SELECT COMMITTEE ON JUSTICE, EQUALITY AND WOMEN’S RIGHTS debate -
Wednesday, 30 Jun 1999

Vol. 2 No. 7

Immigration Bill, 1999: Committee Stage (Resumed).

SECTION 8.

Mr. Higgins Mayo

I move amendmentNo. 72:

In page 8, subsection (1)(b), line 26, after "particular," to insert "having had the purpose of the request clearly explained,".

Section 8 states:

(1) A person against whom a deportation order has been made——

(a) shall not by act or omission, obstruct or hinder a person authorised by the Minister to deport a person from the State pursuant to the order while the person is engaged in such deportation,

(b) shall, for the purpose of facilitating his or her deportation from the State, co-operate in any way necessary to enable a person so authorised to obtain a travel document, ticket or other document required for the purpose of such deportation and, in particular, shall comply with any request from a person so authorised to sign a document in that connection or to affix his or her fingerprints to such a document.

The amendment seeks to insert a provision whereby, having had the purpose of the request clearly explained, a person being served with a document which is as important and as shattering as a deportation order or where, effectively, the person is told he or she must be out of the State within a specific period of time, the person concerned clearly understands the import of what is involved.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace)

The amendment is opposed for the following reasons. Subsection (1)(b) addresses a specific type of non co-operation which has arisen from time to time. Many States will not re-admit persons to their territories unless they are satisfied they are citizens of the State. Others will not permit transit through their territories unless the person in question has proper documentation. The best evidence of a person's nationality is a passport issued by the country of nationality. In some cases, the person to be deported will have destroyed any passport or other identity document either before arriving in the State or as a direct attempt to frustrate or delay the deportation process. In such cases, it is usually necessary to obtain a passport from the country of destination.

This section, in effect, requires the person named in the deportation order to co-operate in the process of removal from the State. It would be a normal requirement to ensure the person's compliance and that he or she is aware of the purpose of a request. The request envisaged in subsection (1)(b) is a straightforward request to provide a signature or fingerprint to obtain a document for the person to travel. The words proposed would add nothing of substance to this provision.

It goes without saying that the request must be understood before it can be complied with. Presumably, the passport application form from the person's country of origin will be understandable unless the person is illiterate, in which case common sense dictates that it must be explained.

Mr. Higgins (Mayo)

I appreciate that common sense must dictate and that there is an obligation on us to provide an explanation. All types of provisions from the point of view of interpretation have been built into the Bill to ensure the person comprehends fully, in his or her native language, exactly what is being transacted. In this case someone is being asked to sign a document. The Minister of State must realise that one does not ask people to sign a document unless they have a full knowledge of its contents. People cannot be expected to sign a blank document. This is not a blank document. It is a document in which they agree to their deportation from the State.

How can the Minister of State contend that my amendment does not add to the Bill? It seeks to insert a provision that the purpose and nature of the document they are being asked to sign will be explained to them in the language they are most familiar with. My amendment would strengthen this Bill because it adds to the security in terms of being sure that the person concerned understands clearly the document they are being asked to sign.

Miss M. Wallace

Yesterday, when Deputy Higgins was in the Dáil for the Order of Business, I explained that we are talking about a passport form from the person's country of origin, not an Irish passport application form. For example, if the Deputy was abandoned in China without a passport he would have to fill out an Irish passport application form. We would recognise it immediately because it is the same passport application form that we use here. An Irish citizen would be given an Irish passport application form, not the Chinese version and the same applies in this case. The form given to foreign nationals will be the same as that used in their own countries and it will be in their languages because they are applying to their Governments for a passport. It is possible that the Deputy and I would not understand that document but foreign nationals would. These people would have to sign the passport applications forms used in their countries of origin.

Mr. Higgins (Mayo)

They are being asked to do two things - to sign the document and to affix their fingerprints.

Miss M. Wallace

Their countries of origin may require fingerprints when they apply for a passport. If the country in question does not require fingerprints then that provision would not apply. They would have provided fingerprints previously on a passport application form in order to come here. It would be nothing new for them to provide fingerprints.

Amendment put and declared lost.

Chairman

Amendments Nos. 74 and 75 are related and may be taken together byagreement.

Ms O’Sullivan

I move amendment No. 74:

In page 8, subsection (1)(c), line 30, after "manner" to insert "or be subjected to behaviour".

The purpose of amendment No. 74 is to ensure that the person being deported, who is already included in the section, and the person deporting them or anyone they will be dealing with under this section "shall not behave in a manner likely to endanger the safety of himself or herself or the safety of others in the course of his or her deportation from the State", as stated in section 8(1)(c). In other words, I seek a balance. I want to ensure that the deportee and the person carrying out the deportation do not endanger anyone's safety. I table the amendment to ensure that people being deported are treated properly. There have been suggestions, not necessarily applying to this State, that people being deported have been manhandled. The purpose of my amendment is to insert a safeguard into the legislation so that a person is not treated in a way that might hurt them or that they might feel is not proper.

Mr. Higgins (Mayo)

I propose my amendment No. 75 and support the thrust of amendment No. 74 because they seek to insert into the Bill the assurance that a person shall not, in the course of his or deportation from the State, be subjected to a degree of physical violence by the agents of the State likely to endanger the safety of himself or herself or the safety of others.

I reiterate what Deputy O'Sullivan said about the use of physical violence. In another jurisdiction there was an instance where a person being deported died as a result of injuries sustained in the attempts to force that person on a mode of transport for the deportation. That has not happened here but these amendments seek to insert a safeguard into the Bill.

Miss M. Wallace

Amendments Nos. 74 and 75 are opposed for the following reasons. Agents of the State must act within the law. Members of the Garda Síochána are bound by the same criminal law that applies to the rest of us. In addition, they are subject to the provisions of their own disciplinary code and the independent complaints mechanisms of the Garda Síochána (Complaints) Act, 1986. Immigration officers involved in carrying out deportation orders are invariably members of the Garda. Other agencies such as carriers who may be involved in dealing with deportees owe the same duty of care and responsibility to every passenger in their care. They are also subject to criminal law. On that basis the proposed amendments are superfluous in that their purport is already in the law.

Most deportees resign themselves to the removal process having had the necessary opportunity to present their case before an order was made. However, there has been a small number of cases where a person frustrated a lawful order by acting in such a way that the captain of the aircraft on which seats had been booked had no option but to refuse them permission to board in the interest of the safety of other passengers. As well as being distressing for other passengers this type of activity is an attempt to frustrate the operation of the law and this is the reason section 8(2) makes such non co-operation an offence. What is proposed in these amendments is already in legislation.

Ms O’Sullivan

We have been given the response on a number of amendments that they are covered by the law. Why is it necessary to protect the deportee in this section and not the person who is deporting them? Are both parties not subject to the law? Deputy Jim Higgins and I want to balance the Bill by inserting a provision that will cover the two people directly involved in the act of deportation. The law already protects the deportee so why does it not protect the other person involved in deportation?

Miss M. Wallace

Section 8 deals with obstruction and resisting deportation orders. If this section was not included in this Bill resisting a deportation order would not be an offence.

Ms O’Sullivan

There must be a legal provision that a person cannot resist an order given by a member of the Garda Síochána.

Miss M. Wallace

We had a good example of this when we talked about domestic violence and barring order procedures. Breach of a barring order is an offence because it is contained in the Domestic Violence Act, 1996. In advance of it being contained in that Act it would not have been an offence. The same applies to the breach of a deportation order and that is why we need to include it in this Bill.

Chairman

What happens if someone boards a plane and behaves in a way that the captain considers inappropriate? What if the captain decides not to allow them to remain on board in the interests of passenger safety? What happens when they go back into the terminal? Would they be charged with an offence and sent to prison? How would they be removed from the State?

Miss M. Wallace

It is not an offence for ordinary people to do that.

Chairman

What is done when the person comes back into the terminal? Would they be put on another plane?

Miss M. Wallace

The carrier must take other passengers into account. It could refuse to let the person on board and they would be returned to the terminal, arrested and charged with an offence under this section.

Chairman

Would they then go to court and face the possibility of a prison term?

Miss M. Wallace

That would be a decision for the courts. They would probably attempt to implement the deportation order again. It depends on the case, it could end up back in court. It could be a frustrating experience because behaving in such a manner may prevent a deportation order from being put in place. That underlines why we should have this in the section. This must be an offence otherwise they could all carry on like that when they get to the airport.

Ms O’Sullivan

If someone was injured when they were being deported, what redress would they have? The person carrying out the deportation is covered by the legislation.

Miss M. Wallace

They have the same redress as any other person. They can institute proceedings under the Garda Síochána Complaints Act, 1986, or whatever the relevant Act might be with regard to the complaint they have.

Mr. Higgins (Mayo)

I do not understand the objections to inserting this. It is fine to say that these people are covered by existing law and that the gardaí are covered by existing codes of conduct. We both know there have been instances where gardaí have overstepped the mark, been violent and claims against the Garda Síochána have been successful.

To say that most people resign themselves to the inevitable is correct. We are talking about the rare exception where a person decides to resist. In such a case that person is more vulnerable than a citizen of this State. The Garda complaints process is no good to someone who is back in Romania having been forced onto a plane. This ensures that human rights are respected and the code of conduct at all points in the process is beyond reproach. That is a guarantee to the State as well to the person. I do not understand why the amendment cannot be inserted as a safeguard for the physical well being of person in a vulnerable position. We should build into the legislation the guarantee that a person's physical integrity should not be abused.

Miss M. Wallace

The main reason for not building it into the legislation is that it would cause duplication. No one disagrees about the safeguards for the physical well being of the individual or that the code of conduct should apply to every activity of this order. My point is exactly what the Deputy said. Many people have successfully claimed against gardaí under the Garda Síochána Complaints Act, 1986, and nothing prevents these people from doing that either. The Deputy is attempting to create more legislation which does the same thing. There is nothing to prevent a person from taking a case abroad, something many people have done.

People can take a case, the code of conduct applies and the safeguards for their physical well being exist.

Mr. Higgins (Mayo)

Where someone has been physically abused while being put on plane to effect a deportation order, and that person lodges a complaint about the manner of that abuse, is the Minister saying that person will be allowed back into the State to institute proceedings and to have their case heard by the appropriate authority?

Miss M. Wallace

It is not necessary to be in the State to institute proceedings. They can do it from another country. It is more serious that people could prevent their deportation by carrying on in this fashion when they board an aircraft. We are not aware of any case where anyone has said they have been physically abused. If such a situation has arisen, it has not been brought to our attention. If it should arise the person can institute proceedings from abroad and does not have to be allowed into the State to do so.

Mr. Higgins (Mayo)

Is the Minister seriously saying that on foot of a written representation or complaint that person has a snowball's chance in Hell of having their case seriously dealt with? There are already complaints from citizens of this State about the operation of the Garda Complaints Board. Those complaints are coming from people who can make a written representation, follow it with an oral presentation and produce evidence to sustain their case. In this case we are talking about a person who has been forcibly deported from the State and has written to the authorities here complaining about abuse. The suggestion that this person's case will be dealt with in a serious manner in their absence and in the absence of the opportunity to make an oral presentation does not hold water.

Miss M. Wallace

The Garda Síochána Complaints Act, 1986, requires that it be dealt with. If the individual writes under that Act, it is not a question of my belief if it will be seriously dealt with. My view is irrelevant because the Act requires that it be dealt with.

Ms O’Sullivan

The person being deported may be dealing with others, not the gardaí. There will be airline staff involved. What protection is there for them from people not covered by the Garda Síochána regulations?

Miss M. Wallace

Presence in the State is not a requirement for the making of a criminal complaint or the institution of a civil action against any person. I am assured that the law provides for this already, be that general law or the Garda Síochána Complaints Act. I said that most officers concerned would be members of the Garda Síochána but a civil action could be taken against a member of an airline's staff. The law provides for that.

Ms O’Sullivan

We want this legislation to have that balance so that the person cannot cause violence but, also, to ensure that violence cannot be inflicted on them. It is not a great deal to seek a safeguard to ensure that the person being deported and the others involved in the deportation are equal before the law.

Miss M. Wallace

The Domestic Violence Act, 1996, is a good analogy. Nothing similar to what is proposed in this amendment was included in that Act because victims of domestic violence were already protected by the law. The amendment proposes to duplicate what is already law.

Ms O’Sullivan

The analogy is not a good one. People affected by the Domestic Violence Act remain in the State.

Miss M. Wallace

If a barring order is made against a person, there is no guarantee that he will stay in the country. He may take a case from another jurisdiction. Residence in the State is not a requirement for taking a civil case or making a complaint to the Garda Complaints Board.

Ms O’Sullivan

A person affected by the Domestic Violence Act is free to be in the country. A person who has been deported is not.

Ms M. McGennis

The amendment would not alter the position of the person who had been deported. A deportee would be required to initiate the same procedures, whether the proposed provision was included in the legislation or not. How would the amendment alter the situation? I fully accept that gardaí are not permitted to behave in the way suggested by the Deputies.

Miss M. Wallace

Even if the amendment was accepted, if a person was subjected to a degree of physical violence and subsequently deported, he or she would still be required to take a case from abroad. We cannot include provisions in the Bill which would give a person an excuse to stay in the country.

Mr. Higgins (Mayo)

We seek to enshrine the maximum possible written guarantee in the legislation. I agree that, if amended, the legislation would still require a person to follow the process of complaining to the Garda complaints section or taking a case in the Irish courts. My amendment seeks to establish that a person would be allowed to return to the jurisdiction in order to make an oral presentation of his complaint. I presume that a person who institutes court proceedings in Ireland cannot be debarred from the country.

Miss M. Wallace

Instituting court proceedings does not give a person the right to enter the country.

Deputy Higgins asked about an oral hearing under the Garda Complaints Act. There is no provision in that Act for an oral hearing. Complaints are dealt with by written correspondence whether they come from inside the jurisdiction or outside. A tribunal of inquiry arising out of such a complaint can sit abroad.

Mr. Higgins (Mayo)

I accept that evidence could be heard here or abroad. The Minister is aware that the regulations regarding Garda complaints are under review.

My amendment seeks to place the maximum possible deterrent against the abuse of the physical integrity of people who are being deported. Deputy McGennis is correct in saying that the amendment gives no extra guarantee of protection; complainants will have to insitute legal proceedings in the normal way. However, it sets out our undertaking to respect the rights, physical integrity and dignity of individuals during the difficult process of being deported or banned from the country.

Ms M. McGennis

Deputy Higgins doubts the likelihood of someone who has been deported taking a successful case from outside the State. However, his amendment does not make it any more likely. I understand the Deputy's objective but his amendment does not achieve it.

Mr. Higgins (Mayo)

The people who are executing the deportation order will respect the guarantee. It will have greater strength if it is written in law.

Chairman

Is it likely that potential deportees will be advised that if they cause a disturbance at an airport they cannot be forced to board a plane and must be allowed to remain in the State? We all wish to protect the rights of the individual and the legislation does that.

Mr. Higgins (Mayo)

The amendment covers that likelihood. It includes the words "subjected to a degree of physical violence by the agents of the State likely to endanger the safety of himself or herself or the safety of others". The word "degree" is important. The same would apply in the case of restraining prisoners. The degree of physical violence is important.

Ms O’Sullivan

We do not propose the deletion of section 8(1) (c) which requires that a person against whom a deportation order has been made shall not behave in a manner likely to endanger the safety of himself or herself or the safety of others. We do not propose that deportees be permitted to behave as they wish. We simply propose that the person executing the order should be bound by the same constraint. This is a reasonable balance and a deterrent against the use of excessive physical force.

Chairman

What degree of force do you have in mind? Are you talking about gardaí physically moving people towards the plane or actually hitting them?

Ms O’Sullivan

We are talking about what is in the legislation, that is, behaviour likely to endanger the safety of the person being deported, whether the danger comes from the person himself or an agent of the State.

Mrs. Barnes

I understand that the working of the legislation may cause difficulties. Difficulties can arise in dealing with airline passengers in a number of situations, as recent instances of air rage show. The Bill lays great emphasis on the behaviour of the person being deported and on the demands being placed on that person. To create a balance it may be necessary to remind others involved in the deportation that the person being deported also has rights. Deputy Higgins's amendment to insert paragraph (d) adds a human rights condition to the section by obliging the agents of the State to act in a humane way. The Bill imposes requirements on the person being deported. Deputy Higgins’s amendment places corresponding conditions on the agents of the State and is a good principle and should be included in the Bill. It will strengthen that section.

Chairman

Is there a code of conduct on behaviour?

Miss M. Wallace

Yes.

Chairman

Is that not covered in the code of conduct to which we are referring?

Miss M. Wallace

There is a code of conduct to which the gardaí, air hostesses and other such people must adhere under the law. They have to respect the human rights of the individual and act according to the law in their dealings with people. If they break the law, they will have committed a wrongful act and a case can be taken against them. In this Bill, we are trying to enshrine a balance in that the law applies equally to the individual attempting to obstruct the deportation order and, therefore, make it an offence in this country.

Mr. Higgins (Mayo)

Is that person not covered by existing law, the same as the gardaí?

Miss M. Wallace

They are not because it is not an offence. Without this section in the Act, it will not be an offence to obstruct a deportation order.

Mr. Higgins (Mayo)

Is it not an offence to behave in such a manner as to endanger the safety of others? I am referring to section 8(1) (c) where it states “. . . shall not behave in a manner likely to endanger himself or herself. . . ”. We are talking about resisting the deportation order but behaving in a manner where physical force would be used to cause danger to the individual who is trying to enforce such. As Deputies O’Shea and Barnes have said, we are trying to apply precisely the same standard to the individual who is in the course of deportation as well and to the people effecting the deportation order. Are we not talking about the physical force element of it?

Miss M. Wallace

There is a concern that the amendment might restrict the right of protection against wrongful acts in circumstances where the full weight of civil and criminal law already protects them. It may not already be an offence to obstruct the deportation order and therefore it is essential to make it an offence in this legislation.

Mr. Higgins (Mayo)

They are two aspects to it, namely, resisting the deportation order and the use of physical force. The Bill states ". . . shall not behave in a manner likely to endanger the safety of himself or herself. . . ". That is covered by existing law. A person cannot get involved in a level of physical violence or resistance that would endanger the safety of the person executing the order, whether it is an immigration office, a member of the Garda Síochána or a prison officer. The Minister said there is no need to include this in the legislation because it is already provided for under existing codes of practice for the gardaí.

Miss M. Wallace

People cannot sit in the waiting room of an airport and start a physical fight. Everybody must comply with the law, no matter who they are. There is a concern that it is not an offence to deliberately try to prevent the implementation of a deportation order. It is important, therefore, that it becomes an offence under this legislation. The general law applies equally to all sitting in such a waiting room.

Ms O’Sullivan

I find it impossible to believe it is an offence.

Miss M. Wallace

It is not an offence to obstruct the deportation, but it is an offence to cause public disorder.

Ms O’Sullivan

Why is that not enough, if it is enough on the other side?

Miss M. Wallace

The reason is that one is not just causing public disorder but also preventing the implementation of the deportation order. It is a double offence. We could not have a situation whereby people are advised to cause chaos so that it becomes an offence to put in place the deportation order.

Ms O’Sullivan

We are seeking to achieve a balance in the law that applies to the two people involved.

Mr. Higgins (Mayo)

We are not proposing this amendment with a view to incitement to resist, but for the protection of human rights. If it applies to the deportee, why can it not apply to the person implementing the deportation order?

Miss M. Wallace

The implication of that line of thought is that the law does not respect the human rights of people in a contest with the gardaí. As we all know, however, the law respects those rights. We should accept that it is already enshrined in legislation and there is no need to duplicate it under legislation. That would send out a message that it is necessary to duplicate it with regard to this type client.

Amendment put.

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

Tá

• Ahearn, Theresa.
• Barnes, Monica.
• Ferris, Michael.
• Flanagan, Charles.
• Higgins, Jim.
• McManus, Liz.
• O’Sullivan, Jan.

Níl

• Ardagh, Sean.
• Cooper-Flynn, Beverley.
• Hanafin, Mary.
• McGennis, Marian.
• McGuinness, John.
• Ryan, Eoin.
• Wallace, Mary.
• Wright, G.V.

Mr. Higgins (Mayo)

I move amendmentNo. 75:

In page 8, subsection (1), between lines 32 and 33, to insert the following:

"(d) shall not, in the course of his or her deportation from the State, be subjected to a degree of physical violence by the agents of the State likely to endanger the safety of himself or herself or the safety of others.".

Amendment put and declared lost.

Section 8 agreed to.

Sections 9 and 10 agreed to.

NEW SECTION.

Chairman

The Minister has provided a comprehensive explanatory note on amendment No. 75a and amendments tabled to it which has been circulated to Members. I suggest the Minister formally moves the amendment at this stage. Discussion can take place as the various amendments to it are moved. After the amendments to the amendment have been disposed of, Members can discuss amendment No. 75a generally.

Mr. Higgins (Mayo)

Could the Minister make a brief presentation to the committee on the text and thrust of amendment No. 75a?

Miss M. Wallace

I move amendment No. 75a:

In page 9, before section 11, to insert the following new section:

"11. - (1) The Refugee Act, 1996, is hereby amended -

(a) in section 1(1), by the substitution of the following definition for definition of 'the Appeal Board':

"'the Tribunal" means the Refugee Appeals Tribunal established by section 15;',

(b) by the insertion of the following section after section 7:

7A. - (1) There shall be a board to be known as the Refugee Advisory Board (in this Act referred to as "the Board") to perform the functions conferred on it by this Act.

(2) The Board shall be independent in the performance of its functions.

(3) The provisions of the Schedule to this section shall have effect in relation to the Board.

(4) (a) The Board shall, in every second year beginning with the year 2001, prepare and submit to the Minister a report in writing on the operation in the preceding 2 years of this Act and may include in the report information and comment in respect of asylum policy and refugees including any proposals to amend legislation and recommendations regarding the practice or procedures of public or private bodies in relation to applicants and any other matters relating to such operation coming to its attention to which it considers that his or her attention should be drawn and, not later than 1 month after such submission, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.

(b) The Board shall, at the request of the Minister, prepare and furnish to him or her a report in writing on such matters relating to the performance of its functions as the Minister may specify.

(5) The Commissioner shall, whenever so requested by the Board, furnish to the Board information in relation to such matters as the Board may specify relating to the performance of its functions.

SCHEDULE

REFUGEE ADVISORY BOARD

1. The Board shall consist of a chairperson and 14 ordinary members who shall be appointed to be members of the Board by the Minister.

2. The Commissioner shall be a member of the Board and shall act as secretary to the Board.

3. Of the members of the Board -

(a) one shall be a representative of the Minister nominated by the Minister,

(b) one shall be a representative of the Minister for Foreign Affairs nominated by the Minister for Foreign Affairs,

(c) one shall be a representative of the Minister for Social, Community and Family Affairs nominated by the Minister for Social, Community and Family Affairs,

(d) one shall be a representative of the Minister for Education and Science nominated by the Minister for Education and Science,

(e) one shall be a representative of the Minister for Health and Children nominated by the Minister for Health and Children,

(f) one shall be a representative of the Minister for the Environment and Local Government nominated by the Minister for the Environment and Local Government,

(g) one shall be a representative of the Minister for Enterprise, Trade and Employment nominated by the Minister for Enterprise, Trade and Employment,

(h) one shall be a representative of the High Commissioner nominated by the High Commissioner,

(i) six shall be women and six shall be men.

4. In the selection of the other persons for appointment to membership of the Board regard shall be had to the person's interest in or knowledge of asylum and the provision of protection and assistance to refugees or his or her competence otherwise to assist the Board in the performance of its functions.

5. Subject to the provisions of this Schedule, the members of the Board shall hold office upon such terms and conditions as the Minister may determine.

6. The term of office of a member of the Board shall be 5 years and, subject to the provisions of this Schedule, a member shall be eligible for re-appointment.

7. Where a casual vacancy occurs among the members of the Board, the Minister may appoint a person to be a member of the Board to fill the vacancy and a member so appointed shall hold office for the remainder of the term of office for which his or her predecessor had been appointed, and the person shall be so appointed in the manner specified in paragraph 3 or 4, as the case may be, in which such predecessor was so appointed.

8. Members of the Board shall be paid such remuneration and such allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

9. The Minister may remove from office any member of the Board who, in the opinion of the Minister, has become incapable through illness of effectively performing his or her functions or has committed stated misbehaviour.

10. The Board shall meet at least four times a year.',

(c) in section 8, by -

(i) the substitution in subsection (1) of the following paragraph for paragraph (c):

'(c) A person who at any time is in the State (whether lawfully or unlawfully) and is seeking the status of a refugee in the State may apply to the Minister for a declaration and, if he or she does so, shall be interviewed by an authorised officer or an immigration officer at such times as may be specified by the authorised officer or the immigration officer, as the case may be, who shall also inform the person that he or she is entitled to consult a solicitor and the High Commissioner and the person shall make himself or herself available for such interview at the times so specified.',

(ii) the substitution of the following subsection for subsection (2):

'(2) An interview under subsection (1) shall, in relation to the person the subject of the interview, seek to establish inter alia-

(a) whether the person wishes to make an application for a declaration and, if he or she does so wish, the general grounds upon which the application is based,

(b) the identity of the person,

(c) the nationality and country of origin of the person,

(d) the mode of transport used and the route travelled by the person to the State,

(e) the reason why the person came to the State, and

(f) the legal basis for the entry into or presence in the State of the person,

and shall, where necessary and possible, be conducted with the assistance of an interpreter and a record of the interview shall be kept by the officer conducting it and a copy of it shall be furnished to the person and, if the interview was conducted by an immigration officer, to the Commissioner.',

(iii) the substitution of the following subsection for subsection (3):

'(3) (a) The Commissioner shall notify the High Commissioner in writing of the making of an application and the notice shall include the name of the applicant and the name of his or her country of origin and such other information as the Minister may specify by notice in writing addressed to the Commissioner.

(b) The Commissioner shall furnish a copy of the record of any interview under subsection (1) -

(i) to the Minister, and

(ii) to the High Commissioner whenever so requested by him or her in writing.',

(iv) the substitution of the following subsection for subsection (4):

'(4) An application under subsection (1) shall be made in writing in the prescribed form or in a form to the like effect and shall be addressed to the Commissioner.',

and

(v) the substitution in subsection (5) of the following paragraph for paragraph (a):

(a) Where it appears to an immigration officer or an authorised officer that a child under the age of 18 years, who has either arrived at the frontiers of the State or has entered the State, is not in the custody of any person, the officer shall, as soon as practicable, so inform the health board in whose functional area the child is and thereupon the provisions of the Child Care Act, 1991, shall apply in relation to the child.',

(d) in section 9, by -

(i) the substitution of the following subsection for subsection (3):

'(3) (a) The Commissioner shall give or cause to be given to a person referred to in subsection (2) a temporary residence certificate (in this section referred to as "a certificate") stating the name and containing a photograph of the person and such other information relating to the person as may be prescribed and specifying the date on which the person's application for a declaration was received by the Commissioner and stating that, subject to the provisions of this Act, and, without prejudice to any other permission or leave granted to the person to remain in the State, the person shall not be removed from the State before the final determination of his or her application.

(b) A certificate shall remain the property of the Minister.

(c) A certificate shall be deemed to be a registration certificate for the purposes of Article 15 of the Aliens Order, 1946 (S.R.& O., No. 395 of 1946).

(d) If a person forges, or fraudulently alters, or assists in forging or fraudulently altering, or procures the forging or fraudulent alteration of a certificate, that person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or to both.',

and

(ii) the substitution of the following subsection for subsection (15):

'(15) A person referred to in subsection (1) shall not be given leave to enter the State under that subsection if he or she is the subject of an order under section 4 of the Immigration Act, 1999.',

(e) by the insertion after section 9 of the following section:

9A. - (1) An authorised officer or an immigration officer may, for the purposes of this Act, take or cause to be taken the fingerprints of an applicant above the age of 14 years.

(2) An applicant who refuses to permit his or her fingerprints to be taken pursuant to subsection (1) shall be deemed not to have made reasonable efforts to establish his or her true identity within the meaning of section 9(8)(c) and to have deliberately obstructed the investigation of his or her application within the meaning of section 12(4)(f).

(3) Every fingerprint of an applicant taken pursuant to subsection (1) and every copy thereof shall, if not previously destroyed, be destroyed -

(a) in case the applicant becomes a citizen of the State, before the expiration of one month after the granting of the certificate of naturalisation or of Irish citizenship to him or her or the acknowledgement by the Minister of the validity of his or her declaration accepting Irish citizenship, as the case may be;

(b) in any other case, before the expiration of 10 years after the taking of such fingerprints.

(4) Information obtained pursuant to subsection (1) may be communicated to convention countries as if it was information to which section 22(9) relates.',

(f) in section 10, by the substitution of 'the Tribunal' for 'the Appeal Board' in each place where it occurs,

(g) in section 11, by -

(i) the substitution of the following subsection for subsection (1):

'(1) Subject to section 12, where an application is received by the Commissioner under section 8 or is remitted to him or her under section 16 or otherwise referred to him or her by the Minister and the application is not withdrawn or deemed to be withdrawn pursuant to section 9 or 22, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.',

(ii) the substitution in subsection (2) for 'section 12(2)' of 'section 12(1)(a)',

(iii) the insertion in subsection (3) after 'may' of ', at any time but not later than 7 days after the conduct of an interview under subsection (2),',

(iv) the substitution in subsection (8) for 'Where an application is referred to the Commissioner under section 8, 16 or 22, or otherwise by the Minister' of 'On receipt by the Commissioner of an application under the provisions of this Act,',

(h) in section 12, by -

(i) the substitution of the following subsection for subsections (1) to (3):

'(1) Where at any time during the investigation of an application by the Commissioner under section 11 (other than an application remitted to the Commissioner under section 16), the Commissioner is of opinion that the application is manifestly unfounded, he or she shall, as soon as may be -

(a) in case he or she forms the opinion before the interview of the applicant concerned under section 11(2), notify the applicant of his or her opinion (including the reasons for it) and the notice shall require the applicant to attend for interview in accordance with section 11(2) at such time and place as shall be specified in the notice,

(b) in case he or she forms, or, as the case may be, remains of, the opinion after the interview of the applicant concerned under section 11(2) and following consideration of any report furnished under section 11(2) and any representations made under section 11(3), make a recommendation that the applicant concerned should not be declared to be a refugee and shall send a copy of the recommendation and of the reasons for it to -

(i) the applicant,

(ii) the applicant's solicitor (if known),

(iii) the High Commissioner, and

(iv) the Tribunal.',

and

(ii) the substitution of the following subsection for subsection (5):

'(5) The Commissioner shall, when sending a copy of the recommendation to the applicant under subsection (1)(b), at the same time send to the applicant a notice in writing stating that the applicant may appeal to the Tribunal under section 16 against the recommendation within 14 days from the sending of the notice.'.

(i) in section 13, by -

(i) the deletion in subsection (1) of 'and shall furnish the report to the Minister',

(ii) the substitution of the following subsections for subsection (2):

'(2) The Commissioner shall notify the High Commissioner of the making of the recommendation under subsection (1).

(3) (a) The Commissioner shall send a copy of a report under subsection (1) to the applicant concerned, to his or her solicitor (if known) and, if so requested by the High Commissioner, to him or her.

(b) Where a report under subsection (1) includes a recommendation that the applicant should not be declared to be a refugee, the Commissioner shall send to the applicant a notice in writing stating that the applicant may appeal to the Tribunal under section 16 against the recommendation and may request an oral hearing within 21 days from the sending of the notice.

(c) Where the applicant has not appealed against the recommendation within 21 days after the sending of a notice under paragraph (b), the Commissioner shall, as soon as may be, furnish the report under subsection (1) to the Minister.

(d) Where a report under subsection (1) includes a recommendation that the applicant should be declared to be a refugee, the Commissioner, shall as soon as may be, furnish the report to the Minister.',

(j) by the substitution of the following section for section 15:

'15. - (1) On the establishment day there shall stand established a Tribunal to be known as the Refugee Appeals Tribunal (in this Act referred to as "the Tribunal") to consider and decide appeals under section 16 of this Act.

(2) The Tribunal shall be independent in the performance of its functions.

(3) The provisions of the Second Schedule shall have effect in relation to the Tribunal.',

(k) in section 16, by -

(i) the substitution for 'Appeal Board' of 'Tribunal' in subsections (1) to (12) and (16),

(ii) the substitution in subsection (3) for 'and shall indicate' of 'and, in the case of a recommendation by the Commissioner under section 13(3)(b), shall indicate',

(iii) the substitution in subsection (4) for 'to the Minister, the Commissioner and the High Commissioner' of 'to the Commissioner and notification of the making of the appeal to the High Commissioner', and

(iv) the substitution of the following subsection for subsection (17):

'(17) (a) A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the applicant concerned and his or her solicitor (if known).

(b) A decision of the Tribunal under subsection (2) (other than a decision of the Tribunal under subsection 2(d)) and the reasons therefor shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under section 13.

(c) A decision of the Tribunal under subsection (2) shall be communicated to the High Commissioner.',

(l) in section 17, by -

(i) the substitution in subsection (1) for 'Appeal Board' of 'Tribunal',

(ii) the substitution in subsection (5) of the following paragraph for paragraph (c):

'(c) the Minister may make an order under section 3 of the Immigration Act, 1999, requiring the applicant to leave the State and if the notice contains the statement specified in subsection (4) of that section, it shall not be necessary for the Minister to give the notification specified in the subsection (3) of that section,',

and

(iii) the deletion of subsection (8).

(m) in section 19, by the substitution in subsection (1) for 'Appeal Board' of 'Board, the Tribunal',

(n) in section 20, by -

(i) the substitution in subsections (2) to (5) for '6 months' of '12 months', and

(ii) the substitution in subsection (2) for 'the Appeal Board or to an authorised officer' of 'the Tribunal, an authorised officer or an immigration officer',

(o) in section 21, by the substitution in subsection (1)(h) for 'Appeal Board' of 'Tribunal',

(p) in section 22, by -

(i) the substitution in subsection (2)(c) for 'until it has been decided by the person specified in an order under this section' of 'until he or she has decided',

(ii) the substitution in subsection (2)(d) for 'which has been referred to the Commissioner under section 8' of 'which is being investigated by the Commissioner',

(iii) the substitution in subsection (2)(h) for 'the referral of an application for asylum to the Commissioner' of 'the investigation of an application for asylum by the Commissioner',

(iv) the substitution of the following subsection for subsection (4):

'(4) (a) The Commissioner shall determine the matters referred to in subsection (2)(a).

(b) The Tribunal shall consider and decide appeals under subsection (2)(b).',

and

(v) the substitution of the following subsection for subsection (9):

'(9) (a) The Minister shall, pursuant to Article 14 of the Dublin Convention, communicate information to convention countries in relation to matters referred to in that Article.

(b) The Commissioner shall, pursuant to Article 15 of the Dublin Convention, communicate information to convention countries in relation to matters referred to in that Article:

Provided that information concerning the grounds on which a particular application for asylum is based or the grounds on which a decision concerning such an application is based shall not be communicated under this section without the prior consent of the person the subject of the application.',

(q) in section 23, by the substitution in paragraph (b) for 'Appeal Board' of 'Tribunal',

(r) in section 28, by the substitution for 'Act' of 'section',

(s) by the substitution of the following Schedule for the First Schedule -

'FIRST SCHEDULE

REFUGEE APPLICATIONS COMMISSIONER

1. The position of Commissioner shall be a position in the Civil Service (within the meaning of the Civil Service Commissioners Act, 1956) and a person shall not be appointed to be the Commissioner unless the Civil Service Commissioners, within the meaning aforesaid, after holding a competition under section 15 of that Act, have, under section 17 of that Act, selected him or her for appointment to the position.

2. The term of office of the Commissioner shall be 5 years and a person may be reappointed to the office for a second or subsequent term.

3. The Commissioner shall be paid such remuneration and such allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

4. The Commissioner -

(a) may at any time resign his or her office by letter addressed to the Minister and the resignation shall take effect on and from the date of receipt of the letter,

(b) may at any time be removed from office by the Minister if, in the opinion of the Minister, he or she has become incapable through ill-health of effectively performing his or her functions or has committed stated misbehaviour, and

(c) shall in any case vacate his or her office on attaining the age of 65 years.

5. The Minister may appoint such and so many persons to be members of the staff of the Commissioner as he or she considers necessary to assist the Commissioner in the performance of his or her functions and such members shall receive such remuneration and be subject to such other terms and conditions of service as the Minister may, with the consent of the Minister for Finance, determine.

6. Members of the staff of the Commissioner shall be Civil Servants within the meaning of the Civil Service Regulation Act, 1956.

7. The Minister may delegate to the Commissioner the powers exercisable by him or her under the Civil Service Commissioners Act, 1956, and the Civil Service Regulation Acts, 1956 and 1958, as the appropriate authority in relation to members of the staff of the Commissioner and, if the Minister does so, then, so long as the delegation remains in force -

(a) those powers shall, in lieu of being exercisable by the Minister, be exercisable by the Commissioner, and

(b) the Commissioner shall, in lieu of the Minister, be for the purposes of this Act the appropriate authority in relation to members of the staff of the Commissioner.

8. (1) The Commissioner shall keep, in such form as may be approved of by the Minister, all proper and usual accounts of all moneys received or expended by him or her and all such special accounts (if any) as the Minister may direct.

(2) Accounts kept in pursuance of this paragraph in respect of each year shall be submitted by the Commissioner for audit to the Comptroller and Auditor General in the following year on a date not later than a date specified by the Minister and, as soon as may be after the audit a copy of those accounts, or of such extracts from those accounts as the Minister may specify, together with the report of the Comptroller and Auditor General on the accounts, shall be furnished by the Commissioner to the Minister who shall cause copies of the documents so furnished to be laid before each House of the Oireachtas.

9. The Commissioner may delegate to any members of the staff of the Commissioner any of his or her functions under this Act save those conferred by section 7.',

(t) by the substitution of the following Schedule for the Second Schedule:

SECOND SCHEDULE

REFUGEE APPEALS TRIBUNAL

1. The Tribunal shall consist of the following members -

(a) a chairperson, and

(b) such and such number of ordinary members as the Minister, with the consent of the Minister for Finance, considers necessary for the expeditious dispatch of the business of the Tribunal,

each of whom shall have had not less than 10 years' experience as a practising barrister or practising solicitor before his or her appointment.

2. The position of chairperson shall be a position in the Civil Service, within the meaning of the Civil Service Commissioners Act, 1956, and a person shall not be appointed to be the chairperson unless the Civil Service Commissioners, within the meaning aforesaid, have, under section 17 of that Act, selected him or her for appointment to the position.

3. The term of office of the chairperson shall be 5 years and a person may be reappointed to the office for a second or subsequent term.

4. Each ordinary member of the Tribunal shall be a part-time member and, subject to this Schedule, shall hold office for a term of 3 years on such terms and conditions as the Minister may, subject to the provisions of this Schedule, determine when appointing him or her.

5. The chairperson and each ordinary member shall be paid such remuneration and allowances and expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.

6. A member of the Tribunal may resign his or her membership by letter addressed to the Minister and the resignation shall take effect from the date of receipt of the letter by the Minister.

7. An ordinary member of the Tribunal may be removed from office by the Minister for stated reasons.

8. If a member of the Tribunal dies, resigns, becomes disqualified or is removed from office, the Minister may appoint another person to be a member of the Tribunal to fill the casual vacancy so occasioned and the person so appointed shall be appointed in the same manner as the member of the Tribunal who occasioned the vacancy and shall hold office for the remainder of the term of office for which his or her predecessor was appointed.

9. The Minister may appoint such and so many persons to be members of the staff of the Tribunal as he or she considers necessary to assist the Tribunal in the performance of its functions and such members of the staff of the Tribunal shall receive such remuneration and be subject to such other terms and conditions of service as the Minister may, with the consent of the Minister for Finance, determine.

10. Members of the staff of the Tribunal shall be civil servants within the meaning of the Civil Service Regulation Act, 1956.

11. Whenever the Tribunal consists of more than one member, it shall be grouped into divisions each of which shall consist of one member.

12. The chairperson shall assign to each division the business to be transacted by it.'.

(2) This section shall come into operation on such day or days as by order or orders made by the Minister under this section may be fixed therefore either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.".

If Members do not have a copy of the explanatory note, I have extra copies.

Amendment No. 75a delivers the Minister's promise to give effect to the commitment in the Government' programme to implement the Refugee Act. The Minister, Deputy O'Donoghue said on Second Stage that if it was possible to bring forward the necessary amendments to make the Act workable by means of this Bill, he would do so. It has proved possible.

It is normal practice on moving Committee Stage amendments, for the mover to set forth the content and intent of the amendment in the opening contribution. It would take considerable time if I was to elaborate on each provision contained in the amendment. To cut down on that time and facilitate Deputies in their understanding of the context, the Minister arranged for circulation in advance to Members of the committee of a detailed set of explanatory notes on the amendment. I trust those notes have been of assistance to Deputies and as a result the debate can focus more on the areas where differences remain to be resolved or where further explanations are needed.

I propose to let the explanatory document be used in place of an opening contribution. Even the first page of the document contains clarification that this amendment is about making changes to the Refugee Act, 1996 which are necessary to make the Act workable. It also includes a provision setting up an advisory body.

The main changes are as follows. The refugee applications commissioner shall have the power of delegation. As there are 4,000 applications each year, one person could not be expected to make properly considered recommendations. The single five member refugee appeals board is replaced by the multi-member refugee appeals tribunal because one board would incur a substantial backlog.

There are also some technical procedural changes. The commissioners office is to be responsible for applications from the time they are made through to the final recommendation. It will be referred to the Minister at that point rather than at the various stages along the way. The requirement for papers to be transmitted from the commissioner to the Minister at different points under the original Act is to be removed so as to expedite the process because of the large numbers of applications. The UNHCR has asked that the requirement to transmit to it detailed information be reduced to a minimum, again to be able to handle the large number of cases.

Other procedural changes include gathering of fingerprint data and modification to the procedures for dealing with manifesting unfounded applications.

As an innovation the amendment proposed to provide for the setting up of a refugee advisory board with representatives of the UNHCR, refugee and asylum interests, relevant Government Departments and the refugee applications commissioner. The advisory board will report every two years and the list of items on which it will report is available to members. There are no more details on that.

Ms O’Sullivan

I move amendment No. 1 to amendment No. 75a:

To insert the following new paragraph after paragraph (a) in subsection (1):

"(b) in section 1(1), by the insertion of the following definition before the definition of ’declaration’:

"'day" means a working day;',".

The intention of this amendment is to give more time for appeals and to clarify that we are talking about working days. I will refer back to the earlier stage of the Immigration Bill where this issue also arose. We want to clarify that a working day does not include public holidays, weekends and so on. I hope the Minister will accept the amendment in the context of having already clarified a working day on an earlier stage of the debate.

Miss M. Wallace

I have no difficulty with the principle of this amendment. This is the approach which is taken in the Immigration Bill in connection with the specification of notice periods for the deportation process and it is a fair and sensible approach which suits applicants, practitioners and civil servants alike. I am, therefore, prepared to bring forward on Report Stage amendments to all references in the Refugee Act to such notice periods changing, for example, 21 days to 15 working days, and so on, as well as an amendment to insert a definition in the Refugee Act of "working day" on the lines of my amendment No. 53, to the Immigration Bill which we agreed earlier. On that basis I am sure Deputies will be prepared to withdraw this amendment.

Ms O’Sullivan

We are starting this section on a good note. I do not know whether this trend will continue but I thank the Minister for taking the point into consideration.

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 1a to amendment No. 75a:

To insert the following new paragraph after paragraph (a) in subsection (1):

"(b) in section 4 (2), by the substitution of 'for compelling reasons of national security or public order' for 'in the interests of national security or public policy (“ordre public”)’,”.

This amends the original Refugee Act, 1996, and its effect is to ensure that refusal of a travel document to a refugee can only be for compelling reasons. This was debated when the Refugee Act, 1996, was going through originally. The Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, is not here today, but he felt this was an important point at the time and that the inclusion of compelling reasons of national security and public order should be in the Bill to ensure that the document would not be refused for any reason that was not compelling. It is serious to refuse a travel document. Though the Minister is not present, I wonder if he is still of the opinion he held in 1996?

Miss M. Wallace

This amendment is opposed because it seeks to insert in the Refugee Act, 1996, a verbatim quote from article 28 of the 1951 convention in relation to the status of refugees. I would remind members that the Refugee Act, 1996, was piloted through the Houses by the then Minister of State at the Department of Justice, Equality and Law Reform, Ms Burton, on behalf of the previous Government. The wording of section 4 was considered by the then Minister, Ms Burton, and, presumably, the parties reflected upon this wording with regard to the State's obligations under the convention in relation to travel documents for recognised refugees. Nothing has changed in this respect, it is still a correct reflection of the State's obligations. I am advised by the parliamentary draftsman that the use of the word "compelling" adds nothing by way of additional or changed meaning to the text. I am concerned, however, that the use in the Deputy's amendment of the expression "public order" rather than the Act's "public policy" supported by the French term "ordre public” would be a change of substance which would take away from the effectiveness of the provision in the Act and would cause substantial divergence between the Act and the intention of the convention.

To rehearse briefly, in regard to the extensive debate on the use of this expression in the Bill rather than "public order", the Attorney General advised at the time and supported the advice with extensive international authority that the French legal expression, “ordre public” does not mean what the literal translation “public order” means in the context of Irish law. The English words convey no more than the absence of disorder or rowdiness in the streets. In the context of French law and language the full import of the expression is best conveyed by the common law concept of “public policy”. An example of the concept of “public policy” as applied by the courts is the rule against contracting to perform an illegal act. The contract is held by the courts to be unenforceable and contrary to “public policy”. The expression has been held by the courts not to mean the policy of the Government of the day and the pursuit by the Government of a policy which was contrary to “public policy” could fall foul of the courts.

As a mark of our concern at the use in the English version of the convention of the expression "public order" as the equivalent of the words "ordre public” in the French context, both texts being equally authentic, Ireland, in its instrument of accession to the convention, made it clear that it interpreted the expression “public order” as meaning “public policy”, that is, giving expression, in statutory form, to the text of the Act, as passed, and therefore it would need to be consistent in terms of our understanding of that.

Ms O’Sullivan

In regard to this court decision and Ireland's signing of the convention referred to by the Minister of State, did this happen after 1996? I ask this question because the Minister, Deputy O'Donoghue, in 1996, was absolutely convinced to the extent that he put down an amendment on Report Stage of the Refugee Act. Maybe clarification was made since then but the intention of the amendment is to ensure that there is no confusion about it being a compelling reason as opposed to a reason that might be less serious.

Miss M. Wallace

With regard to the Minister's view in 1996, it is my understanding that he was so persuaded by the convincing argument put forward at the time that he withdrew his amendment.

Ms O’Sullivan

I suggest that the Minister for Justice, Equality and Law Reform withdrew his amendment because on Report Stage he had probably gone as far as he could go.

Miss M. Wallace

It was very convincingly put forward by the Minister of the day.

Ms O’Sullivan

It is quite complicated and I do not know how good our French is in terms of understanding the nuances of "ordre public” as opposed to “public order” in the English language. I do not know whether I received an answer to when these clarifications were made or whether they were there initially.

Miss M. Wallace

The then Minister of State at the Department of Justice, Equality and Law Reform, Ms Burton, came up with this idea in the first place. The current Minister for Justice, Equality and Law Reform thought of a better idea but then he was convinced that Deputy Burton was right and he revised his amendments. Now the Deputies are trying to undo Ms Burton's the good work. We are back to the same point - we are all agreed with what the previous Minister said on the first day and it is supported by the Attorney General and the parliamentary draftsman.

Ms O’Sullivan

Has the Minister been persuaded by the civil servants that he was wrong?

Miss M. Wallace

No. The Minister was persuaded by the then Minister of State, Ms Burton, in 1996 when he withdrew his amendment.

Ms O’Sullivan

I am sure he did not acknowledge that at the time.

Mr. Higgins (Mayo)

On a technical point in relation to l’ordre public, has it been checked whether ordre is a masculine or feminine noun? I had the impression that it was a feminine noun and that therefore the adjective corresponded and that it should be spelt “publique”.

Miss M. Wallace

How about je ne sais pas?

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 1b to amendment No. 75a:

To insert the following new paragraph after paragraph (a) in subsection (1):

"(b) in section 5(1), by the deletion of 'in the opinion of the Minister',".

The non-refoulement section, that is, no return of someone where he or she will be ill-treated, is at present qualified by "the opinion of the Minister". It should not be so qualified because a person is likely to be ill-treated or otherwise on the basis of the facts presented. The opinion of the Minister should not be a factor because refoulement is a very serious matter. It presumes a person might be ill-treated in the place to which they are being returned.

Miss M. Wallace

I oppose this amendment as it seeks to delete the reference to the Minister from the provision forbidding refoulement. The purpose of the inclusion of the words "in the opinion of the Minister" is to make it clear that it is the Minister and no other organ of the State who is responsible for deciding whether a particular removal would or would not be a refoulement. In the absence of these words there would be some doubt as to who would determine that matter in each potential removal of a person from the State. This responsibility should rest fairly and squarely on the shoulders of the Minister with functional responsibility for the operation of immigration controls in the State, including deportations, refusals of leave to enter the State and decisions on whether to grant declarations of refugee status. The phrase proposed to be removed is part of the text of the Bill moved by the Minister of State who at the time represented the parties opposite. It is not a change required in order to bring the Act into operation. On that basis it is not broken and we do not propose to fix it.

Ms O’Sullivan

I accept fully that it should be the Minister's responsibility to make that decision but on a basis of fact rather than on the basis of opinion. It should be based on the information.

Miss M. Wallace

To be fair, the Minister could not possibly form an opinion on a whim. It would have to be based on facts and the detail of what was happening in the country of return. One could only form an opinion in this case once one had all the facts of the matter. That is fairly obvious.

Ms O’Sullivan

So the Minister is saying that it is included in the Act that this opinion is based on the facts as presented and not on any other method of forming opinion.

Miss M. Wallace

Yes, not on any other idea.

Ms O’Sullivan

I want to ensure that we are absolutely certain that the Minister has to take all the facts into account in making the decision which is so important to this issue.

Miss M. Wallace

That is correct.

Amendment to amendment, by leave, withdrawn.

Chairman

Amendments Nos. 2, 3 and 4 to amendment No. 75 (a), which form a composite proposal, may be taken together by agreement.

Ms O’Sullivan

I move amendment No. 2 to amendment No. 75 (a):

In the first line of subsection (4) (a)of the new section 7A, inserted by subsection (1) (b), to delete "second".

The intention is to ensure that the board would report every year, beginning next year, not every two years beginning in the year 2001. I do not understand why it would only report every second year as all other public bodies make annual reports and there seems to be no particular reason that this board would not make annual reports according to standard practice. The Refugee Advisory Board will be very important to the operation of the refugee process and it is important that it reports every year.

Mr. Higgins (Mayo)

I fully support the amendment of Deputies O'Sullivan and Howlin. It is important for transparency, public reassurance and monitoring and tracking our policy. We are embarking on new legislation and the working of that legislation should be reviewed as regularly as possible, particularly this legislation dealing with human rights. Its performance should be gauged on a regular basis.

Miss M. Wallace

I agree with the sentiment expressed by Deputy Higgins but there is a reasonably good reason for opposing the amendments. The purpose is to require the Refugee Advisory Board to publish its report yearly rather than two yearly. Under section 7(1) of the Refugee Act the refugee applications commissioner is required to submit a report annually to the Minister on his or her activities during the year. The advisory board is to take a longer, broader look at the entire context in which Irish society interacts with refugees and asylum seekers. None of us would want the advisory board to simply replicate the commissioner's reporting function. I would be concerned that a requirement on the advisory board to report annually could limit its capacity to take the longer view and thus diminish its usefulness as a source of information and opinion which informs the development of Government policy in this important area.

One of the precedents considered in developing this proposal was that of the Garda Síochána Complaints Act, 1986, which under section 13 has two different reporting requirements, one of which is the standard requirement of an annual report on the board's activities during the previous year. The equivalent of that provision in the Refugee Act is at section 7(1) of the Act. The other is a requirement to report once every three years on the system of investigation and adjudication of complaints. We felt that this type of systematic review is what the Minister has in mind for the advisory board and consideration was given to the two stroke report on a three year cycle as in the other situation. Then it was felt that three years was too long, especially for asylum and refugee matters which change so often, and that the two year interval was a good period which would give enough time to look at the longer view rather than the annual report and there would be no duplication.

Ms O’Sullivan

I propose that we adjourn for the Order of Business.

Chairman

Is that agreed? Agreed.

Meeting suspended at 10.30 a.m. and resumed at 11 a.m.

Chairman

We are discussing amendment No. 2 to amendment No. 75(a). Has Deputy O'Sullivan anything further to add?

Ms O’Sullivan

This amendment deals with whether we should have the report every year or every second year. I am concerned that the first report will not be made until 2001. Much will happen in the early stages and the board may wish to discuss the issue. A large number of cases will be heard and we will be testing the new legislation which will be in operation then. I ask the Minister to have the first report in 2000 rather than 2001 as there is a learning process to undergo.

Miss M. Wallace

The legislation states that the advisory board must report every two years and more frequently if it wishes. The Minister can ask the board to report ad hoc on specific matters. The commissioner must report to the Minister and the Oireachtas annually. The Minister envisages that the Refugee Act, 1996, will be in operation from the end of 1999 or the beginning of 2000. The requirement that the first report be made by the end of 2001 makes sense in the light of what Deputy O’Sullivan says, and the board will make its first report earlier than the two years.

Mr. Higgins (Mayo)

Does the Minister agree, with regard to the reporting process and the monitoring of progress, it is important to have the report issued as quickly as possible so that any glitches, difficulties and anomalies can be ironed out? With regard to a representative cross-sectional view, this is an important organ and there is much enthusiasm about the establishment of the refugee advisory board because of its composition. Our other amendments deal with a change of emphasis and numerical weighting of the board which represents the broad, public interest. If the Minister cannot concede in relation to amendment No. 2, she should consider amendment No. 3 that the first report be made in 2000 rather than 2001.

Miss M. Wallace

I have checked the Minister's and the Department's view on this matter. Everyone is clear about the fact that the commissioner will report to the Minister annually. The legislation stipulates that the commissioner shall, not later than three months after the end of each year, report in writing to the Minister of his or her activities during the year and, not later than one month after such submission, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas. We will have an annual report after the first year. The advisory board will have to take a long-term view as distinct from an annual report after the first year. It can report earlier if it so wishes and the Minister can ask it to report on an ad hoc basis on specific matters which might arise in that year. The concept of the two years is to emphasis the longer term view.

Mr. Higgins (Mayo)

Will the Minister of State agree that we are talking about different strata? There is the commissioner, who is a member of the board, and the board. There is also the high commissioner and the tribunal. While the commissioner will be in tune with what the advisory board is saying and doing, he is not the reporting agent for the board. The advisory board represents the public interest although there is a numerical problem. Should it not aim to produce the first report, even as a gesture——

Miss M. Wallace

The board can report earlier and separately if it so wishes.

Mr. Higgins (Mayo)

I appreciate that.

Miss M. Wallace

Our concern is to ensure that the advisory board does not duplicate the commissioner's annual report. If it so decides, the board may report earlier because of activities or whatever, but it is not obliged to do so. We are trying to oblige the board to take a longer term view.

Ms O’Sullivan

I see no strong argument for not obliging the board to report, particularly in view of the points we have made. This is a substantial amendment to the legislation and I would have thought there would be many issues on which the board would wish to report at an early stage.

Miss M. Wallace

That may be so but we are diminishing that flexibility by enshrining it in legislation. The board may wish to report on an issue nine, 12 or 15 months after and it can do so. We would diminish the flexibility of the broader view if we stipulate that it must report. It may not be ready to report after the first year so it has the flexibility to report at any time during the two year period. However, it must report by the end of that period.

Ms O’Sullivan

Sometimes it is necessary to put pressure on a board to report to ensure that it focuses on the issues.

Miss M Wallace

This case is different as the board includes representatives of refugees, asylum seekers and the UNHCR. The refugee applications commissioner is also a member of the board so, given that it comprises representatives of interested groups, it is unlikely that the board would not produce a report if it felt it was important. It is not like an interdepartmental committee which can wait for two years. This is different as the interested parties can make their case when reporting on a particular issue earlier if necessary. The important point is that the flexibility is there.

Sitting suspended at 11.45 a.m. and resumed at 12 noon.

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 3 to amendment No. 75a:

In the second line of subsection (4)(a) of the new section 7A, inserted by subsection (1)(b), to delete "2001" and substitute "2000".

Mr. Higgins (Mayo)

We appreciate the report can be made, and that is probably the hope and expectation. However, we are guillotining this Bill because the Government says it must be on the Statute Book immediately - it cannot allow the summer to elapse without it. It will have to go through the Dáil and Seanad before the summer recess, but there is no earthly reason the bodies envisaged in the Bill cannot be put into operation. This means they could be in a position to make a report this year. It has become imperative that the Bill goes through, no matter how much we trammel democratic procedures. It will be bulldozed through at 9 p.m., yet there is no guarantee that the various bodies and mechanisms incorporated in the Bill will be in operation. They should be put in place and should report sometime next year on their workings.

Ms O’Sullivan

I support what Deputy Higgins said. The point is well made - a guillotine is being imposed on the committee to ensure the Bill passes before the summer, yet we are told it will be fine to wait until 2001 before the advisory board is required to report. The unseemly haste with which we must pass the legislation is in stark contrast to the wait for the report.

Miss M. Wallace

Once we pass the legislation we can use the summer to recruit staff - there is a good deal involved in that - make regulations, and implement the Bill before the end of the year. If we do not proceed with this, it will not be implemented in 1999, and it is urgent that we proceed. Equally, it is important that an annual report be received a year later from the refugee applications commissioner. The only reason we are not asking for two annual reports at one time is to ensure the Refugee Advisory Board takes a broader, long-term view. We are not looking for an annual report on the first year of operation but the broader policy conducted by the advisory committee. At the same time, we are not stopping the advisory board reporting in a year if it is ready to do so. If it is not ready, there is no point obliging it to submit an annual report after only a year of operation, which might be unable to look at the broader picture.

Mrs. Barnes

It is important that the board's report be available as quickly as possible, whatever about a later biannual report or working in tandem. This is such a new development, in both legal and human terms, that we need a report quickly. I agree with the Minister that the advisory board's report should perhaps be deeper and broader than the other report. So much is being put in place, and the backlog and need for a perspective is so great that we have even greater need of the advisory board's report. It would be highly unsatisfactory to have the report in 2001, which is a long time away.

Ms O’Sullivan

I am pressing the amendment. We feel strongly that the board should report at the earliest possible time.

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 4 to amendment No. 75a:

In the fourth line of subsection (4)(a) of the new section 7A, inserted by subsection (1)(b), to delete "2 years" and substitute "year".

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 5 to amendment No. 75a:

In the sixth line of subsection (4)(a) of the new section 7A, inserted by subsection (1)(b), after "of" to insert "immigration and".

The provision in question reads: "The Board . . . may include in the report information and comment in respect of asylum policy . . .". I want it to read "immigration and asylum policy". This will add immigration policy to the functions of the advisory board. I propose the amendment with confidence that the Minister will accept it. This legislation is linked to the Refugee Act and the issues are so interconnected that it makes sense for immigration policy to be part of the functions of the Refugee Advisory Board. Immigration policy is so closely interlinked to asylum policy and refugee matters that it is essential that this be part of the board's remit.

Mrs. Barnes

I support the amendment and hope the Minister will take it on board because it is integral.

Miss M. Wallace

The Minister is not opposed in principle to an advisory board on immigration matters, as he has already informed the Dáil on a number of occasions, including on Second Stage debate on this Bill. A set of legislative proposals are in the course of development and these are designed to replace in its entirety the Aliens Act, 1935, and its associated orders. In the context of the development of these comprehensive proposals the Minister is prepared to consider statutory provision for such an advisory body. To widen the remit of the Refugee Advisory Board in this way would, however, be a sizeable additional encumbrance on the board. Its membership is designed to deal with refugee and asylum matters, and to widen its remit, as the Deputy's amendment proposes, would require an expansion of the membership such as to make it unwieldy or unworkable, or would involve the under-representation of refugee and asylum interests so as to make way for representatives of the broader range of interests legitimately concerned with matters of immigration but not refugee or asylum policy. On the basis of our undertaking to consider the inclusion of such a body in the immigration and residency legislation in development by the Department, we ask that the amendment be withdrawn.

Ms O’Sullivan

I gather from the Minister's remarks that another board will be set up to deal with immigration issues under the reform of the Aliens Act. Will she clarify whether that is the Government's intention? Although the legislation deals mainly with deportation, it is called the Immigration Bill and presumably aspects such as deportation are included under the heading of immigration. If we do not include immigration matters in the remit of the advisory board, surely we are stopping it dealing with a substantial part of the issues which will arise for asylum seekers, particularly when their requests for asylum are questioned by the State. On the one hand we are asked to include deportation and immigration under the heading of seeking asylum, refugee status, etc., while on the other we are asked not to include it in the advisory board's remit. There is a lack of consistency in that regard.

Miss M. Wallace

The board has a remit in reporting anything in respect of asylum seekers, including immigration matters with which Deputy O'Sullivan is concerned.

Ms O’Sullivan

Is the Minister setting up a separate board through the new legislation?

Miss M. Wallace

In the context of the wider immigration issue the Minister is considering the possibility of setting up a board. The advisory board will be able to deal with all matters in respect of asylum seekers, including immigration.

Ms O’Sullivan

Why can it not be included under the board's remit?

Miss M. Wallace

It is encompassed in the remit.

Ms O’Sullivan

It is not encompassed in the reporting provision. Amendment No. 75a provides that the board shall report in writing and may include "information and comment in respect of asylum policy and refugees". It does not state that it may include information on immigration.

Miss M. Wallace

Subsection (4)(a) of the proposed new section provides that the board ". . . may include in the report information and comment in respect of asylum policy and refugees including any proposals to amend legislation and recommendations regarding the practice or procedures of public or private bodies in relation to applicants and any other matters relating to such operation . . . ". Immigration would be included.

Ms O’Sullivan

I do not understand why our proposal cannot be included in the board's remit?

Miss M. Wallace

The advisory board would then have to deal with immigration matters as they affect everybody, not just asylum seekers.

Ms O’Sullivan

The amendment states: ". . . may include in the report information and comment . . . ". The effect of what the Minister of State is saying is that it may not include immigration in the content of the report.

Miss M. Wallace

The advisory board can report on immigration matters in respect of asylum seekers and refugees and will deal with any proposals to amend legislation and recommendations. Inserting the words proposed by the Deputy would mean the board would be involved in broad immigration matters for everybody, not just asylum seekers and refugees.

Ms O’Sullivan

That is not my understanding of it.

Miss M. Wallace

That would be the effect if the words proposed by the Deputy were included.

Ms O’Sullivan

I disagree with the Minister of State's advice. The amendment states: ".. may include in the report information and comment in respect of .. " and I want the words "immigration and asylum policy" included.

Miss M. Wallace

It further states: ". . . in respect of asylum policy and refugees including any proposals . . . " with regard to them. If the words "immigration and asylum policy" are included it would mean immigration policy in respect of everybody. The amendment also includes ". . . proposals to amend legislation and recommendations regarding the practice or procedures of public or private bodies in relation to applicants . . . ". This covers all matters in relation to applicants.

Mr. Higgins (Mayo)

It seems illogical that the Minister, Deputy O'Donoghue, brings before the House the Immigration Bill and vigorously rejects any inference that it is a deportation Bill on the basis that it is supposed to deal with immigration, yet when the committee seeks to insert in an amendment to do with immigration the Minister of State says it is an asylum Bill.

The Minister is, quite rightly, contemplating the possibility of setting up a new structure to deal with immigration as there is a net inflow of people into the country. I welcome that people are coming into the country in greater numbers than those leaving. It is a manifest tribute to the strength of the economy that people are induced to return who had previously been banished by virtue of economic necessity. To say that this body cannot deal with anything to do with immigration, in a Bill which is entitled Immigration Bill, 1999, is a manifest contradiction. I cannot see that it ties us hand and foot.

As Deputy O'Sullivan said, the word "may" is the governing verb in this case. While the board may discharge its functions effectively in terms of having an advisory role on the issue of refugees, what is to stop it looking at immigration issues? There is a natural overlap between immigration and asylum.

I cannot understand the dogmatic intransigence of the Minister of State in not accepting the amendment. It has not been introduced out of quirkiness, vexatiousness or making debate. It seems logical that in an immigration Bill a phrase would be inserted that the body in question, which will represent the public interest, would consider immigration and asylum policy.

Miss M. Wallace

While we are debating the Immigration Bill, 1999, the Refugee Act, 1996, is being amended. We are not discussing the immigration advisory board but the Refugee Advisory Board. The Refugee Advisory Board will be able to deal with immigration and other matters for refugees and asylum seekers.

Mr. Higgins (Mayo)

While the Refugee Act, 1996, is being amended, the Bill is entitled the Immigration Bill, 1999.

Miss M. Wallace

We are using the opportunity of the Immigration Bill, 1999, to amend the Refugee Act, 1996, because the Refugee Act cannot be implemented in its present form. We are using the opportunity in this Bill to amend the Act, which cannot be implemented at present, but that does not mean the refugee and asylum issues should be mixed up with the broad immigration issue. While there is the Aliens Act, 1935, and its associated orders, but all the elements are not being combined.

There is a commitment by the Minister to consider the inclusion of such a body in the immigration and residency legislation which is being considered in the Department. He is concerned that to widen the remit of the Refugee Advisory Board in this way would be a sizeable addition and encumbrance to it. Membership of the board is designed to deal with refugee and asylum matters not overall immigration.

As Deputy Higgins pointed out, the wider immigration context must be dealt with. This amendment seeks to organise the Refugee Advisory Board to deal with refugee and asylum matters, including immigration. We are not seeking to address the whole immigration issue. We are not trying to amend the Aliens Act and its associated orders. That will be done on another day.

Ms O’Sullivan

The Minister misunderstands what I am seeking to do. It is the immigration aspect of the asylum seekers——

Miss M. Wallace

That is covered.

Ms O’Sullivan

I do not believe it is.

Miss M. Wallace

If the Deputy is clear on what she is trying to do we are equally clear that it is already covered. The best advice the Government can give is that immigration matters are covered in the reference to asylum policy and other matters in respect of applicants.

Ms O’Sullivan

Where is it included?

Miss M. Wallace

The proposed new section 7A(4)(a) makes reference to ". . . the practice or procedures of public or private bodies . . . ". That means the immigration authorities are included because they are public bodies. Any problems that asylum seekers or refugees may have with health boards, landlords, immigration authorities, etc., can be discussed and reported on by the Refugee Advisory Board.

I have no problem with the Deputy's points but I have a problem with inserting her amendment because it will oblige the Refugee Advisory Board to cover all immigration matters. I know that is not the Deputy's intention but that would be the net effect of her amendment. What the Deputy seeks is already covered by amendment No. 75a. I will repeat the words the relevant part of amendment No. 75a. The new section 7A(4)(a) refers to ". . . any proposals . . . regarding the practice or procedures of public or private bodies in relation to applicants . . . ". This covers all matters, including immigration issues.

Ms O’Sullivan

The word "immigration" is specifically excluded from the issues on which the report may comment. It could be argued that because the provision specifies asylum policy and refugees, not immigration specifically, that the board may not comment on the immigration aspect of an individual's case.

Miss M. Wallace

It is clearly included. Consider the examples of an English language school student entering this country who may have immigration inquiries or a Swiss pensioner who wants to take up residence here. These cases would have nothing to do with seeking asylum or refugee status and, therefore, they are not issues for the Refugee Advisory Board. Including the word "immigration" in the subsection means that the Deputy wants the board to have a wider remit to include, for example, the English language student entering the State. I have a problem with the proposed amendment because it broadens the board's remit, although I know the Deputy is not trying to do that. I hope debates prior to today's have clarified that point for the advisory board.

The advisory board, when it is up and running, will be in no doubt after today's debate that the Minister has given an assurance, supported by formal advice given to the Government, that immigration matters are clearly included. I will clarify for anyone who reads this debate that the reference to ". . . the practice or procedures of public or private bodies in relation to applicants . . . " includes immigration matters with regard to asylum seekers and refugees.

Ms O’Sullivan

I will press this amendment because I disagree with the Minister of State's interpretation. The Government's amendment refers specifically to applicants. I presume the word "applicants" refers to applicants for asylum or refugee status. I cannot see where the English language student comes into this at all.

Miss M. Wallace

The case of an English language student would be an ordinary immigration matter.

Ms O’Sullivan

We are talking about the refugee board which will deal specifically with applicants for asylum and refugee status.

Miss M. Wallace

That is the plan. However, the inclusion of the Deputy's amendment would mean the board would have to deal with the wider immigration issue.

Ms O’Sullivan

I do not think it would. I am talking about applicants.

Miss M. Wallace

Whatever we say during this debate is relevant. I give a clear assurance that immigration is included. The advisory board can read the report of this debate and know that its remit, awarded to it under this amendment, will include immigration matters for asylum seekers and refugees but not immigration matters for English language students, for example.

Ms O’Sullivan

I think we will have to read the report of this debate.

Mrs. Barnes

When will the wider immigration and residence legislation, which has been referred to, come before us? I am concerned about the length of time it has taken us to deal with this legislation. We will be faced with immigration as the Minister of State described but we are totally unable to cope with immigration at present. What timeframe is there for the new legislation?

Miss M. Wallace

I assure the committee that the people who are working on this Bill will move immediately to work on the next item of legislation which I hope to bring forward early next year.

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 6 to amendment No. 75a:

In the fifth line of subsection (4)(b) of the new section 7A, inserted by subsection (1)(b), after "specify" to insert "and the Minister shall cause such a report to be laid before each House of the Oireachtas as soon as may be after it is made".

The intention of the amendment is to make special reports public, along with the bi-annual reports. The amendment relates to amendments 2 to 4, inclusive, and the combined objective is to ensure that all reports are public.

Miss M. Wallace

I have no difficulty with the principle of the amendment. I will ask the draftsman to prepare a suitable amendment modelled on amendment No. 75a, new section 7A(4)(a) which sets out a one month maximum time limit between the submission of the report and the time it is laid before the Oireachtas. If the Deputy withdraws her amendment I will table an amendment on Report Stage.

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 7 to amendment No. 75a:

In the last line of subsection (5) of the new section 7A, inserted by subsection (1)(b), after "functions." to insert "The Commissioner shall report from time to time to the Board.".

The purpose of the amendment is to ensure that the commissioner will be obliged to report to the board. It is not clear from the Bill that this will be the case.

Miss M. Wallace

Amendment No. 75a, section 7A(5) reads:

The Commissioner shall, whenever so requested by the Board, furnish to the Board information in relation to such matters as the Board may specify relating to the performance of its functions.

Ms O’Sullivan

I want to ensure that this will happen as part of the legislation rather than having to be requested.

Miss M. Wallace

I just read part of the legislation.

Ms O’Sullivan

Yes, but it reads ". . . whenever so requested . . . ". I want to ensure that it would happen irrespective of request.

Miss M. Wallace

Amendment No. 75a, section 7A(5) provides that the commissioner shall furnish information in relation to such matters as the board may specify relating to the performance of its functions. I am of the view that this provision is more than adequate to ensure the board receives the necessary information to fulfil its functions. The commissioner shall be a member of the advisory board and will act as secretary to the board. He or she is, therefore, required to be in regular communication with the board and intimately involved in its work.

It is important to emphasise that the commissioner will be independent in the exercise of his or her functions and will not be answerable to the advisory board in this regard but to Parliament through the reporting mechanism outlined at section 7(1) of the Refugee Act.

Ms O’Sullivan

I do not want to waste the committee's time on this issue. It is just a matter of interpretation.

Amendment to amendment, by leave, withdrawn.

Chairman

Amendments Nos. 8 to 12, inclusive, are related and may be taken together by agreement.

Ms O’Sullivan

I move amendment No. 8 to amendment No. 75a:

In the third paragraph of the Schedule to the new section 7A, inserted by subsection (1)(b), after subparagraph (h) to insert the following:

"(i) one shall be a person with refugee status in the State nominated by Refugee and Asylum-Seeker representative groups,".

The following amendments seek to add to the representation on the board and to ensure that non-governmental agencies working with asylum seekers and refugees can represent them.

Amendment No. 10 seeks to make knowledge of and interest in the field a requirement of the make up of the whole board. We want to ensure that those most affected by the legislation and those most interested in it by virtue of their membership of the NGOs are adequately represented on the advisory board. The advisory board has representatives from a number of Government of Departments. We understand the logic of that. We want to ensure also that those who directly represent refugees and asylum seekers are also properly represented. These amendments are important. They seek to ensure the board is adequately representative of these organisations.

Miss M. Wallace

I can accept the principle of amendments Nos. 8, 9 and 11. Amendment No. 11 provides the basis for a suitable amendment. The notion of having regard to the desirability of representatives from various classes of organisations or areas of interest is better from the point of view of flexibility than the more prescriptive alternatives in amendments Nos. 8 and 9. I propose to introduce an amendment on these lines on Report Stage. On that basis I ask that the amendments are withdrawn.

I accept amendment No. 10 but not amendment No. 12 which is too restrictive. I could not expect that the nominee of the Minister for the Environment and Local Government would be an expert on asylum and refugee matters. I would, however, expect that, as a housing expert, such a person could greatly assist the board in its work. It is my concern that we do not unduly restrict the scope for appointments to the board and I ask Deputies to withdraw amendment No. 12.

Since the drawing up of this provision, UNHCR has come back to us to indicate its wish to have observer status only. Having considered the matter in consultation with its headquarters in Geneva, it has indicated that full membership of the board would not be in accordance with its rules. We will introduce an amendment on Report Stage to accommodate this changed position. This will free another place on the board for the representation of interest groups.

Mrs. Barnes

If the UNHCR asked for observer status would the amendment on Report Stage include other bodies which might prefer observer status to full membership or will it be confined to the one body?

Miss M. Wallace

We are talking about Departments and representatives of different groups. The situation for them is different to that of the UNHCR. We need members for the board but it does not suit the situation for the UNHCR to be a member. Granting it observer status ensures that it remains involved.

Mr. Higgins (Mayo)

I welcome the indication that the Minister is prepared to take on board the spirit of amendment No. 11. The section on the refugee advisory board is crucial. When I first saw the composition of it I was taken aback by the fact that it was top heavy with officialdom representative of the Ministers for Justice, Equality and Law Reform, Foreign Affairs, Social, Community and Family Affairs. Education and Science, Health and Children, Environment and Local Government, Enterprise, Trade and Employment and one representative of the High Commissioner nominated by the High Commission. It could be argued that these people would represent the views of their Ministers. It is unlikely that Ministers would deviate in terms of policy. As a result eight people would vote as a cohort. One would hope that it would never come to a vote but where there is a difference of opinion, the official side would be well represented.

The NGO side, however, was not strongly represented. I appreciate that the Ministers in question are important and to address the issues across the range of social and economic activity, they should all be represented. There should, however, have been more of a balance, the Minister's indication that she will make a gesture in terms of accepting the spirit of amendment No. 11 notwithstanding. Something more could be done and the Minister should explore the possibility of better representation of NGOs in the amendment to be introduced on Report Stage.

These are the people who liaise with these groups and know the sensitivities of the problems. They know what they are talking about. We have to look at the amendments which the Government presents to Opposition parties. The vast majority of Opposition amendments are of substance which stand up to scrutiny. They are designed to make Bills sound in terms of defending human rights, not to frustrate them. For that reason the Minister should be as generous as possible in her reflections.

Miss M. Wallace

I accept what the Deputy said. Seven Departments are members. The High Commission would never have considered itself to be part of the official side. Now it is no longer on the board I will take on board what is being said. It will free another spot which will lead to a position where there will be seven on each side and the chair.

Ms O’Sullivan

Is it the Minister's intention to have representatives of refugee and asylum seeker representative groups and other NGOs on the board?

Miss M. Wallace

At the bottom of the explanatory note it is stated that the refugee advisory board will have representatives from the UNHCR - which is now gone - refugee and asylum interests, relevant Departments and the refugee applications commissioner. That is the make up of the board. The absence of the UNHCR allows us to introduce an additional NGO representative to create a balance of members.

Ms O’Sullivan

On amendment No. 10, the Minister said it would be too restrictive to expect the representatives of Department to have knowledge of and interest in asylum affairs.

Miss M. Wallace

No. I have accepted amendment No. 10.

Ms O’Sullivan

So the Minister has accepted the need for all of them to have either interest or knowledge but not both.

Miss M. Wallace

Yes. The person from the Department of the Environment and Local Government will be expert in housing issues in the area but may not be an expert on all other matters. It would not be fair to expect that he or she might be. Those from the Department of Social, Community and Family Affairs may not be experts on foreign affairs.

Ms O’Sullivan

We tabled that amendment having met Amnesty International. While the housing representative may have expertise in that area, it would be desirable that it should be a person who also has knowledge of and interest in asylum seekers and refugees. All the people on the board would then have expertise in their own area and would also have a genuine interest in and some knowledge of asylum seekers and refugees.

The amendment states that regard shall be had to their interest in and knowledge of such issues. They do not have to be experts. Amnesty International felt strongly that we should ensure Government representatives are genuinely interested in the area and would have knowledge. They might know everything about housing but it is important they should have an interest in and knowledge of refugees and asylum seekers.

Miss M. Wallace

No matter what the area in question - a board concerned with violence against women, for example - it would be expected that people would have an interest in making progress on the issues in that area. The same applies to the appointment of disability boards. When one asks the relevant Department to nominate somebody, one does not expect it to nominate somebody who is an expert on heart by-passes. The same applies with regard to this. We will be asking every Department to send us their best people who should be particularly knowledgeable with regard to their Department's role so that they can bring that knowledge to the table. Equally, they must be interested in what we are about. Departments usually put forward people who are interested as well as knowledgeable.

Ms O’Sullivan

I welcome the movement with regard to the other aspects of the make-up of the board which are important and I await the Report Stage amendments with interest. The Minister of State said that what happens at this committee will be taken note of in the Department in setting up the board. I ask that Departments should specifically nominate people who have an interest in and knowledge of asylum and refugee matters. It is important for the coherence of the board and for people to make a positive contribution to the activities of the board that they should be people who are genuinely sympathetic to this whole area.

Miss M. Wallace

The Deputy is suggesting that when the Minister is writing to his colleagues to seek nominations he should include in the letter a request that people who are put forward should have an interest in the area.

Amendment to amendment, by leave, withdrawn.

Amendment No. 9 to amendment No. 75a not moved.

Ms O’Sullivan

I move amendment No. 10 to amendment No. 75a:

In the first line of the fourth paragraph of the Schedule to the new section 7A, inserted by subsection (1)(b), to delete "the other" and substitute "all".

Amendment to amendment agreed to.

Mr. Higgins (Mayo)

I move amendmentNo. 11 to amendment No. 75a:

In the second line of the fourth paragraph of the Schedule to the new section 7A inserted by subsection (1)(b), after "had to" to insert "the desirability of representing the organisations of refugees and asylum seekers and the legal profession. In the case of each appointment for membership of the Board regard will be had to".

We are talking about the representatives of the various organisations here. What is the mechanism for replacement where a casual vacancy occurs? If one of the departmental or ministerial representatives has to be replaced, the Minister will make the appointment in consultation with the relevant Minister. If somebody who is representing one of the non-governmental organisations dies, leaves the board or has to be removed from the board for stated reasons, what is the procedure for replacing that person? I note that it says further down that where a casualty occurs the Minister may appoint a person to be a member of the board. I presume he would make the appointment by reference back to the NGO in question.

Miss M. Wallace

That would be the intention. The same applies in respect of other boards. If a representative of the National Women's Council were on the board and could no longer attend, we would ask the council to send us another nominee and the Minister would appoint that person.

Amendment to amendment, by leave, withdrawn.

Amendment No. 12 to amendment No. 75a not moved.

Ms O’Sullivan

I move amendment No. 13 to amendment No. 75a:

In the tenth paragraph of the Schedule to the new section 7A, inserted by subsection (1)(b), to delete "four times a year" and substitute "once every two months".

The intention of the amendment is that the board should meet six times a year rather than four times. It is important that the board should meet more regularly than four times a year and that the meetings should be spaced evenly throughout the year, that there should not be a series of meetings in one part of the year and no meetings for the remainder of the year.

Miss M. Wallace

The current provision states that the board should meet at least four times each year. This is the minimum number of times it should meet. There is nothing to prevent the board from meeting more frequently if necessary. It is open to the board to decide whether it needs to meet more frequently than this and also to determine when it should meet. It is important to allow the board flexibility in organising and scheduling its meetings. To insist that it meet once every two months might be unrealistic at certain times, particularly between the months of June and September, for the busy people who will be sitting on the board. The National Steering Committee on Violence against Women is supposed to meet four times a year. It has met every month since Christmas but will not be meeting from now until September because of the summer period. It is right that we should leave it to the members of the board to determine how frequently they wish to meet.

In the earlier stages it may be found necessary to meet more often but next year it may be sufficient to meet four times in the year. What is built in here is that the board should meet at least four times each year - that is a minimum. If the board meets every month and wants to meet during July and August or on Christmas Day, that will be fine by us. The board will determine when it meets rather than the Minister dictating that through legislation. What is important is that the obligation to meet at least four times a year is built into the legislation and a year cannot go by without any meeting. It allows for the flexibility that will be necessary. It is always necessary for any new board to meet more often at the beginning and less often as time goes by. They may not have so many meetings from June to September.

Mr. Higgins (Mayo)

In relation to the spirit of the amendment, it is not the intention to impose undue hardship or expectations on the membership of the board. However, this is an important board. I appreciate that there is no prohibition on the board meeting more frequently. Looking at the composition of the board there should be no considerable impediment. We are talking about essentially Dublin based people. The seven representatives of the Minister will, presumably, be Dublin based, and the representatives of the NGOs will all be located within what I would broadly call the Pale. From the point of view of ensuring that the board meets regularly, that it monitors, tracks and keeps up to speed in relation to what is happening, I cannot see why we should not accept the spirit of this amendment.

Miss M. Wallace

I have no real problem with what Deputy Higgins has said except that recent personal experience is that the Task Force onViolence against Women provides that the national steering committee should meet once a quarter. So far this year it has met on six occasions but it is not meeting in July, August and September because subcommittees of the group are meeting separately. The NGO sector, in the context of what we are discussing here today, has people involved on a voluntary basis who want to take annual holidays during the summer. To be fair to everybody, we are wiser to leave it to the membership of boards to decide when they will meet. In the case I have just mentioned, the national steering committee had its June meeting and it met every month since January, but it is not meeting for the next three months. That is the way they are scheduling their business, and they will meet again on 4 October. We have to be sensible. These are sensible people. They want to be actively involved, but they may decide not to meet during the summer months. What we can be certain of is that we will not find that the board has not met for six months. There is an obligation to meet four times a year. The reason for putting this in is to ensure that meetings do take place, but they can meet every month if they wish. It is up to the membership of the board. The seven NGOs that we talked about a few moments ago are the interested people in this sector. They will be there, and they will be able to say when meetings are necessary. They are adults and we cannot dictate to them through legislation and assume they will not know how often they need to meet.

Amendment to amendment by leave, withdrawn.

Chairman

Amendments Nos. 14 and 15 are out of order as they involve a potential charge on the Exchequer.

Ms O’Sullivan

We cannot discuss translation because it would cost money. Could this point be accepted in principle?

Chairman

It is out of order.

Ms O’Sullivan

That is an amazing concept. I presume we can discuss it on the section.

Mr. Higgins (Mayo)

There is nothing to stop us discussing it on the section.

Chairman

Does the Deputy want to discuss it on the section?

Mr. Higgins (Mayo)

Yes.

Amendments Nos. 14 and 15 to amendment No. 75a not moved.

Chairman

Amendments Nos. 17 and 18 to amendment No. 75a are related to amendment No. 15ato amendment No. 75a and, therefore, amendments Nos. 15a, 17 and 18 to amendment No. 75a may be taken together by agreement.

Ms O’Sullivan

I move amendment No. 15a to amendment No. 75a:

In the last line of the new paragraph (c) of section 8, inserted by subsection (1)(c)(i), after "specified" to insert the following:

"; without prejudice to the foregoing the immigration officer's duty shall be confined to obtaining details of the identity, nationality, passport/visa particulars, means of travel and matters appertaining thereto as may be necessary to establish that the person referred to in paragraph (a) is seeking asylum".

This and the related amendments seek to ensure that the role of the immigration officer does not extend beyond what that role should be. This amendment seeks to limit the broad-ranging inquiry by an immigration officer that might otherwise be possible. An immigration officer's role should not be to decide whether a person qualifies under the category of asylum seeker. The amendment seeks to clarify the limitations of the duties of an immigration officer.

It is necessary to ensure that people seeking asylum are properly covered under human rights legislation in this country and under international law. This matter is also the subject of a crucial section of the Refugee Act. It is important to clarify the role of the immigration officer and limit it to ensure that people seeking asylum will have access to a fair hearing.

There is also the issue of access to legal representation. I would like the Minister of State to clarify that a non-national entering the country would have access to legal representation.

Miss M. Wallace

It should be remembered that the preliminary interview serves two purposes. It gathers information necessary from a strictly immigration point of view and also establishes basic facts about the existence of an asylum claim. That is the case whether the asylum claim is made on entry into the State at a port or airport or, as is much more usual, at the refugee application centre in Mount Street, having already entered the State illegally and evaded immigration controls.

The effect of amendment No. 15a would be that simply because a person who appears to be an illegal immigrant, that is, a person who is seeking to enter or, as in 85 per cent of cases, who has already entered the State in breach of the requirements of immigration law, seeks asylum, an immigration officer would be debarred from making the normal inquiries into that illegal act. We believe that is not the way to run an immigration service. Immigration officers have a basic job to do. Their job is wide-ranging and is sometimes difficult and sensitive. Part of their job is to detect and deter illegal immigration just as it is part of the job of any member of the Garda Síochána to detect and deter illegal activity generally.

Another significant part of their job is to be on the look out for indications on the part of those entering the State that they may be seeking asylum, irrespective of whether that is conveyed by the use of plain words or by a less well articulated fear of removal. They are trained by the UNHCR in this process and these differing aspects of the job are not mutually exclusive.

I will deal with the two related amendments, as that will give the Deputies more information on this matter. With regard to amendment No. 17, I cannot imagine that an immigration officer interviewing a person who has just arrived at a port or airport could fulfil his or her duties without asking the basic question - why has the person has come to Ireland. It is unrealistic to try to exclude such an elementary question from such an interview. The person may reply that he or she has come here for a holiday in which case the notion of an asylum application does not arise and the immigration officer would proceed, perhaps, to check that the person has sufficient funds for the duration of the stay.

Such questions are part of routine immigration work and any of us might be asked them by an immigration officer on entering another country. A person entering this country may say that he or she has come here because he or she wants to apply for refugee status or the answer may be less coherently expressed, which gives rise to a suspicion in an immigration officer's mind that this might be a candidate for the asylum process. If that is the case, it is the first step in bringing the procedure of the Bill into play.

This interview is preliminary in nature and is only for the purpose of establishing the basic facts about an applicant and not, I stress, for exploring the substance of a claim, which is a matter for a later step in the process covered in detail under section 11 of the Refugee Act. It would be wrong to make the assumption that paragraph (e) is an attempt to have an immigration officer or, at this early stage of the process, the commissioner's authorised officer, explore the substance of a case.

Amendment No. 18 seeks to exclude from the preliminary interview of a person who is in the process of identifying himself or herself as an asylum seeker, having just arrived either at a port or at the offices of the commissioner, any inquiries as to whether such a person has a visa, a work permit or permission to remain in the State. While I recognise that this information may not go to the substance of the asylum application, that is not the point of the preliminary interview. The information may be pertinent to the manner in which the application is dealt with or relevant to deciding what should happen to the applicant after the asylum process has been completed.

In the case of a person who is living and working here on foot of a work permit and has permission to remain in the State but as a result of a change in the political circumstances in his or her country of origin he or she decides to apply for asylum here, the making of such an application does not in itself change such a person's immigration status. If at the end of the asylum process that person is not recognised as a refugee, unlike the position of a person is otherwise illegally in the State, applies for refugee status and is refused recognition, the question of return to the country of origin may well not arise. In those circumstances, the said applicant would be entitled to continue living and working here during the asylum process on the same basis as that which applied before he or she applied for refugee status. It is important that applicants should be aware of that fact from early in the process.

From an immigration point of view, my Department needs to be made aware of each instance of illegal entry, even if this awareness arises sometime after the entry and even though, because of the asylum application, there can be no question of refusing leave to land and sending the person back straightway. It is not good enough to assume that every asylum applicant has entered illegally. An immigration officer or the commissioner's authorised officer should be able to ask such a person basic questions about the legality or otherwise of his or her entry into or presence in this State because such a person may have entered illegally and subsequently seek asylum.

At the preliminary stage when the person in question is in the process of letting it be known that he or she is an applicant for asylum and an immigration officer or the authorised officer of the commissioner is establishing the basic facts about the applicant - not, I stress, exploring the substance of the claim, which is a matter for a later stage in the process - it must be possible to ask this question as well as the others listed in amendment No. 75a.

It is not clear which of the two amendments the Deputies prefer. There is an inherent inconsistency between an immigration officer or an authorised officer being debarred from asking questions about the legal basis for a person's entry into or person's presence in this State, as in amendment No. 18 to amendment No. 75a, and permitting such an officer to ask for passport-visa particulars as evidence for a legal basis, as provided for in amendment No. 15a to amendment No. 75a.

Ms O’Sullivan

A series of issues arises. The preliminary interview is important. A non-national entering the State would meet an immigration officer. It is important to clarify that if a non-national is seeking asylum that is made clear to the immigration officer and that such an immigration officer does not conduct a investigation that would rightly belong to the next stage of the process. That is the reason we were concerned about the point with regard to language, but we are not allowed to debate that amendment. It is also the reason we are concerned that we should limit the amount of information that the immigration officer can seek. He should not conduct the preliminary inquiry but ascertain if the person is seeking asylum.

At what point does a person who comes to the State and tells the immigration officer they are seeking asylum have access to a solicitor? This part of the Refugee Act is dealt with in this section. We want to be clear that the immigration officer does not step beyond his or her specific duties and that the person seeking asylum gets beyond the immigration officer to the next stage of the process and knows what is happening in relation to the language.

Miss M. Wallace

Once it is established what is happening, asylum seekers are immediately advised about access to a solicitor and the High Commissioner.

Ms O’Sullivan

Will the process be fully put in place when the Bill is implemented?

Miss M. Wallace

Yes. Section 8(1)(b) of the Refugee Act, 1996, states:

The immigration officer concerned shall inform a person referred to in paragraph (a), where possible in a language that the person understands, that he or she may apply under that paragraph for a declaration and that he or she is entitled to consult a solicitor and the High Commissioner.

It may be impossible to communicate in a language people understand.

Ms O’Sullivan

We are still concerned about language. The clause, "where possible", is a qualifying one in the legislation. We must also ensure effective access to legal advice.

Miss M. Wallace

By using the word "effective", does the Deputy mean whether they understand what is being said to them? There are 15 languages available to them. I hope the vast majority of them will understand one of the 15 languages available. They have immediate access to a solicitor and the High Commissioner. They are given clear details about how to contact a solicitor and the High Commissioner. That process is in place throughout the country. As soon as they are told of their right to access legal advice, they may say they will not answer any more questions until they contact their legal adviser. That is then accepted.

Chairman

What percentage of people look for asylum at the point of entry?

Miss M. Wallace

About 85 per cent of cases turn up at the Lower Mount Street offices.

Chairman

About 15 per cent of people look for asylum at the point of entry.

Miss M. Wallace

It has varied between 5 and 15 per cent over the past three years, but 15 per cent would be the maximum percentage of people who declare themselves on arrival.

Mr. Higgins (Mayo)

I support the amendment which seeks to ensure that the applicant is treated in the fairest possible way. The language issue is crucial. Someone who comes here from a third country is apprehensive and their competence in the English language is often lower than the level required to make their case. That is why it is important that language facilities are made available to the immigration officer. Amnesty International has interviewed people who were not able to make a good case for themselves until the information was extracted from them using the facilities available. What looked like a weak case initially became a strong case when the finer details were fleshed out. The officer at the port of entry should not have a judicial role but should only try to extract the administrative details to enable the person to get legal advice and make a formal application for a declaration.

Miss M. Wallace

The immigration officer does not have a judicial role but an investigating one. Interpretative facilities are available at the various stages of the process. The Deputy's concerns arise when one talks about the substance of the case, but full interpreting facilities will be available at that stage. The immigration officer will only investigate the case at the point of entry. We are familiar with this as we have travelled to the US where we were asked the basic questions on arrival. The immigration officer must be able to ask the basic questions at the point of entry. The substance of the case is dealt with at another time.

Mrs. Barnes

We welcome the fact the immigration officer does not have a judicial role. What training can be given to officers to ensure there is no discrimination at the point of entry? We have heard stories of people of a certain colour or ethnic origin who were stopped before other people. We must be careful to ensure this does not happen. We are an homogeneous people without much experience of cultural or ethnic groups. Many people were distressed that decisions were made based on their ethnic origin rather than on their need for refuge. What type of training can be given to officers at the point of entry to ensure this does not happen? It is important because that is when the first contact is made.

Miss M. Wallace

I accept the Deputy's point. We have had personal experience of going to the United States and being asked various questions at the point of entry. When I went to the United States on holidays, there was always a suspicion I was there to work. The UNHCR provides the necessary training so that should allay the Deputy's concerns.

Amendment to amendment put.

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

Tá

• Barnes, Monica.
• Fitzgerald, Frances.
• Flanagan, Charles.
• Higgins, Jim (Mayo).
• McManus, Liz.
• O’Sullivan, Jan.

Níl

• Ardagh, Seán.
• Cooper-Flynn, Beverly.
• Hanafin, Mary.
• McGennis, Marian.
• McGuinness, John.
• Ryan, Eoin.
• Wallace, Mary (Minister of State at the Department of Justice, Equality and Law Reform).
• Wright, GV.

Mr. Higgins (Mayo)

I move amendment No. 16 to amendment No. 75a

To insert the following subparagraph after subparagraph (i) in subsection (1)(c):

"(ii) the insertion of the following paragraph to subsection (1):

'(d) An unaccompanied minor or person with a legal disability must have a legal representative or a social worker present during any interview.'.".

Ms O’Sullivan

The amendment proposes that an unaccompanied minor or a person with a legal disability must have a legal representative or social worker present during any interview. This is designed to safeguard the rights of these vulnerable groups and is in line with UNHCR guidelines and recommendations on best practice. It is important that an unaccompanied minor or a person with a legal disability has an appropriate person, either a legal representative or a social worker, representing them at the interview.

There is much concern at the UNHCR and among others concerned with this issue that unaccompanied minors and people with a legal disability should have the proper protection to ensure they are represented during the process of dealing with immigration officers, that they understand the process and that their rights are properly protected. The amendment is self-explanatory and is particularly important for obvious reasons. These people need protection more than others who find themselves in this situation.

Miss M. Wallace

I hope we will be able to satisfy the Deputy that this is already provided for in that the thrust of section 8(5) of the Act is clear and places each unaccompanied minor who comes to notice forthwith in the care of the local health board whose job it is to act in loco parentis. There is a requirement on the health board, as part of its fulfilment of that role, to ensure that it provides straightaway whatever the child needs by way of food, shelter and protection, including ensuring that the child is suitably accompanied during any questioning by an immigration official, whether an asylum application has been made, and deciding whether such an application should be made.

The sequence of events is clear. Where an unaccompanied child arrives at a port, once the immigration officer is satisfied that the person is under age and unaccompanied, the health board is contacted straightaway and no questioning, other than basic inquiries after the child's comfort, which any responsible adult might offer to a child, can take place until a suitable companion has been arranged by the board.

Likewise, where a child presents at the offices of the refugee applications centre, soon to be the commissioner's office, the sequence of events is equally clear. Once the officer at the reception counter is satisfied that the person is under age and is unaccompanied, the health board office located across from the reception area is immediately contacted and takes responsibility for the child. It is then for the health board to decide what steps should be taken in the child's interest, including whether to apply for asylum, and to ensure the child is appropriately accompanied at each contact with officials. All this is a necessary implication of the health board's role in relation to the child as required by the Child Care Act, 1991, and no further legislation is needed.

As far as persons under a legal disability are concerned, a provision along the lines proposed in the amendment would place an onus on immigration officers and officers of the commissioner which could be very difficult to discharge. How is such an officer to know whether a person is under disability without first conducting an interview? What happens if, during the course of an interview, the officer gets an inkling that all may not be well mentally with the person? Is such an interview to be rendered invalid?

What is important is that common sense and humanity be brought to bear in such cases but not to tie the matter up with such legislative strictures that either the letter or the spirit of the law becomes impossible to operate. It is possible to rely on the common sense and humanity of officers who encounter a person who may have a learning disability. We cannot expect to legislate in absolute detail for every possibility which might arise, but we can put our trust in the commission's officers and immigration officers to ensure the special problems of a person who appears to be suffering from a degree of mental instability or incapacity will be dealt with humanely.

Ms O’Sullivan

Is it legislatively provided for that the health board must act in such a way?

Miss M. Wallace

The Refugee Act, 1996, states that where it appears to an immigration officer that a child under the age of 18 years who has arrived at the frontiers of the State is not in the custody of any person, the immigration shall, as soon as practicable, so inform the health board in whose functional area the place of arrival is situated and thereupon the provisions of the Child Care Act, 1991, shall apply in relation to that child.

That is replaced by the Government amendment which further strengthens it. Amendment 75a states that where it appears to an immigration officer or an authorised officer that a child under the age of 18 years, who has either arrived at the frontiers of the State or has entered the State, is not in the custody of any person, the officer shall, as soon as practicable, so inform the health board in whose functional area the child is and thereupon the provisions of the Child Care Act, 1991, shall apply in relation to the child.

Mr. Higgins (Mayo)

That is intended for unaccompanied minors. I take the Minister's point about section 8(5) of the Act, which straightaway triggers the Child Care, 1991, but in relation to a person with a legal disability, is there any scope for movement or flexibility? It is difficult enough arriving in a country with a language disability without having a legal one. It is fine for the Minister to say we have to rely on the discretion and humanity of the interviewing person but can anything be done to accommodate the spirit of what is intended and to afford the maximum protection by making provision for a legal representative or a social worker to be present during the interview of a person who is deemed to be mentally unstable or who has a mental disability?

Miss M. Wallace

This an area about which I have some knowledge. It is very difficult to define this in legislation and we tried to do so before. If I was to arrive at an airport in China, I could give the appearance of mental instability which I may not have. How is the unfortunate immigration officer to define my problems? On the other hand, I may have a mental instability which may be difficult to detect. To attempt to enshrine this in legislation is virtually impossible, as we have found over the years in trying to define disability itself. The definition of disability is very clear. If one is sitting in a wheelchair, one has physical disability and if one has a hearing or sight problem, one has a sensory disability. If one is born Down's Syndrome, it is clear one has a learning disability which is traditionally described as a mental handicap.

It becomes very difficult when one talks about what we describe as a hidden disability. Because it is hidden, it is impossible for people to be certain either way. We have to rely on the training provided to the individual dealing with the person. Deputy Barnes raised concerns earlier. I assure her that training is provided by the UNHCR and a separate training session was held for the Garda Síochána five weeks ago in Dún Laoghaire. Ongoing training is the way to address Deputies' concerns, not by attempting to deal with them in legislation.

Ms O’Sullivan

The age of a child who is brought into the country would be known.

Miss M. Wallace

Does the Deputy mean it would be known from the documentation? Usually that is no longer available.

Ms O’Sullivan

I know the Minister of State has difficulties with the complexities of the definition of a legal disability. However, as regards an unaccompanied minor who enters the country and is interviewed by an immigration officer, is the Minister of State saying the health board is contacted immediately and either a legal adviser or social worker made available as soon as the process starts?

Miss M. Wallace

As the child is under 18, the health board acts in loco parentis and determines what is required.

Ms O’Sullivan

I do not have the Child Care Act indelibly printed on my brain. Nonetheless, I am not sure that provision means a social worker or legal adviser will be present in such a case.

Miss M. Wallace

This is a case where the health board acts in loco parentis and determines what the child needs in terms of food, shelter and protection. There is no point in demanding a solicitor or social worker immediately. The health board establishes what are the child’s needs. The Refugee Act states in this regard in section 8(5)(b):

Where it appears to the health board concerned, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the health board shall arrange for the appointment of an officer of the health board or such other person as it may determine to make an application on behalf of the child.

The health board must assess the child's needs and act in loco parentis under the Child Care Act.

Ms O’Sullivan

The concern is about what happens in reality. The danger for a child in this situation is that the health board might decide, without access to the legal or social worker process, that the child should be put on the next plane home.

Miss M. Wallace

Immigration officers do not come into play at this stage. Once it is established the child is under 18, the health board decides what is best for the child. It may be the best thing to send them home. That must be determined in each case. The health board must determine if the child will meet an immigration officer, if so, who will accompany them and if an asylum application should be made. All these come into play and it is different in each case. The Child Care Act caters for the child's best interests.

Ms O’Sullivan

I am concerned to ensure the information and advice as to what the child might return to is available. If the health board decides it is in the child's best interests to return home, the appropriate people must be present to ensure that all factors are considered in terms of where the child is returning home to.

Miss M. Wallace

The health board is obliged under the Child Care Act to act on behalf of the child, so the child's best interests are covered by the Act and the health board will take the correct decisions, as it would in any case of a minor covered by the Child Care Act and where it had to step in. We are confident that children in this situation are protected by the Child Care Act, 1991. This is a different scenario because it no longer involves the immigration process. Once it is established the child is a minor, the health board takes over. It is not the Refugee Act or the asylum and immigration procedures which operate but the health board working in loco parentis on behalf of the child.

Ms O’Sullivan

If NGOs have concerns in this regard, it is on the basis of what has happened in the past.

Miss M. Wallace

If there happens to be cases where children under 18 were interviewed in the past by an immigration officer, the passing of this Bill means that cannot happen again. The original Act applied to children turning up at frontiers and the amendment extends that to children within the State who are not at frontiers. Some 85 per cent are in that situation. If NGOs had concerns about such children in the past, we are now amending the legislation to cover such children. At present, practice conforms to the Act. My reading is that it only covers children at frontiers and the amendment covers all children no matter where they show up. When NGOs examine the amendment to the Act as distinct from what is the practice at present, it will be seen in a more positive light. We are doing the right thing in bringing all children under 18 under the terms of the Child Care Act regardless of where they show up.

Amendment to amendment, by leave, withdrawn.

Chairman

Amendment No. 17 to amendment No. 75a was already discussed with amendment No. 15a to amendment No. 75a.

Mr. Higgins (Mayo)

I move amendmentNo. 17 to amendment No. 75a:

In the twelfth line of the new subsection (2), inserted by subsection (1)(c)(ii), to delete paragraph (e).

In the wording of paragraph (e) referred to in the amendment, which states "the reason why the person came to the State", there seems to be a slippage in the normally impeccable drafting standards of the Department of Justice, Equality and Law Reform and the Attorney General's office in that the word "why" would seem to be superfluous. I see "why" as an interrogative which should only be used in the posing of a direct question. The wording, "the reason the person came into the State" should suffice. It is only a small point but it is creeping into daily use and is grammatically wrong and superfluous.

Miss M. Wallace

I am advised by the drafting people that "why" can also be used as a relative and is considered to be correct in that case.

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 18 to amendment No. 75a:

In the thirteenth and fourteenth lines of the new subsection (2), inserted by subsection (1)(c)(ii), to delete paragraph (f).

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 19 to amendment No. 75a:

In the fifteenth line of the new subsection (2), inserted by subsection (1)(c)(ii), after "shall" to insert "be conducted in the presence of the person's legal adviser, who shall have a right to make submissions, and shall".

This amendment seeks to ensure that a legal adviser is present in this situation because these interviews have been conducted without the presence of a legal adviser. I do not know whether the new legislation or the regulations being implemented will improve this situation but perhaps the Minister of State can clarify the position.

Miss M. Wallace

If a person makes an application for asylum at the office of the refugee applications commissioner, as soon as that wish is expressed in however vague a form, the clerk must ask the person if he or she is accompanied by a legal adviser. If the applicant indicates in the negative - it is rare for an applicant at that stage to have arranged for a legal adviser - the commissioner's office is obliged by this amendment not to ask any questions as to who the person is, where he or she comes from, how he or she got here or what he or she wants, without the presence of the legal adviser. The applicant cannot provide any of that information. This amendment would result in the procedures becoming totally unworkable. The proposal is underlined by the fact that the interviewer could not even find out which interpreter to arrange unless the legal adviser was present as he or she would have to ask the applicant about the country of origin. Arranging an interpreter might be a necessary step towards organising a legal adviser. This would be totally unworkable.

Ms O’Sullivan

At what point does the legal adviser have to be present if the person wants such assistance? I am concerned that the legal advice should be available as soon as possible. The legal adviser should be available as soon as the person wishes.

Miss M. Wallace

As soon as the language of the applicant is established, the applicant is advised immediately that he or she is entitled to consult with a legal adviser. Most applicants do not do so but an adviser will be made available if the applicant so wishes. It is important to note that the process stops until the adviser becomes available, if the applicant so wishes. However, most do not want an adviser.

Ms O’Sullivan

Does everything stop once the person indicates that he or she wishes to have a legal adviser present?

Miss M. Wallace

Yes.

Mr. Higgins (Mayo)

The applicant is notified immediately of his or her right to legal advice. The Minister of State said that the majority of applicants decline the advice.

Ms O’Sullivan

I have to accept the assurance of the Minister of State that the legal adviser is brought in as soon as the person makes such a request.

Miss M. Wallace

As soon as the language of the applicant is determined he or she is asked whether he or she wishes to have a legal adviser present. Applicants are told straight away that they can consult a solicitor. The process does not proceed until an adviser is present if the applicant so wishes. Most applicants do not want an adviser but they are asked about their name and country of origin. This is just the initial stage. Most applicants opt for a legal adviser at the substantive stage when they are entering the detailed part of the process. Deputy Higgins expressed surprise that they did not want a legal adviser initially.

Mr. Higgins (Mayo)

What degree of detail is gone into at that stage? If someone makes an application in Mount Street the first step is to establish the identity of the person and so on. What degree of detail is gone into at that stage in the absence of the legal adviser?

Miss M. Wallace

I have some examples. A person might give his or her name and country of origin and state that he or she does not want to return to that country because he or she is afraid. Amendments Nos. 8 to 11, inclusive, to amendment No. 75a give a list of items such as whether the person wishes to make an application for declaration, the person's nationality, mode of transport, the reason he or she came to the State and the legal basis for entry into or presence in the State. The person may state that he or she is on a work permit but that things have changed in the country and he or she now wishes to apply for asylum. It is relevant to know that the person may have entered legally but is now in a different situation.

Mr. Higgins (Mayo)

The majority of applicants would have entered the country illegally. They may be entitled to asylum but they would have entered illegally. That is why Deputy O'Sullivan is anxious that the legal presence should be established at the earliest possible date. At that stage, in view of the fact that they entered the country illegally, they have technically broken the law. In addition, they are being interviewed as to why they came here, the legal basis for their entry into the country and so on. The person without the necessary legal advice at that point may present a case which goes against them at the final determination of their application.

Miss. M. Wallace

At the initial stage applicants are issued with ID cards and such matters. The substance of the case is not entered into. This stage merely concerns who they are, where they come from and what their story is. They are then issued with an ID card based on their category. This stage of the process concerns determining their category.

Amendment to amendment, by leave, withdrawn.

Chairman

Amendment No. 20 to amendment No. 75a is out of order because of a potential charge on the Exchequer.

Amendment No. 20 to amendment No. 75a not moved.

Sitting suspended at 1.50 p.m. and resumed at7 p.m.

Chairman

We resume with amendment No. 21 to amendment No. 75a. Amendment No. 22 to amendment No. 75a is an alternative and amendment No. 23 to amendment No. 75a is related. All those amendments shall be taken together by agreement.

Ms O’Sullivan

I move amendment No. 21 to amendment No. 75a:

In the fifth line of the new subsection (3)(a), inserted by subsection (1)(c)(iii), after "origin" to insert ", whether the person is a minor not in the custody of any person".

These amendments involve an accompanied minor. When a person is an unaccompanied minor, that is a relevant factor which should be communicated to the UN High Commissioner for Refugees. The UNHCR should automatically receive a transcript of every interview with an unaccompanied minor. There is concern about provision for unaccompanied minors in this legislation. We want to ensure that such a person is given the particular consideration one would expect for a young person on his or her own entering a country to seek asylum. The UNHCR is concerned about this and has worked on the question. The amendments will ensure that there will be adequate protection, the UNHCR will be involved and a transcript of the interviews will be sent to it.

Miss M. Wallace

These amendments are opposed. They propose to put in place a statute for the communication of information to UNHCR in the case of a particular class of operative, unaccompanied minors. There is no difficulty with the principle of supplying data to UNHCR but the Minister made clear in the explanatory notes that the aim is to accommodate its every requirement for the supply of information about and access to the asylum process and individual cases on whatever basis it wants.

In discussions with staff in the Department, which form a regular series of contacts between the two agencies, it was made clear that the strict requirements of the Refugee Act as it stands to supply information to UNHCR would, if observed to the letter, as every statute must be, snow it under with so much data that it were not able to digest it in its small office here. The only thing worse than a famine of information is a surfeit of information. Sensibly, it was asked if we could take the opportunity to reduce the strict requirements of this amendment, and we did that.

The amendment proposes to provide a requirement for the bare minimum information to be sent to the UNHCR as a matter of course, with provision only where UNHCR request it. The UNHCR has absolute flexibility to ask for more information of a particular type or about particular classes of cases, or a combination of these, or to ask for information on a particular named case. The Act, as amended, will create a requirement that whatever the UNHCR asks for will be given to it. If the UNHCR asks for more information or all information about unaccompanied minors, it will have to be given. If it asks for that information flow to stop, it will stop at its request. If it is made a requirement under the Act by these amendments, it will not be able to ask for it to stop. This amendment would be a step back from the flexible approach the UNHCR has asked for and is being given. For that reason I would ask Deputies to withdraw the amendment.

Mr. Higgins (Mayo)

From the Minister's experience, has she or her officials information on how prevalent is the problem of unaccompanied minors?

Miss M. Wallace

Approximately 33 in the past two years.

Mr. Higgins (Mayo)

That is our impression of the situation. Therefore, we do not see it as being too much of an incumbrance to have the notification issued to the High Commissioner in all cases as to whether the person is an unaccompanied minor. The number per year is about 15 or 16 minors. I support the thrust of the amendment in the names of Deputy Howlin and Deputy O'Sullivan, which is very much like my amendment.

Chairman

I would have thought that the figure for unaccompanied minors would be more than 33 in number. What is the range in age?

Miss M. Wallace

I do not have the details but I will supply them.

Chairman

I would be interested to see what ages we are talking about.

Ms O’Sullivan

I wish to seek clarification on the Minister's comments. My understanding is that the UNHCR specifically wants certain flexibility and discretion in this regard. It could ask for information when it wishes. Would it be automatically informed of an unaccompanied minor in each case?

Miss M. Wallace

For example, if the UNHCR sought a list of all unaccompanied minors or details with regard to unaccompanied minors, we would have no problems handing over that information or any information it would require. It would get the full list as distinct from the background papers.

Ms O’Sullivan

Including the information that this person is an unaccompanied minor?

Miss M. Wallace

It does not currently get that information but if it wants, it can. There is no problem in handing over all the files of the 33 or so unaccompanied minors. Basically it does not want all the paper work that is provided for in the legislation, but if it needs more it will ask for it. There is no problem from that point of view.

Ms O’Sullivan

Assuming representatives of the UNHCR read the debate of this committee, they may subsequently request that whenever an unaccompanied minor presents to seek refugee status it would automatically be given information. Our amendment seeks to ensure that that information is available to them.

Miss M. Wallace

There is no problem in supplying the information that is asked for on every occasion, or asked to be marked on this list.

Amendment, by leave withdrawn.

Amendments Nos. 22 and 23 to amendment No. 75a not moved.

Miss M. Wallace

We will bring forward a technical amendment on Report Stage with regard to clarification of information in individual cases.

Chairman

Amendment No. 24 to amendment No. 75a is in the names of Deputies Howlin, O'Sullivan and Higgins. Perhaps I could have the agreement of the committee to vacate the Chair for 15 minutes and for Deputy Barnes to substitute. Agreed.

Ms O’Sullivan

I move amendment No. 24 to amendment No. 75a:

In the first line of the new paragraph (a), inserted by subsection (1)(c)(v), after "Where" to insert "it is stated by the individual, or where".

This amendment seeks to ensure that an immigration officer will not make a subjective assessment of the child's age or the role of the accompanying person who may or may not be a suitable care giver. It is to ensure that the immigration officer does not take it upon himself or herself to make a subjective assessment but that the individual is allowed to have his or her voice.

Miss M. Wallace

This amendment is opposed because it proposes that a child who says "I am not accompanied by a guardian" should be treated, because of that statement, as an unaccompanied minor for the purpose of the Act. The amendment is fraught with pitfalls because, for example, any child who apparently breaks away from what seems to be a family group on arrival at a port or airport and says "I am not with them" will give rise to the suspicion in an immigration officer's mind that there may be something worth investigating further. If it turns out that the child is only throwing a tantrum perhaps after a long acrimonious charter flight home, it hardly seems appropriate that the Refugee Act mechanism should swing into action. On the other hand, if the inquiries in such a case turn up something more insidious, the immigration officer will involve the health board because that is the body with the skills, resources and legal clout to take matters further. The immigration officer may also, in his or her capacity as a law enforcer, have to commence investigations of a criminal nature if there are indications that the child has been abducted.

Credit must be given to immigration officers for their common sense in operating the provision in section 8(5), the spirit of which is already in operation even if the law to back it up has not yet commenced. It is one thing to specify the principles in statute to try to cover the most likely occurrences, but to take matters to the extreme, as this amendment seeks to do, is both unnecessary and unhelpful in terms of the practical approach that is required in dealing with the flow of people arriving in on any given day at port terminals and airports.

Mr. Higgins (Mayo)

The Minister talks about taking matters to the extreme. The example of a tearaway with sun stroke from Tenerife is taking it to the extreme. It certainly is very imaginative. I support the thrust of what we are trying to achieve and that is to take the matter beyond the realms of appearance of subjectivity and give it more definition. I cannot see how the amendment would dilute the Bill. It would actually strengthen it.

Miss M. Wallace

What would happen if the child came back from Tenerife and said, "I have had enough of them, I have lived with them for the past fortnight and I am absolutely sick of them, I do not want to be with them anymore", and we implement the Refugee Act, 1996?

Mr. Higgins (Mayo)

I presume we will have documentation, passports and so on?

Miss M. Wallace

That is not what is proposed in this amendment. It proposes that the child simply denies that he or she is with the person in question, and the Refugee Act would be applied. That is what the amendment entails.

Mr. Higgins (Mayo)

We are talking about a child under 18 years of age, perhaps 17 years of age. That child is a minor and is obviously in the custody of the parents. I do not see how someone would decide to move a short distance away and announce that he or she is not with them. I cannot see how that would hold water. The child would have an airline ticket and identification, may or may not have a passport and is under 18 years of age. Will the Minister tell us whether there are examples of that happening? Have immigration officers reported that this has occurred, from the point of view of making the case as to its likelihood, which is the point the Minister makes?

Miss M. Wallace

Unaccompanied minors have not, to date, shown up at ports, they have shown up at the immigration office. It is not something that would arise every day of the week. We are concerned that the unaccompanied minor might deny that he or she is with a particular person and we would like to add "it is stated by the individual". I would give Deputy Higgins a guarantee that immigration officials have not come across bold children at airports.

Ms O’Sullivan

The Minister is saying that this amendment would not add to the protection of the child in any way.

Miss M. Wallace

Common sense must apply. Unaccompanied children do not regularly turn up at ports of entry, that has not happened to date. Were even one to turn up we want to be sure that the correct measures are in place. It is common sense to require it at that stage as distinct from overdoing it in terms of detail.

Amendment to amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 25 to amendment No. 75a has been ruled out of order as it involves a potential charge on Revenue.

Ms O’Sullivan

I cannot figure out how that amendment would involve a charge on Revenue. Is it in the cost of minding the child when he or she lands?

Miss M. Wallace

The appointment of the guardian ad litem is where the cost would arise.

Acting Chairman

The amendment is out of order, though I have been told that the principle may be discussed when we come to amendment No. 75a.

Mr. Higgins (Mayo)

Who makes the ruling on such an issue? We talk about the extreme when we talk about the Tenerife tearaway, but on the decision to rule the amendment out of order, is it your office or the Department of Justice, Equality and Law Reform which rules it so?

Acting Chairman

The clerk has suggested that we might, perhaps, tease out this matter in greater detail in private on a later occasion.

Mr. Higgins (Mayo)

The operation of the charge, the principle or the decision?

Acting Chairman

The decision.

Ms O’Sullivan

One could put down a range of amendments to a Bill that would potentially have some cost to the Exchequer. A significant number of matters would be ruled out were that to be applied - there is even the cost of printing, apart from anything else.

Acting Chairman

Perhaps we might get a fuller explanation later and not delay proceedings now. Does the committee agree that we move on? Agreed.

Amendment No. 25 to amendment No. 75a not moved.

Ms O’Sullivan

I move amendment No. 26 to amendment No. 75a:

In the last line of the new paragraph (a), inserted by subsection 1(c) (v), after "child" to insert "and such child shall not be refused leave to land in the State and shall not be made the subject of a deportation or exclusion order for so long as the child is not in the custody of any person."

This is to ensure that a guardian would be appointed rather than that the child would be sent back.

Miss M. Wallace

This amendment is opposed to the extent that it seeks to exempt every unaccompanied child who is refused leave to land in the State. It is too sweeping. The arrangement in the Refugee Act, 1996, which is being implemented and practised on an administrative basis is that when an unaccompanied minor arrives in the State the relevant health board assumes responsibility for the child under the Child Care Act, 1991. If, in a particular case, the health board establishes that the child has, for example, been sent ahead by the parents who are waiting in Cherbourg to see how things develop here, it may decide, in exercising the guardianship role, that it is not in the interests of the child to make an asylum application on its behalf but rather to reunite the child with its lawful guardians, its family in Cherbourg. This reunification of the family may be achieved by refusing the child leave to land. The relevant facts are established to the satisfaction of the health board and of the relevant immigration officers sufficiently soon after the arrival of the child in Ireland.

To the extent that the amendment would prevent an unaccompanied child ever being the subject of a deportation order, the arguments have already been rehearsed at some length in the debate on amendments Nos. 1 and 2 to the Bill and the Deputies opposite lost the argument in that instance on a division. Rather than rehash the arguments here, we consider this a clear position and that the arrangement in the Refugee Act, 1996, as it stands, is sufficient.

Ms O’Sullivan

The purpose is to ensure that if a child arrives unaccompanied there is no danger that he or she will be sent back unaccompanied.

Miss M. Wallace

We spoke about this earlier today. In some cases it may be the correct thing to do. The matter must be looked at on an individual case basis. Here we are talking about the best interests of the child. The health board will look at it purely from the child's perspective as distinct from that of the Department of Justice, Equality and Law Reform. From the child's perspective, the health board will take the decision as to whether the child should be returned to Cherbourg or Paris, or to wherever the family may be. We must allow for the possibility that that may occur and that it must be allowed to happen if it is in the best interests of the child.

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 27 to amendment No. 75a:

In the last line of subsection (3)(c), inserted by subsection (1)(d)(i), after "1946)" to insert "and a person who is issued with a certificate shall be deemed to have complied with Article 11(1)(a) of that Order".

Miss M. Wallace

If it is of any help to Deputy O'Sullivan I am willing to accept this amendment.

Ms O’Sullivan

That is a great relief.

Miss M. Wallace

We are willing to accept it because it spells out clearly an important intended effect of the Government proposal of the new section 9 (3)(c).

Ms O’Sullivan

I thank the Minister.

Amendment to amendment, agreed to.

Ms O’Sullivan

I move amendment No. 28 to amendment No. 75a:

To insert the following subparagraph after subparagraph (i) in subsection (1)(d):

"(ii) the substitution in subsection (4)(b), of 'until six months after the date that an application for asylum is lodged' for 'during the period before the final determination of his or her application for a declaration',".

This amendment relates to the right to work for asylum seekers, on which we had a debate earlier and on which the division was equal, although it was decided in favour of the Government. The debate was interesting as two of the speakers on the Government side argued in favour of the right to work. It is a subject for debate at Cabinet but my party's view is that after a certain period asylum seekers should have the right to work.

Miss M. Wallace

This is the view of Deputy O'Sullivan's party but, as she knows, we are not in a position to enter the fray again on this matter. There was a lengthy debate on it earlier. Perhaps we should move on. We could talk about this matter all day.

Mr. Higgins (Mayo)

We will soon be in the summer recess ending any opportunity for one-to-one dialogue with the Minister. Is there any prospect of a resolution of this matter? There is a clear polarisation in Government. There are strong arguments for it but there is a reservation on the part of the majority party in Government. Apart from the right to work itself there are economic considerations, although some would say these should not be part of the debate. ICTU and IBEC support it, and there are skills demands. All logic points to it. When the economy begins to slump, and some economies depend on cyclical factors, then there may be a surplus of such people. Allowing for the present considerations, the predictions, the demands and the national consensus that seems to exist across the spectrum, why is it that only one part of the Government has a negative influence on the matter? Can we expect a decision on it? It has been long-fingered, side-footed and deferred.

Ms M. McGennis

I ask the Minister if a decision was made by Cabinet to allow asylum seekers to work, could it be done by regulation or ministerial order or would it require legislation?

Miss M. Wallace

It would not require legislation as it could be done administratively. Therefore, if the Government were to decide to take that decision, it would be possible to have it implemented. Deputy Higgins is pushing the wrong door in his references to IBEC and ICTU because I represent Irish people with disabilities, 80 per cent of whom are unemployed. IBEC tells me it cannot get people to work, yet 80 per cent of those I represent cannot get jobs because they are wheelchair users. This matter is before the Cabinet and will be decided in the next few weeks and the Deputies will have clarity on that particular point.

Acting Chairman

I thank the Minister of State. We appreciate the slight deviation and final discussion on that matter.

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 29 to amendment No. 75a:

To insert the following subparagraph after subparagraph (i) in subsection (1)(d):

"(ii) the insertion in subsection (5)(b) of 'where reasonable and having due regard to the circumstances of the individual' after 'An immigration officer may',".

This amendment seeks to ensure that the power involved is subject to reasonable cause. We have put this argument at earlier stages in this debate on this Bill because we want to ensure there is reasonable cause for the acts of an immigration officer. An immigration officer is a powerful person to someone who seeks asylum or refugee status. We want this safeguard.

Miss M. Wallace

This amendment is opposed because it is implicit and well settled law that any administrative act must be carried out in a reasonable way in any section of public administration. Any perceived unreasonableness is susceptible to judicial review. It goes without saying, therefore, that the reasonability criterion applies not only to the reporting requirement at section 9(5)(b) but also to section 9(5)(a) which permits the imposition of a requirement to reside in a particular area or district. It would be unreasonable not to have due regard to the circumstances of the individual in those cases. Hopefully, it will be clear, as with all administrative acts, that people will be carrying out same in a reasonable fashion.

Mr. Higgins (Mayo)

This is a repeat of the arguments we made earlier today on the forcible deportation of a person and the degree of violence or physical force that might be used. The law is there, the intention is there and we do not doubt the Minister of State's intention of writing it into the record. However, we cannot see why a categorical written assurance would not be written into the Bill. We made the same argument, for example, for taking into consideration the individual's physical and mental well-being, where reasonable, and having due regard to the circumstances of the individual. We seek to insert "where reasonable and having due regard to the circumstances of the individual".

Miss M. Wallace

The parliamentary draftsman advises that these particular words are unnecessary because the law is well settled and the issue of being reasonable is well established. This amendment could apply equally to paragraph (a) and paragraph (b) and to other sections; there is no need to repeat it throughout the legislation.

Ms O’Sullivan

So this is covered in the legislation?

Miss M. Wallace

In law.

Ms O’Sullivan

But not in the specifics of this legislation.

Miss M. Wallace

It is not necessary to repeat it in every item of legislation; it is well settled law.

Ms O’Sullivan

It is interesting that in an earlier debate it was considered important by the Minister of State that the matter of resisting deportation should be inserted in this legislation despite the fact that it was already in the law.

Miss M. Wallace

No, that was not specific but needed to be made specific. It would not be an offence if it was not put into the legislation. In order to cause it to be an offence we have to put it into the legislation.

Ms O’Sullivan

What we seek to insert in the Bill seems reasonable. The Minister of State says it is reasonable but not necessary to have it inserted.

Miss M. Wallace

No, it is already in settled law.

Ms O’Sullivan

Is it specifically in relation to an immigration officer?

Miss M. Wallace

Every administrative officer serving the public must carry out administrative duties in a reasonable fashion and any perceived unreasonableness is susceptible to judicial review.

Amendment to amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 29a to amendment No. 75a:

To insert the following subparagraph after subparagraph (i) in subsection (1)(d):

"(ii) the deletion of subsection (8)(e),".

This amendment deals with the powers of the Garda Síochána to detain people it thinks are going to leave the State illegally. I refer to an amendment that the Minister for Justice, Equality and Law Reform submitted on Report Stage of the original Refugee Act, 1996. He thought it unreasonable and undesirable to have the powers that were in the original Act. Maybe he is still of that opinion.

Miss M. Wallace

I met former Deputy Joan Burton in the corridor and I will inform her that the Labour Party has changed its mind on this issue. This amendment seeks to remove from the list of criteria for the detention of an asylum applicant the paragraph which covers the protection of the common travel area. Deputies may be familiar with the common travel area arrangement that exists between Ireland and the United Kingdom whereby citizens of either State can travel freely in either direction without the requirement to carry a passport or other national identity card. It is greatly valued and is important from economic, social, tourism and cultural points of view.

The duty of the State to guard and protect this arrangement in the public interest has been recognised by the courts. The High Court case of Kweder in 1994 identified this requirement. It is so significant that, in order to preserve it, Ireland and the United Kingdom negotiated special protocols to the Amsterdam Treaty in order for both states to be able to continue to operate it under the new arrangements for freedom of movement in that Treaty.

An essential element of these arrangement is that if a person arrives at Heathrow airport, and it appears to the immigration officer that the person's intention is to travel further to Ireland, inquiries will be made of the person to establish whether he or she has sufficient documentation to permit that, or is otherwise likely to meet Irish immigration requirements. If not, the UK immigration officer has the power, under UK immigration law, to refuse that person leave to land in the UK and the person will, in the normal course of events, be returned whence he or she came.

Similarly, arrivals here who appear as if they intend to travel to the UK, will be subject to the same scrutiny and may be refused leave to land if they do not meet UK immigration criteria. The criterion at section 9(8)(e) is designed to prevent this important control from being circumvented by an applicant for asylum.

Consider the example of a non-EU national arriving in Rosslare from Cherbourg carrying only sterling, with a series of addresses in Dorset but having a passport bearing a refusal stamp from the Dover port authorities. The immigration officer correctly refuses the person leave to land on the grounds that the intended destination is the UK whereupon the person applies for asylum. The effect of the asylum claim is as it should be, to set aside immediately the return to Cherbourg, the port of embarcation, which would otherwise be the norm. Without the provision which the Deputy's amendment seeks to remove, the supposed asylum applicant is immediately free to take the Fishguard ferry, for example, in blatant disregard of the common travel area arrangement.

It is clear that the provision is necessary and drawn widely so as to encompass future arrangements which the State may enter into, in particular the Schengen arrangement which our EU partners have subsumed in the framework of the Amsterdam Treaty and in relation to which Ireland has a special protocolumn That Treaty preserves its right to participate when and to the extent it considers desirable in the future.

I have given a lengthy explanation but it stresses the importance of the common travel arrangements.

Ms O’Sullivan

I appreciate the difficulty posed by the common travel arrangement. It is important to preserve these arrangements where they exist because they are of benefit to many people. I seek to balance the matter to ensure that a person will not be detained unnecessarily and has a fair opportunity to explain their circumstances. Detention is a serious matter, and a person should not be detained because they might fit into the scenario the Minister of State described of having addresses in Dorset.

Mr. Higgins (Mayo)

How frequent is the scenario where someone who arrives with a stamped document is refused entry?

Miss M. Wallace

It happens regularly in Rosslare because of the link with Europe. It happens at other ports and airports but occurs most frequently in Rosslare. With regard to the point made by Deputy O'Sullivan, somebody who is detained will have their asylum application dealt with speedily because we do not want to detain people unnecessarily. Section 10(4) of the 1996 Act states:

The Commissioner, or as the case may be, the Appeal Board shall ensure that the application for a declaration of a person detained pursuant to subsection (8) or (13) (a) of section 9 shall be dealt with as soon as may be and, if necessary, before any other application for a declaration of a person not so detained.

Mr. Higgins (Mayo)

In the case of somebody who arrives with documentation that has been stamped as being refused entry to another jurisdiction, the Minister of State says he or she should have the right to make application. Is there not a danger that such an individual would find his or her application in the ranks of the "manifestly unfounded" and that it would be determined that such an applicant does not have rights if he or she has been turned away from another jurisdiction?

Miss M. Wallace

There may be.

Amendment, by leave, withdrawn.

Chairman

We now come to amendment No. 30 to amendment No. 75a. Amendment No. 38 to amendment No. 75a is related. Amendments Nos. 30 and 38 to amendment No. 75a may be discussed together by agreement.

Ms O’Sullivan

I move amendment No. 30 to amendment No. 75a:

In the first line of the new subsection (15), inserted by subsection (1)(d)(ii), to delete "A" and substitute "Subject to section 5, a".

The Minister's amendment, like the 1996 Act, provides that a person cannot claim asylum if there is an exclusion order against him or her. Our amendment would provide that this should be subject to the overall requirement that refusal will not result in religious or ethnic persecution of the person. It relates to non refoulement. We want to ensure that the provisions in this regard are also subject to the provisions in relation to religious and ethnic persecution. We want to be absolutely certain that the person is covered under section 5 also.

Miss M. Wallace

I oppose these amendments because they seek to state again the principle of non refoulement, a principle which I support in the specific context of exclusion orders and manifestly unfounded applications. I have no difficulty with the motivation underlying the amendments or with the principles outlined. My difficulty is simply a legal, technical one.

The principle of non refoulement, including its wide application to the expulsion or return of any person in any manner whatsoever, is set out in section 5 of the Refugee Act. It clearly and unambiguously applies to all provisions of the Refugee Act, including those covered by the amendment. I am advised by the draftsman that it would be wrong to restate in those specific instances something that goes without saying, not least because such restatement there could give rise to an interpretation of section 5 that it did not apply to other possible instances where it was not specifically adverted to. The draftsman advised that the same difficulty does not arise with the inclusion of the words “subject to section 5 of the Refugee Act” at section 3 of this Bill because they appear in a different Statute. On the basis of sound advice from the draftsman, I invite the Deputies to withdraw their amendments.

Ms O’Sullivan

Will the Minister of State give us a guarantee that this protection exists already?

Miss M. Wallace

Yes. There is no doubt about that.

Ms O’Sullivan

Is that the legal advice the Minister of State has been given.

Miss M. Wallace

Yes. The fact that it is in section 5 of the Refugee Act means that it clearly and unambiguously applies to all provisions of the Refugee Act, including those covered by the amendment.

Mr. Higgins (Mayo)

With regard to manifestly unfounded claims, we had a brief discussion on the category of people who have arrived with documentation stamped as having been refused entry elsewhere. One of the dangers in relation to deeming an claim to be manifestly unfounded is that such claims can be judged as having no merit and as not deserving of a hearing. There might be a possibility that somebody would be denied a full hearing on the basis that on the surface the application is deemed to be manifestly unfounded. That is one of our worries.

For example, on the previous amendment, when I asked about somebody who arrives from another jurisdiction with documents stamped as having been refused entry to another jurisdiction, the Minister of State said that could well put that person's application into the category of "manifestly unfounded" and deny the person access to the full application procedures. That should not happen. The fact that one jurisdiction denies a person entry for some reason or other, although we are supposed to have uniformity of procedures and practice, does not mean we should automatically take that at face value and decide that because a person was refused entry to England he or she can also be refused entry here.

Miss M. Wallace

If they claim asylum they are not being refused access to the procedures. It is a matter for the commissioner to decide whether or not it is a manifestly unfounded application. The fact that they have been refused entry to another jurisdiction might be an indication that it could be a manifestly unfounded application, but that might not be the full basis for the decision. There may be other indications. It is a matter for the commissioner.

Ms O’Sullivan

The Minister of State has given us a commitment that this is covered by the Refugee Act, so I must accept her assurance.

Amendment to amendment, by leave, withdrawn.

Chairman

We now come to amendment No. 31 to amendment No. 75a. Amendments Nos. 32 and 33 to amendment No. 75a are related. Amendments Nos. 31 to 33, inclusive, to amendment No. 75a may be discussed together by agreement.

Ms O’Sullivan

I move amendment No. 31 to amendment No. 75a:

In the second last line of subsection (1) of the new section 9A, inserted by subsection (1)(e), to delete "14" and substitute "18".

This amendment relates to the issue of fingerprinting. It seems oppressive to allow compulsory fingerprinting of 14 year olds. Generally speaking, people under the age of 18 are children. In this case there is a separate regulation in relation to children between the ages of 14 and 17 - under 18 at any rate. There seems to be no good reason for this. It seems oppressive. If I had a 14 or 15 year old child, I would not like it to be enshrined in legislation that he or she could be compulsorily fingerprinted, particularly in such a vulnerable position. I would like an explanation. Perhaps we could move on to the other points later.

Miss M. Wallace

The purpose of fingerprinting is twofold. It serves as a means of uniquely identifying asylum applicants, many of whom have no passports or other identity documents and some of whom have made multiple applications in the State. In the context of the Dublin Convention it permits member states to exchange reliable information which contributes to making correct internal decisions as to which member state should be responsible for considering particular asylum applications. Among EU member states, a system known as Eurodac is under development and an associated convention has been negotiated to establish and maintain an automated system of EU-wide exchange of fingerprint data for asylum seekers. The purpose of Eurodac is to provide a centralised database for the multilateral comparison of asylum seeker fingerprint data to assist in determining the member states responsible, pursuant to the Dublin Convention, for an application for asylum. Ireland supports the concept behind the convention. It is seen as an essential tool to assist in the implementation of the Dublin Convention and discouraging abuse of asylum procedures.

Without tools such as this the asylum process can be brought into disrepute and persons who should receive protection may lose out. As I said, persons genuinely in need of the protection of the state, in all EU states, should have their claims for refugee status recognised in the appropriate state as expeditiously as possible.

The implementation of the Eurodac convention may take some time. In the meantime Ireland is alone among member states of Eurodac in not taking the fingerprints of asylum applicants when they first apply. Many Dublin Convention countries are already comparing fingerprint information bilaterally for the purpose of achieving certainty in the transfer of asylum applications. One member state has indicated, in the absence of fingerprint data, that it is unwilling to operate the Dublin Convention. Ireland is unable to participate in these bilateral comparisons and thus improve the certainty of the data on which Dublin Convention decisions are based.

Most EU member states provide for the taking of fingerprints of asylum applicants over 14 years of age. For Ireland to maximise the benefits of the comparison of fingerprints on a bilateral basis with the widest number of convention countries it makes sense for us also to choose this age limit. In this context it is noteworthy that the Eurodac convention, which will advance further harmonisation of fingerprinting procedures amongst convention countries, provides for fingerprints to be taken on those over 14 years of age.

Mr. Higgins (Mayo):

Is the Minister saying that line 2 should not read "may" but an authorised officer or an immigration officer "shall", for the purposes of this Act, take or cause to be taken the fingerprints of an applicant above the age of 14 years? Subsection (2) states that "An applicant who refuses to permit his or her fingerprints to be taken . . . shall be deemed not to have made reasonable efforts to establish his or her true identity . . . and to have deliberately obstructed the investigation of his or her application within the meaning of section 12(4)(f)". It is not optional; there is no choice.

Miss M. Wallace

The "may" applies to the intervention period.

Mr. Higgins (Mayo)

That means it applies to everybody over 14 years of age.

Ms O’Sullivan

The Minister of State said that most other convention countries——

Miss M. Wallace

We are alone.

Ms O’Sullivan

Initially she said we are alone in not fingerprinting at all.

Miss M. Wallace

Most EU member states provide for taking fingerprints of asylum applicants over 14 years of age. Some of the EU member states take fingerprints at 16 years of age. The Eurodac convention is being negotiated on the basis of taking fingerprints of asylum applicants at 14 years of age. Some countries have lower age limits.

Ms O’Sullivan

What is the purpose of taking fingerprints from children? Is it thought they might move away from the rest of the family?

Miss M. Wallace

That is not what we are suggesting but that is what some of them do.

Mrs. Barnes

In the next few years there will be a more sophisticated way of doing it, by laser perhaps.

Miss M. Wallace

At the moment it is a messy process but it is not intrusive. As Deputy Barnes says, with improvements in computer technology it will become easier. It is important now in view of the fact that we are alone in not being involved in fingerprinting. If they hear that they will all be coming here. It may be a little easier because they will not be fingerprinted.

Ms O’Sullivan

Amendment No. 32 is about people who have been granted refugee status. Why are fingerprints not destroyed in that case? It seeks to have the fingerprints destroyed after a person has been granted refugee status. There is no reason they should be retained. They should be treated in the same way as any other citizen of this country whose fingerprints would not be retained under current law. It is strange there is not an automatic removal of the fingerprints from the file.

Miss M. Wallace

Refugee status does not confer the same rights and privileges within the EU or in the common travel areas to citizenship. It is a general practice among our partners in the EU reflected in the Eurodac convention. Prints are destroyed once the applicant is granted citizenship and has, therefore, acquired all the privileges and rights of an EU citizen. The regrettable fact is that some persons who already have status in one EU state have been involved in crime in other EU countries and Ireland has not been immune. We learned yesterday that there is quite a high incidence of people applying in the UK who have already status in other countries. The more information we have the better.

Ms O’Sullivan

What the Minister of State is saying is that people are applying for refugee status in one country having already got it in another country.

Miss M. Wallace

This is what we discovered yesterday from the UK. It is practised here as well.

Ms O’Sullivan

Is there an explanation for that?

Miss M. Wallace

That was explained.

Ms O’Sullivan

That was in relation to people seeking asylum rather than people who have already been granted it.

Miss M. Wallace

They are just moving around, bypassing immigration controls and abusing the whole process.

Ms O’Sullivan

Retaining their fingerprints is considered a way of——

Miss M. Wallace

At least it provided the information that this is happening.

Ms O’Sullivan

And that somebody has a status in another country.

Miss M. Wallace

If they have that status we do not continue to deal with the application.

Ms M. McGennis

It avoids duplication by another country of something that is already being done——

Miss M. Wallace

The other point is duplication in this country. People may have a number of different applications on the go at the one time. Fingerprinting identifies that problem.

Ms O’Sullivan

Perhaps I could ask a question on the third amendment because the three are related. It has to do with retaining records for ten years. This seems a long time to retain the fingerprinting on record. Our amendment proposes it should be two years. There is an implication that it would take ten years to establish the whole process. That seems an extraordinarily long period.

Miss M. Wallace

It is proposed that fingerprints would be retained only one month after the applicant has acquired citizenship or the expiration of a period of ten years. This provision is in line with the practice in other member states and the proposed Eurodac convention. Some EU states destroy fingerprints after eight years, some after ten years and some only rely on acquisition of citizenship. A variety of courses will become standardised when Eurodac, in whatever form the European Commission determine is the most suitable, comes into effect.

Destroying fingerprints after a period of two years could lead to difficulties in meeting our obligations under the Dublin Convention. For example, article 10 of the convention defines the criteria by which a member state is obliged to take back an asylum applicant. This includes cases where an application is under examination or has been rejected by one member state and the applicant is irregularly in another member state. For a variety of reasons that person may not present themselves or come to the attention of the authorities in the second member state for some time. Deputies will appreciate that if all member states were to destroy fingerprints after a period of two years it would undermine the whole process of fingerprinting which would be detrimental to the efficient operation of the convention.

Mrs. Barnes

When Eurodac comes into effect. In fact it is academic to be discussing this matter.

Miss M. Wallace

Yes. What we are doing now is in line with what Eurodac is proposing. It suggests that it should be ten days and, hopefully, we will not have to change our situation when that is all agreed. We are bringing forward suggestions that are roughly in line with what Eurodac is suggesting.

Ms O’Sullivan

At what stage are these Eurodac proposals? Are they at an early stage? When are they likely to be agreed?

Miss M. Wallace

Probably within the next 18 months. It is up to the European Commission. It has been on the agenda of every Council of Ministers meeting we attended in the past two years. We are well advanced on the conclusions at that stage and they must then be go to the Commission for approval. It will be another 18 months before they are agreed.

Ms O’Sullivan

Have these proposals been subjected to international human rights scrutiny? Organisations like Amnesty International are concerned with preserving human rights in regard to such regulations on an international basis. In my non-expert opinion, it seems quite restrictive to retain in this regard, to fingerprint 14 years old and so on. If proposals are being presented to the European Community, they should be subjected to examination by internationally recognised organisations like Amnesty International and the UNHCR.

Miss M. Wallace

Officials met Amnesty in the past ten days here. They had no difficulty with the principle of fingerprinting and were aware of these proposals. It is generally accepted as necessary at this point.

Ms O’Sullivan

What about the UNHCR?

Miss M. Wallace

It does not have any difficulty with it either. It is generally accepted because of the way the situation developed. We are out of sync; everybody else is doing that at this stage.

Ms O’Sullivan

The debate has been useful. On the face of it, these provisions seem to be unnecessary, restrictive and harsh. If the organisations to which I referred accept them and if other European countries are about to propose them under a convention, it would be unreasonable of me to press this amendment to a vote.

Amendment to amendment, by leave, withdrawn.

Amendment Nos. 32 and 33 to amendment No. 75a not moved.

Chairman

Amendment No. 33a to amendment No. 75ahas been ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 33a to amendment No. 75a not moved.

Ms O’Sullivan

I move amendment No. 34 to amendment No. 75a:

In the third line of the new subsection (1), inserted by subsection (1)(g)(i), after "section 16" to insert "or under regulations made pursuant to section 22".

Regarding the reference to section 22, that case refers to us under the Dublin Convention and it is being deleted from the original 1996 Act. We suggest that it should be restored.

Miss M. Wallace

The Dublin Convention (Implementation) Order S.I. No. 360 of 1997 sets out the procedures to be followed under the Dublin Convention. This order is based on the present position at section 22 of the Act, where there is the responsibility on an officer of my Department to decide on these cases and appeals on those decisions are determined by an independent lawyer of at least seven years' experience. It is the intention that all asylum applications would be addressed to the Refugee Applications Commissioner and that the commissioner will now be responsible for making Dublin Convention decisions in the first instance.

The appeals tribunal will deal with the appeals on those decisions. The changes to section 22(2)(c) of the Refugee Act, as provided for at subsection (1)(p), brings this about. These changes will dictate a new Dublin Convention (Implementation) Order. There is not a regulation and an order. The question of referrals of applications under such an order to the commissioner will not arise since the commissioner will already have all the applications.

Ms O’Sullivan

Is the Minister of State saying that under the new system these applications will automatically go to the commissioner?

Miss M. Wallace

He or she will already have them so there will be only the question of referral.

Ms O’Sullivan

Is the Minister of State saying that a new order is needed and, if so, on what basis is it required?

Miss M. Wallace

Under the Dublin Convention (Implementation) Order.

Ms O’Sullivan

Will that operate by an order made by the Minister?

Miss M. Wallace

It will operate in the same way as the last one. It will be laid before both Houses of the Oireachtas to take account of the changes that have been made here.

Ms O’Sullivan

This is complicated. Is the Minister of State saying that the same rules will apply but that, by order, it will go directly to the commissioner?

Miss M. Wallace

Exactly.

Ms O’Sullivan

I think I understand it.

Miss M. Wallace

The Deputy wants to be assured that he will get it and he will have it.

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 35 to amendment No. 75a:

To insert the following subparagraph after subparagraph (i) in subsection (1)(g):

"(ii) the insertion in subsection (2) after 'to interview the applicant concerned' of 'and to afford that applicant an oral hearing at which his legal advisers and other representatives (if any) may make submissions on his behalf',".

At present, there is no oral hearing at first instance, only an interview and written submissions. We want proper oral hearing with normal legal rights.

Miss M. Wallace

An interview under section 11 is conducted on the basis of an inquiry into the claim for recognition as a refugee under the 1951 Geneva Convention. It is not adversarial in nature and is not a hearing in the sense in which such a term might be applied in court proceedings It is part of an investigative process, albeit a significant part. It is important, therefore, that this co-operative effort between the applicant and the commissioner should not be turned into a procedure that is akin to court procedures. That would seriously undermine the spirit and principles of the 1951 Geneva Convention.

I agree that there is merit in setting down a procedure for the conduct of the interview phase of the investigation, the term used at section 11 of the Act. Such a procedure could be usefully, among other things, provided for the making of brief oral representations at or immediately after the interview proper. It might well supplement the provisions for written representations provided for in the Act. I am of the view that this sort of detailed description is best left to the regulation making power at section 23(8), which successfully envisages such procedures and on that basis I invite the Deputy to withdraw her amendment.

In the context of legal representations and as a result of my agreement with the Legal Aid Board and the making of the necessary order under the Legal Aid Act, the board has up and running the refugee legal service, which provides independent legal advice and representation to assist with asylum applications. It is my intention to establish an independent monitoring committee to oversee the operation of the legal service to ensure that a quality refugee legal service is provided in accordance with arrangements agreed between the Legal Aid Board and my Department.

Ms O’Sullivan

We very much welcome the establishment of contact with the Legal Aid Board and legal representation, but it would be more appropriate if this were enshrined in the legalisation with regard to the first interview with the commissioner. Inevitably questions will arise that would have legal import for the person seeking refugee status. Will the Minister of State clarify why the person concerned would not have legal representation at that interview?

Miss M. Wallace

They are entitled to legal representation if they want it, but I stress that this is not an oral hearing. It is the investigative process.

Ms O’Sullivan

Will the Minister clarify the difference between an investigative process and an oral hearing?

Miss M. Wallace

Section 11 of the Refugee Act states that ". . . it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given."

It also states:

the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers should comply with any such direction and furnish a report in writing in relation to the application concerned to the Commissioner and the report shall refer to the matters raised by the applicant and to such other matters as the officer or officers consider appropriate and an interview under this subsection shall, where necessary and possible, be conducted with the assistance of an interpreter.

Mrs. Barnes

Will the trained staff make it clear to the person that legal advice is available if they need it?

Miss M. Wallace

They are informed of that at the earliest opportunity. Subsection (8) states:

the Commissioner shall, without delay, give or cause to be given to the applicant a statement in writing specifying, where possible in a language that he or she understands——

(a) the procedures to be observed in the investigation of applications under this section,

(b) the entitlement of the applicant to consult a solicitor,

(c) the entitlement of the applicant to contact the High Commissioner.

Mrs. Barnes

They would be part of the process.

Miss M. Wallace

Yes, from the earliest possible opportunity.

Amendment to amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 36 to amendment No. 75a:

To delete subparagraph (iii) in subsection (1)(g).

This amendment is important. The Minister's amendment limits the right to make representations to the commissioner to a period of seven days after the initial interview. There is no time limit in the 1996 Act, except the 14 days for manifestly unfounded applications. Seven days is an unduly short period to make representations. This could mean a person might not have enough time and that their application might not be justly considered.

Miss M. Wallace

It is only proper that following a substantive interview provided for under section 11, there should be a finite and not unduly lengthy period in which the applicant, his or her representative or the High Commissioner, can make further representations. An interview can take many hours to complete and in some cases it may be necessary to arrange a second or subsequent interview. If no cursory examination or detailed investigation of the claim has taken place, the interviewer will have familiarised himself or herself with the country of origin of the person concerned and also with whatever details have been supplied in writing, whether on an application form or by way of representations made in advance at the interview, in order to better conduct that interview.

There is ample opportunity and all necessary facilities afforded to the applicant to fully present his or her story at the interview. There may be situations where an applicant or a representative wishes to correct or expand on information given at an interview or where additional points occur to him or her which they had not thought of at the interview. However, there is a need to ensure that the commissioner reaches a point where he or she can make a recommendation.

With an open ended right to make representations, there is scope for an unscrupulous applicant who wishes to protract the proceedings to indicate that representations will be provided at some unspecified time in the future and then fail to produce them. We, as public representatives, have seen this in the planning process. There is a need for certainty among decision makers. Hence the provision of a finite and reasonable period in which to make representations which are essentially for the purpose of supplementing the information already supplied at and before the interview.

It should also be borne in mind that where a negative recommendation is made, the appeals process will provide an opportunity to present relevant further information. The finite period of seven days is to be amended on Report Stage to seven working days.

Ms O’Sullivan

Seven working days do not give people a longer period of time to make representations. I accept we do not want the process to be open ended and that there must be a time limit but the Minister might consider extending it beyond seven working days. It is not unreasonable to suggest that a person might need more time than seven working days.

Miss M. Wallace

They will probably have months before that to make the points they want to make. If we gave people seven months, they would come in with the information after six months and 30 days. We must allow a decision to be taken. We cannot keep extending the time so that it prolongs the decision being made.

Ms O’Sullivan

The delay before the interview is probably due more to backlogs in the process than to the individual.

Miss M. Wallace

That delay gives them plenty of time to get all the necessary information, to consult with a solicitor and to ensure all the documentation is on hand.

Ms O’Sullivan

It may become apparent at the first interview that further information is needed. That is why the person should have a reasonable amount of time.

Miss M. Wallace

If that is the case, a second interview will be arranged. Some people have been interviewed three times. This occurs at the final interview and decision stage.

Ms O’Sullivan

Seven days is too short a period of time to gather any information.

Miss M. Wallace

They are not looking for information at this stage as it is all on hand. This is just in case they think of something else which is important. They will have months to get all the necessary information.

Ms O’Sullivan

The period to make representations to the commissioner should be longer than seven days.

Miss M. Wallace

From the time a person applies, there is at least six weeks to three months to gather all the information and to get legal advice. This is like making a planning application where everyone panics in the last five days before the decision date in case they have forgotten to send in something. There must be a decision date. An amendment on Report Stage will extend the time to seven working days.

Ms O’Sullivan

While I accept the process cannot be open ended, the time should be extended further. I will, therefore, press the amendment.

Amendment to amendment put and declared lost.

Chairman

We will now have a vote on a number of amendments.

Mrs. Barnes

Are they related?

Chairman

Yes.

Mr. Higgins (Mayo)

What is our time limit?

Chairman

I must put the question at 9 p.m.

Ms O’Sullivan

The difficulty is that immediately after this we must deal with legislation in the House which relates to the Department of Justice, Equality and Law Reform.

Chairman

I do not have any discretion in the matter. I must put the question at 9 p.m.

Mr. Higgins (Mayo)

I know you do not have any discretion but it underlines our argument. We are anxious to co-operate but the ordering of this week's business by the Department and the Chief Whip's office has been ridiculous. We have either been here or in the House. There were occasions when we were supposed to be in two places at the one time. As spokespersons, we are responsible for the management of affairs in the House and here. It puts us in an invidious position. We did not get the adequate notice we would have expected for this legislation.

Chairman

We can take that up later. We do not have much discretion in this matter.

Mr. Higgins (Mayo)

I appreciate that.

Ms O’Sullivan

While we have objected in the Dáil, it is right that we should also object here. We tabled these amendments in good faith and in response to representations from various organisations. We have not been able to deal with all of them. The next group of amendments are in my name but I am also supposed to be dealing with the legislation in the House. I do not know whether they can be moved.

Mr. Higgins (Mayo)

The unfortunate part is that we cannot compensate for the lack of time by having a proper Report Stage debate because a mere two hours has been allocated for that debate tomorrow. We know, on the basis of our experience on 13 April, last week, yesterday and today, that we will only get through a fraction of the business.

Chairman

There are only 13 amendments left, which is not a huge amount.

Mr. Higgins (Mayo)

We did fairly well. However, Committee Stage is not just about amendments; it is also about debating the sections. We did not discuss the tribunal and appeals board properly, other than on the basis of the amendments. In a proper Committee Stage debate one would discuss the sections.

Miss M. Wallace

Are we resuming after the vote?

Chairman

I do not know about the others but——

Mr. Higgins (Mayo)

Deputy Barnes is representing us.

Ms O’Sullivan

I am not sure if anyone else can move these amendments.

Chairman

We will not be back probably until 8.50 p.m.

Ms O’Sullivan

I will try to come back. Can amendments tabled in the names of Deputies Howlin, O'Sullivan and Higgins be moved if none of us are here?

Chairman

Deputy Barnes could move them.

Mrs. Barnes

I am willing to do that.

Sitting suspended at 8.35 p.m. and resumed at 8.50 p.m.

Acting Chairman

We are on amendment No. 37 to amendment No. 75a and amendment No. 39 is related. Amendments Nos. 37 and 39 to amendment ' No. 75a may be taken together. Is that agreed? Agreed.

Ms O’Sullivan

I move amendment No. 37 to amendment No. 75a:

In the last line of the new subsection (1)(a), inserted by subsection (1)(h)(i), after "notice" to insert "and an appeal from a decision that an application is manifestly unfounded shall be by way of oral re-hearing".

This relates to the manifestly unfounded section. Because of its very nature, we want to ensure fairness in the procedures. These people will not have as much an opportunity to make their case as others. I refer briefly to amendment No. 39 to amendment No. 75a which relates to the same issue. It proposes to delete "14" and substitute "21". This would give 21 days to appeal a rejection on the manifestly unfounded ground - I presume we are talking about working days since we dealt with this issue earlier. If it is considered that a case is manifestly unfounded, it will not be able to move through the process in the way other cases would. I wish to ensure people have the opportunity to have their cases heard by way of an oral rehearing and that they have enough time to appeal.

Miss M. Wallace

I do not see that in such cases there is any merit in extending by a week the time in which an applicant may submit an appeal to the tribunal from a decision reached by the commissioner that the application is patently without merit. It should be borne in mind that an appeal in such cases does not have to persuade the appeal tribunal that the appellant is a refugee - merely that there is an arguable case that the appellant may have a well founded fear of persecution and that the matter should be remitted for further investigation.

This is a considerably lesser burden to discharge and justifies a shorter period in which to marshal the arguments than the time limit for appeal in cases where the commissioner has made a negative recommendation following substantive examination. To provide a 21 day limit for cases which the commissioner has decided are obviously without merit is an unnecessary delay. We should bear in mind the type of applications with which we are dealing. We are dealing with cases in which it is clear there is a serious abuse of the asylum procedures which would cause considerable delays for genuine asylum seekers who deserve recognition and protection.

Ms O’Sullivan

Did the Minister address the question of the oral rehearing?

Miss M. Wallace

One of the recommendations contained in Conclusion No. 30 of the Executive Committee of the UNHCR, which deals with manifestly unfounded cases, is that arrangements for review can be more simplified than that available in the cases of rejected applications which are not considered manifestly unfounded or abusive. The UNHCR Executive Committee recognised that the introduction of measures that would reduce the time required for the completion of the appeals process was one method of mitigating the problems of abusive applications.

I am satisfied that deciding appeals on paper is sufficient and fair in these cases, in particular having regard to the lesser burden which the applicant is seeking to discharge. It is the way appeals in manifestly unfounded cases are dealt with under the existing procedures arrived at in consultation with the UNHCR and these procedures have worked well. It is also at least as favourable to the applicant as anywhere else in European and considerably more so than in some EU states.

Ms O’Sullivan

Is the UNHCR satisfied with this procedure?

Miss M. Wallace

It is satisfied and happy with what is happening at present and this mirrors same.

Ms O’Sullivan

This mirrors what is happening at present.

Miss M. Wallace

Yes.

Ms O’Sullivan

Is there a reason for not having an oral rehearing?

Miss M. Wallace

We are talking about unfounded cases - cases without merit. A manifestly unfounded application is one which clearly raises no substantive issue under the 1951 Geneva Convention. Such claims are made by people who have no genuine fear of persecution and who, in many cases, have based their claim on a deliberate deception, so they are obviously without merit.

Ms O’Sullivan

There is some concern where people's cases are declared manifestly unfounded.

Miss M. Wallace

Under the Act, an independent commissioner will arrive at this decision. If the appeals authority is not happy, it will send the case back for further investigation.

Ms O’Sullivan

Is that the end of the procedure?

Miss M. Wallace

If the appeals authority believes there is merit, it may send it back to the commissioner.

Ms O’Sullivan

The commissioner will deal with the case again.

Miss M. Wallace

The commissioner will deal fully with the case. There is a double layer.

Ms O’Sullivan

In the interests of time, I will not press the amendment.

Amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 37a to amendment No. 75a:

To insert the following subparagraph after subparagraph (i) in subsection (1) (h):

"(ii) in subsection (4), by the deletion of paragraphs (b) to (l),".

The effect of this amendment is to limit the definition of "manifestly unfounded". It seeks to use the term "manifestly unfounded" with caution rather than more broadly.

Miss M. Wallace

The criteria listed in this subsection are based on those identified by EU Ministers in the London resolutions of 1992 as constituting manifestly unfounded applications for asylum. They are a sound basis for guiding the refugee applications commissioner in making recommendations as to whether the accelerated procedure for applications, which are obviously without merit, should be applied to particular cases. If, for instance, the applicant gives clearly insufficient details to support the application, as at paragraph (b) of the subsection, and fails persistently to show for interview, is it not a reasonable assumption that the application lacks merit and should be disposed of without undue expenditure of resources on it?

Caution must be exercised by the commissioner in applying the criteria. There is little point in blind application of the criteria and insistence that all cases which come within them should travel the accelerated route. Common sense dictates that only those cases which show little or no prospect of being remitted for full examination by the appeal tribunal should be the subject of a manifestly unfounded recommendation.

To take any other approach is to defeat the entire purpose of the accelerated procedure by adding an extra two stages to the processing of a considerable proportion of such applications. That is the experience abroad of accelerated procedures for applications which are obviously without merit. Where it is not absolutely obvious, the appeal stage will remit the application for full examination and the accelerated procedure becomes a decelerated one.

Amendment to amendment, by leave, withdrawn.

Amendment No. 38 to amendment No. 75a not moved.

Ms O’Sullivan

I move amendment No. 39 to amendment No. 75a:

In the second last line of the new subsection (5), inserted by subsection (1)(h)(ii), to delete "14" and substitute "21".

Amendment to amendment, put and declared lost.

Ms O’Sullivan

I move amendment No. 40 to amendment No. 75a:

To insert the following paragraph after paragraph (m) in subsection (1):

"(n) in section 19(2), by the deletion of all words after 'person' where it secondly occurs and the substitution therefor of 'applicant',".

This amendment relates to publication without the applicant's consent and allows for a public debate on this question. It was suggested to us by Amnesty International.

Miss M. Wallace

I do not consider that the proposed amendment is in the best interests of the asylum seeker. It is clear the intent of section 19(2) is to protect the identify of the asylum seeker from public exposure. It is essential that this protection is provided for. Confidentiality is an important consideration for the applicant providing the security and peace of mind that his or her individual claim will not be a matter for public comment. It does not mean that he or she is barred from telling his or her story to the media. There are many legitimate ways of doing so without revealing the person's identity.

The retention of the Minister's consent is an important safeguard as an applicant is in a vulnerable position and may be subjected to all sorts of unreasonable pressures to go public by individuals who have no interest in the applicants but who are prepared to exploit them for whatever purpose. The requirement of the Minister's consent is an insurance against such behaviour and that the Minister shall not withhold such consent unreasonably will ensure that there is no unduly restrictive approach taken in these cases.

Chairman

I have received notice that amendment No. 45 to amendment No. 75a is accepted by the Minister. It is now 9 p.m. and I am required to put the following question in accordance with the order of the Dáil of this day:

"That amendment No. 45 to amendment No. 75a is hereby made to the amendment. That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of, including amendment No. 75a, as amended, are hereby made to the Bill. In respect of each of the sections undisposed of, that the section or, as appropriate, the section, as amended, is hereby agreed to. That the Schedule be the Schedule to the Bill and that the Title, as amended, is hereby agreed to."

Question put.

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

Tá

• Ardagh, Séan.
• Cooper-Flynn, Beverly.
• Lawler, Liam.
• 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.
• Fitzgerald, Frances.
• McManus, Liz.
• O’Sullivan, Jan.
• Owen, Nora.

Question declared carried.

Chairman

I thank the Minister of State and her officials for their work and I thank Deputies O'Sullivan, Howlin, Jim Higgins and Barnes as Opposition spokespeople and Government Deputies for their work over the past 16 hours on the Bill.

Mrs. Barnes

I join the Chairm an in thanking the Minister of State and her staff and sympathise with them that now they have to continue working.

Miss M. Wallace

I thank committee members for their co-operation and the hard work they have put into this.