Consideration of amendment No. 46 had been completed. The next amendment is No. 47 in the name of Deputy Higgins.
Immigration Bill, 1999: Committee Stage (Resumed).
SECTION 3.
What is the timetable for completion of Committee Stage?
The debate will continue until 5 p.m. and will resume at 10 a.m. tomorrow or earlier if members of the select committee wish. There is accommodation available until 2 p.m. but that can be changed if necessary.
I am seeking an assurance that the debate will not be guillotined. There are 30 amendments remaining from the first tranche of amendments tabled in mid-April and 49 additional amendments, including a 14 page amendment tabled by the Minister. I seek clarification that there will be an opportunity to discuss in full all the amendments which took considerable time to draft and were the subject of extensive consultation to ensure we were fully informed.
That is a matter for the House.
I agree with what Deputy Higgins said. There is an indication that it may be put to the House that the Committee Stage debate be guillotined, to which we would be strongly opposed. We want to discuss in full all the amendments, of which there is a sizeable number tabled by the Opposition and the Minister. Given the importance and complexity of the Bill which will interact with the Refugee Act, there should be sufficient time to discuss all the amendments.
A decision will be made between the Whips. I understand the matter will be raised on the Order of Business today. There was a good indication last week of the Minister's thinking.
The Minister's final comment that, irrespective of the unsatisfactory level of consultation with Members of the Oireachtas and members of the select committee in particular, he was determined to have the Bill on the Statute Bill, was ominous. The purpose in establishing committees was that there would be a full and detailed debate on all aspects of legislation, that it would not be bludgeoned through so that Members of the Oireachtas would be satisfied that they had discharged their parliamentary responsibilities. The Chairman should intervene with the Minister to ensure members of the select committee will have an input into all aspects of this highly sensitive and important legislation.
While one might agree with the Deputy, it is up to the Whips and the House to decide.
The difficulty is that the legislation has to be passed before the summer recess. I doubt if the Opposition wants to enter the summer without the legislation being passed. It is, therefore, a question of deciding how many hours are needed to debate it and ascertaining if accommodation and personnel are available. I understand there is a difficulty with regard to the availability of accommodation after 2 p.m. tomorrow. We do not mind how early we start or how long we continue so long as Committee Stage is completed tomorrow. If necessary, we will come here at 6 a.m. and stay for the afternoon so long as accommodation is available.
Seven hours remain; we are seeking more.
We are opposed to guillotining.
I am aware of that. Much work remains to be done. If accommodation can be secured, we may have another three or four hours to consider the Bill.
If accommodation cannot be secured tomorrow afternoon, there is no question but that the debate will have to be guillotined at 2 p.m. It must conclude tomorrow. We would prefer to debate it for as long as possible.
Are members agreeable to starting earlier tomorrow?
We should be as flexible as possible. Before we conclude today we should consider what avenues are open to us in terms of time and accommodation.
We can start tomorrow at 8 a.m. Accommodation is available.
I have no problem starting at 8 a.m. but, as one of the Whips, I will have to ensure everybody is available.
I move amendment No. 47:
In page 6, subsection (9)(b), line 18, to delete "ordinarily".
Section 3(8) reads: "Where a person who has consented in writing to the making of a deportation order is not deported from the State within 3 months of the making of the order, the order shall cease to have effect." Section 3(9)(b) reads: "A person who is ordinarily resident in the State and has been so resident for a period (whether partly before and partly after the passing of this Act or wholly after such passing) of not less than 5 years and is for the time being employed in the State or engaged in business or the practice of a profession in the State. . . . ". What is the definition of "ordinarily resident"?
The term "ordinarily resident" means that a person is resident in the State for the majority of his or her time.
Amendment, by leave, withdrawn.
I move amendment No. 48:
In page 6, subsection (9)(b), lines 23 to 29, to delete all words from and including "other" in line 23 down to and including line 29.
We see no reason to deprive a person of his or her rights just because a minor offence has been committed, for example, a road traffic infringement. If he or she finds himself or herself in trouble with the law, he or she should not be automatically deprived of his or her rights.
There are very sound reasons somebody who has breached the laws of the State and is serving a sentence or has served a sentence for such breaches, or somebody whose deportation has been recommended by a court, should not be given the three months' notice of deportation provided for here. The public interest would not be served by extending the safeguard of subsection (9) (b) as a general rule to convicted criminals or those where a court dealing with criminal charges considers the matter serious enough to recommend deportation. The provisions of the Bill already allow some scope to the Minister in paragraph (a) of this subsection to allow a suitable interval between the making of a deportation order and the date and time at which the person is to report for the purpose of deportation. It would be wrong to include among those entitled to a fixed three months' notice those who have been convicted of criminal offences or those for whom a court had recommended deportation in a criminal trial. There cannot be any justification for having to give a convicted drug dealer or sex offender, for instance, three months' notice of the making of the order simply because he had been here five years or more.
I accept that the Minister of State would not necessarily want to give that kind of notice to a drug dealer or a sex offender. However, subsection (1) is a blanket coverage of anybody serving a term of imprisonment. While I do not dispute what the Minister says in the case of serious offences, such as the ones she has mentioned, this subsection does not specify those offences. It just specifies a person who has served or who is serving a term of imprisonment imposed on him or her by a court in the State. That should not automatically mean that such a person should not have the right to have the same notice as anybody else. I contest the suggestion that a person serving a sentence is necessarily serving it for serious offences such as drug dealing or a sexual offence. It is quite possible to serve a sentence for something much more minor, and in that case a person should have the same rights as others with regard to notice under this legislation.
Once a deportation order is made against a convicted person, he or she has to go, whereas, a person who has not been convicted will get three months' notice. There is a clear distinction between convicted persons and others. If a person has been here for five years or more, he or she is entitled to three months' notice, but a person who has been convicted is not entitled to such notice.
I know the Minister of State is taking the Bill for the first time. However, Deputies Howlin, O'Sullivan and I argued this principle very strongly last week. This provision 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. As Deputy O'Sullivan has said again today, a person can be jailed for a non-serious offence. The statistics prove that the vast majority of people in jail here are there for non-violent offences, for non-payment of fines. That means that simply because somebody was unable to comply with some financial penalty and is thrown into jail, the terms of this provision apply.
Subsection (2) specifies a person whose deportation has been recommended by a court in the State before which such person was indicted or charged. We argued very strongly for the presumption of innocence until such time as one is proved guilty. Solely by virtue of the fact that somebody has been arraigned and charged but not necessarily convicted, he or she is covered by this provision. I know the Minister says a deportation order is a deportation order, but there are fundamental principles of natural justice which are being undermined by the terminology and the spirit of this. It is with that in mind that I support Deputy O'Sullivan's amendment.
I understand there is scope for flexibility in making orders which can include provisions to suit the circumstances of each case. This section guarantees three months' notice to the person specified in it but it does not rule out lesser periods of notice as warranted in other cases. There is some flexibility.
It does not rule out lesser periods of notice. However, it excludes these people from getting the same notice as anybody else. I accept that there may be some goodwill in relation to it but that is not a substitute for being protected in law.
It does not guarantee the notice. At the same time such people may in certain situations get notice. It must be borne in mind that we are talking about people who are in prison for some reason. They are living here, and they did something against the law. I know there is the principle that a person is innocent until proven guilty, but they are in prison, and there is an element of flexibility. The message here is that those people are not guaranteed the three months' notice. It does not mean they will not get it, but they are not guaranteed it and cannot be guaranteed it and may have to be deported at the time of making the order.
What we are trying to achieve in all of this is an assurance that people get due process, that they get a fair hearing and correct notice if they are to be deported. While I accept that they might get a certain amount of notice, it is not adequate or fair, given that other people will get three months' notice. A person who is in prison for something that is relatively minor is still entitled to due process with regard to deportation.
Two points arise. First, it does not stop a person getting three months' notice. It is just that it not guaranteed. Second, the person is in jail because of some evidence against him or some difficulty. We could talk about a wide range of cases. A person is not sent to jail for nothing. There is some reason. This provision says such a person is not guaranteed three months' notice. It does not mean the notice will not be given. It may be given. It is just that it is not guaranteed because of the person's position before the law of the land.
Amendment put and declared lost.
Amendment No. 49 not moved.
Amendment No. 50 is in the name of Deputy Higgins. Amendment No. 51 is an alternative, and amendment No. 58 is cognate. Amendments Nos. 50, 51 and 58 may be discussed together, by agreement.
I move amendment No. 50:
In page 6, subsection (10), line 33, after "who" to insert "without reasonable cause".
This amendment deals with the provision whereby somebody who defies or contravenes a provision of a deportation order or requirement under subsection (3)(b)(ii) shall be guilty of an offence. I appreciate that the contravention of a deportation order is a serious affair, and that there is an onus and an obligation on the State to ensure that the grounds for making a deportation order are sound. Nevertheless, allowing for a determination to ensure that the grounds are sound on every occasion, from time to time certain circumstances may arise which may make it impossible for the person to make themselves available or to comply with the provisions of a deportation order. It is for that reason that I seek to insert here the words "without reasonable cause". I do not see that it weakens the thrust of the legislation. It allows for a contingency or a possibility that during the period from the time the order was made until such time as the person is required to leave the jurisdiction, there may arise certain unforeseen circumstances that might cause a person not to comply with the provisions of a deportation order. It is for that purpose that I seek to insert this provision here.
Our two amendments have a similar purpose to that of Deputy Higgins. Yes. We tabled them for the same reason - to ensure there is a proviso in the Bill to take account of the fact that if a person defied an exclusion order, he or she may have had a reasonable cause for doing so. We want to ensure that proviso is inserted to safeguard a person who may have a reasonable cause for doing so.
I have to oppose these amendments. Section 3 (10) and section 4 (2) are standard provisions creating an offence of breach of an order. A good example of this with which we would be familiar is the provision of section 17 of the Domestic Violence Act, 1996, which deals with breaches of barring orders, safety orders or protection orders. That section of that Act is worded similarly to this section. Under that Act the possibility exists that a person could be unaware of the existence of, say, a protection order or an interim barring order and still be in breach of it, but I do not think the House would wish it otherwise in relation to those orders. In contrast, under this Bill there are ample notice requirements at each stage of the process leading to the making of the deportation order. The scope for a person to act other than knowingly in breach of the order is minimal. The process also involves the opportunity for the person concerned to make representations before any order is made and for those representations to be taken into account. If the person concerned still believes there is a good reason the order should not be followed through, the proper course is to challenge the validity of the order in the High Court, not to act in breach of it. The questions of knowledge and reasonableness that the amendments seek to introduce are properly matters to be taken into account by the court hearing the charges, rather than matters for the discretion of the immigration authorities in deciding whether charges should be brought.
While it may seem to be a reasonable comparison to make with the Domestic Violence Act in relation to barring orders, and I fully support the section of the legislation dealing with breaches of barring orders, this is a different situation. We are talking about an individual who has come from another jurisdiction, is branded technically as an alien, but whose reasons did not stand up when it came to making his or her case to remain in this jurisdiction.
The Minister of State and members of the committee know that international situations can change. Conflagrations can break out at very short notice. Human rights considerations can also change. Many of these people come from countries which might technically be considered safe. For example, someone would say that Pakistan is a safe country. While it looks safe when viewed globally, when one considers the internal composition and mosaic of Pakistan, it is most unsafe for certain ethnic groups. Situations can change from time to time. It is with that in mind that I decided to table my amendment and support the more elaborate amendment tabled by Deputy O'Sullivan, which proposes the insertion of the words "knowingly and without reasonable cause". A situation that may have appeared clear-cut at the time of making a decision on a deportation order may have changed dramatically, from the point of view of the welfare of the individual concerned, before the expiry date of that order. I tabled my amendment to take account of that possibility. I appreciate that if it were accepted, it would dilute the strength of the Bill, but I ask the Minister of State to reconsider accepting it.
If the Minister of State was to accept amendment No. 50, which provides for the insertion of the words "without reasonable cause" or amendment No. 51, which provides for the insertion of the words "knowingly and without reasonable cause", who would define what is "reasonable cause" and how would she interpret the meaning of the amendment?
On Deputy McGennis's point, the court would define that position.
On Deputy Higgins's point about the reasons for making a deportation order not standing up, that may or may not be the case. The deportation process does not apply only to failed asylum seekers; it applies to the full range of non-nationals who should not be or who should no longer be in the State. A person would have to go to the High Court to challenge such an order.
Is the Minister saying effectively that it is a black and white situation and that the only mechanism available to a person in respect of whom a deportation order or an exclusion order has been made is for that person go back before a court to have the matter further determined? In the event of a person deciding to go before a court in such a case, would a deportation order be deferred until such time as the court had an opportunity to determine the matter?
A deportation order would be kept on hold while a case is brought before a court. If a reasonable case was made to the Minister, such as the one to which Deputy Higgins referred, where trouble had broken out in a country overnight or at a weekend and circumstances had changed materially, the Minister would have to take that into account. That would mean there would be a clear-cut difference and that change in circumstances could be brought to the attention of the Minister. The deportation process would be kept on hold if a person were to bring a case to court.
Amendment put and declared lost.
Amendment No. 51 not moved.
Amendment No. 52 is a drafting amendment in the name of the Minister, amendment No. 59 is cognate and the two amendments can be taken together by agreement.
I move amendment No. 52:
In page 6, subsection (11), line 37, to delete "Act" and substitute "section".
Amendment agreed to.
I move amendment No. 53:
In page 6, between lines 37 and 38, to insert the following subsection:
"(12) In this section 'working day' means any day not being a Saturday, Sunday or public holiday.".
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
I move amendment No. 54:
In page 6, subsection (1), line 38, to delete "The" and substitute "Except where to do so would contravene section 5 of the Refugee Act, 1996, or any other provision of international law, the ".
The intent of this amendment is to make it clear that a person cannot be refused entry under section 4 where the effect would be to send him or her back to face persecution. The amendment seeks to ensure that the provisions of the Refugee Act would be available to the person concerned under this section. We have to deal with the complication of trying to stitch together the provisions of two Bills legislation. This amendment seeks to ensure that a person will have the protection of the Refugee Act under this section and that there is no danger that he or she would be deported to a country where they could be persecuted.
It is important to say that section 4 is designed not so much to remove a person from the State as to ensure that he or she does not get here in the first place. It is aimed primarily at persons who are internationally notorious for war crimes, crimes against humanity, terrorism or other serious offences. The criteria specified in the section are confined to the interest of national security or public policy and, in some circumstances, might encompass persons who, though not necessarily actively engaged in such crimes, advocated or formented crimes such that their presence in the State would be an international affront and would tend to give rise to widespread public disorder or have a destabilising effect on society . The exclusion order depends to some extent for its success on preventing public carriers from allowing such a person to embark on a journey to the State under the precursor to this provision. A small number of exclusion orders were made during recent decades. One related to a former Nazi, who had some interest in land in this State, and another was made in respect of a colonel in the South African security services, who was actively engaged in furthering the apartheid régime and about whom there were indications that he intended to arrive in the State. Orders of this nature are referred to in section 9(15) of the Refugee Act, 1996.
The effect of that provision is to exclude from entry into the State a person arriving at a port or border who is the subject of an exclusion order made on the grounds of national security or public policy. Section 9(16) provides that such a person can only make an asylum application with the consent of the Minister. The amendments to the Refugee Act will include one to update the reference in that provision to section 4 of this Bill. I am satisfied that the manner in which the Refugee Act caters for the possible asylum claims of persons who are the subject of exclusion orders is as appropriate now as it was when that Act was promoted by the former Minister of State, Ms Joan Burton, with the support of her colleagues in the last Government. On that basis, I cannot accept amendment No. 54.
I will propose a Report Stage amendment which will underline the exceptional nature of orders to be made under this section of the Bill by providing that such orders will have to be made before both Houses and may be annulled by motion. This will help to reassure Deputies about the provisions of this section as evidenced by this and the following three amendments.
I thank the Minister of State for the latter part of her reply. Is she saying that where an individual is to be excluded under this section, the case will be laid before the Houses of the Oireachtas?
In all cases, the order, once made, will be laid before both Houses of the Oireachtas.
Will the person already be excluded when the order is made? If so, that does not give the type of protection we are seeking to achieve in this amendment.
There will be power to revoke that order by motion. It will be laid before both Houses of the Oireachtas but it can be overturned.
Is the Minister of State suggesting the person could be brought back to the country if they had already been excluded?
We are talking about people who have not come to the country, so it is not a case of bringing them back but of keeping them away and stopping them from coming here. If the Houses of the Oireachtas change their mind, debate the motion and state they were wrong and they would love to see these persons in Dublin, we can send them an invitation to come here and tell them everything has changed.
The proposals are interesting but I do not understand what is wrong with the wording of the amendment which seeks to ensure that the protection in section 5 of the Refugee Act or any other provision of international law is available to such people. This is a human rights matter. We want to ensure that the protections in domestic and international law are available to such people. I understand why the people the Minister of State listed are not allowed into the country, but I cannot see anything wrong with the wording of this amendment. There is no reason it cannot be part of the Bill.
The protection in section 5 of the Refugee Act applies to every potential removal from the State. I remind the Deputy that we are not talking about a removal but about someone who has not arrived in this country because we have decided, with the benefit of information, that this person should not enter the State. We are going a step further to allay Deputies' concerns by stating that if the Houses of the Oireachtas believe a week later that the decision was wrong, it can be changed. All cases of this nature will be brought to the attention of the Houses of the Oireachtas.
What is the definition of public policy? The Minister of State gave a list of people who would be excluded, all of whom come within the category of national security considerations. Nobody would like to see such individuals arrive or be accommodated in this country. However, none of them would seem to contravene the definition of public policy. When we talk about public policy, it reminds me of section 3 where a person's deportation would, in the opinion of the Minister, be conducive to the common good. In other words, the Minister would make the decision. What type of public policy considerations is the Minister of State talking about from the point of view of the application of this definition?
It is rare for such a serious situation to arise. We are saying a person cannot enter the country because of their activities or the effect on security and that after this decision has been taken, the matter will be brought to the attention of the Oireachtas. We do not expect to come before the Oireachtas every week with a new case relating to someone we have decided not to allow to enter the country. The rare time we appear in the Houses of the Oireachtas to say we have decided not to allow a certain person to come into the country, the reasons will stand up. There will be substantial reasons for the decision and it would be unlikely that the Oireachtas would have any other opinion on whether this person should enter the country.
We will talk about this issue again on Report Stage. We are doing this to assure Deputies that it is not just the Minister who will make the decision but that it will be a public decision before the Houses of the Oireachtas, which can be changed if they so desire. It will not take place too regularly as the situation would need to be serious before that would happen.
Is the amendment agreed?
I will await the Minister's proposals, so I will not press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 55:
In page 6, subsection (1), line 38, after "may" to insert "for serious reasons related to the personal misconduct of the person concerned".
That the common good can only be invoked against a specific wrongdoer is in line with EU law. We want to ensure this relates to the personal misconduct of the person who is guilty and not to the conduct of anyone else.
The criteria are appropriate to deal with the types of persons I have described as being the target for exclusion orders which may include those who, rather than being personally involved in despicable activities, could have been the architects of such activity with others. I am satisfied the words used in the section as it stands are sufficiently restrictive to ensure that appropriate use only can be made of exclusion orders but, at the same time, are flexible enough to encompass appropriate use of the provision which is not confined to the personal misconduct of that individual. They may not necessarily have directly carried out the act, as we have seen in recent cases, but they may have been the architects of the act.
I will include a Report Stage amendment on this issue. We are waiting for the parliamentary review of the exclusion orders which should meet the Deputies' concerns about the section. This will not change, regardless of what Minister or Government is in power. Once a decision is taken, it will be reviewed by the Oireachtas when it is brought before it. This is being done to allay the concerns expressed by Deputies and to ensure it is clear who is being excluded.
I agree with the Minister that if someone plots something but does not carry it out themselves, they are guilty of misconduct. I am concerned about the situation of an associate of someone guilty of misconduct, who might not be guilty of any offence. I am not trying to protect someone who plotted a major misdeed or crime and then got someone else to carry it out, but I want to protect someone who might be related to a criminal. That is the purpose of the amendment. I accept the Minister of State's point that the amendment she plans to table on Report Stage will provide a certain amount of protection. As far as I know, there is a standard provision in legislation that the person concerned must be guilty of misconduct, whether that is plotting the misconduct or carrying it out. However, I want to ensure that associates of such people are protected.
We are satisfied the words used in the section, as it stands, are sufficiently restrictive. It might be asked if we have concerns about a person's wife or husband, just because we have concerns about the person in question. However, the Deputy should bear in mind that whatever Minister takes that decision will have to be able to explain it properly in public before the Houses of the Oireachtas. It cannot be a question of not liking someone's wife. A decision to prevent such an individual entering the country would have to stand up. Members should be satisfied with what we are proposing to do on Report Stage, in that it covers their worries that the Minister of the day might make a decision with which Members might not be happy. However, if that happens they will have a say in the matter when it comes before the Houses of the Oireachtas.
I support the thrust of Deputy O'Sullivan's proposal. I am not convinced by the Minister of State's reason for not accepting the amendment. I refer the Minister of State to the previous query on the area of public policy. One can appreciate fully, that for national security considerations, the terms of this section should apply. However, "public policy" is a very broad brush and non-specific definition. It seems to open up the possibility of giving discretion to the Minister in relation to anybody. What kind of public policy considerations are we talking about, in terms of the application of this section? It seems to be a catch-all proviso giving absolute discretion to the Minister in terms of who should be excluded, without being in any way specific about what is intended by this definition.
An example of the concept of public policy, as applied by the courts, is the rule against contracting to perform an illegal act. Such a contract is held by the courts to be unenforceable as contrary to public policy. The expression has been held by the courts not to mean the policy of the Government of the day. The pursuit by the Government of a policy which was contrary to public policy could fall foul of the courts. It is different from the concept the Deputy is thinking of. Public policy is a common law concept which is well understood by the courts. We are talking here about the courts' understanding of public policy, as distinct from what we might casually mean by it.
The more the Minister of State explains the intent behind her Report Stage amendment, the clearer it becomes that under the amendment the onus will be on the Minister to make an exclusion order stand up. The Minister must show clearly to the Houses of the Oireachtas the reason for it. A Minister would not make an inappropriate exclusion order, given the safety measures the Minister of State has indicated will be inserted in the Bill on Report Stage. Both Deputies have been completely successful in having the spirit of their amendments taken on board by the Minister of State in her Report Stage amendment.
I hope it is clear from the discussion that these exclusion orders cannot be made on the whim of any Minister. Any Minister taking the serious decision to make an exclusion order will have advance notice that he or she will have to explain it to the Oireachtas the following week. Any member of the committee could be the Minister deciding on an exclusion order one day. A Minister will make such decisions very carefully because he or she will have to be able to support such decisions and explain them publicly.
What sort of public information needs to be given as the section stands, without the Minister of State's Report Stage amendment? If the Minister decided to make an exclusion order, who would he or she have to tell or what would he or she have to explain? How much information would the Minister have to provide on why he or she made the order? There is concern that too much discretion would be given to the Minister if he or she did not have to provide information on the reason for the decision.
At the moment, the power to make exclusion orders has been struck down by the High Court. It will not apply until the legislation is passed - which is why it is important to get it passed. Although cases were brought to the attention of the Houses of the Oireachtas in the 1970s there was no requirement in law to do so. We are now providing that all cases will be brought before the Oireachtas. There is documentation of cases, that were deemed important enough, being brought to the attention of the Houses of the Oireachtas in the 1970s.
I will not press the amendment given that we will discuss this again on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 56 and 57 are out of order.
(Mayo): Will the Chairman refresh our memories on why the two amendments were ruled out of order?
They would give rise to a charge on the Revenue. If the amendments were accepted people could get into the system and be here for six or eight months. Given that the section deals with very limited circumstances, there must be an independent authority outside the one that has already been set up.
Amendments Nos. 56 and 57 not moved.
I move amendment No. 58:
In page 6, subsection (2), line 42, after "who" to insert "knowingly and without reasonable cause".
Amendment put and declared lost.
I move amendment No. 59:
In page 6, subsection (3), line 45, to delete "Act" and substitute "section".
Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."
I appreciate the need for exclusion orders and to allow the State ample time to decide who should be subject to such an order or to decide who will not be permitted access to the State. However, it is draconian to provide for a régime without an independent right of appeal. I accept that an individual has open access to the courts, but to provide maximum constitutional protection and in keeping with other legislative provisions, there should be a right of access to an appeal mechanism. In this jurisdiction, a person who is denied a social welfare payment has a right to have his or her entitlement determined, heard, assessed and judged by an independent appeals officer, who sits in D'Olier House. The same applies to a range of other areas governed by legislation. Appeals mechanisms are in place. That is why I am surprised that the Minister has not indicated the Government's intention to proof the system against accusations of being partisan, and has not decided to introduce - on its merits rather than following prompting from the Opposition - an appeals mechanism to assess, on an independent basis, whether an exclusion order is in accordance with the terms of the Bill, is fair or should apply in a particular case.
I support Deputy Higgins' remarks. Our concern is to ensure due process for people being excluded. It is necessary to have a system and in the cases outlined by the Minister one can see why people were not allowed into the country. In trying to amend this provision we were seeking to ensure the protection of international law which would be afforded under the normal refugee process, and that the person would be entitled to be regarded as an individual rather than as an associate of someone else. These are valid concerns when a person is being excluded from a country. While we will discuss this again in light of the Minister's Report Stage amendment, it is important that the concerns about due process are taken on board and that we ensure we do not put into law a process whereby someone could be excluded from the country without proper consideration of his or her case. The purpose is to ensure the section is in line with international human rights law.
If provision is not made in the Bill for an independent forum, would we be in breach of international law and could someone take a case against Ireland? Cases have been taken against the UK Act and we might find ourselves having to answer at another level.
Deputy O'Sullivan mentioned normal refugee status but this is not what is at issue here. If a person was convicted by the war crimes tribunal for crimes in Kosovo and wanted to get into Ireland, the Minister could decide we did not want that person to come into the State. That is the exclusive remit of this provision. It does not apply to normal refugee status but to serious crimes committed by an individual.
The Chairman is right. It is also important to remember that a person has not yet entered the State if we seek an exclusion order against him or her. If the person was in the State or had recently been a resident the proper course would be to invoke the deportation procedure, thus giving him or her the benefit of the deportation procedures in the Bill. We are dealing with undesirable non-nationals, as mentioned by the Chairman. An exclusion order would prevent him or her entering the State and the Minister of the day would have to have good grounds for this. It comes before the Oireachtas and that is the appeal procedure which Deputy Higgins was concerned about - the individual is not here, we are stopping him or her coming here, that exclusion must be explained before the Houses of the Oireachtas and such an order could be annulled or overturned by a motion brought within the usual time period of 21 sitting days. The types of people we are concerned about include notorious international war criminals, illegal arms dealers, offenders against human rights, and others whose presence or arrival in the State would be contrary to public policy or a threat to national security. These are the type of people we do not want here, and as the Chairman said it is straightforward in terms of who one is talking about. We exclude them and are able to explain clearly why we did so, at home, abroad and at any international or national forum, including the answer. I stress that section 4 concerns exclusions rather than refugees being deported, who are in a different category.
They should have international protection at the same time.
If by some chance the person who is subject to an exclusion order managed to get into the country, they could not be sent anywhere they could be prosecuted or persecuted because that would be contrary to section 5 of the Refugee Act.
Our main concern about exclusion orders is that it is a sweeping provision - there are no safeguards against non-refoulement and no provision for appeal. Some people are concerned that exclusion orders could be used instead of deportation. Permanent exclusion does not allow for the right to seek asylum in future difficulties. This is our main problem with the provision, apart from the possible breach of our international obligations under the 1951 Convention on the Status of Refugees or the international instruments. By and large we are not talking about refugees here but potential refugees or asylum seekers could be caught in this dragnet.
The Deputy is concerned about the protection against refoulement but as I said in response to Deputy O'Sullivan, section 5 of the Refugee Act applies in that case. The Deputy asked whether there is anything to prevent the person being sent to a place where they will be persecuted. That provision applies if the person is here. If he or she is not here we will not send him or her anywhere. The exclusion order is to prevent them coming here. If the person is already here he or she is protected by section 5 of the Refugee Act.
Deputy Higgins is also concerned about the appeals provision. The order can be annulled by the Oireachtas within 21 sitting days, which is the appeal mechanism. If the Deputy is concerned that someone should not have been excluded from the country, he can bring it to the notice of the Houses of the Oireachtas.
The Minister may by order amend or revoke an order under section 4(3) if somebody said there was a real problem or considerable misinformation. Obviously, it would have to be substantial because he would not exclude them in the first place unless he had substantive grounds to do so. If somebody said that it was a case of mistaken identity or that something else was very wrong, the Minister may by order amend or revoke an order under section 4(3) before it ever comes before the Houses of the Oireachtas. If he or she changes it at that stage, they will not end up explaining it to the Houses of the Oireachtas because the person is not excluded. There is a double appeal.
The Minister will have no problem explaining to the Dáil that he does not want a particular client in Ireland because of his notorious crimes or whatever. It should be borne in mind that it is people who have been involved in awful crimes that we are excluding. We are not talking about the client one would love to invite for Sunday tea. This is the client we do not want in Ireland. This is the way we are keeping them out, and we can explain it. If we get it wrong, he or she can appeal to the Minister. Because of what we will do on Report Stage, the Minister of the day, having made that decision, will have to go before the Houses of the Oireachtas to say he made an order and give the reasons. There is a real appeal system.
On a practical note, what happens if the Dáil is in recess?
It states 21 sitting days, I checked that. We are very practical people.
It is all right to say it is an appeal process by laying it before the Dáil, but do we only get to hear one side of the story? In other words, if the person appeals to the Minister, do we hear the basis on which the appeal was made or the Minister's side of the argument only?
It would depend on the circumstances of each case. We are not talking about gentle Molly Smith who has been hard done by, by the Minister.
I understand that.
We are talking about a tough cookie, and it would be well explained. If I was being excluded from a country and my case was being debated in the Parliament of that country, I or my legal team would be in touch with the Opposition to give my side of the story, so the Opposition would be aware of the position. If the Minister of the day takes such a decision, the Opposition will have the information.
Will the person be informed that the matter will be laid before the Houses of the Oireachtas?
They will know because all such cases will come before the Houses of the Oireachtas.
Our concern is to ensure there is balance and that the section is not abused. It is fine for the Minister to say there are two courses of appeal, the initial appeal to the Minister and the subsequent appeal to the Houses of the Oireachtas, however practical that will be. I would like to know exactly how that vehicle will operate. Will there be a vote or a motion or what will happen?
We are worried about the over-extravagant use of this section. It is fine to give us assurances. The Minister and her officials do not intend for this section to be abused. If one, however, takes the number of successful appeals coming onstream in relation to people who have been refused refugee status, a substantial number of initial decisions taken by the Department are now being overturned. Had these people been arraigned at the point of entry, the grounds on which they could have stayed here would have been deemed manifestly unfounded. Effectively, they would have got the red card out of the country. They would have been classic cases of people being turned back because their cases were manifestly unfounded.
In such situations, we are extremely worried that there is no independent process in place. The Minister may assure us that we have the ultimate democratic right of determination, in other words, laying it before the Houses of the Oireachtas, I am extremely worried there is no independent mechanism. I would like to hear the Minister's view before we decide whether to accept this section. Will the Minister spell out precisely how recourse to the Oireachtas will be had, how it will operate and what type of administrative procedure we will put in place to determine whether the order should stand?
If, for example, Pol Pot sent us a note from Cambodia to say he would like to come to Dublin, it would be very clear to everybody why the Minister had a problem with it and he or she would not have undue difficulty in explaining this. The case would still come before the Oireachtas which would be told a note had been received and an exclusion order had been made.
Deputy Higgins asked how it will work. Perhaps he might wait until we table an amendment on Report Stage when we will debate this issue in great detail. We will have another opportunity to thrash it out when we table the Government amendment. If the Deputy has any concerns at that stage, we can go through them.
We will not, given the limited timeframe. We feel perfectly entitled to table amendments. Many of the amendments we tabled were dealt with in April, last week and this week and are valid and designed to make the Bill a better one. We will not even get to this amendment if we have anything like a reasoned debate in relation to the previous amendments. Although we have been given an assurance that this will be fully dealt with, it will be the subject of a guillotine and will be bulldozed through. We will not get to this amendment unless we waive our right to debate the other valid amendments we have debated on Committee Stage.
Question put.
The Select Committee divided: Tá, 8; Níl, 7.
Tá
- Ardagh, Seán.
- Carey, Pat.
- Hanafin, Mary.
- McGennis, Marian.
- McGuinness, John.
- Ryan, Eoin.
- Wallace, Mary (Minister of State at the Department of Justice, Equality and Law Reform).
- Wright, G.V.
Níl
- Ahearn, Theresa.
- Barnes, Monica.
- Finucane, Michael.
- Flanagan, Charles.
- Higgins, Jim (Mayo).
- McManus, Liz.
- O’Sullivan, Jan.
Question declared carried.
SECTION 5.
I move amendment No. 60:
In page 7, between lines 6 and 7, to insert the following subsection:
"(2) The person detained under the provisions of subsection (1) shall be brought before the District Court in order to have the validity of the deportation order verified.”.
This relates to the imprisonment of a person where it is suspected that the person has failed to comply with the provisions of a deportation order. Section 5(1) states: "Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii), he or she may arrest him or her without warrant and detain him or her in a prescribed place.” There is no provision for a warrant and no follow-up procedure is envisaged. I propose in my amendment to introduce a new subsection (2), which states, “The person detained under the provisions of subsection (1) shall be brought before the District Court in order to have the validity of the deportation order verified.” It is a safety check, a way of ensuring that the person is not detained wrongly, and it is also a way of verifying that the order which has been put in place is a valid, legitimate deportation order. Thankfully not many deportation orders are issued, but where a person against whom a deportation order is in force is arrested on suspicion of failing to comply with the order, this should be verified by bringing the person before the District Court.
The amendment is opposed because it would impose a step on those endeavouring to execute a deportation order which can be of no constructive purpose. An order signed by the Minister is valid and of course can only be made after the process, as set out in section 3, has been gone through. The District Court has no greater expertise with which to examine the piece of paper for validity than the immigration officer or member of the Garda Síochána who deals with such matters on a routine basis. If the correctness of the procedures leading to the making of an order are to be called into question, the subject of the order always has the right to institute judicial review proceedings to do that. The places hitherto prescribed as places of detention under the aliens order are all either prisons or Garda stations. It is my intention that the same or a similar list of places be prescribed for the purposes of section 6(1) of this Bill.
In relation to both types of place, there are well enshrined processes for obtaining legal assistance on demand. The 1987 custody regulations in relation to Garda stations are an example. There is, accordingly, ample opportunity after detention to invoke the jurisdiction of the High Court, whether for habeas corpus or judicial review proceedings. However, it is not as if detention in such circumstances is sprung out of the blue on the subject of a deportation order. The procedures provided in this Bill are designed to give the person ample notice, first of the fact that the making of an order is in prospect and, then, under section 3(3)(b)(ii) that an order has been made. Subsection (9)(a) of that section spells out in more detail what that second notice is to contain.
Detention can only arise in circumstances where the deportation order has been made after all these procedures and where the person still persists in acting in breach of the order. The proper course of testing the soundness of the deportation process, in any case, is judicial review in the High Court, a process that is already well established, and not the unnecessary procedure envisaged in the amendment.
We are talking here about a simple verification of the validity of the order. The Minister of State said that once an order is made and signed by the Minister it is a valid order. We accept that. However, where someone suspected of being in breach of a deportation order is arrested by either an immigration officer or a garda without warrant, rather than going for judicial review or invoking the provisions of habeas corpus before the High Court, it would not be outlandish to bring that person before the District Court to have the order verified.
The Minister of State said the District Court would have no greater professional expertise in determining the validity of the order than an immigration officer or member of the Garda Síochána. However, what training does a member of the Garda Síochána have to determine the validity of an order? Immigration officers may have more expertise as they are specifically trained to deal with immigration issues. There will be a time lapse between detaining the person and bringing him or her before the District Court. The District Court judge would, therefore, have ample opportunity to appraise himself or herself fully in relation to the provisions of an order, the regulations surrounding an order and the factors determining the validity of an order. This would give a lower court competence to verify the validity of an order, rather than going to the High Court for a judicial review with the attendant costs.
Unless a mechanism is put in place to check the validity of the order, under the provisions of subsection (2) the person arrested and detained "may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by the immigration officer or member of the Garda Síochána, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle or aircraft leaves the State". In other words, the provision in relation to the deportation of the person is invoked immediately.
The Deputy is concerned there is no mechanism. I have outlined the mechanism with regard to the order and the need for ample notice that the order is in prospect and notice that the order has been made under the relevant section. This concerns a person who has gone through the interview process and has had an opportunity to make his or her case but whom it has been decided cannot stay and should be deported. Immigration officers, almost all of whom are members of the Garda Síochána, implement this.
The Deputy seems to suggest that a further layer of delay and frustration should be added to this process before the deportation is carried out, by allowing the person to appear before the District Court for a further layer of appeal. Such people have been through the entire process and have had every opportunity. They had no right of entry in the first place and are not refugees. The position is that they should not be here and are being deported. We have spent a great deal of the State's time, effort, energy and resources on handling their illegal entry and illegal presence. We are now saying they are not refugees and must leave. However, the Deputy is suggesting we add further layers to this process and make it impossible to deport them. There comes a time when such people have to go. Their cases have been gone through, so why bring them to the District Courts, which should be handling crime and other problems in the country? Let us be realistic - we are talking about people who should not be here in the first place.
The Minister of State has dealt with the matter adequately. Section 5 clearly refers to someone against whom a deportation order has been made. The section is headed "Arrest, detention and removal of non-nationals"; to that could be added "against whom a deportation order has been made".
As the Minister of State said, there are many tiers to this process. The amendment does not seek to add an additional tier because it does not say the person against whom the deportation order has been made should have the right to appeal it further but that the court will decide on the validity of the deportation order. The Minister of State has said clearly that the validity of the order will have been established well in advance. The amendment does not seek to add that extra safeguard for the person against whom a deportation order has been made but rather seeks to do something which is impossible.
The use of the word "suspects" in section 5 is causing concern, in that a person can be detained on suspicion that he or she has failed to comply with any provision of the deportation order. At what point in the process does suspicion become certainty? Is the person safeguarded against the fact that the suspicion may be incorrect?
There can be different reasons for the suspicion, such as not attending at the Garda station or airport at the appointed time. An immigration officer or member of the Garda Síochána may then have reasonable cause to suspect that the person against whom the deportation order was made has failed to comply with the relevant provision of the order, such as a requirement to attend at a station or airport. If someone fails to turn up he or she is located and we then have reasonable cause to believe that that person is failing to comply with the deportation order.
Amendment put and declared lost.
I move amendment No. 61:
In page 7, subsection (3), line 19, to delete "proper" and substitute "standard passenger".
We are talking here about the standard of accommodation for someone who, having gone through due process, is deported from the country. The master of any ship, railway vehicle or airplane bound for any place outside the State shall, if so required by an immigration officer or garda, receive a person against whom a deportation order has been made and his or her dependants, if any, on board such ship, railway train, road vehicle or aircraft, and afford him or her and his or her dependants proper accommodation and maintenance during the journey.
I appreciate that proper accommodation is intended to ensure that the standard of accommodation is adequate. It was brought to my attention that there are no guarantees and that this is a subjective description that may depend on the whim of the master of the method of transport. The term may be too abstract. Someone being sent compulsorily out of the State should be given standard passenger accommodation. We are not talking about first class accommodation. Their journey out of the State should afford them the same dignity as those on the ship, train or plane in question.
It might be worthwhile to remind Members we live on an island, so it is more than likely that if a person is being deported they are being deported by air unless he or she is going to Northern Ireland or Great Britain, in which case there are road and sea options. However, in most cases deportation is by way of a European airport to the final destination, as there are few direct air links between the State and places other than western Europe and North America. Heathrow Airport is the normal point of transit given its large hub. We are on an island so we will not be sending many off by ship or train.
This amendment could be to the detriment of the person being returned. Standard passenger accommodation would not cover situations where a person had special needs or a disability. Standard accommodation might not cater for such needs so the use of the term "proper" is designed to cover all situations.
It is really six of one and half a dozen of the other. The best form might be "suitable standard passenger accommodation". The suitability aspect could reflect a person's disability. I am not hung up on this but the point is valid. I thought the Minister of State was going to rule this out on the grounds that it might impose an extra charge on the State. She might look at this matter for the Report Stage.
We have checked this and "proper" means "suitable" so it is fine to use "proper" if "suitable" is the intended term.
Amendment, by leave, withdrawn.
I move amendment No. 62:
In page 7, between lines 20 and 21, to insert the following subsections:
"(4) (a) Subsection (1) shall not apply to a person who is under the age of 18 years.
"(4) (b) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of subsection (1) shall apply as if he or she had attained the age of 18 years.
"(4) (c) Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the health board for the area in which the person is being detained of the detention and of the circumstances thereof.
(5) Where a person detained under this section institutes court proceedings challenging the validity of the deportation order concerned, the court hearing those proceedings or any appeal therefrom may, on application to it, determine whether the person shall continue to be detained or shall be released, and may make any such release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:
(a) that the person reside or remain in a particular district or place in the State,
(b) that he or she report to a specified Garda Síochána station or immigration officer at specified intervals,
(c) that he or she surrender any passport or travel document in his or her possession.".
Amendment agreed to.
Amendments Nos. 63 to 66, inclusive, are to be taken together by agreement.
I move amendment No. 63:
In page 7, subsection (4)(a), line 22, to delete "8 weeks" and substitute "4 weeks".
This refers to a person not being detained under this section for a period longer than eight weeks in aggregate. This is grossly excessive and I do not see any requirement for it. I seek to reduce it to four weeks and Deputy O'Sullivan seeks to reduce it further. I am inclined on reflection to accept her view. I cannot foresee an situation where this would apply. If due process is followed, if the checking procedures we were assured about are there and if verification is so easily determined, I see no reason for a person to be detained for eight weeks when this should be determined in a matter of days, or two to four weeks at most.
I concur fully with Deputy Jim Higgins on amendments Nos. 63 and 64. Serious concerns were expressed by the NGO sector, particularly Amnesty International, which referred to amendment No. 65 and its concerns about possible abuses under subsection (2). The UNHCR sought amendment No. 66, which proposes deletion of section 5(4)(b)(iii) to prevent abuses. That body also expressed its concerns about this matter.
These amendments respond to concerns expressed by reputable bodies and organisations which probably have much more knowledge and expertise about these matters than most of us. Their concerns should be taken on board by the Minister of State. The amendments reflect our concern that people should not be unnecessarily detained and the rights of a person to his or her freedom at all times should be borne in mind. The eight week period seems unnecessary and very long.
There is a fair explanation for opposing these amendments. The eight week limit is designed to ensure that there is ample time in which to make suitable arrangements for the removal of a person from the State but to ensure at the same time that the detention and deportation are not open ended. The purpose of detention is only that removal can be achieved and the duration of that detention is only until that removal is achieved. The purpose of the deportation order is that it is an essential ancillary to the order for use where - and this is important - co-operation is not forthcoming and deportation cannot be achieved otherwise.
The eight week period is necessary to cover the time needed to make suitable travel arrangements, which will not always coincide conveniently with scheduled routes and may, on occasion, have a security element, and to allow for any difficulties which may arise in obtaining a travel document from the country of origin of the person being deported. This is recognised by immigration authorities in Europe generally. It can be a problem with countries like China and certain north African States. The process may involve having inquiries made in a person's home village or searches of official records of uncertain reliability. Searches can be quite protracted, particularly given that the person is not co-operating. They are not providing assistance to find the relevant documentation. No co-operation is forthcoming and attempts are being made to track down the travel documents so that the individual can be put on the scheduled route. There may be a security element.
The eight week provision is to ensure that the matter is not open-ended. The process concludes once the person is removed. The process should not take eight weeks but only until the person is removed. The period provided strikes a balance between the principle of not having open-ended detentions and the practical requirements of the process of removal. It must also ensure that the person is not rewarded for non-co-operation by having the period of detention lapse, thus diminishing the enforceability of the order. Experience in this State and in other EU countries makes it clear that the four week period proposed by Deputy Higgins in amendment No. 63 would not achieve that balance and that the two day period envisaged in amendment No. 64 is impractical when one considers what might be involved.
The court involvement proposed in the latter amendment is unnecessary and can achieve no real purpose of justice. If the order is properly made after due process then it should be executed. If the conduct of the person named in the order is in breach of the order then detention until removal can be achieved as appropriate. Nothing is to be gained but much can be lost in terms of Garda time and other State expenses by requiring a court appearance. What is the court to determine? If the order is not made properly after due process the proper course is judicial review which is already catered for in the Bill.
Amendment No. 65 seeks to delete section 5(4)(b)(ii). If this amendment was accepted, even though a deportee might be placed on board a vessel bound for the country of return within the eight week time limit, if that vessel did not depart within that period the person would be free to disembark and could no longer be subject to detention in pursuance of the deportation order. While the circumstances in which the matter might become an issue would be rare, it is better to have the small margin of extra leeway so as not to frustrate the lawful order.
Amendment No. 66 seeks to delete section 5(4)(b)(iii) which would encourage deportees to institute and protract court proceedings, however frivolous or vexatious, challenging deportation orders so as to eke out the eight week period and thus make the deportation virtually unenforceable. I cannot accept this amendment which would reward two kinds of improper activity, non-co-operation with a lawful order and abuse of the process of the courts. In amendment No. 62 I have set out a clarifying provision describing the role of the court hearing in a challenge to a deportation order. I am satisfied that the provisions make the safeguards clear, not only for the individual concerned, but also for the interests of the State in ensuring that lawful orders are obeyed. In light of that provision I ask Deputies to withdraw their amendments.
I will not withdraw my amendment and, if necessary, I will support Deputy O'Sullivan's amendment. The Minister of State made the point that, for example, in the case of people from China or north Africa trying to illegally enter the State, there could be difficulty setting up travel arrangements, tracking down documentation, making contact with their village and so on. There will be difficulties in such cases as in cases where there is non-co-operation. However, that in no way removes our obligation to ensure that deportation is carried out as expeditiously as possible. The alternative is jail, presumably high security jail.
There was a case involving some unfortunate people who came to this country against whom deportation orders or other exclusion orders were made and they ended up in Mountjoy jail. If we are talking about the incarceration of people in high security prison because they will be viewed as potential escapees, then we have an obligation to ensure that deportation is carried out as expeditiously as possible once all recourse to appeals has been made. There is no independent appeals procedure. We have a clear obligation to the individuals concerned to set down a definite, lesser number of weeks or days, rather than the existing eight week requirement which the Minister of State seeks to enshrine in the legislation.
I support Deputy Higgins's comments. Many of these cases involve families and people with children. I presume this provision covers all those refused refugee status, for example. Many of these cases involve families and people who have spent quite some time in the country and who might have, what they consider, a valid reason for failing to comply with any provision of a deportation order. A child might have been sick and they might have considered that as a valid enough reason not to comply. We are talking about incarcerating families, in many cases, for a considerable period of time.
Will the Minister of State clarify that we are talking about the people many Members have met and who have been seeking refugee status but have not been granted it? These people may not have complied with deportation orders for reasons which they consider valid but which may not be valid in the eyes of the law. It is important to go through this section carefully to ensure we do not lock people up in prisons, if that is the intended place of detention. I am not sure what other places of detention might be envisaged under this section.
Section 62(4)(a) states that "subsection (1) shall not apply to a person who is under the age of 18 years”, therefore, children will not be put in jail. In the case of, for example, parents saying that they did not want to leave because their child was undergoing surgery in the Mater hospital, that would not be deemed as non-co-operation with a deportation order but would be considered a valid reason for asking the Minister to vary the order. That is a different case. We are talking about people who are clearly not going to co-operate and have no medical or other relevant reason for not doing so.
Deputy Higgins spoke about the place of detention. The place must be secure in the case of a person who is actively trying to avoid being removed from the State. However, the Department does not want to fill prisons with people refusing to be deported. If such people are in prison it is in our interests to move them on as quickly as possible. Therefore, we agree with the Deputy's point that deportation should be carried out as quickly as possible. We are talking about individuals who need to be detained in a secure place because they are doing everything possible to avoid deportation despite the fact that there is a deportation order against them. This non-co-operation would include refusing to give details to the Garda about location of passports, travel documents, home village and so on. People in similar situations in other countries who want to avoid going to jail co-operate with the authorities and provide the information regarding their passports and home village. If they do not want to co-operate they could refuse to give details and spend a few weeks in jail during which time the authorities would try to find their travel documents.
The type of people we are talking about will use every opportunity to stay in the country and avoid deportation. We are not talking about putting families or families with sick children in jail. We are talking about people who will not co-operate with a deportation order.
What arrangements are put in place currently in terms of giving effect to a deportation order? For example, if somebody is being deported to Romania, what arrangements are put in place by the people giving effect to the deportation order? What degree of contact is there with the home state? What degree of contact is there with members of the person's immediate or extended family? What documentation is required in order to expel a person? One would imagine that where a person steadfastly refuses to co-operate, where a deportation order has been made and where the Minister is satisfied that the order is valid and should be given effect, that basic arrangements would be made. As things stand the impression I get is that there is quite a degree of elaborate organisation involved. What happens if somebody is to be deported to Romania, for example?
The Deputy is aware that the reason we are anxious to pass the legislation this week is that, currently, nothing happens as there are no deportations. Nobody is being deported this week as we do not have the wherewithal to do so.
If a person is to be deported it is necessary to decide whether they will travel by aircraft to the location. If we do not have air links with the relevant state it is likely we will have to put them on an aircraft travelling to Heathrow airport from where they can travel onwards. We make basic travel arrangements. These can be very difficult if the person travelling does not assist in terms of basic travel documents necessary on arrival at Heathrow Airport in order to get through the normal security and passport checks, etc.
It is tricky. Basic travel for all of us is tricky in terms of airline times, connection points, etc., but it is trickier if the person travelling has no documentation and does not want to assist in providing it. This is why the point made with regard to Deputy O'Sullivan's suggestion is very relevant because if we decided to deport somebody to China today, and the person gave no details about name, address, passport, etc. it would not be possible to deport them in two days as the mechanism to provide travel documents, etc. for the journey does not exist.
Deputy Higgins referred to a period of four weeks. The hope is that it will not take four or eight weeks, but a very tricky situation may arise in the context of deporting people to certain parts of the world where the arrangements and travel documents cannot be put in place within the timeframe. A person being deported can either say where their passport is or give their details in terms of birth certificate, etc. or choose not to co-operate.
Is that not an assumption on the part of the Minister of State, that in all cases we are dealing with people who obstruct the process? We are talking about people failing to comply with any provision of the order. However, this does not mean they are not complying with other provisions. There is an assumption that the people concerned are trying to obstruct the Minister and his officers at every turn, whereas they may only be obstructing in one regard. Section 5(1) states that a person may be arrested by an immigration officer or member of the Garda Síochána where the officer "suspects that the person against whom a deportation order is in force has failed to comply with any provision of the order". There is an assumption of obstruction all along the line.
Accepting that deportation will take place, a person can either get their documents and head for the airport or do everything to stay and obstruct the process. The case of a person with a child on the operating table in the Mater hospital is not relevant as a person can go to the authorities and say they have no problem leaving on Friday week, for example, except that it is necessary to wait until the child gets over the operation. In such a case the Minister can vary the order. It is fine if a person has a valid reason and explains the position. However, we are talking here about people who say they cannot be at the airport and who list the problems they have.
They may well have problems. For example, they may not be able to find their passport or have difficulty in terms of what the State is seeking from them.
They may have problems, but equally the State has problems. It is bad enough that a person might have a problem locating their passport, but we are talking here about people who are not even assisting the State in contacting the authorities in their own country. If the person has a problem then it is necessary to understand the State's problem in getting the relevant documentation as the authority in the country of origin may say they have to be certain of the identity of the person and will not send over an incorrect passport. People can have trouble getting passports, but one can imagine the trouble the State has in getting a passport for a person who is not even co-operating. This is what the eight week period refers to.
Obviously, practical considerations must be taken into account, but if a person is making an effort and explains any difficulties being experienced to the authorities, and if there is a genuine difficulty, the Minister can vary the order. However, here we are talking about people who say that if we want to deport them it is up to the State to sort out travel documents without their help.
How is it envisaged that this will work in practical terms? I understand exactly what the Minister of State said and I think two days is not enough time. I am not sure about four weeks. To remove subsections (2) and (3) would not work. If a deportation order is issued in the case of a person from China who does not have a passport, is it necessary to get a passport from China for the person and to get supporting documentation? Given that we do not have direct flights between here and Beijing, the person must be put on a flight to Heathrow or Manchester airport. Is the person accompanied on such a flight? What happens when the person arrives in Manchester or Heathrow? Is there notation or endorsement on the person's passport? It is difficult enough for a person like me to get around the four terminals at Heathrow airport. I wonder about the practicalities, although this is not relevant to the nuts and bolts of the legislation.
Usually such a person is accompanied. We do not put people on a flight to Heathrow and have them wandering around the airport, slipping out into London and returning here on the next boat. Advance clearance is required from the immigration authorities of the country concerned. For example, the UK authorities would be informed of the arrival of a person and that one of our people would probably be travelling with them. Obviously this can vary, but it is usually done through direct contact between immigration officers at the relevant ports.
Is arrival in the country of destination the end of the deportation?
Yes.
I feel I should press this amendment, although acknowledged difficulties exist. However, I will not press for a vote because I have to move a Private Members' Bill in the House. However, on Report Stage I will be pressing for a division.
Amendment put and declared lost.
Amendment No. 64 not moved.
I move amendment No. 65:
In page 7, subsection (4)(b), to delete lines 28 to 30.
Amendment put and declared lost.
I move amendment No. 66:
In page 7, subsection (4)(b), to delete lines 31 to 41.
Amendment put and declared lost.
Would it be possible to take a short break at this stage as some of us must attend the Order of Business in the House? We could reconvene immediately after the Order of Business or we could agree to defer proceedings until tomorrow morning. Will the Minister of State be available tomorrow morning?
I am available either to continue this evening or to attend tomorrow morning.
I understood that we were to continue until 5 p.m.
Could we suspend the meeting until the Order of Business has concluded? We would still have 15 minutes at that stage.
That will depend on how long the Order of Business lasts.
Could we suspend until 4.45 p.m.?
I move amendment No. 67:
In page 7, between lines 41 and 42, to insert the following subsection:
"(5) The Minister shall by regulations prescribe standards for the exercise of functions under this section.".
This amendment covers many of the issues we have debated to date under the section. We are concerned that proper standards should apply in respect of people detained under the section, especially if they are to be detained for a period up to eight weeks. Those standards should apply not only to the manner in which functions are exercised under the section but also to the manner in which people are detained. Amnesty International expressed concern that the detainees would not be abused during the detention period.
Detention under section 5(1) is to be in a prescribed place. The places hitherto described as places of detention under the Aliens Order are all either prisons or Garda stations. It is my intention that the same list of places be prescribed for the purpose of section 7(1) of this Bill. Well established standards govern the treatment of persons in detention, namely, prison rules and the 1987 custody regulations in relation to Garda stations. I do not see the need to provide again, under this Bill, for something which is already adequately provided for elsewhere.
The inclusion of the amendment would act as a safeguard in ensuring that the existing standards would apply. Prescribed standards should be written into the legislation to ensure the danger would not exist that proper standards might not be adhered to. People who are detained are very vulnerable in view of the fact they are being ejected from the State and they should be afforded the maximum protection.
The regulations and standards already exist in the form of prison rules and custody regulations.
Would the amendment have the effect of preferential treatment being given to non-nationals in detention?
That is not the effect we seek. We merely seek to ensure that the provisions would apply to non-national detainees in all cases.
Such detainees would receive all the provisions available to people in detention. Non-nationals are specifically referred to in the 1987 custody regulations.
I withdraw the amendment at this point but I may resubmit it on Report Stage.
Amendment, by leave, withdrawn.
Section 5, as amended, agreed to.
NEW SECTION.
Amendments Nos. 68 and 69 have been ruled out of order as they involve a potential charge on the Revenue. I propose that we deal with section 6 before we suspend.
I do not want to deal with section 6 now. Members have a right to speak on a section and we should not be rushed into it at this point when we wish to attend the Order of Business.
Only one amendment has been tabled under section 6 and it has been ruled out of order. I am attempting to proceed to the more important sections of the Bill.
One of the main Opposition spokespersons is absent at the moment and he may well wish to comment on section 6. We have a right to speak on the section even if amendments have not been tabled under it. With respect, we would like to attend the Order of Business.
I am constantly being informed of the importance of this Bill but there seems to be a delaying tactic in operation here.
That is not the case. We may well deal with the section very quickly but the Fine Gael Opposition spokesperson left the meeting to attend the Order of Business on the basis that we would only deal with the amendment in my name prior to suspending the meeting.
I do not mind what we do; the Order of Business has not yet started and it does not seem we will be back here by 5 p.m., especially if there is a vote. I am happy to stay here, although there seems to be an accommodation problem after 5 p.m.
I suggest we adjourn until the Order of Business has concluded.
It may not be possible to return to this room at 5 p.m.
We may well be able to reconvene at 4.45 p.m.
If we do not reconvene this evening, at what time is the committee due to meet tomorrow morning?
Deputy Higgins indicated that we would meet at 9 a.m.
Sitting suspended at 4.20 p.m. and resumed at 4.45 p.m.
Amendment No. 68 in the names of Deputies O'Sullivan and Howlin is ruled out of order because it involves a potential charge on the Revenue.
Amendment No. 68 not moved.
Section 6 agreed to.
SECTION 7.
Amendment No. 69 in the names of Deputies O'Sullivan and Howlin is ruled out of order as it involves a potential charge on the Revenue.
Amendment No. 69 not moved.
Amendment No. 71 is an alternative to amendment No. 70 and they may be taken together by agreement.
I move amendment No. 70:
In page 8, subsection (1)(b), line 11, after "deportation" to insert "having regard to the financial circumstances of the person".
Section 7(1)(b) provides that the Minister may by regulation require a non-national against whom a deportation order has been made to repay any expenditure incurred by the Minister in relation to his or her deportation and provide for the procedure for such repayment.
A similar provision was provided for under Article 13(6) of the Aliens Order 1946. The provision is only intended to apply to a person of considerable resources. It would not be the intention to force a person who is on a modest income or relying on social welfare, for example, a failed asylum seeker or a person whose asylum case is transferred to another State under the Dublin Convention, to pay part or all of the cost of their removal. However, where a person was involved in criminal activity in the State and had at his or her disposal significant moneys, the Minister might well consider it justified to place the cost of removal on the individual concerned rather than on the taxpayer. Such persons might include those involved in drug trafficking, people trafficking, prostitution rings and all the crimes which carry a high social costs and are particularly lucrative for the perpetrators. The proposed amendment makes this clear. In practice, it is rarely the case that a deported person is asked to pay part or all of their removal costs. There has been no such case in the last five years.
These or similar provisions feature in the immigration code of many jurisdictions throughout the world. For example, in Canadian law a person deported from Canada is required to reimburse the Canadian authorities for the cost of the deportation before any return to Canada can be considered.
Amendment agreed to.
Amendment No. 71 not moved.
Section 7, as amended, agreed to.
SECTION 8.
Deputy Higgins is not present to move his amendment No. 72.
Can we return to that amendment tomorrow?
Yes. Debate on the amendment can be deferred.
Amendment No. 72 deferred.
I move amendment No. 73:
In page 8, subsection (1)(b), line 29, after "document" to insert "but shall not be required to co-operate in any manner which would curtail his or her access to any judicial authority or means of redress whether within or outside the State".
This amendment has been tabled to ensure and make clear that a person involved will have full access to redress and judicial authority to which they are entitled under this legislation and the Refugee Act. I want to ensure they are not required to co-operate in a way which might curtail those rights. This amendment was requested by the Irish Refugee Council in its discussions with us. The Minister of State may say such rights are automatic, but I would like to ensure they are included in the legislation.
Amendment No. 73 is opposed because it is neither the intention nor the effect of the provision to force anyone to sign a document waiving their right to access to justice. I am advised by the Attorney General that this cannot be construed from this provision. It is reasonable the provision be made to ensure co-operation in a person's return and that, at the end of the process, the person being removed cannot frustrate the process by refusing to sign a document required to facilitate his or her return.
I want to ensure that if a person believes they have not had due process and also believes by signing this final document they are depriving themselves of access to some of the stages of appeal to which they are entitled, that person will not be forced to sign such a document which they believe would deny them their right to justice until they were satisfied, if necessary in whatever language they speak, that they were not denying themselves any of their rights under law.
I refer the Deputy to section 8(1)(b) the wording of which is very clear. It says, "[to] co-operate in any way necessary to enable a person so authorised to obtain a travel document [or] ticket". This provision relates to signing a passport form.
It is not a final document to facilitate travel.
Would it be made clear to the person so that they understood what they were doing? There could be a language problem. I want to ensure the person knows they are not depriving themselves of any right to justice.
As in the case of any of us applying for a passport, it would be clear that any passport application form such a person would sign applying to their Government for a passport would be in their language. Irish people in China, for example, apply for an Irish passport using a document with which we would be familiar here. Therefore, people with whom this provision deals would know the document as a passport application form and it would be in their language. That is not a problem and there would be no difficulty in their understanding that they were filling in and signing a passport application form.
There might be some concern. The amendment refers to "access to any judicial authority or means of redress whether within or outside the State". We should ensure a person concerned understands that, by signing, they are not denying themselves access to justice either outside or inside the State. Obviously they would be leaving the State at that stage. There might be a fear on the part of a person involved that they signed a waiver of rights with regard to wherever they are deported.
I am advised by the Attorney General that it cannot be construed from this provision that there would be any concern regarding forcing people to sign documents waiving their right to access to justice. The provision relates to travel documents. It is neither its intention nor its effect to force anyone to sign a document waiving their right to access to justice.
I will not press the amendment, but having been requested to raise this point by the Irish Refugee Council, I may resubmit it on Report Stage, although it is doubtful if we will reach it on that stage. The council has valid concerns about it. I cannot dispute the Attorney General's point of view but I will discuss it with the council.
We have no problem checking valid concerns with the Attorney General. We have done so in this instance and we are clear that it cannot be construed from this provision. If the council examines the provision again in that light, I hope it will allay its concerns.
Amendment, by leave, withdrawn.
Amendments Nos. 74 and 75 are related and may be discussed together by agreement. I am sure Deputy Jim Higgins would like to speak on his amendment No. 75. As he his not present, I propose we adjourn until tomorrow morning at 9 o'clock. Is that agreed? Agreed.
The Select Committee adjourned at 5 p.m. until 9 a.m. on Wednesday, 30 June 1999.