
As Deputy Higgins said, section 3 deals with the most contentious part of the Bill, deportation orders. It is wrong, once such an order is made, that there would not ever be a right to re-enter the State. There should be a procedure to enable somebody to apply to have an order revoked. To prevent a person from applying ever again goes well beyond what is just and fair. I am interested to hear if the Minister will accept this amendment or whether we need to argue the point.
Amendments Nos. 9 and 10 in the names of Deputies Higgins and Howlin, respectively, are opposed. A deportation is not a temporary removal from the State with the option to return whenever a person so wishes. That would be to defeat the whole purpose of the order. A person is deported from the State on the basis that his or her presence here is clearly invalid or undesirable. The intention, therefore, is that the person so deported should remain outside the State. The order must, in each case, therefore, state that the person is to go away and stay away. If it said simply "leave the State", there would be nothing to stop an immediate re-entry.
Furthermore, an order made in respect of a person already outside the State would make no sense unless it included the requirement to remain outside the State. Deputies Higgins and Howlin are suggesting that once the order is made that it is irrevocable. That is not so. Section 3(11) provides that an order may be amended or revoked. It is open to a person who has been deported to apply from abroad to seek to have it amended or revoked in the context of a visa application if the person is subject under our law to a visa requirement.
I would not put too much money on his chances.
Any such person would have his or her case re-examined and the order lifted in circumstances where it was so merited. In this sense, therefore, an order is not necessarily permanent although, it has to be said, deportation orders are not lightly made and, as Deputy Howlin has said, are rarely revoked.
However, a person, the subject of a deportation, who is removed from the State on foot of that order but who subsequently returns to the State by whatever means and applies for asylum cannot be prevented from making such an application and will have it dealt with to a proper conclusion. This is the position under our existing asylum determination procedures and will remain the position under the Refugee Act, 1996, which will become fully operational later this year. Accordingly, the circumstances outlined by Deputy Higgins to the effect that circumstances could change in an individual's country and that he or she would be barred by the deportation order is far too strict an interpretation of the actual position. There is nothing to prevent an individual who has been the subject matter of a deportation order applying for asylum in the State subsequently. Such an application would have to be dealt with in accordance with law.
It is obvious there is nothing to stop anybody re-applying. The right of application is implicit in the Constitution. People can make application for anything but, as Deputy Howlin has said, from the point of view of the likelihood of such an application succeeding one would not put any money on it. That the person would, effectively, have been given the red card and it would certainly prejudice in a major way, the likelihood of his being readmitted. What everybody is worried about is the wording in lines 8 and 9 "and to remain thereafter out of the State" The spirit and intention behind the wording is that, once one is the subject of a deportation order and has been excluded from the country, that is it. In order words, they are never again to even countenance the possibility that they might be readmitted to the State. That it is definitive, absolute and for all time. I cannot see why the Minister will not agree either to my amendment or Deputy Howlin's amendment which seeks to exclude that remaining suspicious sentiment which the Minister, for reasons best known to himself, has built into the Bill.
I am seeking to understand what the Minister has said and to accommodate any fear that anybody would simply be deported, would take a boat somewhere and come back on the returning ferry. Will the Minister reflect further on this and on Report Stage specify a period beyond which one is required to stay out of the State? The only saver is in subsection (11) which provides that the Minister may revoke an order. There is as much likelihood of the Minister revoking the order as having glorious sunshine for the remainder of the summer in Ireland. The reality will be that anybody who is deported will not have the right to be heard again. That is wrong. Since we will not convince him now, will the Minister consider amending the absoluteness of the subsection (1) on Report Stage and, having reflected on it, defend the position or bring back an amended section?
It looks as if we will have a marvellous summer. Recently I allowed two people into the country who were the subject matter of deportation orders. That puts that argument to bed. There is nothing suspicious about any of this. In subsection (11) power is given to the Minister of the day to amend or revoke an order made under the Act, including an order made under this subsection. It is quite clear. Recently, two people who were the subject matter of deportation were allowed back into the country because the circumstances changed. If the circumstances change and the application is meritorious, it must be dealt with in accordance with law.
I have stated repeatedly, and I repeat again for the edification of those who do not want to listen, that our refugee laws are in accordance with international standards. International standards are applied. There is nothing surreptitious or suspicious about them. They are above board and they operate fairly in favour of every individual. Nobody is prevented from making an application. Deputy Higgins said we cannot prevent anybody making an application. That is true, but if one were bad-minded enough one could prevent the application being processed, which is not what happens. Any individual, irrespective of whether he or she is the subject matter of a deportation order, will be entitled to make an application for asylum in this country. Not only will he or she be entitled to make an application for asylum but the application will be processed.
Some time ago Deputy Quinn, the leader of Deputy Howlin's party, put down a parliamentary question to me concerning a person who is a non-EU national. That person was serving a prison sentence for sexually assaulting a 14 year old girl. Deputy Quinn wanted to know if the person would be deported directly from prison. I pointed out in my reply at that time that currently there is no power to deport a person, no matter what offence they may have committed. Without wishing to comment on the circumstances surrounding the case to which Deputy Quinn referred, in such circumstances it might be accepted by any reasonable person - it certainly seems to be accepted by Deputy Quinn - that serious consideration would have to be given to deporting such an individual.
Obviously, when this legislation is enacted, such considerations will include the individual's entitlement to make or to have made representations against any proposal to the court. Those proposals or representations would have to be considered by the Minister and the individual's case would have to be assessed having regard to all the criteria set out in section 3(6) of the Bill. No removal could be effected which would be against the principle of non refoulement. I have said that on numerous occasions. In circumstances where a person is deported, however, having been convicted of sexual offences against a young girl, I do not see that the intention of such an order could be other than that such an individual would remain thereafter outside the State. We cannot make fish of one and flesh of the other. We either have certainty in the law and its application or we do not. Unfortunately, there is no half-way line. We must have certainty in our laws and the certainty which this provision entails is that if an individual is deported, that individual has been told to go away and stay away. I have said, however, that there is nothing to prevent such an individual making application for asylum subsequently and that such an application will be considered. I have given an example of two individuals who arrived in the State having been the subject matter of deportation orders and who were allowed into the State because the circumstances had altered. It would not be proper or right of me to make the amendments suggested.
It concerns me to hear the Minister immediately give the example, at some length, of a non-national who is a child abuser. The vast majority of people who will be affected by this legislation - non-nationals - are not child abusers. That linkage in defence of a position is worrying and indicative of a mindset. The power has to exist to protect the citizens of this State against people who should not be here. I have no difficulty in supporting the Minister, and indeed Deputy Quinn, in the instance he has given. That is why it is essential that this Bill is enacted. The Bill applies to everybody. The notion seems to be that in order to deal with the case the Minister has outlined, every non-national has to be deported permanently without leave to appeal within the State. That is not the nature of our argument. I again ask the Minister to reflect on this matter.
I am disappointed Deputy Howlin should continue to flog a dead horse. The example I put forward is merely an example of an exceptional circumstance which was raised by his party leader.
If it is exceptional it should not be argued as the justification for the general application of the law.
I do not put it forward as justification for general application, but I merely point out the difficulties involved in the half-way measures Deputy Howlin is suggesting. It is not correct——
Will the Minister give way?
——to state that an individual who is deported does not have the right or the opportunity to make representations on his or her behalf. The opposite is the case.
Not in the State. He or she is gone.
Deputy Howlin appears to be grasping at straws at this point. There is no cogency to his argument.
I will make a final comment on this and I hope the Minister will accept it. When we talk about non-nationals, even in this argument, the Minister talks about sex abusers. That is profoundly damaging to the rights of people who come here, some seeking asylum and others rejoining their families. The vast majority of these people are not criminals.
Nobody other than the Deputy suggested they were.
The Minister used the term "sex abuse" in justification of this measure.
I was merely giving an example, and the Deputy knows that.
The logic of the arguments being made by Deputy Howlin and myself concerns the rigidity of the legislation as currently drafted. The Minister, by way of clarification, has said this does not in any way prejudice a person's right to make another application and that the application would be accepted on its merits. Will the Minister consider introducing some clarification along those lines on Report Stage, in other words, inserting in the Bill, without prejudicing the right of a deportee, provision to make another application at some time in the future?
From outside the State?
That is already the position under this Act because under subsection (11) of section 3 the Minister may, by order, amend or revoke an order made under this Act, including an order under this subsection. It is also apparent from the Refugee Act, 1996. I find the arguments being put forward in regard to this matter fallacious because I have already outlined the position under the legislation. It is not set in stone. I have stated that there is discretion and there is also discretion under the Refugee Act, 1996, which I hope to bring into operation later this year.
I move amendment No. 10:
In page 4, subsection (1), lines 8 and 9, to delete "and to remain thereafter out of the State".
Amendment No. 11 in the names of Deputies Howlin and O'Sullivan can be discussed with amendment No. 22 by agreement.
I move amendment No. 11:
In page 4, subsection (2)(a), line 11, after "person" to insert "who has not applied for asylum having had a reasonable opportunity to do so and".
I have a concern about the blanket nature of this provision. Subsection (2)(a) refers to a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State. If this amendment is not accepted, it would mean that a refugee, who had been legally entitled under the United Nations Convention to asylum in this country, where there is a clear international right in law. could be sent back, even if his or her application is pending, if that person has been sentenced to a day's imprisonment for any offence such as driving without insurance. That is not sustainable with our obligations in international law. The wording that I propose should be included would allow us to comply with our international obligations and make the section more acceptable and humane. I hope the Minister will accept that.
The amendments are opposed. The words which they propose to insert are superfluous since the obligation to consider an asylum claim made by any person within the State is already fully catered for in Statute by section 8(1)(c) and section 9 of the Refugee Act, 1996 and pending the Acts coming into operation by the O'Hanlon procedures, copies of which are available in the Oireachtas Library. Thus, the making of an asylum application, in effect, suspends the deportation process until the application is finalised by either grant or refusal of refugee status, transfer under the Dublin Convention to another EU State or abandonment or withdrawal of the claim. It is patently not in the common good for the State to breach its international obligations by denying someone the right to seek asylum.
This amendment also appears to miss the point that subsection (2) merely sets out a list of classes of people who are liable to be deported and does not create a requirement that any or every person who falls into such class should or must be deported.
Amendment No. 11 is also unacceptable because it excludes the possibility of deportation for a convicted criminal who has applied for asylum, irrespective of the outcome of the application. There is an implication in the Deputy's proposal of a requirement that the Minister should explicitly ascertain the wishes of each potential deportee who comes within paragraph (a) of the subsection. In other words, to ask such a person would he or she like to apply for asylum is utterly unacceptable. It is open to each person who feels he or she has a well founded fear of persecution to volunteer that information. There is already ample opportunity for a person to do so, but there cannot be an onus on any State to invite asylum applications. The implication of this amendment appears to be precisely that. Are we to invite asylum applications from people who might have been involved, for example, in criminal activity? It must be accepted that there are instances without doubt where it is in the interests of the common good of this country that the people concerned should be sent back to their country of origin.
Paragraph (i) is required to the subsection to cater for a situation that is not explicitly envisaged in paragraphs (a) to (h). In drafting this subsection, we identified in those paragraphs all of the current circumstances, which give rise to a liability to deportation. It would be unwise, however, to confine the deportation power only to those circumstances and not to cater for the possibility of other special circumstances that might arise from time to time when none of those paragraphs apply but deportation is nonetheless the proper course.
I find the Minister's comments contradictory and confusing. Is he contending that anybody who has applied under their international rights under UN law for asylum in this country is not subject to this section until the application is determined? That is what I understood from the first part of the Minister's reply. The Minister went on to talk in terms of the bogus notion that I was seeking to invite convicted felons to apply for asylum here. There is no such implication in either of the amendments I tabled. I am seeking to protect those who have legitimately applied or have been given a reasonable opportunity to apply for asylum, as they are entitled, under international law. Under our UN obligations, Ireland is obliged to facilitate the processing and detmination of an asylum application before a person can be deported out of this State. If the Minister gives me an assurance that right is already enshrined in the Act, I have no difficulty with the section. His latter two arguments on his interpretation of my intentions and his notion that there would be circumstances where people should be deported forthwith regardless of their status, undermines his first contention. I want to know what is the position?
An application for asylum by any individual suspends the deportation process until such time as the asylum application has been considered by the State. The asylum application is considered by the State in accordance with the law. Ireland fulfils its international obligations in so far as the 1951 Geneva Convention is concerned and will soon implement the Refugee Act, 1996 in its entirety. That is something Deputies Higgins and Howlin singularly failed to do when they were in Government for several years.
We enacted the legislation.
Enacting the legislation is one matter, but that is like promising——
The Government has been in office for almost two years.
infrastructure that is not budgeted for.
It was enacted less than a year before the Government took office.
Making an asylum application suspends the deportation process. The fact that the deportation process is suspended means, as a matter of logical consequence, that the application for asylum is considered on its merits and a decision is made upon it. That should satisfy Deputy Howlin.
It does, if the Minister is telling me that the terms of this section do not apply in the case of a legitimate application for asylum until that application is processed to its conclusion. If that is the case, I will withdraw my amendment.
That is the position.
Amendments Nos. 12 to 14, inclusive, and 35 to 37, inclusive, are related and 49 is cognisant and they may be discussed together by agreement.
I move amendmentNo. 12:
In page 4, subsection (2)(a), line 12, after "State" to insert "for serious criminal offences".
The section deals with the categories of people in respect of whom deportation orders may be made. Subsection (2)(a) states "a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State,". My amendment seeks to insert the qualification "for serious criminal offences".
As the committee will be aware, we have one of the highest prison populations in western Europe. We have a preoccupation with putting people into prison. We have built into virtually every Bill fines and penalties in default of which a prison sentence comes into force. A person can be arraigned, brought before a court, prosecuted and a monetary penalty can be imposed, but if that person defaults on paying such penalty, he or she will end up in prison for seven days or three or six months. The sentencing period varies, but it means that in cases where an offence was essentially of a non-custodial nature, a custody order often applies because the person concerned has failed to meet the monetary payment. I have made the point repeatedly that even though it constitutes only 1 per cent of the prison population, of the 10,000 people who go through our prison system each year, approximately a quarter of those - approximately 2,300 to 2,400 - end up in jail for failing to pay a fine, discharge a civil debt or they may have been found to be in contempt of court.
We are talking here about people who come to this country and have no means of support, other than the subsistence provided for them by health boards. In such situations, where someone creates a relatively minor disturbance or technical breach of the law is brought before the courts and a financial penalty is imposed, there is always an attached prison order for the non-payment of that financial penalty. A person who serves a one day or seven day term of imprisonment in such circumstances is technically debarred and, therefore, can be the subject of a deportation order. I am seeking to insert a proviso that it will not apply to every prison sentence but only to prison sentences imposed for serious criminal offences. That is the thrust and spirit of the amendment.
A number of amendments are being taken together, although I am not sure they gel terribly well. I would like some procedural flexibility when we reach them. Otherwise, there will be a great deal of cross referencing.
Does the Deputy wish to detach them now?
I would prefer to deal with those relating to section 3 now, that is, amendments Nos. 12, 13 and 14.
We can deal with them and amendments Nos. 35 and 36.
Amendment No. 35 deals with a different issue.
We can deal with those separately later.
I would prefer that. The principle enunciated in amendment No. 13 is to delete lines 13 to 15 which state "a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence". What is the logic of this? My advice is that there is no legal base for a court to recommend the deportation of people who are charged with offences since the fundamental tenet of Irish law and our Constitution is that people before the courts under charge are presumed innocent. How could a penalty be recommended in advance of determination of guilt?
These amendments are opposed. Section 3(2) lists categories of non-nationals who are liable to deportation. Paragraph (a) refers to a person who has served or is serving a term of imprisonment and paragraph (b) refers to a person whose deportation has been recommended by a court in the State hearing criminal charges.
The provision at paragraph (b) to make recommendations for deportation in criminal cases was not thought up today or yesterday but is of long standing. It is important for the courts to have this power, and it often exercised in the interests of the person concerned. For example, a court may, as an alternative to arriving at a guilty verdict and imposing a custodial sentence, recommend deportation thus sparing the individual from having a conviction on his or her record or the possibility of a stretch in custody - not a pleasant prospect at the best of times, but known to be particularly difficult for non-nationals, which is understandable. Recent cases where persons charged with offences have been glad to avail of this provision have included people charged with prostitution offences and breaches of immigration law.
There should be no misunderstanding of the intent of paragraphs (a) and (b). They identify persons who are liable for deportation, but membership of a class of persons so liable does not imply that all such persons should be deported. Each case depends on the circumstances. The factors which decide the position in each case are listed at subsection (6) and are designed to ensure that the decision made is proportionate to the facts of the particular case.
In such circumstances, the insertion of the words "for serious criminal offences" proposed in amendment No. 12, and the consequential amendment No. 14, would not be appropriate. They do not take account of a persistent perpetrator of minor offences, who might well be a suitable candidate for deportation. Breaches of immigration laws, for instance, are all at present summary offences. In cases of repeated or continuing breaches of those laws, deportation may often be the most appropriate response.
The same logic applies to amendment No. 49, which would seek to limit the exclusion from the three month period for winding up one's affairs after the making of a deportation order, to persons convicted of serious offences. This winding-up period is intended to benefit those who had lived and worked here for at least five years. The exclusions cover those either serving a sentence or the subject of a recommendation by a court. I cannot accept amendment No. 49, for the same reasons as apply to amendment No. 12. We will deal with that later.
No, we are dealing with amendments Nos. 12, 13, 14 and 49 now.
I cannot accept amendment No. 49, for the same reasons as apply to amendment No. 12.
I am firmly of the belief that the State should be in a position to deport a person in circumstances set out in paragraphs (a) and (b). To delete paragraph (b), as proposed in amendment No. 13, would be to seriously curtail the court's discretion in this area, to the possible detriment of the community and, in many cases, to the individual concerned as well. As I have said, these provisions can be exercised in their favour.
Deputy Howlin stated there was no legal basis for a court recommending a deportation. However, it appears to me that this contention is not correct and that such a power exists under the quaintly named Aliens Act, 1935.
I am concerned by this section. I strongly support the notion that a power to deport should be available to the court on the determination of someone's guilt of an offence once the charge is proved. I am gravely concerned at the power being given to a court to, as the Minister says, facilitate people who might not want the discomfiture of a conviction or custodial sentence to be deported without determination of their guilt. Many vulnerable people appear before the courts and they might not resist because they might be confused and intimidated by the legal system.
I am not a lawyer, unlike the Minister, but I understood that a fundamental basis of our legal system is that all those charged before the courts, citizens and non-citizens, are presumed innocent until proven guilty. I suggest there is a fundamental flaw in the notion that people who volunteer to leave or do not resist will be deported by courts, without the determination of an allegation or charge laid before them. Will the Minister give me an assurance, whatever the Aliens Act, 1935, says - which was a long time ago - that it is constitutional, sustainable and in accordance with our obligations under European and international law for such a practice to exist?
As I already said, there is a power in the Aliens Act, 1935, for the court to recommend a deportation.
That might be suspect on constitutional grounds.
Whether or not it is constitutional, the facts are that, as of now, it is contained in the Aliens Act, 1935, and, to the best of my knowledge, no court has said it is unconstitutional.
It has not been tested.
The power granted to the court pursuant to the 1935 Act is a power of recommendation. It does not grant to the court the power definitively to make a deportation order; that order may only be made by the Minister. While the court has the power to make the recommendation there is no obligation, statutory or otherwise, on the Minister of the day to make the order which the court recommends.
I have outlined the safeguards contained in the legislation to ensure due process is followed assiduously, as it will be. The power to make a deportation order is conferred on the Minister by statute and it is a matter for him or her to make that decision. Undoubtedly there have been, are and will be, instances where it is in the interests of the individual and of society that an individual be deported. Deportation is never a pleasant business and I have not pretended for one moment that it was, but that does not change the reality, and I must deal in reality.
The Minister said the court does not make the deportation order but this section gives the Minister power to make such an order once such a determination is made by the court, which is almost the same thing. More importantly, is the Minister satisfied, having taken advice, that this section - which has the effect of imposing a penalty on a person before the courts, before a determination of guilt has been established - is in accordance with our Constitution, international obligations, European law and the UN Convention?
I agree with Deputy Howlin. It seems draconian that a person who has simply been charged with an offence can be subject to a deportation order before due process has been allowed to take its course. The section should read "convicted" instead of "charged with". As the Deputy said, there is no guarantee that due process will be allowed to take its course. The use of the phrase "charged with" means that the presumption of innocence has been removed. If the State wished to be draconian, it could use the phrase to charge a person with a view to making a deportation order. Who advised the Minister about this provision? It is excessive and I wager that in the event of being tested or challenged it will be deemed unconstitutional. It is no defence that it is in the 1935 Act, another section of that Act has been deemed unconstitutional.
The law and the thinking have progressed a lot since 1935.
Yes. For some reason the Minister has been advised that because this provision is also in the 1935 Act - which is obsolete, outdated and part of which has been found unconstitutional - it should be imported into this Bill. The Minister should reflect again and delete this section, by taking on board either my amendment or that of Deputy Howlin. My amendment would delete the words "or charged with" so that the provision would read "a person whose deportation has been recommended by a court in the State before which such a person was indicted for any crime or offence". To provide that a person could be deported simply for being charged with an offence, even a minor offence, is excessively draconian. It betrays the fundamental thinking of the Minister and the Department on this issue, despite their protestations of enlightenment, and the Department's track record in dealing with immigrants.
I vehemently reject the latter comments. I do not think officials of the Department of Justice, Equality and Law Reform should be attacked in this fashion by a Deputy. It is not in accordance with the best traditions of the House and Deputy Higgins should withdraw his remark. The civil servants are clearly operating the procedures and laws in accordance with the policy of the Government of the day. It was not today or yesterday the law was introduced, it has been law since 1935 and if Deputy Higgins or Deputy Howlin felt so strongly about this during the last 60 years they could have brought forward legislation to amend it.
That is just churlish.
Let us not pretend that this arrived overnight, let us live in the real world for a moment. A power is given to the court pursuant to the Aliens Act, 1935, to make a recommendation that an individual should be deported. Throughout the period in which that power has been vested in the court, discretion ultimately lay with the Minister of the day to decide whether to follow that recommendation. It is entirely untrue to suggest there would be no due process in that respect. Having received such a recommendation the Minister would clearly be obliged to listen to representations from all sides and make a decision in accordance with due process and his or her conscience.
I am not in a position to tell Deputy Howlin that a provision of our law is or is not constitutional. That power is vested by the 1937 Constitution in the courts and it would be wrong to pre-empt any judgment they might make in this respect.
As to the Aliens Act, 1935, and immigration law generally, I have consistently stated my belief that Irish immigration law and policy required a radical overhaul. I am preparing the most comprehensive immigration Bill since 1935 which will come before the Houses for enactment. It will be enlightened but it will not ignore realities.
Would the Minister outline what he means by the due process which would apply in such a case?
When the Minister of the day considers whether an individual should be deported, he obviously must take into account the circumstances surrounding the individual application and consider the case on its merits. There is no formal procedure by which there would be rights of representation in the legal sense, if that is what Deputy Fitzgerald means, but the Minister of the day would have discretion and would have to take into account any representations made, and make his or her decision following deep consideration. None of these deportation orders is made lightly. They are part of immigration law in every democracy of which I am aware; they are not unique to this country. The power of deportation is exercised far more sparingly in this jurisdiction than it would be in most others.
Could the Minister outline what he considers to be the precedent currently applying to that process within the Department?
Precisely the same as was followed by Deputy Owen when she was Minister for Justice.
Could the Minister outline that, as he sees it, in terms of due process for deportation within the Department? He said he would rely on it. What is it?
As I have been trying to outline for some time, the court, in striking down a provision of the Aliens Act, 1935, in the Laurentiu case, stated that the policies being pursued by the Minister of the day were not outlined in legislation and felt the Minister of the day was actingultra vires, and therefore asked that the policy or process be set out or writ large in legislation. That is precisely what is happening in this legislation. This Bill and the considerations which apply to deportation in particular are set out in section 3(2). They are the considerations which the Minister would now take into account in considering whether an order should be made to deport an individual.
It is true that these considerations were not set out in legislation to date but that is not to say that my predecessors did not take into account certain matters in deciding whether a deportation order should be made. It is set out in legislation now. Once the Bill is passed, the considerations and processes which are set out in it will become the blueprint for the Minister.
The problem for us is that while the judgment stated that the Minister must set out in legislation the conditions under which people could be deported, the difficulty with this section is that it is such an all embracing list. Subsequent amendments relate to people from Dublin Convention countries, etc., whose applications have been refused and we are questioning all these matters.
The list is so broad that it is hard to see where are the safeguards for the individuals who are at risk of being deported and this is what we are all trying to address. It is necessary that the Minister outline how a person's human rights are to be protected in this regard if they are subjected to, or are being considered for, a deportation order. Because it is so broad and it is so dependent on the Minister's decision making process, we would like to see broad based protection for people in this section which enables the Minister to deport practically anybody without due process of appeal.
I reject what Deputy O'Sullivan said about the issue of safeguards. I reject the allegation that the circumstances are so broad that humanitarian interests are not taken into account because section 3(6) sets out matters which must be considered by the Minister in deciding whether a deportation should be made. Those considerations include the age of the person, 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, the employment record of the person, the employment prospects of the person, the character and conduct of the person and, at paragraph (h), the all embracing humanitarian considerations. Therefore, humanitarian considerations are an ingredient which the Minister must, as a statutory imperative under the Bill, take into account. The section further refers to any representations duly made by the person and therefoulement pursuant to the Refugee Act, 1996, the common good and considerations of national security and public policy.
I would contend that far from the deportation issue being an open and shut case, the matters which the Minister must take into account in accordance with this legislation ensure that everybody is given a fair chance. That is what I said about immigration law since coming into office. It has been misinterpreted and misrepresented in various sections of the media over a protracted period. If I had the liberty to be trendy and without responsibility, I might be able to do the same thing.
We are straying all over the place. It is only fair that we return to the amendments.
There were some remarks made about officials in the Department of Justice, Equality and Law Reform. Last week there was a subcommittee meeting which officials of the Department attended. Deputy Barnes chaired the meeting, which discussed a report of the committee on women refugees. Everyone at the meeting was more than impressed by the openness and honesty of those people and by the way they went about their business. The Minister is fair game but officials are not.
The Minister is always fair game.
Everybody at that meeting, which Deputy O'Sullivan attended, must have been more than impressed at the way the officials went about their business, and at their openness and fairness.
I withdraw the comment. I simply make the point that the initial rejection of applications subsequently overturned on appeal gives certain grounds for concern about the operation of the present procedures. That is why everybody wants to see this particular procedure put in place as quickly as possible.
I wish to return to the net issue, that is the subject matter of these amendments. According to the section, somebody may be picked up by a member of the Garda Síochána, charged with an offence and made the subject of a deportation order without access to the courts. Is that the net effect of section 3(2)(b)?
I want to refocus on the net issue, which is our analysis of section 3(2)(b). While I have not asked in my previous comments for the Minister to make a determination on the constitutionality of the section, not because I doubt his ability to do that but because I accept the constitutional provision that it is a matter for the courts to determine, I want a clear statement from the Minister that the current advice - that of 1999 not 1935 - from the Attorney General is that this complies with the Constitution, that it has been checked against our international obligations under EU and UN law and that he can give the assurance that we are compliant with our requirements therein as he can determine them.
I can understand the purpose of amendment No. 14 and the comments of both Deputy Howlin and Depputy Higgins about a person charged with a crime and I can understand their reluctance to see that reference in the legislation but, as the Minister stated, it has existed since 1935 and perhaps that is where we need to look.
I have a difficulty with amendment No. 13 which proposes to delete section 3(2)(b). As I understand it, that would mean the Minister would not have the power to make a decision to deport somebody if such a deportation was recommended by a court. That does not make sense.
It is covered elsewhere. Section 3(2)(i) states where it is "conducive to the common good".
If a court recommends that somebody be deported, then it would not come within the scope of this section of the Act.
To deal with Deputy Higgins's question first, which is, can an individual be picked up, brought before a court and deported, people cannot just be picked up off the street and brought before a court. It does not work like that in this republic. Obviously if an individual is before a court in relation to a criminal offence, the power under the Aliens Act, 1935, is vested in the court to make a recommendation that an individual may be deported. I have outlined again and again that the Minister has a discretion as to whether an individual should be deported. I would be gravely disturbed if I thought the courts were making recommendations that individuals should be deported for the sheer hell of it. It does not happen like that. Any perusal of the newspapers will indicate that these are not regular occurrences.
With regard to Deputy Howlin's query about the Attorney General and the constitutional position, as stated earlier, I cannot state definitively whether the provision in the Aliens Act, 1935, is constitutional. However, I can state that this legislation was prepared in consultation with the Attorney General's Office. To that extent, I am certain that he and the fine legal minds in his employ will have observed that this power exists under the Aliens Act, 1935. It is hardly something they would have missed. Therefore, I must presume, without providing a definitive answer, that they did not see anything untoward, in so far as the Constitution is concerned, in the provision in question. That is not to say that a court might not find it unconstitutional. Stranger things have happened.
I would not place a bet either way in respect of a constitutional challenge because the courts are equipped and have the expertise to deal with these matters and I must confess that I am not so equipped.
What is the position in respect of international and European law?
Deputy Howlin will be aware that we observe the 1951 Geneva Convention. The issue of international and European law would fall to be considered by the Attorney General's Office in giving consideration to legislation of this sort. While I am again not in a position to be definitive, I must assume that the staff of the Attorney General's Office were satisfied that the legislation would stand up.
I move amendment No. 13:
In page 4, subsection (2), lines 13 to 15, to delete paragraph (b).
Amendments Nos. 15 and 16 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 4, subsection (2), lines 23 to 25, to delete paragraph (e).
This amendment is designed to delete section 3(2)(e) which outlines the conditions under which the Minister may deport someone. The paragraph refers to "a person whose application for asylum has been transferred to a convention country for examination pursuant to section 22 of the Refugee Act, 1996,". We cannot agree to refugees whose applications are refused under the Dublin Convention being returned to another country without full appeal mechanisms being put in place by means of statute. I am anxious to ensure that a proper appeal mechanism would be available to people before their deportation from Ireland to the country from which they came.
I instanced some examples of problems in this area in the past and others have since been brought to my attention. I am aware that members of particular ethnic minorities have travelled to Ireland from other EU countries because they might have felt they would not receive fair treatment in those countries by virtue of their ethnicity. There should be some mechanism whereby such people would be allowed to make their case before a deportation order is made against them. I hope the Minister will accept the amendment.
I support the comments made by Deputy Howlin. This matter involves the Dublin Convention and we want to ensure that people have full and proper rights to appeal before they can be returned to another country. I understand that some European countries, for example, Germany, have arrangements with other countries whereby people are automatically returned. In other words, if Germany was the Dublin Convention country a person travelling there from another country might be automatically deported on arrival. We want to ensure this does not happen and that a person's case can be properly heard.
Following the outcome of a particular case, it was decided that, legally, this is the way we should interpret the Dublin Convention. I understand the points raised by the Deputies but are they suggesting that, because other countries do not have strong protection mechanisms for refugees or asylum seekers, we should amend our law to protect them?
It does not make sense that we should be trying to enact such laws, we should be trying to influence countries whose provisions in this area are not as strong as those which obtain in Ireland to amend their legislation. We should direct the major part of our efforts in that direction.
These amendments are opposed. The amendment from Deputies Howlin and O'Sullivan proposes, in effect, that there should be no means of removing to another Dublin Convention country a person whose application has been transferred there under the convention. This is totally unacceptable.
The Dublin Convention sets out sensible criteria for determining which of the members states of the EU should deal with an application made in one of them. It has been operating among member states since 1 September 1997. Since that time Ireland has transferred 33 cases to other convention countries and has accepted 104 asylum applicants back into the State which, according to the latest available figures, accounts for more than 2 per cent of all applications.
I have seen and heard the Dublin Convention described as a means for the State to avoid dealing with asylum claims with which it should be obliged to deal. The figures simply do not bear this out. However, I cannot accept, as the amendments appear to imply, that it is reasonable for an asylum applicant to be able to "shop around", as it were, going from country to country as the claim is rejected in each place. Nor can I accept that it is reasonable that Ireland should be obliged to consider an asylum claim from someone who already has a claim under consideration in France or Germany, nor that France or Germany be obliged to consider a claim from someone whose claim is already being dealt with here. That is, nonetheless, the logic behind the arguments of the Deputies in support of their amendment.
It can hardly be the case that the Deputies are objecting to the principle of the Dublin Convention, in support of which Deputy Howlin's party colleague, former Minister of State, Joan Burton, argued so persuasively when she promoted her Refugee Bill, now the 1996 Act, through the House. That is the Act which gives statutory effect to our obligations under this international human rights instrument.
I will point out, as did former Minister of State, Joan Burton, that each state party to the Dublin Convention reaffirmed its obligations under the 1951 Geneva Convention and related Protocol, by virtue of Article 2 of the Dublin Convention. I am satisfied that the convention is operating fairly and that the deportation power is essential in relation to persons whose applications are transferred under the convention in order to ensure that it continues to operate fairly in the Irish context. Paragraph (e) is accordingly an essential part of this Bill.
The amendment tabled by Deputy Higgins seeks to add unnecessary words to paragraph (e). By virtue of section 22 of the Refugee Act, in particular paragraph (b) of subsection (2) and subsection (4), an application cannot get to the stage of having been transferred to another convention country unless and until the applicant has had the opportunity to appeal and any appeal has been determined. The Dublin Convention (Implementation) Order, 1997, made under that section, puts flesh on the bones of this procedure, but the requirement derives from the Act, not the order. It is accordingly unnecessary to insert material at subsection (2)(e) of the section before us which relates to appeals. I might also mention that Deputy Higgins' amendment would not cater for a situation where the applicant decided not to appeal the Dublin Convention decision.
The Minister's response in respect of the amendment tabled in my name and that of Deputy O'Sullivan underscores the inherent dangers in having and reading a prepared answer before the case is made.
And the Deputy never did so?
I did not. The reality is that I did not make the case in respect of which the Minister made his argument. I strongly support the Dublin Convention.
I said that.
I am in favour of implementing the Dublin Convention. No one would argue that a person should have the right to make asylum cases in a number of EU countries. I made no argument in that regard and I do not know why the Minister believed I did. However, once the script has been written I suppose it had to be delivered.
I feel strongly about the basic right to appeal, which was also mentioned by Deputy O'Sullivan. Simply determining that someone has come from another EU country should not automatically lead to deportation. There should be a mechanism whereby the case can be stated. The example cited by Deputy O'Sullivan was Germany which has bilateral arrangements with third countries. Citizens of those countries can be sent back directly without any process. This is an issue of which we are obliged to be cognisant and there must be a mechanism to deal with it.
There are groups from France who would like to state a case before they are deported from this country, if they are to be sent back to France to have their applications for asylum heard. While my amendment which proposes to delete the section does not fully deal with the issue, I wish to use it as a vehicle for the argument that an appeals mechanism available to ensure the Dublin Convention, while fully implemented, does not apply in a way that undermines the right of people to make a case before being deported from this country.
The Minister spoke about the number of people who have been sent back to EU countries under the Dublin Convention. For illustrative purposes, will he tell us how many of those were afforded an opportunity to make a case not to be so treated? How many applications resulted in the person being allowed to stay in the State?
I am not as familiar with the Bill as are other members. However, are the rights Deputy Howlin wishes to be enshrined in the Bill not provided for under section 3 (6), paragraphs (h) and (i), which deal with humanitarian considerations and any representations duly made by or on behalf of the person?
No. The Refugee Act contains a specific right of appeal.
That is precisely the point - there is a specific right of appeal in the Refugee Act, 1996. Shortly after I entered office I implemented the part of the Act dealing with the Dublin Convention and there is a process of appeal under that. It is provided that an individual can put forward an appeal following a decision. A person has been appointed to hear those appeals pursuant to the Refugee Act, 1996. It is already the case that an individual can appeal and those appeals will be dealt with by an appeals officer.
As regards the 33 people who Deputy Howlin mentioned, all of them were given the opportunity to make their case.
How many were allowed to stay?
Is it clearly outlined to these people that they have a right of appeal when they are told they are being deported?
I made the order which implemented the Dublin Convention and that section of the Act. Deputy O'Sullivan was not in the Dáil then so she is not responsible for this. Deputy Howlin and Deputy Higgins had the opportunity of bringing this in but they did not do so. However, that is for the historic record. As part of the implementation order, it is obligatory that individuals are advised of their rights.
For all the good it would do them.
That is not true. That remark reflects on the integrity of the officials dealing with these applications. I ask that such insinuations be withdrawn. Civil servants go about the work they are given by the Government of the day and are not responsible for policy. To suggest in a snide way that people have no chance implies the civil servants concerned do not operate with integrity. I reject that. That is not the history of the civil service. Deputy Howlin, who has served as Minister for the Environment and Minister for Health should know that.
It is outrageous of the Minister to impute from what I said any criticism of civil servants. None was implied or intended. The Minister repeatedly uses civil servants to shield himself. My criticisms are levelled at the Minister, not civil servants, and his policy and record. How dare he use civil servants to shield himself.
Amendments Nos. 17 and 18 are related and both may be discussed together by agreement.
I move amendment No. 17:
In page 4, subsection (2), lines 26 and 27, to delete paragraph (f).
We cannot agree to refugees whose applications are refused by the Minister being deported without providing for a statutory appeals mechanism. That is the import of the amendment. The deletion of the paragraph may not be the most efficient way to achieve the objective. I wonder if the Minister will accept the logic behind this, which is to insert an appeals mechanism on a statutory basis. Can he give an assurance that such a mechanism is afforded to those applicants who are refused by the Minister?
I oppose these amendments. The amendment in the name of Deputies Howlin and O'Sullivan would have the effect that a person who had been through the asylum application process and whose application had failed at the first instance and then at the independent appeal stage would not be liable for deportation. The logic of this is that any non-national can secure immunity against deportation from the State by simply making an asylum claim. It does not matter how spurious the claim is as the amendment would allow him to stay anyway. This untenable position is not held by any international body of repute in the area of asylum or refugee policy. The UNHCR is on record as stating that the two essential elements of any asylum procedure are a fair system for dealing with asylum claims and an efficient system for integrating those in need of protection and for returning those found not to be in need of protection. The symbiotic relationship between these two elements is obvious. If there is not an effective removal system at the end of the process, it encourages speculative or ill-founded claims which get in the way of quick identification of those in need of protection. No less a pair of caring and reputable bodies in the State than Trócaire and the Irish Commission for Justice and Peace have gone on record on this subject. I refer Deputies to their paper, "Refugees and Asylum Seekers: A Challenge to Solidarity", published in December 1997. Page 12 of that paper states that the possibility that potential criminal elements might try to take advantage of asylum and refugee procedures must be borne in mind and that every State has the right and obligation to protect its citizens against this.
The report goes on to deal at length with grasping the nettle of expulsions. I referred to this on Second Stage and remind Deputies of it again now. It states:
The difficulties facing the Minister and the Department have to be recognised. A clear, fair and efficient adjudication procedure, with all the necessary attendant safeguards, will, by definition, admit not only those whose applications are well founded but also let in many whose applications will be eventually adjudicated not to be well founded. The inevitable and necessary consequence, if the system is to work properly, is that such applicants will be sent out of Ireland to some other country - that is, deported or expelled. The nettle has to be grasped. The deportation of some applicants, assuming that there are adequate safeguards in the system, is an inescapable part of a fair and efficient process and provides an essential protection for genuine cases.
This Bill ensures that there are adequate safeguards in the system not just for failed asylum seekers but for other non-nationals liable for deportation. It behoves us all to grasp the nettle that deportations will be necessary in some instances and that Ireland is at present without an inescapable part of a fair and efficient process, in Trócaire's words. That is why we need this Bill and, in particular, the provision this amendment seeks to delete.
I cannot accept amendment No. 18 in the name of Deputy Higgins. I cannot accept the underlying implication that applications for asylum are being refused without being properly considered. The Hope Hanlon procedures I have referred to provide a means whereby asylum applications are properly considered, both at first instance and with an independent appeal mechanism. This procedure has been settled in consultation with the UNHCR and is acknowledged by them as providing a proper and fair process. The words proposed for insertion by this amendment are unnecessary and will be even more obviously unnecessary when the 1996 Act becomes fully operational.
I am examining the wording of a possible Report Stage amendment to paragraph (f) which will make it clear that it does not apply to persons who have been given permission to remain in the State, notwithstanding that their asylum claims have failed or persons who, in any event, have permission to remain in the State unrelated to their asylum claims.
Again, the Minister has responded to arguments we did not make. It would probably be more efficient to deal with the matters we want to argue about. I want an assurance from the Minister that there is a proper appeal mechanism incorporated into the statute before he makes a deportation order for a person whose asylum application has been refused by the Minister. If I get that assurance I will be happy enough. I accept the notion that there has to be a statutory basis enabling a Minister to find circumstances in which to deport people. There is no need to make that argument.
I did not imply that applications are not being properly dealt with. That is not the purpose of my amendment. Even if it was just a case of softening the cutting edge of what is being proposed and providing comfort and reassurance, what harm is there in inserting an amendment stating "having been properly considered"? If the cases are properly considered, what harm is there in inserting this? Even the manner of the Minister's delivery in rejecting this speaks for itself. It is typical of a trenchant, unrelenting and dogmatic attitude in relation to any compromise, even in sentiment, in dealing with an extremely sensitive area. I cannot see how the Minister cannot accept this pallid amendment, which softens the language and appearance of the Bill.
If Deputy Higgins wishes to paint me as a latter day Long John Silver and himself as a Nurse Nightingale, there is very little I can do about that other than to refute the clear implication of his remarks.
Long John Silver was——
By saying "having been properly considered", Deputy Higgins is clearly stating by implication that unless those words are there, cases may not be properly considered. I see no other basis for inserting those words. However, cases are properly considered so there is no need for those words.
I did not say that.
There is no need to insert superfluous words. With regard to the question of appeals and Deputy Howlin's argument, this Bill does not mention an appeals mechanism but it must not be read in isolation. It should be read in conjunction with other legislation. The Hope Hanlon procedures and the Refugee Act, 1996, provide for an appeal. Deputy Howlin said I did not respond to what he said and I take issue with that. I am entitled and duty bound to point out the implications of his amendment. If I had not done so he would not be as enlightened as he is now.
I will press it. There should be a statutory basis for appeals. If the Minister just said there was a statutory basis in the Refugee Act, quoted the section and said when it came into force we could deal with these things..
I have no doubt that would add to the sweetness of the occasion. Unfortunately Deputy Howlin does not do so.
We should mend our ways. There is a great need for clarity in this.
There is no problem with the clarity.
There is great difficulty with the amendment.
I move amendmentNo. 18:
In page 4, subsection (2)(f), line 26, after "asylum" to insert "having been properly considered".
Amendments Nos. 20 and 21 are related to amendment No. 19 and may be taken together by agreement.
I move amendment No. 19:
In page 4, subsection (2), lines 28 and 29, to delete paragraph (g).
This is one of the more important deletions proposed. The amendment proposes to delete paragraph (g) which concerns people to whom leave to land in the State has been refused. This is an extremely worrying matter on which I am seeking clarification from the Minister. This paragraph would give the Ministercarte blanche to circumvent the Refugee Act by refusing people leave to land in the first instance. I raised this issue when I saw some of the statutory instruments signed by the Minister. Even after the High Court ruled that the relevant sections of the Aliens Act, 1935, were unconstitutional, the Minister still gave instructions to deny leave to land to certain categories of people. These decisions are worrying.
Will the Minister outline the procedures which will apply to ensure those who seek to make an asylum application, as they are entitled to do under the Refugee Act, will not have that right circumvented by an immigration officer at a port of entry by refusing them leave to enter the State in the first instance? As the person concerned would then be deemed not to have technically entered the State, he or she would not be in a position to have an application determined and considered. I hope the Minister accepts the serious and bona fide nature of this amendment.
I support Deputy Howlin's comments. We are concerned that this provision may mean a person can be deported without having the benefit of the Refugee Act. Even if people are waiting for a hearing under the Act, paragraph (h) of the Bill seems to suggest they could be deported if they breached any condition.
I have already indicated that I will implement all the measures contained in the Refugee Act, 1999, later this year. Section 9 of that Act deals with leaving, entering and remaining in the State. The section stipulates that, subject to the subsequent provisions and so on of that section, a person would be given leave to enter the State by an immigration officer. It then sets out what is to take place after the individual has been given leave to enter the State.
The present procedures are set out in an information leaflet for those applying for refugee status. The position is that whenever it appears to an immigration officer, as a result of a claim or information, that the individual might be an asylum seeker, the officer is obliged to interview the person for the purpose of eliciting information for an official of the Department appointed under the Act, and to decide if the application should be dealt with in the State or under the Dublin Convention.
Immigration officers have been instructed that it is not necessary for an individual to use words such as "asylum" or "refugee" in order to be an asylum seeker. The question of whether an individual is an asylum seeker is to be determined in light of the circumstances of the case and of the guidelines issued by the Department. Where necessary and possible, an interpreter is provided. If there is any doubt, an immigration officer is obliged to consult the Department.
There is no question of an individual arriving in the State, who might be an asylum seeker, being refused leave to land. The procedures are categorically set out and will take effect when the Refugee Act, 1996, comes into force. There is no need to go into the procedures but they are set out in section 9 of that Act. I hope this explains the position but I have further details for Members if they so wish.
I welcome the Minister's comments and accept his intentions. However, we must focus on what the legal position would be consequent to accepting the proposal before the committee. Section 9 of the Refugee Act, 1996, is not yet law. Therefore, there is no statutory basis to guarantee that, if the Immigration Bill is enacted before the end of this Dáil session, the legal position enunciated by the Minister will apply.
I am more concerned about the law than about the administrative procedures, as the law takes precedence. I am particularly concerned about the discretion afforded to an immigration officer at a port of entry to refuse leave to land. The Minister will be aware that Deputy De Rossa raised a matter on the Adjournment last week concerning a Japanese national who came to Ireland to contact some Joyce enthusiasts. This individual was detained at Dublin airport, refused leave to enter the country and put on a plane out of Ireland. The circumstances of that case cause me grave disquiet.
When in Government, a representative of this State abroad told me of an incident involving a wealthy Chinese investor who wanted to enter Ireland, as he had been encouraged to do by one of our missions abroad when on a business trip to the UK. This individual was refused leave to enter the country at the discretion of an immigration officer at Dublin Airport. I am concerned by these two incidents and there can be no ambiguity about the rights of individuals who arrive at ports and airports being refused leave to land by an immigration officer on his or her own authority. This matter is compounded by people who might be in genuine need of asylum, have language difficulties and be fatigued and traumatised. All these matters require us to be careful in how we frame the legal basis of their treatment. Will the Minister give me the reassurances I am seeking on these matters?
I support Deputy Howlin's comments. I am extremely concerned about the powers being vested in immigration officers. The Minister intends that everyone should be afforded the opportunity to make an asylum application. However, that is not how matters operate. I am particularly worried that, in cases of manifestly unfounded applications, the discretion rests entirely with an immigration officer. There have been cases in which people deemed to be making cases based on manifestly unfounded arguments, have been turned back. Should this happen at any stage? One cannot make blanket assumptions about who is or who is not a refugee or a genuine asylum seeker. We make blanket assumptions that certain countries are safe and others are not. However, within safe countries there can be disparities, different groups and different ethnic minorities. While such countries on a broad analysis may seem safe and do not have any human rights problems, on closer analysis and scrutiny one may see that certain ethnic minority groups can be discriminated against. This is why the right of discretion to give people the red card at the port or point of entry should be ended. Those arriving here should have full and open access to due process and due immigration procedures.
I therefore fully support the argument made by Deputy Howlin and think the Minister should relent. While the Minister intends putting in place a procedure which will ensure genuine asylum seekers will be afforded due process and a chance to make their case, this is not the situation at present and will not pertain as long as we vest powers in immigration officers which allow them make arbitrary decisions at the point of entry.
Immigration officers have a very, very difficult job and in general terms they perform it quite well. In fairness to them they act with humanitarian interests in mind. They have no axe to grind with anybody - they are just doing their job which is thankless and difficult.
If I accepted the amendments I would send out a very clear message, namely, that a person coming to the country can breach whatever conditions we set for such people, that they will be allowed stay as long as they like and that they need not worry about being asked to leave. Such an immigration policy is entirely untenable and unrealistic and could not and would not work.
I again stress that a person who seeks asylum in Ireland cannot be prevented from making such an application or having his case dealt with. Surely, this must be clear.
By way of clarification, is that the legal reality?
In the absence of implementation of all the provisions in the Refugee Act, we are operating under the Hope Hanlon procedures. Religiously, we are abiding by these procedures which ensure that each individual's application is accepted and dealt with. There is very little more I can do in the absence of implementation of the Refugee Act, 1996. My intention is to implement the Act.
Section 8 of the Act provides that anybody who arrives at the frontiers of the State or is in the State seeking asylum, or asks not to be returned or removed to a particular country, or otherwise indicates an unwillingness to leave the State for fear of persecution, may apply to the Minister for a declaration that he or she is a refugee. Under existing arrangements, which were arrived at in consultation with UNHCR, a similar situation pertains whereby anybody seeking asylum at the frontier or within the State will have his application for asylum heard. That is why I do not believe, for example, that the words proposed by Deputy Higgins require to be inserted in the Bill.
It is also important to stress that there is a governing principle which overrides all of this, namely, that an individual may not be returned to a country from where he or she can be forwarded to the place where he or she fears persecution or even death. That is the rule against refoulement to which I already referred. These assurances should be sufficient.
I wish to push the Minister into giving me a clear assurance that any individual arriving at a port or airport will be given adequate opportunity if he wishes to apply for asylum before any determination is made in relation to refusing leave to enter the State. How is this done? Is there a place where an individual can be interviewed? Are individuals afforded access to interpreters? What is the process by which an immigration officer makes a determination to grant or refuse leave to enter the State?
I assure the Deputy that any individual who arrives in the country has the opportunity of applying for asylum. There is no doubt about this. The application is considered in the normal way. The procedures under which the determination is made are set out in the Hope Hanlon document which was drawn up in consultation with the Department of Justice, Equality and Law Reform.
Is that a set of guidelines for immigration officers?
Is there a handbook we could look at?
The leaflet entitled "An information leaflet for applicants for refugee status in Ireland" is in the Library.
Is that what is given to immigration officers?
Yes. All the procedures are set out in the document. For example, the Deputy asked whether an interpreter was made available. The procedures provide that a person will be interviewed by an immigration officer and that where necessary and where possible the interview will be conducted with the aid of an interpreter. In addition, the applicant can be accompanied by a representative, something which we welcome. The representative is given an opportunity at the end of an interview to make any points which are considered necessary from the perspective of the applicant. It may not be generally well known, but people who arrive here are given a fair chance and that is the message I keep delivering.
Has the Minister statistics to hand in relation to the number of people refused leave to enter the State?
I do not have them to hand. However, I will certainly let the Deputy know the figures.
I did not hear the Minister's response to the matter raised on the Adjournment, but did he have an opportunity to look at the case raised by Deputy Proinsias De Rossa in relation to a Japanese national?
Yes, I did.
Is the Minister satisfied that proper procedure was carried out in that case?
I am and I am also satisfied that Deputy Proinsias De Rossa was somewhat specious in the argument he put forward. He did not put forward the broader view which was given in the reply. Very often people tend to grab the wrong end of the stick in such matters and can be selective in the argument they put forward. It is possible that the only argument handed to the Deputy was that which he put forward, but on a broader examination of the issues it became very clear that the matter was handled properly. The problem was that the free travel area must be maintained. It appeared from an investigation of this matter that there was an attempt to breach the common travel arrangement. The individual concerned had apparently - I am speaking from memory - been refused entry to the UK and subsequently arrived in Ireland. If the individual was allowed entry here she could continue to the UK. It is obviously incumbent upon me and the Government to maintain the free travel area in the interests of the Irish people and the people on the other side of the Irish Sea. This is a common interest.
If one looks at the protocols entered into in the Amsterdam Treaty, one will see that the objective of maintaining the free travel area is one which each Government pursues relentlessly. I could not be seen to facilitate the entry of an individual who had been refused entry to the United Kingdom and allow this country to be used as a back door to the United Kingdom. This is something I will not allow, not now, and not during my term in office. I do not believe my successors will do so either.
In relation to asylum seekers, there seems to be a view abroad - Deputies Howlin and Higgins seem to be of this view - that such applicants are all making their applications at ports of entry. This is one of my major problems. Approximately 14 per cent of asylum seekers apply at ports of entry. The remainder of asylum seekers enter without ever encountering immigration controls. These people never seem to meet immigration officers. I do not know how this happens. People have arrived at the Department of Justice, Equality and Law Reform, not knowing how they got there, where they came from and not possessing papers. In those circumstances, one must observe that it makes life extremely difficult, to say the least, for officials working in the asylum section of the Department.
It must be axiomatic in any country or democracy that the State should have the power to remove people who flout the basis on which they were allowed to enter, in the first instance. What is to be done with someone who fails to comply with immigration laws? Are members seriously suggesting that this should be ignored. If we do that, we might as well tear up our immigration policy and forget the laws dealing with immigration. Some of the arguments put forward in relation to this matter, particularly by some commentators in the media, do not consider in depth the issues. They are put forward in a manner which might be populist in the short-term but, which in the long-term, if implemented, would do irreparable damage to this country. If I am the only one prepared to say this, I will say it anyway.
In relation to the competence of people making the determination as to whether a person might have a chance of being a bona fide asylum seeker, what training do immigration officers receive in terms of the necessary skills and background knowledge? This is an extraordinarily complex area.
The Deputy is straying from the issue.
No, I am not. We are talking about paragraph (g) - a person to whom leave to land in the State has been refused. I would like a categoric assurance from the Minister in relation to the section that we can be guaranteed that no one will be turned away at the point of entry. The Minister knows the reason only 14 per cent of people make application at the port of entry is that they are entering by other means and are circumventing the situation.
This Bill has been published to deal with trafficking. I would like to be safe in the knowledge that people who apply for asylum will at least be afforded the opportunity to make a proper application rather than be turned away at the point of entry. As I explained previously, this is a delicate call. People should be afforded an opportunity to make a proper application and having that application considered in due course, unless it is blatantly obvious that there is no chance of success.
I wish to return to the Minister's comments on the common travel area. Will he clarify whether it is our legal obligation or is it Government policy that any individual denied entry to the United Kingdom is automatically denied entry to Ireland? The import of the Minister's comments seems to be that he would not countenance Ireland being used as a back door for anyone denied entry to the United Kingdom. Therefore, our sovereignty, independence and legal framework seem to be secondary to his determination to ensure the will and determination of the United Kingdom Government shall hold sway here. This is not something with which members of his party are normally associated. It is extremely important that people arriving in Ireland would have their case heard on the merits of Irish law and our legislative framework and that it would not be axiomatic, to use the Minister's word, to say that somebody refused in the United Kingdom would be automatically refused here. Will he inform me whether the corollary holds sway? Are people denied entry to Ireland automatically refused entry to the United Kingdom? I could cite instances where this was not the case.
To answer Deputy Higgins's question, training of immigration officers is carried out by the United Nations High Commissioner for Refugees' Office. They are very well trained. They know what they are doing and they know the procedures. On whether it is automatic that an individual excluded from the United Kingdom would be excluded from here, this is not so. Clearly this is a sovereign country and we are entitled to allow whoever we wish to enter. However, the fact that an individual is denied entry to the United Kingdom would be a fairly strong indication that that individual might be refused entry to Ireland also, though not necessarily.
In the case of the individual concerned, to my knowledge no application was made for asylum. If there had been, it would have been a different matter because, in accordance with the assurance which I gave Deputy Howlin earlier, and I am now giving Deputy Higgins, any individual who applies for asylum will have his or her case heard and dealt with in the normal way. As I have also indicated, there is an appeals procedure. It cannot be fairer. It can be put on a statutory footing, and it will be under the Refugee Act when this is implemented. I despair at this stage when I read that the system is unfair and that the procedures are improper. These statements and claims are false.
While assurances from the Minister are extremely important in allaying fears about proper procedures, nothing will allay fears more than the procedures being implemented and the statistics published to prove them. When I asked about the number of applications under the Dublin Convention, I was told that 33 appeals against return to another EU country had been entertained and none had been upheld. How many people have been refused entry to the State because they have been refused entry to the United Kingdom? Has any individual been granted entry to Ireland in recent time who has been refused entry to the United Kingdom?
Everyone is having difficulty remembering these statistics. I understand that there may be a parliamentary question down for next week in relation to at least one of the issues raised by Deputy Howlin. My officials will communicate with the Deputy and he will be given the data he requires so that he will be in a position to draw his own conclusions.
If there is a clear indication that some proportion of appeals were upheld or granted it would reassure people. If statistics proved that none was upheld it raises questions. It would be an odd judicial system that convicts in every case.
It would depend on the circumstances of the case. Dublin Convention cases can be clear-cut. The issue is usually one of an individual arriving in another State where he or she could have made an application——
I have dealt with several such cases.
The determination and appeals process is far easier in Dublin Convention cases than in other cases of asylum, which are more difficult. It would be wrong to assume a discretion is exercised against an individual where possible. In fact, quite the opposite applies. If there is a doubt about the Dublin Convention being applicable, the benefit of that doubt is given to the applicant. These are facts which some commentators prefer to portray as not existing because it does not suit their particular agendas. I cannot operate to people's agendas. What I can do, however, is state the facts. These are unquestionably and undoubtedly the facts. I would not draw conclusions on appeals of any kind, and I will explain the reason to the Deputy. Very often one makes a judgment from outside a room and the person who is actually dealing with the case has a greater degree of knowledge about it. More often than not, he or she is probably correct. I would not like to make any judgment. No system is completely fool proof. It would be a very foolish person who would argue otherwise. We do our best.
Does the Minister agree that if every appeal against a social welfare decision by the social welfare appeals board was denied, questions would be asked in the House? He, too, would have questions about the operation of the appeals board. It is reasonable to draw conclusions from the outcome of cases without necessarily having the details of every individual case. Would it not be an odd system where the result is always the same?
The difficulty is that the Dublin Convention cases can be very clear-cut. There is a relatively high success rate in terms of other appeals to the four appeals officers.
Appeals against a refusal by the Department to grant refugee status. I am not saying it is very high, but there is a fairly good turnover of cases.
What is the percentage?
It is difficult to give a percentage. It is between 10 per cent and 20 per cent, but I cannot be precise. It is much higher than in Dublin Convention cases.
The Dublin Convention percentage stands at zero. The Minister cannot give us the figure. He states that somewhere between 10 per cent and 20 per cent is extremely high. The Minister, who is very wedded to facts, is very lacking in facts to defend this point.
I could make the converse argument.
No. The fact that the appeals officer upheld the decision of the original decision makers means they were correct. That is the argument which can, of course, be thrown back at one. There is a big difference between an appeal under the Dublin Convention and an appeal against an application for general asylum. The Dublin Convention question is simple. Was the person in a Dublin Convention country where his or her application should have been made? It is a fairly straightforward procedure to decide that. I would be very concerned if, given such a simple straightforward question, the appeals officer was upholding every appeal. I would have questions to ask about the people dealing with the cases in the first instance because it is so simple. Because the question is so straightforward, it is not extraordinary that the appeals process is yielding these results.
With all due respect to the Minister, it is not so straightforward. It is worrying that he should put it in such straightforward terms. Deputy O'Sullivan spoke about individual cases which can arise because of policy in other EU states which should be taken into account in any appeal against the invocation of the Dublin Convention. She mentioned the bilateral treaties operated by Germany.
We are moving in many different directions.
I am making a net point, the right of immigration officers——
We are not dealing with that point.
We are dealing with two issues, the right to refuse entry and the Minister taking a breach of any condition as a reason to deport. They are very important issues on which I am narrowly focused. I am concerned that the practice has been to refuse people entry.
The Minister has already answered that point.
Thousands of applications are made.
Will the Minister provide us with some statistics? How many applications have been received?
On a point of information, I have before me a copy of information received last week. Some 13 per cent of the people are granted asylum when they enter the country. That leaves us with 87 per cent, of which 70 per cent remain. Many people disappear for one reason or another. Of that 70 per cent, 34 per cent of appeals are successful.
What is the percentage of applications——
As the official said at the time, it is extremely difficult to give such statistics. It is not a normal situation because refugees or asylum seekers by their very nature move around. In the first instance, 13 per cent are granted asylum.
That is an extraordinarily low figure.
Of those who appeal, approximately 17 per cent disappear and of the remaining 70 per cent, 34 per cent are granted asylum. It is as the Minister said.
We can quote statistics all night. The Dublin Convention is relatively clear-cut. It is so clear-cut that the majority of jurisdictions have no appeals procedure in connection with the Dublin Convention. I might even go a little further and say that, to my knowledge, Ireland is the only country which has an appeals procedure under the Dublin Convention. It must be clear to everybody that if only 33 cases out of all applications were refused, it is rather ludicrous to suggest there is unfairness in the system. If there is any doubt, the Dublin Convention deciding officer will give a favourable decision to the applicant. It is only where no doubt exists in the immigration officer's mind that he or she will make a negative decision. The benefit of the doubt is exercised in favour of the applicant at all times. What could be fairer?
I am exhausted by argument but I am still not satisfied. I am pressing the amendment.
- Ahearn, Theresa.
- Barnes, Monica.
- Fitzgerald, Frances.
- Flanagan, Charles.
- Higgins, Jim (Mayo).
- Howlin, Brendan.
- O’Sullivan, Jan.
- Brady, John.
- Cooper-Flynn, Beverly.
- Ellis, John.
- Lawlor, Liam.
- McGennis, Marian.
- O’Donoghue, John. (Minister for Justice, Equality and Law Reform)
- Ryan, Eoin.
- Wright, G.V.
I move amendmentNo. 20:
In page 4, subsection (2)(g), line 29, after "refused" to insert "and who is not seeking asylum".
I move amendment No. 21:
In page 4, subsection (2), lines 30 to 33, to delete paragraph (h).
I move amendment No. 22:
In page 4, subsection (2)(i), line 34, after "person" to insert "who has not applied for asylum having had a reasonable opportunity to do so and".
The purpose of this amendment is ensure that those legally entitled to asylum under the UN Convention would have their applications dealt with. The Minister has given assurances although he has not given me an assurance that he is legally bound. If he could do that, I would not press the amendment.
The procedures which were drawn up in co-operation with the United Nations High Commissioner for Refugees are in place. I regard those procedures as binding. They have been operated in that way. That is only the assurance I can give the Deputy.
Is there a legal requirement?
No. There is no statutory basis for the procedures. Once the Refugee Act, 1996, is in place, however, there will be a statute law governing the position.
I move amendment No. 23:
In page 4, subsection (2)(i), line 35, after "good" to insert "for serious reasons related to the personal misconduct of the person concerned".
The intention of the amendment is in line with EU law that the common good can only be invoked against a specific wrongdoer. The Minister commented previously that there would not be a determination in relation to a category of people, that he would determine if it would be in the common good that a category of people be excluded or deported. I want that enshrined specifically in the statute. The import of the amendment is to insert "for serious reasons related to the personal misconduct of the person concerned". The Minister agreed in his previous comment with the import of what I want to achieve. If the mechanism which I suggest is not the best way to do this, there may be another way to do it. This would be preferable to a blanket provision that for the common good a category, race or religious group might not be admitted.
This is a difficult situation. Deputy Howlin's amendment could be held to rule for the removal of family members of a person being deported on the basis of one of the preceding paragraphs of the subsection, although that may not be in the interests of minor dependants of the person, and may be unrelated to their personal misconduct. If an individual whose children are not guilty of any misconduct is being deported, it is desirable that minor children remain with the parents. In those circumstances, and if I accept Deputy Howlin's argument, I might be precluded from exercising the discretion which might be in their favour depending on the circumstances. The probability is that it would be in their favour for me to do something along those lines.
Deputy Howlin's amendment could be unduly restrictive. It is not possible for me to predict what circumstances might arise in the future which might give rise to the need to deport any individual. The preceding paragraphs in the subsection already capture most, if not all, of the circumstances where serious circumstances related to the misconduct of the person concerned would lead to the conclusion that deportation was conducive to the common good.
The purpose of paragraph (i) is to provide a residual scope to cater for circumstances not foreseen by the preceding paragraphs. This is in line with the approach suggested by Mr. Justice Geoghegan in the Laurentiu case. In those circumstances the residual provision, as Mr. Justice Geoghegan indicated, is necessary so the common good can be protected against situations which may threaten it even though not specifically foreseen by other provisions of the Act. That is the background to the provision and to accept the amendment could lead to difficulties as yet unforeseen.
The Minister should be able to come up with wording before Report Stage which would encompass the concerns expressed in the amendment and which would also ensure that what he is concerned about does not happen, that family members cannot be deported, for example. There is a serious intent in the amendment which the Minister should take on board - people should not be deported under this section for something that was nothing to do with them as individuals. I ask the Minister to come up with wording which would cover his concerns and those expressed in the amendment.
I can see what the Deputies are seeking and it is a concern of mine as well. I do not want to see any arbitrary power exercised. No Minister would. That is not the issue, however. The issue is that there be certainty in the law. I will look at this to see if there is a formula which would achieve the desirable objective the Deputies have outlined.
If the Minister will give that assurance, I will withdraw the amendment with leave to resubmit it on Report Stage.
I move amendment No. 24
In page 4, between lines 35 and 36, to insert the following subsection:
"(3) Pending the making of a deportation order any person who has applied for asylum and who has been in the State for over 3 months may apply for and be granted a work permit by the Minister for Enterprise, Trade and Employment notwithstanding any condition imposed by the Department of Justice, Equality and Law Reform.".
I want the Minister to focus on this issue. I have discussed it privately with him and I have raised it publicly by way of parliamentary questions and on the Order of Business several times. I know there is some debate on the matter within the Government and I do not wish to trespass on domestic difficulties.
There are asylum seekers living in my home town. The Minister is aware that the port of Rosslare is being used as an entry point by a number of asylum seekers. Many of them are very well established in Wexford and are skilled, able people. I have been approached by employers who would like to employ these people in vacancies which they cannot otherwise fill. I have been told by a community welfare officer dealing with asylum seekers on a full-time basis that some of them who are bright, able, competent people, are driven to distraction because they have nothing to do. They are not allowed to use their skills pending the determination of their cases. This is unsustainable.
There is work to be done, employers are desperate to employ skilled people, people with those skills are being paid a subsidy by the State and professional advisers from the health boards are telling us that these people should be afforded the opportunity to work. The pieces of this jigsaw should be put together. Those who have been in the State for more then three months should be allowed to work.
We would all like applications to be processed more quickly and efficiently and I know that will soon be the case. When that happens asylum seekers will no longer have to wait months or years for a determination. Notwithstanding that, when people have been in the State for three months or more they should be given work permits. I hope the Minister has reflected on this. I did not impress him with my arguments on this matter in the past but I hope his discussions with the Tánaiste and the Minster of State at the Department of Foreign Affairs have been more effective than my less impressive efforts.
I support what Deputy Howlin said. There is an irony in the fact that FÁS is recruiting in other countries when we have people with the necessary skills already in Ireland. Asylum seekers are also coming into Shannon where some companies have difficulty recruiting people. Last Saturday I received a telephone call from someone who has a high level of computer skills, is living in the west and would love to work. I know the case for this measure has been put to Cabinet and I will be interested to hear the Minister's response to it.
I do not know how the debate in the Cabinet is proceeding but this matter was discussed by the Fianna Fáil parliamentary party some time ago and I spoke in support of it. I do not expect the amendment to be accepted but I support the concept of allowing asylum seekers to work, for the reasons which have been stated by the two previous speakers.
The fact that asylum seekers are not allowed to work fuels the racism which is becoming more evident. The media portray the question of asylum seekers in a particular way and a section of society believes that asylum seekers and refugees receive social welfare benefits and housing but do not work. As long as we do not permit them to work we fuel this racism. While I do not expect the amendment to be accepted, I know the Minister listened when the matter was discussed at our parliamentary party meeting.
I support the arguments made by Deputies Howlin, O'Sullivan and McGennis which have been rehearsed many times in the Dáil and outside. Considerable weight has been added to the argument for allowing asylum seekers to work by the support of IBEC. The employers' organisation has identified a skills shortage which is threatening the economy and which must be addressed. Meanwhile, a skills bank which could make a net contribution to the State lies untapped because someone decided that asylum seekers should not be allowed to work, under any circumstances, pending the determination of their applications. I understand that the ICTU has also supported the argument. Employers have identified a skills shortage and the trade union movement sees no threat to our national work force and is open to the idea that these people should be allowed to work. Given the weight of these combined arguments, I cannot see why a decision cannot be made.
We have an opportunity to lay to rest any ministerial prejudice against giving asylum seekers work permits. They are talented and resourceful. I come from a small town in the west with a population of 1,100. We have a Muslim community comprising Pakistanis, Moroccans, Syrians and Libyans, all of whom have integrated peacefully into our society and there is no evidence whatsoever of racial prejudice. This could set a headline for other areas where xenophobia is in evidence. The adaptability and resourcefulness of these people in carving out their day-to-day existence without any drain on the State is remarkable.
I agree with Deputy McGennis that the prejudice against asylum seekers is fuelled by the State's decision to pull our shutters down and to give them no chance to make a living pending the determination of their applications. I ask the Minister to state publicly and plainly that the Government is unanimously committed to making work permits available to asylum seekers. This would ease the so-called pressure which the payment of subsidies places on the Exchequer and would enhance the economy which badly needs the skills these people have.
I agree with much of what has been said. I do not expect that the Minister will accept this amendment but I ask him, when this legislation is in place, to examine this issue again. It could be looked at some stage in the future.
I have no prejudice as to whether articles for asylum do or do not work. I have a role to play and my job is to work for the good of the Irish people in my capacity as Minister for Justice, Equality and Law reform and to do that to the best of my ability without fear or favour. That is what I have attempted to do since assuming office. It is not a question of personal prejudice, it is a question of whether this is the right thing to do. At present it is a matter which is being discussed at Government level. No doubt a determination will be made in due course.
If I were to accept the argument that asylum seekers with certain skills should be allowed work here, I could be accused of being racist in my approach. I regard racism with a great deal of contempt. Is it not a form of racism to distinguish between human beings on the basis of the capacity which the good Lord gave them, to allow people with certain skills to work, while not allowing others to work. That is not a sustainable position and it is not one I would countenance because it would make a distinction between individuals on the basis of their capacity to work. I will not do that.
I have no difficulty with foreign nationals coming into this country to work. I would welcome foreign nationals working and doing well here. It would give me a great deal of gratification. It would mean that my country was doing well and in a position to assist other human beings make their way in life which would be a marvelous thing. That relates to the issue to legal immigration under a quota system. I have no difficulty with that and would actively support it. Without prejudice, it must be asked if it is the right policy for this country to allow people illegally in the country the right to work. This is the issue. I accept that pending the outcome of their applications, asylum seekers do not have an official status. It is also true that at some point a determination is made as to whether an asylum seeker is an illegal immigrant or a refugee. If the right to work is granted immediately upon receipt of the application, it follows that some people will be held to be illegal immigrants and not refugees and we will have granted the right to work to people who are in the country illegally. We must discuss whether that is the correct policy to pursue. There are people in many parts of Europe who are not refugees and would not be held to be refugees, who would certainly be attracted by the fact that on arrival here, they would be in a position to work. Is that the right policy to pursue?
What is the legitimate question? I missed the point made by the Minister.
The question is, would a policy whereby people who arrive in the country and apply for asylum are immediately granted the right to work, attract into our jurisdiction, people who would not be held to be refugees, for the purpose of working. Would this be a pull factor? My contention is that it constitutes a pull factor.
It is instructive to examine what happens in other countries to see whether this is the right policy to pursue. In some EU States welfare services are not provided and therefore asylum seekers must work. In Ireland, asylum seekers are granted welfare benefits. I would uphold the right of any human being to be treated with dignity and in circumstances where people are not allowed to work would insist that they be entitled to welfare payments.
In some countries, people are allowed to work after a certain period in the State. In effect, this can mean they do not have the right to work because the case will be dealt with and any appeal disposed of, before the period set out has expired. Effectively, that system confers a right to work by way of a window dressing exercise. Other countries adopt the approach that asylum seekers may work but only if the employer cannot find any national to fill the job. Another approach is to permit asylum seekers to work in community employment.
They are, in general terms the approaches adopted in other countries. It is notable that in respect of all of them, there are relatively restrictive conditions.
A person coming into this country seeking asylum must be here for that very reason. He or she must be seeking our protection on the basis that he or she is in fear of persecution or death. The determination to be made will be based not on the skills or capacity of the individual concerned but on whether the individual is a refugee within the meaning of our legislation and the 1951 Geneva Convention. In defining refugees status, it does not matter whether the individual is a brain surgeon, a philosopher, a petty thief or a chimney sweep. The issue is whether the individual is fleeing persecution or fears death. That is entirely different to the issue as to whether an individual should or should not be given the right to work.
Another problem in relation to asylum seekers is that the vast majority of applicants do not come in through the conventional ports of entry. Only 14 per cent do, which means that 86 per cent of asylum seekers arrive in a non - conventional way. Neither I nor officials have any way of knowing precisely from where they came or who they are. What I do know from evidence not simply anecdotal is that many of these unfortunate people are trafficked into this country by ruthless, organised criminal gangs who profit from them. I also know this, and it is a recorded fact, if there are significant numbers of illegal immigrants applying for asylum, it undoubtedly hinders genuine applicants because, of necessity, it creates delays in the system and it creates difficulties and complexities which otherwise might not be there - I will go further, which otherwise would not be there.
The issue of the right of asylum seekers to work is not, in terms of debate, unique to this State. In other countries it has given rise to grave tensions when their economies dipped. The issue of asylum seekers working has no relevance to whether an individual is a refugee.
We are not going to resolve this issue today. It is being actively discussed by the Government at present and it has more in-depth implications than one might believe having taken a superficial look at the position. It is being given the consideration it merits in terms of the depth of the debate which is on-going.
The Minister has given a long reply and we now have a clearer idea of his thoughts on this issue. I agree with him that it is a matter of right and not of prejudice. I would venture to suggest that the Minister's view on this, very elaborately laid out before this committee, is a minority view. Everyone who has spoken in this committee so far would disagree with him Minister on the perceived right involved in granting people the right to apply for work. The import of amendment 24 is not saying that they shall work but that they "may apply for and be granted a work permit".
The Minister's comment that it is somehow racist to provide work to people who have skills is mind boggling. How having a skill has anything to do with race is beyond me. What has having a skill to do with race? Is the Minister suggesting that people of certain races have no skills? Is that the mind frame with which he is approaching this issue? Granting work to skilled people could be deemed prejudiced against unskilled people but it is certainly not a racist issue and for the Minister to label it so beggars belief.
There is a variety of skills shortages in the country from the computer skills referred to by Deputy O'Sullivan to the lathe operator on whose behalf I have applied for a work permit to the Department of Enterprise, Trade and Employment last week - there is even a non-national in my constituency who has the skill to fill the position - to strawberry pickers who are required at this moment. There is nothing racist about the jobs on offer or the skills that are available to a variety of people. Most people would like to do whatever work they can. Some people might not get the jobs to match their skills but any that I have met and to whom I have spoken would like a job of any sort, to be allowed to work rather than to be perceived as being dependent on the State. They are proud people.
All this is entirely without prejudice to the due processing of their applications to stay in the State. As soon as a determination is made and someone is decided to be an illegal immigrant and subject to deportation, then so be it. That procedure should take its course. However, we should not presume that, because some of those who apply will eventually be determined to have no right to stay, all who apply must be treated as if they were to be subject to deportation. That runs counter to the concept of our bail laws and were the Minister to have his way on the basis of that logic, it would suggest to me that all those charged with an offence should be locked up because eventually some will be found to be guilty.
There is an unanswerable case to be made in relation to granting temporary work permits to people pending the dissemination of their status in the country, and that is all that amendment 24 seeks to achieve. The Minister, though he has has made his views crystal clear, is in a minority position in the Oireachtas and in the country in relation to those views. I would hope that the matter would be tested at Cabinet level and that the Minister would be found to be in a minority position there also.
The Minister visited the spectre of, as he described it, "the pull factor", upon us, where certain people who are currently in Europe would be attracted here. It has all the hallmarks of stoking fear that, were we to introduce this so-called pull factor, we would attract these unknown hordes. That language is not suitable to the measures about which we speak here. We can deal with people arriving in our ports, we can strengthen our policing if necessary, we can grant the proper asylum to those who require it, we can deal with those who should be returned to another country under the Dublin Convention, we can deal with appeals in accordance with the law and we can have a civilised system for doing so. At the same time we could afford those who are in the country for whatever number of months while their applications are being determined the right to work and the dignity of work, which is regarded under UN conventions as a fundamental right. I thank God it is a right being afforded the majority of our citizens and that our unemployment rate is of the order of 6 per cent. However, we have a skills shortage not only at the higher skills level but also at the lowest.
I am disappointed with the attitude the Minister has conveyed, though it is not new to me because we have had dialogue before. I hope the arguments put forward by myself and others will prevail and that soon, those people who are literally driven to distraction by not being allowed to work will be afforded the opportunity to match their skills with the current skills shortages.
When does the Minister anticipate the final determination will be made by the Government on this matter? I do not wish to hear "in due course" as a response.
In due course.
I want to try to understand why the Minister is opposed to asylum seekers applying for jobs. I listened carefully to the various points made by the Minister and I was not convinced by any of them. Deputy Howlin has dealt in detail with the issue of skills and racism and how it could possibly be racist to employ people because they have certain skills. The Minister suggested, and Deputy Howlin has also dealt with this to some extent, that by allowing people to work pending determination, you would be allowing certain people to work who would eventually be found to be illegally in this country and who would then be deported. The corollary of that is that one is depriving people of work who will be found to be justifiably seeking asylum in this country and who will be given asylum. This is the same argument Deputy Howlin made regarding bail. I cannot understand the logic of it.
The Minister referred to the rules in other European countries where asylum seekers have the right to work after a certain period. This an illusion because, in effect, their cases will be decided within this period. If that were not the case, many people would apply for asylum in those countries because of the right to work. There may be a great system in place that deals with all cases very quickly before the right to work is granted. I do not know if the Minister is following the logic of my argument.
It is getting more difficult.
It does not seem to be a problem in the countries where these people have a right to work to deal with the cases. Therefore, that argument does not make sense either. Even if the case is decided before the period has elapsed, the decision will have been made and they are either entitled to remain here or not. I fail to be convinced by any of the points made by the Minister and urge him to consider the matter again with an open mind.
If the economy continues to grow, there will be further skills shortages, and people who come here from outside the EU will have to be considered for work permits. The Minister and I would welcome that. Some members suggest that if an asylum seeker is here longer than six months, he or she should be allowed to work, but this amendment recommends a period of three months. If, as predicted, most people will have their appeals completed within six months, the number who will be allowed to work will be very small. Is that not the logic of the procedure the Minister put in place? The number of people who would still be here in six months would be very small.
Our decision should not be based on a request by IBEC or any employers' group that because there are skills shortages, a right to work should be granted to a person to whom we would not have granted it two years ago when unemployment was at 240,000. The decision must be based on granting the right to work to asylum seekers after a certain period of time. When we have no skills shortages we may claim we will employ only our own people, and that would be racist. We should grant it because it is a human right.
I agree it is a very crude way to do it. There should be a better procedure for allowing people from other countries to work here.
I am not opposed to people from other countries coming here to work. There is already a system in place whereby people can apply for the right to work to the Department of Enterprise, Trade and Employment. The Department of Justice, Equality and Law Reform more or less rubber stamps those applications, if approved by that Department.
Deputy O'Sullivan mentioned the condition of having the right to work after a specified period of time. This is in the amendment and occurs in legislation in other countries. This is the time during which the determination process and the appeal is disposed of. The provision makes very little difference. Are we now saying we want a system under which people have the opportunity to work after a specified period of time but as the application and the appeal process will be completed within that period, it will not make any difference to them? This would not be a proper way to proceed. However, the Government is discussing the issue. Until recently, when I put the present procedures in place to enable expeditious claims hearings, the right to work for asylum seekers could not have been countenanced because there was not even a procedure to deal with the thousands of applications. I hope the backlog will be cleared by July 2000. It is my intention that all asylum applications will be dealt with within six months. It must be clear that the real problem is achieving an expeditious asylum process and the resources and staff have been allocated to deal with this process.
It is not tenable for Deputy O'Sullivan or anyone else to say that in certain circumstances the right to work after a given period of time is not a "pull" factor. There are tens of thousands of asylum seekers in the United Kingdom, with which we have a common travel arrangement. One could arrive at a port, apply for asylum, wait three months and then have the right to work. Let us not pull the wool over people's eyes. There is a danger that relatively unscrupulous people might bring in workers from countries where wages are very low and use the system now being proposed to create an underclass of people who will work for next to nothing in Irish society. We must be careful that in giving the right to work we maintain the right of every Irish citizen to have a decent wage and ensure that position is not undermined by an ill-considered and ill-thought out immigration law. Every individual should be entitled to work in our society provided the procedures are complied with. There is nothing unusual or wrong about that and it is the position in other countries. The proposal being put forward is an open door policy. I am asked to bring about a situation that does not exist in any other democracy of which I am aware. I may be in the minority but I may also be correct.
I wish to debate it further. I suggest we adjourn and revisit it.
The Minister has made his position clear. Having had time to reflect on the matter however, he may decide to relent. His remarks to which Deputy O'Sullivan responded were unconvincing.
The Minister referred to the practice followed in other countries. I am advised that, in Holland, for example, they operate a system whereby it is seen as a corollary of seeking and being granted asylum that there is an obligation to support the Dutch state. The right to work is seen as a responsibility of asylum applicants. At a seminar, an administrative officer of the immigration system in Holland said, when asked, that the practice did not constitute an attraction.
Bearing in mind that it sounds eminently sensible and bearing in mind what I and Deputies from all sides of the House, including those in the Minister's party, have said - everyone who spoke other than the Minister seems to share the view that there should be some movement in this regard - perhaps the Minister would find it in himself to move or perhaps he might be persuaded to do so by the weight of opinion.
I have made my position crystal clear. The matter is being discussed and I have given my conclusions following in-depth study of the issue. The position in the Netherlands seems to be the outstanding point. It has a turnaround limit for asylum applicants at the airport of 24 hours. My system could not be compared with that. As the turnaround period is 24 hours, either the Dublin Convention is used or a substantial decision is given in a short period. I do not operate a 24 hour turnaround policy against any individual nor would I countenance doing so because I would regard it as unfair to implement such a system in light of the laws applicable in Ireland. What the Dutch authorities do is a matter for them. The Deputy has chosen the worst example in Europe to state the case for asylum seekers having the right to work. A 24 hour turnaround limit is in operation in the Netherlands and that might explain much of what the Deputy said.
I have explained that the issue of the right to work for asylum seekers requires in-depth consideration, which is what it is receiving, and that it is not as simple as it sounds. Irrespective of what anyone says, the points I have raised and the questions I have asked are valid. I am sure it does not suit the trendies without responsibilities who I mentioned earlier. I cannot be instructed as to how I should proceed or how this matter should be dealt with by such people because it is clear they operate in many situations from positions of little knowledge of that about which they write.
The Minister did not address my point. Is he aware of the system operated in Holland, not the turnaround times at Dutch airports but legislation, which allows asylum seekers to work? Has he examined it and does it have any bearing on the arguments on the matter in Ireland? It would help the debate if he dealt with the arguments put forward rather ones which are not.
Regarding trendies or non-trendies, in some quarters and parts of the country - perhaps the Minister's area is one - there is a trendiness in being folksy and even presenting oneself as a backwoodsman. There are individuals who seem to garner electoral support from that. That might be a trendiness the Minister emulates rather than other fashions. What is important is we try to address this issue and make progress on it. If the Minister is firm that he will not be moved on it, I will press the amendment to a vote.
The last time I was described as a backwoodsman was in the Dáil and the person who called me that lost his seat at the next election and has not been heard from for the past seven years. That said, the Netherlands has a turnaround limit for asylum seekers and it also has reception centres which we do not have. It is small wonder representatives of the UN High Commissioner for Refugees stated to me that we have the capacity, with the model I have put in place, to set a precedent for the world in the processing of asylum claims and the humane treatment of asylum seekers. I make no apology to anyone regarding the manner in which asylum seekers are dealt with in Ireland. They are dealt with openly and fairly and, irrespective of whether the person is found to be a refugee, their dignity is respected at all times and I insist on no less a standard. Deputy Howlin should remember what I have learned over past years in political life - when a person is reduced to name calling, he has lost the argument.
Surely the Minister is indulging in name calling with his remarks about trendies without responsibilities?
Can we leave the trendies, folksies and backwoodsmen out of the argument, please?
Deputies Howlin's and O'Sullivan's amendment is important and has been very useful in focusing our attention on an issue which has been ongoing for the past year and a half. What is being asked of the Minister is reasonable - that he give a definitive timeframe within which a decision, I hope a positive one, will be made on this issue. We read in the papers about the ongoing controversy, conflict and difference of opinion between him and his colleague, the Minister of State, Deputy O'Donnell, and this has run in regular instalments. She says she and her party, including the Minister for Enterprise, Trade and Employment, support the idea of granting work permits, and they flesh out the arguments advanced by Deputies Howlin and O'Sullivan and myself. On the other hand, the Minister said that, as far as he is concerned, he will not relent an inch. We received the classic fob-off from the Minister when he said a decision would be made "in due course". Can he tell us what that means? Are we talking about a decision within a month, two months, next September or when the Dáil resumes in October? When can we expect a decision on asylum seekers being granted the right to work? That is what we are trying to extract from the Minister.
That does not seem to me what the Deputy is trying to extract but something very different. I have given a list of reasonable and legitimate arguments and questions which require answers before a final decision is made on this matter. The Government is discussing the issue at present and I have given, as fairly as I can, what I see as the questions and arguments which must be examined before any decision is made. It would be grossly irresponsible of me to do otherwise and it would certainly be grossly irresponsible of me to accept the amendment when the Government has not completed its deliberations.
I wish to ask Deputy Higgins a question and perhaps Deputy Howlin could assist him in answering it. Perhaps all the Opposition Deputies would answer a question of mine for a change. If asylum seekers are given permission to work and are unable to find employment, do Deputies believe they should be denied social welfare?
There is no suggestion of that.
Does that mean Deputies believe they should be entitled to unemployment assistance if they fail to find work?
That is the support they receive at any rate.
If Deputies believe asylum seekers who do not find work should receive social welfare, why should Irish citizens not receive social welfare if they are able to work but do not find it? Deputies say asylum seekers who do not find work should continue to receive social welfare and Irish citizens in the same position should be treated differently. Their argument is daft.
That is perverse.
It is the Deputies' argument which is perverse. The Deputy is suggesting that Irish citizens in the same position should be treated differently. His argument is daft.
This is a wonderful way to debate.
There will be no meeting of minds here.
On this and other matters, I have no difficulty putting forward a point of view and not convincing the Minister. That is normal enough, but I find it amazing that much of the debate has been taken up by the Minister arguing points we have not made. He makes an argument himself, argues against himself and draws his own conclusions. That is a wonderful world, when he has all the answers himself.
If I had all the answers I would not be here. The point is that Deputy Howlin has advanced an argument and I have asked questions about it. That argument is perverse because the Deputy wants asylum seekers to continue to get social welfare——
Nobody made that argument.
when that does not operate for our citizens. Deputy Howlin made that argument. I asked a question and that was his reply.
I am going to put the question.
If they are fit for work and employment is available, they do not get unemployment assistance. Is that not right?
If they are fit for work, they can get it.
Deputies have changed their minds.
We are saying they should be on the live register as available, willing and able to work.
This is bizarre.
It is contorted logic.
- Ahearn, Theresa.
- Barnes, Monica.
- Fitzgerald, Frances.
- Flanagan, Charles.
- Higgins, Jim.
- Howlin, Brendan.
- O’Sullivan, Jan.
- Brady, John
- Hanafin, Mary.
- Lawlor, Liam.
- McGennis, Marian.
- O’Donoghue, John (Minister for Justice, Equality and Law Reform).
- Ryan, Eoin.
- Wright, G.V.
As there is an equality of votes the amendment falls.
I move amendmentNo. 25:
In page 4, subsection (3)(a), lines 37 to 39, todelete "notify the person concerned in writing of his or her proposal and of the reasons for it" 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".
Amendments Nos. 26, 28, 30 and 53 form a composite proposal and amendments Nos. 27, 29 and 31 form an alternative composite proposal. Amendments Nos. 26 to 31, inclusive, and amendment No. 53 may be taken together by agreement.
I move amendment No. 26:
In page 4, subsection (3)(b), line 41, to delete "14 days" and substitute "10 working days".
During the course of productive discussions between representatives of the Department and a number of interested NGOs, concerns were expressed that the provisions regarding periods of notice should be addressed in terms of working days to avoid any doubt and confusion which might arise regarding weekends and public holidays. Amendments Nos. 26, 28 and 30 are for the purpose of clarifying these matters and avoiding any ambiguity as to what constitutes a working day. Amendment No. 53 provides a definition of a working day so as to exclude Saturdays, Sundays and public holidays. Amendment No. 28 contains a drafting correction to subsection 4(a) making it clear, as provided for in subsection 3(b), that representations are to be in writing.
I am concerned to ensure the period for making representations on potential deportations is as short as possible, consistent with fairness. Proposals to deport are not made lightly and are often a last resort after protracted consideration of a case. I am satisfied the period of ten working days is sufficient time in which a person notified of a proposal to deport can make representations or have such representations made on his or her behalf.
I cannot accept the proposals contained in the amendments tabled by Deputies Howlin and O'Sullivan which would have the effect of granting a two month notice period to all, regardless of their links to the State. No discernible additional benefit in terms of fairness is to be gained by such a protracted period of delay. If a proper and worthwhile case against a proposal to deport cannot be made in a fortnight, it is inconceivable that it can be made in two months or at all. The only effect of amendments Nos. 27, 29 and 31, would be to lengthen that process considerably and add little by way of equity.
I do not agree with the Minister's view that 14 days, much less ten working days, is adequate time for someone facing deportation to seek legal advice and put together a case for a review of the deportation order. Ten working days is a short period of time as the individual may have to find a suitable lawyer, have matters explained in some detail, documentation may be required from abroad and there could be a need for consultations with agencies. If the Minister is of the view that the 60 days suggested is too long, can we reach a compromise? Any reasonable person would deduce that an appeals period of ten working days is only a hop and a skip away from the mechanism the Minister found anathema a few minutes ago.
The purpose of extending the period of time is to enable people to obtain legal advice. I discussed the concept of days and working days with one of the organisations which made representations in this regard. It did not intend the Minister to reduce the number of days, it hoped he meant 14 rather than ten working days. I have no problem with the Minister using the term "working days" rather than "days", but he should average the period up and not down. Instead of opting for ten working days he should opt for 14 working days at least. Our amendment seeks even more time so that people can seek legal advice.
This is an inexact science and I cannot be definitive as to the precise period. I am satisfied ten working days is sufficient. However, in deference to the amendment and the comments of Deputies Howlin and O'Sullivan, on Report Stage we will probably increase the number of workings days in the interests of clarity and certainty. I do not want anyone to be treated unfairly. Whatever about the procedures and determinations, it is important they are fair throughout. I will reconsider the period to see if, perhaps, we can make it 15 working days.
Amendments Nos. 33 and 34 are alternatives to amendment No. 32 and may be taken together by agreement.
I move amendment No. 32:
In page 5, subsection (4)(c), line 17, to delete "as soon as may be" and substitute "as soon as practicable".
Section 3(4) sets out what must be contained in a notice under section 3(3)(a) to a person whom the Minister proposes to deport. Such a notice tells the person (a) that he or she may make representations to the Minister within 14 days of the sending to him or her of the notification, (b) that he or she may leave the State before the Minister decides the matter and, if so, must inform the Minister in writing and provide details of travel arrangements in relation to his or her leaving, (c) that he or she may consent to the making of the deportation order within 14 days of the sending of the notification and that the Minister should thereupon arrange for the removal of the person from the State and (d) any other information which the Minister considers appropriate in the circumstances.
These details are based largely on the standard letter being issued in such cases by my Department under the procedures in operation prior to the Laurentiu judgment. It is noteworthy that the judgment in that case endorsed the procedures followed in every step of that case. The information contained in a notice of a proposal to deport is part of a fair and open procedure in conformity with the principles of natural justice. The person is told of the basis on which a decision to deport has been considered and given an opportunity to have this proposal reviewed. The Minister is obliged to consider the grounds put forward by the individual. The provision of such a mechanism in statute as distinct from its previous administrative form leaves everyone concerned in no doubt as to what steps should be taken and are being taken.
I am moving the amendment to subsection (4) (c) to remove concerns that have been expressed by Deputies and NGOs. The aim is that while the removal of the person should proceed reasonably promptly, it should not be done with inappropriate haste. I am advised the insertion of the words "as soon as practicable" give proper expression to this intent and are sufficient to meet the concerns. In practice, there are usually considerable administrative arrangements to be put in place to give effect to a person's return. These include such matters as obtaining travel documents which may require the assistance of the diplomatic representation of the person's home state, arranging flights and arranging an escort if necessary. If the person's return involves a transit stop, the immigration authorities of that airport will need to be consulted and their assistance sought. If there are medical or other special considerations, they must also be catered for. Naturally the persons concerned need to get ready for their return and bring with them what belongings they require.
I regard it as important that there should be reasonable expedition in arranging the return of a person who has consented to his or her deportation. This is as much in the interest of the person concerned as it is in the State's interest. The experience has been that a person having expressed a desire to return is anxious that the State make the necessary arrangements promptly and efficiently. To act in any other way would be unfair to the person. Delaying the person's return may cause them stress and add to the State's costs. However, I should point out the very important safeguard provided in subsection (8) whereby if a person who has consented to deportation is not deported within three months of the making of the deportation order, then the order shall cease to have effect. I again emphasise that while the notice provisions and the right to make representations do not apply to a person who has consented to deportation, subsection (5)(a) makes it clear that this is only the case where the Minister is satisfied that the person understands the consequences of such consent. I believe my amendment adequately safeguards the person concerned in a broad based manner, wide enough to encompass not only the circumstances provided for in Deputy Higgins's amendment, but other similar circumstances beyond the scope of that amendment. Therefore, I ask the Deputies to withdraw their amendments.
I note the Minister has indicated that where there are medical and other considerations, these are arranged. This is what I am trying to enshrine in my amendment, in other words, they should not simply have an oral assurance from the Minister that whatever special circumstances might obtain in a particular case will be taken into consideration. We are not in any way queryring the implementation or invoking of the order itself, we are saying that special circumstances should be taken into consideration. I do not see any reason this could not be enshrined in the Bill. The text of the Bill proposes that, within a reasonable time and taking into account the personal and family circumstances, medical and psychiatric history and special cases, such as unaccompanied minors, these matters might be enshrined in the Bill in order to give legislative substance to the sentiments the Minister has now evoked.
On reflection, I prefer Deputy Higgins's amendment to our own. It makes the matter clearer. I prefer the Minister's amendment to the existing text. I was concerned about the immediacy of the deportation implicit in the text as published. I hope the Minister will go that extra step and accept Deputy Higgins's amendment. I welcome the slight advance in his own amendment.
I am advised that the insertion of the words "as soon as practicable" will meet the concerns expressed by Deputy Higgins.
Amendments Nos. 35, 36 and 37 are related and will be taken together by agreement.
I move amendment No. 35:
In page 5, subsection (5), line 24, to delete paragraph (b).
The amendment proposes that the provisions of subsection (3) shall not apply. The Bill proposes that there shall be proper notification in writing of the whole procedure but in this subsection there are certain categories who would be denied such notification.
I will revisit some of the debate on section 3 which takes away the right of appeal of the category of person to whom subsection (2)(b) applies - a person whose deportation has been recommended by a court - and their right to have proper notification and so on. I do not wish to rehearse the argument in relation to a court deciding someone should be deported without due process and without determining guilt but it compounds that unfairness if there is no right of appeal. In other words, although the person has not been convicted of anything, the determination of one judge recommending deportation could not be appealed to another judge.
Amendment No. 36 compounds the categories that would fall into this range. This would eliminate the right of appeal of categories of people being deported under the Dublin Convention. Since heavy weather has been made of the uniqueness of the Irish situation where such rights of appeal exist - we are told it underscores our liberalism that such rights of appeal exist - would the import of the Minister's amendment not reduce the right of appeal of people under the Dublin Convention?
I accept the principle of amendment No. 35. The logic underlying paragraph (d) motivates Government amendment No. 36 which would extend the exception from notice requirements to the similar situation regarding the removal of EEA nationals following the procedure for that purpose under EC regulations 1977 and 1997 referred to in subsection (2)(c) and (d). These regulations, like the Dublin Convention procedures, contain their own built in review mechanisms and it does not make sense to add a further layer of delay on top of that independent review mechanism. The Government amendment encompasses persons to whom subsection (2)(b), (c), (d) and (e) applies. As a result subsection (5)(d) is superfluous.
I am in a position to support amendment No. 37 deleting it, though perhaps for reasons somewhat at variance with those of its movers. I ask the movers of amendment No. 35 to withdraw it in favour of amendment No. 36. In light of my acceptance of the principle of amendment No. 35, I propose we agree a modification of amendment No. 36, that is, to delete it. This would achieve the desired effect.
In relation to amendment No. 37, there are a number of minor consequential amendments. I draw them to the attention of the House so they may be incorporated in the Bill as amended on Committee Stage. They are as follows: to move the word "or" from the end of paragraph (c) of subsection 5 to the end of paragraph (b); and, to illustrate my grammatical ability, to put a full stop at the end of paragraph (c). If the committee agrees, this will avoid some Report Stage amendments.
We want to ensure there is an appeals mechanism. Will there be a statutory appeals mechanism for people who are being returned to another EU country under the Dublin Convention? Where is that statutory mechanism?
I brought the Dublin Convention part of the Refugee Act, 1996 into force shortly after taking office. It has been in operation on a statutory basis since 1997, as has the famous appeals officer to whom we referred earlier. Paragraph (d) of the Dublin Convention (Implementation) Order, 1997 states that a person whose asylum application has been transferred under the Dublin Convention is already in clear notice of the proposal and the procedures themselves contain their own built-in appeal mechanism. The implementation order was introduced in 1997 to bring the Dublin Convention provisions of the Refugee Act, 1996 into force.
That is law?
Yes, it is law.
Did the Minister introduce that in September.
To the best of my recollection it was September 1997 and we debated it. We have had plenty of debates on this. There is no shortage of hot air on this issue.
What exactly is the import of the Minister's amendment No. 36 if we agree to amendments Nos. 35 and 37?
If the position is allowed to stand as it is, there would be a duplication of appeals processes. If this goes, the duplication also goes and there would be only one process.
However the categories of people in paragraphs (b), (c), (d) or (e) of subsection (2) are being excluded from the provisions of subsection (3). What notification will be given to them before they are deported? I know there is a separate mechanism but I want to know what it is.
I have already indicated I accept paragraph (b) should be deleted. In relation to paragraphs (c), (d) and (e), there is an in-built appellate process. Paragraph (c) refers to a person who has been required to leave the State under Regulation 14 of the European Communities (Aliens) Regulations, 1977 (S.I. No. 393 of 1977) and there is an appellate process there. The same applies to paragraphs (d) and (e).
I accept and welcome that. However, is there a notification procedure with the appeals mechanisms under paragraphs (c), (d) and (e)?
Then I am happy.
I move amendment No. 36:
In page 5, subsection (5)(b), line 24, to delete "subsection (2)(b)” and substitute “paragraph (b), (c), (d) or (e) of subsection (2)”.
I move amendment No. 1 to amendmentNo. 36:
To delete from it "(b),” .
I move amendment No. 37:
In page 5, subsection (5), lines 26 to 28, to delete paragraph (d).
I move amendment No. 37a:
To move the word "or" from the end of paragraph (c) of subsection (5) to the end of paragraph (b); and to put a full stop at the end of paragraph (c).
I move amendment No. 41:
In page 5, subsection (6), line 32, to delete paragraph (b) and substitute the following:
"(b) the length of time the person has resided in the State;".
This relates to the factors which need to be taken into consideration when determining whether a deportation order could be made. Consideration should be given to the length of time the person has resided in the State. The Minister has stated some people have been here for a considerable period before they are detected or make formal applications. In judging whether a deportation order should be made, consideration should be given to the duration of the person's residence in the State.
Perhaps I am losing it, but I do not see any difference between the text in paragraph (b) of the Bill and the text of the amendment.
Deputy McGuinness is correct. The draftsman has told me there is no difference.
I move amendment No. 43:
In page 5, subsection (6)(c), line 33, before "domestic" to insert "family and".
I have tabled this amendment in light of representations made by NGOs during worthwhile and fruitful discussions with officials in my Department concerning this Bill. The concern relates to the position of unaccompanied minors. The amendment will allow for a careful assessment of the family situation in the home country and whether appropriate family support is available to the child. The inclusion of the reference to family in subsection (6)(c) better captures the intention behind the paragraph. As it stands, the expression "domestic circumstances" could convey the unintended impression that regard should be had to what family life the person had in the State and regard might not be had to the existence and extent of family connections other than under the same roof. These considerations apply to all persons but they can have special significance for minors. Considerations of family and domestic circumstances take into account the situation of the person both within and outside the State. The amendment adds considerably to this subsection and meets many of the concerns expressed by interest groups and Deputies.
I move amendment No. 44:
In page 6, subsection (6), lines 1 and 2, to delete paragraph (j).
I move amendmentNo. 45:
In page 6, subsection (6)(j), line 2, after "1996" to insert ", 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".
I move amendment No. 46:
In page 6, subsection (6), line 5, after "Minister" to insert "and where the Minister decides not to make a deportation order against a person he or she shall grant the person a written authorisation to remain in the State.".
My amendment might sound unnecessary, but I hope the Minister will not shoot it down because he feels it might be unnecessary. If people are to avoid deportation, they must be authorised to remain in the State. That was one of the issues the Office of the United Nations High Commissioner for Refugees encompassed in it submission to the Minister. I hope the Minister will accept my amendment.
The position of a person residing here can change during his or her lifetime. If Deputy Howlin's amendment is accepted, would the Minister never be in a position to deport a person even if it were found necessary to do so?
Deputy Howlin pre-empted what I was going to say. I regard his amendment as unnecessary. The Aliens Act, 1935 and the order made under it, particularly the Aliens Order, 1946 and the Aliens (Amendment) Order, 1975, set out the criteria in relation to, among other things, permission to remain in the State. It is under these orders that permission to remain in the State is granted following the decision of the Minister not to deport a person, having considered the reasons submitted by or on behalf of the person concerned why the deportation should not be made. In view of this and given that Deputy Howlin's amendment is unnecessary, I ask him to withdraw it.
Will the Minister accept this was encompassed in the UNHCR submission and that the UNHCR is not in the business of sending unnecessary submissions to him? For the sake of clarity and so that people will know their legal status is beyond doubt, once a determination is made they should be given formal written authorisation. That might have implications for their employment or tenancy. It would be a basic regularising of their situation and I do not see any harm in that. The UNHCR recommended this and I do not know why we should not accede to it, even though the Minister might consider it unnecessary.
The Deputy's amendment will not affect an individual's status. An individual is either deported or not. If a person is deported, all the bits of paper in the world will not assist him or her.
The UNHCR would have a different opinion.
I am not in the business of criticising the UNHCR, with whom I have a good working relationship. I am grateful for all the help it has given me over the years and not just since I took up ministerial office. A person is either given permission to remain here under the Aliens Act or he is not. I cannot change that. I regard the Deputy's amendment as unnecessary.
I thought we were here to change the Aliens Act.
Our purpose is to implement this Act.
Yes, but I thought we were here to amend the Aliens Act that was found to be unconstitutional.
We are in the business of changing legislation. Many of the concepts that were current when the Aliens Act, 1935, was enacted have changed. The Minister keeps saying that because it is in the Aliens Act it has some immutable quality. Times and attitudes change. I will not make a beef of this issue. People with tenancy or employment difficulties could tell their employers that their applications are being determined and when a decision is made they could give their employers a piece of paper. It would not be onerous on the Minister to accede to such a modest request. Many Ministers try to accommodate suggestions from the Opposition, even when they consider them to be unnecessary, and they accept some amendments in recognition of the work done.
I have been fair because I have taken account of some important amendments tabled by Deputy Howlin. I do not understand how he came to the conclusion that his work is being ignored, because it is not.
Part of the Aliens Act, 1935, was found to be unconstitutional by the courts but the majority of it is still extant. There is nothing immutable about the Act and I have never pretended there is. At the outset of this meeting, I indicated, and not for the first time either, that I would bring forward comprehensive immigration proposals in the form of a new immigration Bill because I believed the Aliens Act, 1935, was outdated. My position has not changed in three or four hours. Papal infallibility is no longer accepted, so why would I consider the Aliens Act, 1935, to be immutable?
I am not talking about fallibility.
Work is progressing on a comprehensive immigration Bill which will be brought forward and will generate as much discussion as this Bill. Deputy Howlin's amendment is unnecessary and, therefore, it is not necessary for me to go into the type of detail he is insisting on.
The Chairman should report progress because Members are due back in the House.
I will inform Members when our next meeting will take place. Are Members free on Tuesday, 29 June?
Next week does not suit me nor Deputy Jim Higgins.
I am obliged to proceed with this Bill because there would be a terrible vacuum left in the law if it were not dealt with it. I am not being awkward with Deputy Howlin. I know the work of Opposition spokespersons is not easy, especially with regard to justice, and I do everything I can to facilitate them. Unfortunately, this legislation is of crucial importance and I must move ahead with it.
The initial Immigration Bill was presented as an emergency measure to address a deficiency in our deportation procedures, subsequent to a High Court decision in the Laurentiu case. That Bill could have been enacted. We have waited for a tranche of amendments that were grafted into the Immigration Bill to implement the Refugee Act. Within the past ten days, after months of waiting, we were promised we would have those amendments at the end of Second Stage. We finally got them on Committee Stage. We have already been treated in an unfair manner. We have tried to analyse those complicated new amendments which deal with different legislation and table our own amendments. It is unfair to put pressure on us now to enact this important measure by the end of next week. We have not even reached the refugee part of the Bill which will require considerable debate. I would normally require some time at the end of Committee Stage to consider Report Stage amendments, a proper Report Stage debate and then a conclusion in the House. That is not possible in the course of the next five days. It would be unreasonable and show a contempt for Members and the House to strive to achieve that target. I make that comment most conscientiously.
I have been a Member of the Dáil since 1987 and, from my recollection of events leading up to the summer recess, events like this happen. In some instances, legislation has been enacted rapidly as we approached recess. My officials and I would be more than willing to accede to Deputy Howlin's request if this legislation was not urgently required. I would be delighted to resume Committee Stage during the summer months, but I cannot do that because the measure has to be sent back to the Dáil, and next Friday is the last day of this session. I must have the measure passed by then. I regret that but constraints of time have caused this to occur.
The amendments to the Refugee Act were not promised on Second Stage. We did everything we could to prepare them as soon as possible but difficulties existed. I am left in a situation where the legislation must be passed or there will be a major vacuum in our law which could not be tolerated over such a period.
There has been a vacuum since the court struck down the relevant section of the 1935 Act. There has not been a huge invasion of people from the outside. We are talking about human rights legislation where this imperative comes in. This, of all the legislation, should not be guillotined. It requires detailed analysis, proofing and the input of the organisations. There will be a major row if the Minister does this and I appeal to him, given that the type of case he thought would ensue in the wake of striking down the section of the 1935 Act has not arisen, to hold this provision back until we have time to debate it and do it justice.
I support my colleagues in this. It is extremely important that we go through this with a fine tooth comb. It is extraordinarily detailed. Even the final section of the debate indicates that.
If there is to be a major row, so be it. I do not like rows but I have to be responsible about this. The present position is untenable. I cannot allow it to continue. If I could, I would be delighted to do so. I tried to be as accommodating as possible but I have a difficulty. I am not pushing this legislation for my own or for the Government's gratification. I want to put it through because it is in the interest of the State that I do so, and I have to put that above all other interests, rows and all, and accept whatever happens politically. I have to get this legislation passed before the House rises.
It is too late to make that point today. If the legislation had to be passed, it should have been addressed. The date of the adjournment has been known for some time. Next week there are five working days. The Dáil will formally consider the Sheedy report from this committee on Tuesday and Wednesday. Most Members of the House will be involved in the debate. All stages of the Intoxicating Liquor Bill are to be taken next week - that will involve the Minister and the members of this committee. The Minister is talking about concluding Committee Stage, which should be at least two days long, Report Stage and Final Stage next week. That is a dreadful way to make law.
There is an undertaking in the Good Friday Agreement to establish a human rights commission and to put human rights to the forefront. This legislation concerns human rights and should not be guillotined without proper debate, particularly those sections that we have not reached which amend the Refugee Act. I will talk to my colleagues and I ask the Minister to reflect on this.
The position is as how I have outlined it. Out of courtesy to Deputy Jim Higgins, I have to go to the House to hear his contribution on Second Stage of the Courts (Supplemental Provisions) (Amendment) Bill. The entire matter can be revisited if necessary in the context of the new Immigration Bill. I have a difficulty and it would be silly of me not to point it out.
Will the committee adjourn until next Tuesday?
I am totally opposed to this.