SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate

Immigration Bill 2002: Committee State (Resumed).

SECTION 2.

Question again proposed: "That section 2 stand part of the Bill."

Mr. Costello

This is one of the major sections of the legislation which deals with the liability of carriers. Essentially, the section proposes to transfer liability for checking documentation of people travelling to this country to carriers rather than to immigration officers. Therefore, the first line of checking the validity of documentation will now rest with the carriers of those who are seeking to disembark. We teased out the concerns to some degree yesterday, which were that carriers are not trained in immigration matters, nor do they have the expertise to function as immigration officers. The onus that is now being imposed on carriers is extraordinarily heavy because they must ensure that the documentation is presented and, thus, they will effectively fulfil the role of immigration officers.

If this section is passed, many carriers who are going on day trips across the channel this summer may have to seek out an immigration officer and present all those aboard before seeking to land again on our shores. Yachting clubs should take note of those requirements.

While carrier liability is being used by the Minister, and by the EU, as a tool to deal with immigration, it has the effect of stymieing the provisions of the Geneva convention. The intention of the legislation is to ensure that nobody can disembark on our shores unless every aspect of their documentation is in place but we all know that asylum seekers are unlikely to have valid documentation.

I am sure the Minister was listening to "Morning Ireland" today which outlined the invidious situation in which some Irish citizens find themselves in the United States. We are talking about thousands, if not tens of thousands, of Irish citizens who are illegal aliens in the USA from where they now face deportation. They do not have the correct documentation and I am sure they are not applying for asylum. A blind eye was turned towards such people prior to 11 September 2001, but close checks are now being made on documentation by the American authorities so Irish people may find themselves being sent home on the next plane. That situation caused a hullabaloo here, yet in the case of this Bill we are not even granting the right to make an asylum application. The problem with the section is that while, in theory, we are granting protection under the Geneva convention, in practice we will not give persons the opportunity of making such an application. The Minister will have to give us a clear picture as to how asylum seekers will have an opportunity to apply for asylum here because that is what is missing from this section. There are many flaws in the manner in which the section has been formulated.

Perhaps the Minister will explain how, with carrier liability in operation, genuine cases will be able to apply for asylum, properly under the Geneva convention, with an appeal mechanism to fulfil the spirit and terms of the convention. That possibility appears to be missing from this section.

Section 2(9) states: "This section is without prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act 1996 and to the discretion of the Minister to admit to the State a person whom the Minister considers to be in need of the protection of the State." How will that operate, however, given the caveats and precautions to ensure that someone does not land in Ireland? How will anyone be able to lodge an application for asylum, which he or she is expected to do immediately upon arrival? Where can that be done? How will a carrier be able to fulfil his or her responsibilities in a reasonable fashion? The Minister has not defined that.

The onus that is now being placed on the carrier is a new one that incurs a substantial penalty. The carrier could be anybody, whether commercial or private, who arrives in this country carrying anyone with him or her. The Minister is proposing a tight system and there is no flexibility to allow for the Geneva convention to be operated fairly.

Aengus Ó Snodaigh

I outlined my opposition to this section in referring to earlier amendments. I reiterate that I am opposed to this form of carrier liability, which forces untrained airline or ferry staff into the role of immigration officers. When the onus was placed on bank officials to get people to identify themselves when opening bank accounts, they became over rigorous, and the same will happen in this case. Irish citizens wishing to open a bank account, especially those who are less well off, have encountered major difficulties since the relevant legislation was enacted. There is a tendency among those who are not trained and who are not getting paid for such work to become over rigorous. We will therefore end up with a situation in which not only will asylum seekers be put out by this provision, but Irish people also will be affected when they are returning home. If the section is passed, as currently worded, more and more refugees and asylum seekers will use unconventional means of accessing the country, rather than by plane or ferry, thus falling victim to human traffickers. We will end up with more deaths, as happened some time ago in Wexford and in the case of a Tunisian last week.

This section interferes with the ability of persons at risk of persecution who are trying to gain safety. This interference would be incompatible with our international human rights and refugee protection principles. In particular, I refer to article 14 of the universal declaration, which states that each person has a right to seek asylum. If it is not possible for someone to get to the port or airport of choice to seek the right of asylum, we could be in breach of that declaration. That is also covered by articles 31 and 33 of the 1951 UN refugee convention.

Mr. F. McGrath

I have concerns about section 2 regarding the liability of carriers. We must highlight the correct documentation for asylum seekers, particularly those coming from a situation where there is considerable pressure and they may not necessarily have the correct documents. We were lucky with the outcome of the recent case in Wexford where a family with the incorrect documents was deported and the pregnant lady had a baby on board a ship. That could have ended negatively and we could have had a serious crisis on our hands. I do not accept the ethos and vision in this Bill.

We must remind ourselves that we are traditionally an emigrant people. Section 2 is essential because, as Deputy Costello mentioned, on today's edition of "Morning Ireland" we heard classic examples of Irish people abroad being locked up for some weeks and then deported. I am very concerned about this section.

I am not sure if the Minister has spoken to truck drivers, but I have spoken to many of them who are frightened about the liability of carriers. They feel intimidated and that the control is out of their hands. We must wake up to the reality that many people have genuine concerns both for individuals' civil liberties and for drivers, and we must highlight this.

This section indicates a "fortress Ireland" policy on the part of the Government. I am very concerned that many of the views that seem to have emanated from the Immigration Control Platform have found their way into this legislation. The ethos and vision in section 2 is flawed.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

The last remark by Deputy Finian McGrath that the Immigration Control Platform is in some way influencing this legislation is a ridiculous comment. I am amazed by the tone of the remarks coming from the opposite side of this committee chamber. We live in the real world. We are a member of the European Union and we are doing what other European Union member states are doing. It is nothing to do with immigration.

Mr. F. McGrath

We are being two-faced. Some 5,000 illegal people live on one coast of the United States.

Mr. McDowell

Those to whom carrier liability applies are bringing people to Ireland from places where a very extensive refugee law already exists. This applies, for instance, to the Czech Republic, which receives huge numbers of people applying for asylum. We have the odd Czech citizen coming to Ireland claiming asylum status here. People come from Canada, the US, right across Europe, Switzerland and in transit from Schipol Airport from Africa to Dublin etc. When they get on a plane to which these rules apply, in the vast majority of cases they are already in a jurisdiction where there is a highly developed refugee law and they are at liberty to make application there.

Many people do not like to mention that and prefer to conduct this debate on the basis that this is not so. However, it is the case. This applies equally to sailings from Roscoff and Cherbourg to Ireland. France is a country with a highly developed refugee law of its own. There seems to be a notion creeping into general discourse - and it is not so - that there is a right under international law to choose any country in the world and to travel through any country with the intention of making an application in a particular desired country. It is believed that those in fear of persecution can go to whatever country they want. That is not international law or practice and it is not what the Geneva Convention is about.

This law generally applies to people coming to Ireland from the continent of Europe and on North American flights. I accept that occasional flights come from Moscow, Cuba and a few other places. Generally we are talking about carriers transporting people for reward from places where they already have the right to claim asylum. I therefore reject the notion that this is inconsistent with our obligations under the 1951 convention. Every other European Union member state has carrier liability law and it is unrealistic to say that Ireland, for some reason of international law, should not do what every other member state of the European Union does and what we would be absolutely obliged to do if we joined the Schengen system. Let us get real in this debate.

It has also been suggested repeatedly that the effect of this would be to drive people into the hands of smugglers and traffickers and that this will endanger people. I repeat, a person who is trafficking anybody to Ireland is almost, without exception and with mathematical certainty, transporting them through countries in which they could claim asylum. If you are in a container, you are not coming from South America. That is the situation.

This notion that under this regime people who are required to produce documents to travel on scheduled air flights and scheduled sailings to Ireland are somehow being denied their rights and being driven into the hands of people smugglers is very difficult. It should be borne in mind that the overall effect of this Bill will make it a lot more difficult for people smugglers to ply their trade. I say that because the other provisions in this Bill which demonstrate that Ireland is getting serious about gross abuses of our system will make it a lot more difficult for people smugglers to persuade people in the countries of origin that they have a significant chance of abusing our system of asylum. That is what really drives the human trafficking trade, that they can hold out the realistic vision to people that they can fix it for them to get to Ireland as an economic migrant. They say to someone in a disadvantaged country: "Give us a bundle of cash and we will get you into the Irish State - when you get there, they have such an elaborate system that you will be there for months and years and you will not be sent back."

The prospect of success is what keeps the traffickers going and what makes it realistic for them to ask for &dollar;5,000 from the most disadvantaged people across the world. It is the prospect that they can dress up economic migrancy with an application for asylum in Ireland. That is what drives the whole process. If the Deputies opposite are worried about diminishing the trade in human trafficking and diminishing the smugglers' capacity to get money from people and put them into these horrific situations, the best way to proceed is to make our laws work effectively because the message will then go back very quickly that it is not worth giving &dollar;3,000 or &dollar;5,000 to the Mafia-type people to get to Ireland because the system there very quickly sorts out the economic migrants from the refugees and that it is a waste of money trying to cod the Irish Government.

Mr. Costello

The Minister also has a little problem with the real world. The organisations with responsibility for dealing with these issues have been saying the same things as we have been saying in this committee. Yesterday, we were given a briefing document on this Bill from the UN High Commissioner for Refugees. It was handed in at the gate of Leinster House and it proved very difficult to deliver it, as we saw. Its assessment of the legislation is not the same as the Minister's assessment. The report states:

While carrier sanctions may be a legitimate immigration tool, such measures may also interfere with the ability of persons at risk of persecution to gain access to safety. If states have recourse to carrier sanctions, they should be implemented in a manner which is consistent with international human rights and refugee protection principles. Notably, Article 14 of the Universal Declaration of Human Rights, according to which each person has the right to seek asylum and Article 31 - refugees unlawfully in the country of refuge, Article 33 prohibition of expulsion or return referral of the 1951 convention. Therefore, liability of carriers should not apply in respect of bona fide asylum seekers/persons in need of international protection. Carrier liability legislation without this exemption will only drive asylum seekers/refugees into the hands of smugglers and traffickers as has happened in other states.

That is the considered opinion of the UN High Commissioner for Refugees on the matter. Unless provision is made for bona fide applicants, asylum seekers will be turned over to smugglers and traffickers, as has happened in other states. The Minister is arguing the opposite, saying that because we have strict regulations, the traffickers will not be allowed get a grip on the market. The UN High Commissioner for Refugees says that this is what has already happened in the other countries in which it has been implemented.

There is a contradiction between what the people say who are charged with dealing with refugees and their applications and what the Minister says. I ask the Minister where is the provision in this section for the bona fide asylum seeker to make an application. The Minister has framed this legislation in such a way that unless the bona fide asylum seeker has valid documentation, he or she cannot make an application. Under the Geneva Convention, a bona fide asylum seeker does not by definition have to possess authentic documentation. It is accepted that he or she may not have a valid passport or visa in all instances and, in the majority of cases, that will be the case. We are caught in a bind.

If, for instance, one travels from Chad to Europe and lands in France, it would not be one's first choice to apply for asylum in a country which had imperial interests in Chad. The history of Europe is that most countries in the European Union have had, and still have, imperial interests. Many refugees will not apply for asylum in those European countries because the Governments which persecuted, and continue to persecute, them have interests in and the support of those countries. Such people usually move on from those countries.

The Minister mentioned Romania which will be a member of the European Union in a few years' time. It would be strange for us to take a hard stance against countries which will become members of the European Union from April of next year and those who will become members in April 2007.

The best way to tackle the trafficking of humans is to redistribute the wealth of the world and to address poverty rather than close borders and prevent people from arriving in a country as economic migrants or from seeking asylum in the European Union. Yesterday, I mentioned the number of people who have died since 2002 trying to reach European shores, and I excluded the most recent figures. The figure is over 3,500. Despite what the Minister has said, if this legislation is implemented and even if it is similar to that in other European countries, we will contribute to an increase in the number of deaths among those trying to reach fortress Europe. That the rest of the European Union has adopted this does not make it right. We have an opportunity to stand out and not to pass this type of carrier liability provision. This country is not party to the Schengen agreement nor is it likely to be in the foreseeable future, although the rest of Europe might be.

Mr. F. McGrath

In regard to the Minister's points and the question of immigrants and economic migrants, if one looks closely at this Bill and has listened to the discussion this morning, one will know this legislation will not stop economic migrants. The Minister and many people are living under the illusion that people will stop moving around because of this legislation. The reality is that poor people will always move to rich countries. In the 1940s and 1950s, half of our relations went to America and to England because of unemployment and the economic situation. There will always be economic migrants moving from poor countries to wealthy ones. If one listens and talks to these people, which I have done over the past seven or eight years, one will realise that.

As a democrat, I accept the Minister's point that his position might be popular among the wider public and that his views might be supported. Sometimes our position might not be popular and it is difficult to be supportive of people from different countries, immigrants and non-nationals. Over the past couple of years I have been abused and have received hate mail and all sorts of letters. The Minister can check with the gardaí in Raheny some of the threats I have received because I stuck my head on the block on this issue. I accept it is not trendy or fashionable to do so and we have been hammered many a time. I commend Deputies Ó Snodaigh and Costello for their leadership on the issue which, at times, is difficult.

On the positive side, I had the honour of working in a small inner city school where 15% of children were immigrants. They were like the Irish who went to America or to England in that they really worked hard. In the morning I enjoyed seeing different nationalities come into the yard in their Dublin Bus uniforms to drop off their children. That was the positive side of immigration. We sometimes forget that many people have come to our country and have made a massive economic contribution. Although we are discussing this Bill and carrier liability, I would like that message to be sent. Immigration does not always mean bad news. As leaders and as politicians, we have a duty to sell that message to the public.

Mr. O’Donovan

The provisions of section 2 are strongly worded and are necessary. I do not concur with the view that the penalties on carriers will encourage traffickers. It will discourage them. I attended a conference in Stockholm two or three years ago and listened to its proceedings with great interest. At that stage we had the second highest number of immigrants per capita in the EU outside of Belgium, and I wonder if that ratio still stands.

Over half of my siblings are living in the United States and it always bugs me to hear people talk about how easy it was to go there. My sisters went out there when I was a baby. They were finger printed and had to have a place to stay before they could sign on. They jumped through hoops to get there and stay there. This notion that the Irish were welcomed with open arms and that it was easy for them is false. We must have regulations like finger printing. We must have protections here. I am not being in any way racist or narrow-minded in this regard but for too long we have heard about human trafficking in Europe and beyond, and there are well developed gangs, some with Chinese connections, who are into trafficking and racketeering.

We must not give the impression, which we have done in the past four or five years, that Ireland is a soft touch. Genuine asylum seekers fleeing persecution need protection, but the economic migrants who come here must be aware that we have stringent laws and regulations. This section is tough, but we need it.

Mr. Costello

I want to focus again on how, when this legislation, particularly this section, is implemented, somebody who is genuinely in need of succour or security from this State will be able to receive it. I ask how that will operate with the restrictions that are being put in place in relation to carrier liability. In the broader context of what we have been discussing, the Minister might also address the whole question of an immigration policy. We really have not discussed that but it fits into this context. It is one thing to put in regulations and provisions of this nature, but it is another thing to have a policy and a plan as to how we should deal with immigration.

We should have some philosophical underpinning which recognises that there are many economic refugees out there who have heard about Ireland's economic success, and we should look at whether a quota or green card system could be provided in that respect rather than the sort of bonded employer system we have established for migrant workers coming here. We have very stringent provisions here in relation to carrier liability. On the other hand, we have very limited and improper provisions in relation to people who we accept as workers in areas with a surplus of employment requirements. The Minister might make some reference to the broader issue, whether he has plans to deal with this issue in the broader context. Specifically, I ask him how anybody will be able to make an application considering the strict curtailment that will be provided under this carrier liability legislation.

Mr. McDowell

Perhaps I can agree with Deputy McGrath in his final observations. I believe in a society which welcomes immigrants who come to participate in our economic life in accordance with some orderly process. I believe in a multi-ethnic society. I believe that we should not have discriminatory immigration laws. I agree with Deputies Costello and McGrath that our immigration law should be developed to an extent which it is not at present. I agree with them both that the notion that one gets into Ireland simply on the basis of a relationship with one employer, while pragmatic in one sense, is deficient in other respects.

If we need a carpenter in this country, why should a carpenter not come here regardless of whether he or she has an engagement with a specific employer, and why should his or her status be linked to a specific employer? That is a very good argument but it is not what we are dealing with here. I have made this point so many times that I have given up and am blue in the face making it, but if one looks at people who are obviously foreign in ethnic origin on any street, the great majority of them are not asylum seekers and never have been, have nothing to do with the asylum process, are here perfectly lawfully at our invitation and are making a very valuable contribution to our society. That point has to be impressed upon the Irish people.

I have no problem with any of those propositions, and I think we all agree on them. However, the phrase "economic refugees" was creeping into Deputy Costello's argument, and I do not agree with the notion that this is all part of one continuum. Asylum seeking is specific and different. We all know that asylum seeking is used as a route for economic migrancy, but the State's attitude to asylum seekers has to be qualitatively different from its attitude to would-be immigrants. With would-be immigrants, the State effectively asks whether is has a place for them and whether they have some useful role to play. With asylum seeking, those issues do not arise. It involves a person saying that he or she is in fear of persecution, is claiming our protection and wishes to be accommodated and allowed into our society while we consider the issue.

This is wholly separate from a tradesman, carpenter or somebody working in McDonalds wanting to come here to flee economic deprivation. It is a totally different system. I fully appreciate that many people use one to achieve the other, and it would be naive of me to pretend otherwise. Legally speaking, I cannot operate an asylum seeking law on the basis that it is open to abuse. I cannot do that, and it would be madness to allow me to do so. If that were the law here, people who are willing to deceive the State as to their circumstances would go to the top of the queue whereas people who are willing to offer their skills and go through whatever immigration regime we have would go to the bottom of the queue. We simply cannot operate that way.

I fully take the points that the Deputies opposite are making about how Irish people relied on migration in the past. I agree completely that economic migration, as a phenomenon, will increase rather than decrease. The notion that we will all live in a purely lace curtained, pale skinned Ireland of the 1960s, 1970s and 1980s is simply not on. The Immigration Control Platform may be disappointed to hear me say that, but it is simply not on. We are moving towards a multi-ethnic society. However, no ideological attachment to multi-ethnicity and fairness in the international economic order should confuse us into having an asylum seeking law which will effectively just be a bolt-hole through which everybody walks, talking about asylum until they get established here and then, as is the case, simply abandoning their application, disappearing into the work and announcing that they have achieved their aim and do not want to claim the protection of the Irish State anymore.

I must have a workable law and workable system of immigration controls. At the Justice and Home Affairs Council meetings of the European Union, my Swedish colleague, who has very strong views on these subjects, constantly emphasises that Europe needs migrants, that Sweden in particular badly needs migrant workers for the purposes of the European economy. He constantly puts that point to us. We are moving towards a European Union where migration law and policy will be considered at a European level and where we will probably surrender a good deal of our capacity to exercise a veto. The unanimity requirement will disappear in relation to asylum seeking as well. We are moving towards a situation where Europe will have to make collective decisions on these fronts. In the meantime Ireland is entitled to have laws, procedures and protections that work and to ask of carriers providing services to this country that they behave in the same way as they do when going elsewhere.

With regard to the point about the UN commissioner's observations, which must be answered, if one said that carrier liability applies except where somebody claims to be coming here as an asylum seeker, that would make a complete mess of any system requiring people to be documented. No one in his or her right mind would bother arguing the toss with an airline official in Le Bourget or anywhere else if all he or she had to say were the magic words "I am travelling to Ireland as an asylum seeker", the issue of documentation were to be put to oneself and the official were merely to look at the colour of the person's money and put him or her on a plane. That could not be the law. With respect to the UN High Commissioner, no other member state of the European Union has accepted the argument that one can simply present oneself at a counter anywhere in the world and say "I am flying to Ireland as an asylum seeker; I do not propose to produce documentation." We cannot have a law of that kind. The UN has not persuaded any of our fellow member states in the European Union that that is a reasonable law and I do not propose to introduce such a law.

Question put.

The Committee divided: Tá, 8; Níl, 2.

Tá

Ardagh, Seán.
Callanan, Joe.
Deasy, John.
Hoctor, Máire.
McDowell, Michael.
Ó Fearghaíl, Seán.
O’Donovan, Denis.
Power, Peter.

Níl

Costello, Joe.
McGrath, Finian.

Question declared carried.

SECTION 3.

Chairman

Amendments Nos. 15, 16 and 17 are related to amendment No. 14 and they may be discussed together, by agreement.

Deputy McDowell

I move amendment No. 14:

In page 5, subsection (1)(b), line 32, to delete “at the Garda Síochána station” and substitute “or an authorised person at a Garda Síochána station or at another place”.

These amendments address the means whereby carriers who are notified of an alleged offence under section 2 can pay a fixed penalty and thus avoid the need for the matter to go to court. Section 3 states that such a penalty is to be paid to a specified member of the Garda Síochána at a designated station. This arrangement is too inflexible and I intend that the fine can be paid in offices other than Garda stations - I refer in particular to the offices at Burgh Quay in Dublin, which house the headquarters of the Garda National Immigration Bureau as well as the immigration and asylum divisions of my Department. These offices do not comprise a Garda station. It may also be necessary to provide further collection facilities at other sites and ports, which may not necessarily be Garda stations. These more flexible arrangements, which are directly analogous to amendments to the Road Traffic Act 1994, for similar arrangements for parking and other offences, will be in ease of the carrier that incurs a fine and will also make for a more efficient use of resources in respect of immigration.

One of the inflexibilities that existed under the Road Traffic Act was that all on-the-spot fines had to be paid to members of the Garda Síochána. The Government is anxious, as am I, to have flexible arrangements so people within or without the public service can do work that is not essential to the Garda, such as fine collecting and paperwork.

Deputy Costello

Will the Minister elaborate further on the phrase "another place" and how extensive he believes these other places will be? Will there be one or many other places designated by him? For example, would he consider designating yacht clubs around Ireland as such "places"?

Mr. McDowell

The public bar of the yacht club——

Deputy Costello

The public bar of the yacht club would seem to be an appropriate place to which the carrier and his crew might arrive with their cargo.

The first line of section 3 states that where an immigration officer has reasonable grounds for believing that an offence under section 2 is being or has been committed, he shall serve or cause to be served a notice on the offender. What does this mean in practice? If a carrier does not present himself to an immigration officer, does it mean that there will be an investigative procedure in place that will include other places and Garda stations? Will the system be centralised in some form? How will the Minister achieve the objective of giving to immigration officers an active role in searching for people who might be in breach of carrier liability legislation? Obviously this role did not exist before because there was no carrier liability resulting in carriers having to go to a Garda station or another place and pay a fine of €1,500.

Mr. McDowell

This is the equivalent in immigration law of the on-the-spot fine that applied in road traffic law. Where a garda detects a person speeding, as defined in road traffic law, he serves a notice on the person in question at his or her registered address. This notice compels the person who was detected speeding to accept that there was an infringement of the law and to pay a penalty or face the proposition that he or she be brought to court. In effect, this is an on-the-spot fine procedure.

The amendments the Government is proposing are to allow processing and administration of on-the-spot fines procedures to be carried out in a more flexible way. It used to be the case that they had to be processed only by a member of the Garda Síochána, but this meant that gardaí had to receive fines, account for them, issue documentation and receipts in respect of them and make these available to their superiors, thus consuming an immense amount of Garda time. As I said in respect of this matter, one possibility is to use Burgh Quay where there is a very substantial facility. I ask members of the committee to visit it because it is an eye-opener.

Deputy Costello should note that it is my intention to transfer the task of handling fines from the gardaí to established agencies or, alternatively, to give contracts to companies outside the public service to handle and process them.

Amendment agreed to.

Deputy McDowell

I move amendment No. 15:

In page 5, subsection (2)(a), line 42, to delete “at the Garda Síochána station” and substitute “or an authorised person at a Garda Síochána station or at another place”.

Amendment agreed to.

Deputy McDowell

I move amendment No. 16:

In page 5, subsection (2)(b), line 45, to delete “may receive the payment,” and substitute “or the authorised person may receive the payment and”.

Amendment agreed to.

Question proposed: "That section 3, as amended, stand part of the Bill."

Deputy Costello

Section 2 imposes carrier liability and section 3 concerns the sanctions imposed if an immigration officer has reasonable grounds that a carrier is alleged to have committed an offence. The legislation is flimsy in respect of the on-the-spot fine. It is transferring the onus to the carrier from the immigration officer, implying that the carrier will incur a substantial on-the-spot fine of €1,500 which must be paid within 28 days.

I object to this section because I objected to the implications in the previous one. It is wrong that the carrier should now, out of the blue, be given the specific responsibility conferred under the Bill. There is no reference to how the carrier will fulfil this responsibility and no reference to training. They must ascertain the authenticity of documents. Documents can be very complicated and, as we all know from what we heard last night in the Dáil, many people forge them. While this might be a defence on the part of a carrier he is, nevertheless, responsible for ensuring that documents are valid. A new offence is being created and the carrier will be responsible for immigration policy and for who comes and who does not come into this country. That is very unfair. It is put in a very flimsy fashion in section 3 which states that where an immigration officer has reasonable grounds for believing an offence has been committed, he or she must give notice that the person is alleged to have committed the offence and so on. That section should be opposed as well and we should not go down that road.

Question put and agreed to.

NEW SECTION.

Chairman

Amendments Nos. 1 to 4, inclusive, to amendment No. 18 are related and may be discussed together. Is that agreed? Agreed.

Mr. McDowell

I move amendment No. 18:

In page 6, before section 4, to insert the following new section:

"4.-The Aliens Act 1935 is hereby amended by the substitution of the following section for section 7:

'7.-(1) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that -

(a) it is reasonably necessary for the purpose of the enforcement of -

(i) an aliens order, or

(ii) an order under section 3 or 4 of the Immigration Act 1999 ("the Act of 1999"),

that a place specified in the information should be searched by members of the Garda Síochána, or

(b) there are reasonable grounds for suspecting that evidence of or relating to an offence under section 6 or section 3, 4 or 8 of the Act of 1999 is to be found at a place specified in the information,

the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary-

(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

(b) to search it and any persons found there, and

(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under section 6 or section 3, 4 or 8 of the Act of 1999.

(3) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.

(4) Any person who-

(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (1),

(b) fails or refuses to comply with a requirement under this section, or

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both.

(5) A member of the Garda Síochána may arrest without warrant any person whom the member suspects of having committed an offence under subsection (4).

(6) In this section, "place" includes any dwelling, any building or part of a building and any vehicle, vessel, structure or container used or intended to be used for the carriage of goods by road.'.".

Section 4, as it stands, concerns the non-employment of non-nationals in the State without proper authority. It was introduced on the basis that at the time the Bill was published, it was anticipated that the Tánaiste would not be in a position to put her major legislation, which was to contain this section, on the Statute Book in the foreseeable future. It was to implement that one aspect of legislation which she proposed in any event. As things have turned out, she has overtaken us. As the Tánaiste introduced law to this effect, this is now, effectively, redundant. This amendment involves the deletion of section 4 and the insertion of the new section.

The new section is to modernise the law provided in the Aliens Act 1935 in relation to entry, search and seizure. The purpose of this amendment is to modernise the powers of search in section 7 of the Aliens Act 1935 and to extend those powers for the purposes of the enforcement of deportation orders under the Immigration Act 1999. This amendment will also have the effect of removing from the Bill the present section 4. That provision has been superseded by the passage of the Employment Permits Act 2003 earlier this year which includes provisions modelled on the one being dropped from the Bill.

Deputy Ó Snodaigh asked about a warrant being issued by the District Court. This relates to the new section 7(1) of the Aliens Act which provides that "Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, . . . ". Is it still the case that warrants sought, even in the courts, are issued in a fairly automatic fashion? There are hardly any instances of warrants sought being refused. We have a different approach to this area in this jurisdiction compared to, say, the United States where such cases are heard and there is a much closer scrutiny of information supplied and the reasons given. I recall tabling a question to the Minister seeking statistics on the number of warrants sought, refused and granted, to which I believe I still have not received a reply. I believe there would be a great disproportion if we were to consider the number refused and the number granted. It seems that in virtually all cases warrants are granted. Even though there appears to be strong protective measures in this legislation, the practice is that a Garda officer brings an application for a warrant to the District Court, the District Court judge takes a preliminary glance at it and a warrant is granted. Would the Minister care to comment on that?

Mr. McDowell

There was a time in the past when sworn information was handed to a peace commissioner and it was almost automatic that it was stamped. People had a suspicion that it was not carefully read, but that has changed. District Court judges carefully read the sworn information before them and check whether there is a prima facie case for the granting of a warrant. In regard to all these matters, one must remember that there is, what the lawyers call, an ex parte process; there is not another side to contradict matters. In such cases, one is under oath - it would be serious to lie under oath - and sets out a prima facie basis for the rights of another person in respect of his or her privacy and home to be interfered with. I know from latter experience that District Court judges regularly ask some searching questions of gardaí seeking warrants and if they feel they are being taken for granted, they ask questions checking the basis for particular assertions in the sworn information on which the warrant is granted.

We cannot have an adversarial system under which a person whose house is about to be raided is notified and where such a person can go to court and argue against such a search. That would not be practical. Perhaps in an ideal world there should be a scrutineer in court who would act as an adversary and check through all these matters, but that is not the way we have done business heretofore, although maybe in the future we will go down that road.

Aengus Ó Snodaigh

In relation to section 2 I asked who such other persons might be? Given that in relation to this new section we are talking about a member of the force not below the rank of sergeant, a warrant could be issued and a Garda of no rank could prosecute the warrant for which the Garda sergeant applied in the first instance.

Mr. Costello

The Minister referred to the way we have operated the system hitherto. It is a substantial power to give people the right to enter, seize and search a person's home. Perhaps we should reconsider this system, given that there is no due process in terms of the seeking of warrants. We hear from time to time of the wrong home being raided and considerable damage being done in terms of breaking down doors and carrying out the search. If we are going to allow persons access to people's homes without the opportunity of questioning the validity of the information given, it would be no harm to do research on how the warrant system has operated to date. We should check the percentage of warrants refused and granted, whether we are satisfied that a garda not below the rank of sergeant can walk into the District Court to seek a warrant and 99% of the time walk out with one, and how it will be effected immediately afterwards. As Deputy Ó Snodaigh said, who will effect it at that point? What rank of officer will be responsible for the entry into a person's home? Such an officer will have wide ranging powers to interfere in a family home, to seize goods and to search at will. That is an extraordinary power granted in an extremely flimsy fashion.

Mr. McDowell

I agree with Deputy Costello that it would be disturbing if we thought the granting of such warrants was a quasi-automatic process, but my impression is that is no longer, if it ever was, the case. District Court judges question gardaí and do not allow themselves to be taken for granted. Sometimes they ask a fairly cursory question such as "are you sure?" but, by definition, sometimes a compelling case has been sworn up to by the garda, and that is the situation in which they find themselves.

Mr. Costello

I move amendment No. 3 to amendment No. 18:

In the proposed new section 7(5) of the Aliens Act 1935, in the second line, after "member" to insert "reasonably".

Amendments Nos. 19 to 21, inclusive, relate to section 4, which is to be deleted by virtue of our accepting amendment No. 18, as amended. It is now included in legislation pertaining to the Department of Enterprise, Trade and Employment. Is it agreed to withdraw the amendments?

Mr. Deasy

Does the Minister understand our concerns?

Mr. McDowell

The problem is that the Minister for Enterprise, Trade and Employment introduced parallel legislation and effectively transferred this section from this Bill. She has dealt with it and it has become law. Therefore, we are like dogs who continue to bark at the wheels of a car that has passed them by.

Chairman

Mr. Costello

I move amendment No. 1 to amendment No. 22:

In the proposed new section 2(c) of the Refugee Act 1996, to delete the first and second lines and substitute the following:

"(c) has been determined on serious grounds in accordance with this Act to be a person who-”.

Amendment to amendment put and declared lost.

Amendment put and declared carried.

Mr. Costello

I move amendment No. 23:

In page 8, between lines 10 and 11, to insert the following:

"(a) in section 6, by the addition of the following subsection:

'(4) The Commissioner and the Tribunal shall, if they or either of them reject an application for refugee status, and if so requested by the applicant, make a recommendation to the Minister on whether or not protection should be afforded to the applicant by way of humanitarian leave to remain in the State.'.".

This is self-explanatory and I would appreciate if the Minister would accept it.

Mr. McDowell

I am not of a mind to accept it. The commissioner and the tribunal have a function to carry out under statute. It may well be that one of them could decide to put pen to paper and write a letter to me saying that, in the course of a hearing, they discovered (a), (b) and (c). There is nothing stopping them from doing that. I do not want to fudge the issues here. They are there to determine issues under the asylum law.

If they have a function in relation to humanitarian matters as of right, their hearings will be conducted with a view to obtaining one of those recommendations. Therefore, all sorts of things will enter into the equation, such as family circumstances and so on - the kind of things I consider on a regular basis. I want to make it clear to the Refugee Applications Commissioner and to the tribunal that their function is to run hearings and decide on the legalities of the issue.

If there are humanitarian issues of which they become aware, there is no reason they should not communicate with anybody in the process and draw that to their attention. If I go down the other road, every hearing before them will be conducted with a view to getting one of those recommendations. Thus, every extraneous issue, such as the person's disadvantaged background or the loss of the family pet, will be thrown into the case and everything that could possibly affect me will be included in both the first and second instance in order to try to get such a recommendation. This will broaden and slow things down massively.

In case that sounds harsh, it is not. When it comes to humanitarian leave to remain, every issue one wants to raise is taken on board. There is a statutory right to apply to the Minister for that, and one is open to put everything one wants on the table, so to speak. There is a net issue for the Refugee Applications Commissioner and the Refugee Appeals Tribunal to deal with. There is nothing stopping them from issuing any recommendation they like at the moment, but if they are given this statutory function, they will have to listen to all the possible humanitarian arguments. That would treble or quadruple the issues and length of time that all of this would take.

The UN High Commissioner for Refugees has approved the Irish system and it is a very good system. I do not want to throw a spanner in the works by saying that in addition to considering their statutory functions, the commissioner and tribunal are now being given a broad remit to effectively give the Minister a recommendatory report in all of these cases on general humanitarian considerations which have nothing to do with refugee applications.

I would not find it helpful; in fact, I would find it very unhelpful if every hearing before the RAC or the RAT ended up with correspondence to me evaluating the humanitarian issues. I bear the brunt of that, with my officials, and I have to make decisions which are consistent with each other and put things into the balance. The RAC and RAT do not have to do that. They have narrow legal functions. They do not know what another tribunal member is deciding on in terms of recommendations on similar facts. Consistency would go out the window. They would have to turn themselves into a collective college to determine standards on these issues, which would be way outside their remit.

Mr. Costello

Amendment, by leave, withdrawn.

Mr. McDowell

I move amendment No. 24:

In page 8, paragraph (a)(i), line 12, to delete “2003” and substitute “2005”.

It is not that bad. The Act commenced in 2000. There has been a three year delay.

Mr. Costello

I move amendment No. 25:

In page 8, paragraph (a)(iii), lines 16 and 17, to delete “paragraph (g)” and substitute “paragraph 3(g)”.

This is a technical amendment to delete paragraph (g) and substitute it with paragraph 3(g).

Mr. McDowell

I accept the amendment.

Amendment agreed to.

Mr. Costello

I move amendment No. 26:

In page 8, between lines 19 and 20, to insert the following:

"(b) in section 8(1)(a)(i) after ’after’ by the insertion of ’such person has had a reasonable opportunity for access to legal advice subsequent to’.”.

Currently the law requires an asylum seeker to be interviewed on arrival in the State but the opportunity for legal advice should be established. That is the effect of the amendment.

Mr. McDowell

I cannot accept the amendment. The interview that takes place at the frontier of the State must take place instanter. There is no point in having any other arrangement. We cannot have a situation whereby somebody is detained while efforts are made to get lawyers to become involved in the process. To police the frontiers of the State properly, immigration officers have to be in a position to carry out interviews on the spot. We could not go down the road of having a postponement of all interviews until lawyers arrived. We are talking about stopping people on the border and people dealing with huge numbers coming through ports and airports. We cannot have that degree of involvement of lawyers.

Mr. Costello

I will not press the amendment.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 34, 35, 40, 41 and 52 to 54, inclusive, are related to amendment No. 27, amendments Nos. 34 and 35 are mutually alternative and amendments Nos. 52 and 53 are mutually alternative. Therefore, amendments Nos. 27, 34, 35, 40, 41 and 52 to 54, inclusive, may be discussed together by agreement.

Mr. Costello

I move amendment No. 27:

In page 8, line 33, to delete "5" and substitute "20".

That is a large group of amendments.

Chairman

They must all cover more or less the same matters.

Mr. Costello

They share the same principle. Perhaps the Minister will give his views on them.

Mr. McDowell

The motivation for these amendments is based on what I would consider a mistaken assumption, that by allowing lengthy periods for people to demonstrate a renewed commitment to co-operating in the investigation of their asylum cases, that must be in some way fairer than the sensible limits proposed in the Government amendment. My view is that the opposite is the case because the only persons to profit from the protraction of the asylum process are those who have no basis for their claims in the first place.

I emphasise that it is a serious matter when people come to Ireland and seek the protection of the State. It is not a matter of coming here and thinking one will get on with the rest of one's life and incidentally one will get around to addressing the basis on which one is here. This is about a person who is fleeing persecution from a State from which he or she is claiming protection and, therefore, the priority for genuine asylum seekers is to establish their status as soon as possible. If persecution is genuinely feared, it is not a matter of one coming here and saying that sometime one will get around to pursuing one's asylum claim. Establishing one's status as an asylum seeker should be the number one priority in a genuine asylum seeker's mind. Senator Tuffy and I discussed this at great length in the Seanad.

I do not want to go on at length about this, but if one is engaging with the Irish State and seeking to invoke the 1951 Act, we require one to engage in the process seriously and effectively and not to do it half heartedly, when it suits one or when one's other social and human priorities allow one to engage in it. This is serious business. If one comes to Ireland and engages in our asylum seeking process, the Irish State takes that seriously. We arrange for interpreters, case studies to be done, hearings to be held and legal aid for applicants. We expect people to take the process equally seriously. The time limits provided for in the Bill are adequate and devised with a view to ensuring that genuine asylum seekers get on with their case and that they have their status declared as soon as possible so that once they are accepted as being entitled to the protection of the Irish State, they can integrate into Irish society, engage in employment and enjoy all the rights that we accord to refugees as soon as possible. The Irish State does not want to keep anybody in a state of suspended animation for longer than is necessary. We have looked at this long and hard and we are satisfied that the current limits are reasonable. This does not militate against a genuine asylum seeker but plays straight into the hands of bogus applicants.

Only 47% of interviews proceed in the Office of the Refugee Applications Commissioner on the day fixed. The majority of people walk away from the process or fail to turn up. That is serious from the point of view of the Refugee Applications Commissioner. She has to arrange for interpreters and put together the files and studies. She has to orientate her office towards doing the work scheduled on the day specified. A good deal of effort goes into getting these hearings up and running. These matters are not arranged on the basis that an applicant comes in and an official pulls down that person's file and deals with him or her. The person hearing a case has prepared for the occasion, arranged for an interpreter, studied the country in question and knows the facts. In those circumstances it is a serious matter when only 47% of people turn up for and proceed with their interviews. The refugee legal service has also been teed up for the occasion and if it is cancelled, that is another waste of resources.

I emphasise to Deputy Costello that Senator Tuffy and I discussed this matter at great length in the Seanad. I am satisfied that if we lengthen these periods of time in the manner suggested, we will merely throw the work of the Office of the Refugee Applications Commissioner into reverse, wipe out all the progress we have made recently and give a charter to people who effectively do not intend to turn up.

Amendment No. 41 is in a slightly different vein. It would allow the response time to run, in the case of an applicant demonstrating failure to co-operate with the commissioner's investigation, not from the sending of the warning letter but from its receipt. That might sound perfect, but we must live in the real world. It is clearly impractical. All a reluctant applicant has to do to make a nonsense of the system is to be sure not to receive the letter, to go missing. The amendment would offer an answer in every case by a simple response from the applicant such as "I never got the letter, I was not where I was supposed to get the letter and never got it."

The courts in successive cases concerning immigration and asylum matters, have specifically acknowledged the good sense of having time periods run from the date of the issue of notices rather than the date of their proven receipt on the basis that any other approach would be unworkable in practical terms. This amendment would play straight into the hands of people who would say they never got the letter.

If one asks the Irish State to accept one as an asylum seeker and to investigate one's case, one's duty is to be where the letter would find one. One's duty is to engage in the process. One does not have the right to go off and follow one's other pursuits in Ireland, whatever they are, recreational or cultural, and to say one is not around to receive letters or to engage in the process.

Mr. Costello

The thrust of these amendments is to provide greater flexibility than is provided in the various sections to which the amendments refer. The Minister's intention is to provide as little flexibility as possible, to tie the schedule of interviews, the sending of letters, the whole application process, into a strict timespan. The difficulty with that is that we are talking about newcomers to the shores of this country, people who often do not speak the same language as us, people who may not have a settled address and who may often need an interpreter. A second chance is not being provided. Therefore, if one misses one's interview, one is out of the process - one strike and one is out. If it is a requirement that a person must give his or her address within five days, it must be noted that such a person may not have a settled address. The Minister intends to make provision for centres for people coming here seeking asylum. However, many people here are not in full control in terms of where they are based, the language and the way matters function here.

Are you pressing the amendment?

Mr. Costello

Yes.

Amendment put.

The Committee divided: Tá, 2; Níl, 7.

Tá

Joe Costello.
Michael D. Higgins.

Níl

Seán Ardagh.
Tony Dempsey.
Maire Hoctor.
Michael McDowell.
Denis O’Donovan.
Seán Ó Fearghaíl.
Peter Power.

Mr. Costello

I move amendment No. 29:

In page 8, line 38, after "withdrawn" to insert "unless the applicant is accommodated under direct provision in which case it shall be the duty of the Minister to inform the Commissioner of the applicant's address".

This amendment would apply where if, after five working days have elapsed since making an application for a declaration and the applicant has not informed the commissioner of his or her address, they shall be deemed to be withdrawn unless the applicant is accommodated under direct provision. The amendment ties in with the Minister's stated desire to have a streamlined, fast-track system of processing applications. In a situation where direct provision is provided by the Government, the Minister can bypass the applicant and provide the address directly himself. Why should not the Minister inform the commissioner, who will be interviewing the applicant, of the address directly? There should be no problem about that. In fact, in those circumstances, the Minister could shift from working days since the making of the application to working days from receipt of the application. The Minister knows precisely where the person is in the case of direct provision and he can ensure that the letter is delivered. The matter can thus be tied up to more securely.

Some 47% turned up for interview; 53% did not.

Mr. Costello

More than 50% of people did not turn up for a variety reasons, presumably one of which was that they were not at the addresses to which letters were sent.

With the new accommodation in place, which I question, will the Minister not think in terms of the legislation in the mind of the previous Minister, Deputy O'Donoghue, when there was no direct provision but rather the legislation in his own mind when there will be direct provision? Will the Minister not streamline the system to ensure everybody is directly communicated with? Where a person is being accommodated, those responsible for that accommodation who come under the aegis of the Minister should be able to ensure all letters and communications are delivered and that the commissioner is informed of the address of the person who is to be interviewed and ensure he or she arrives at the interview in time and on the correct date. That is all we are talking about; we are not initiating a major legal challenge to what the Minister is attempting to do or to his responsibilities. If the Minister streamlines the system, we can get rid of the defects and the flaws about which the Minister is giving out.

Chairman

Does the Minister want to go over it again?

Mr. McDowell

No.

Chairman

Is amendment No. 29 being pressed?

Mr. Costello

Yes.

Amendment put and declared lost.

Mr. McDowell

I move amendment No. 30:

In page 8, paragraph (b), between lines 40 and 41, to insert the following:

"(iv) the substitution in subsection (10)(b)(i) of ’21 days’ for ’10 days’, and

(v) the substitution in subsection (14)(a) of ’21 days’ for ’10 days’,”.

This amendment proposes to extend from ten days to 21 days the maximum period between court appearances for an applicant detained under section 9(8) of the Refugee Act.

At present, a person detained under section 9 must, as soon as practicable, be brought before a District Court judge to have his or her detention reviewed. If the judge is satisfied that any or all of the grounds under section 9(8) apply to the person, then he or she may commit the person to detention for a period of up to ten days in accordance with section 9(10)(b). If the judge is of the view that section 9(8) no longer applies to the person, then he or she shall release the person and may make that release subject to one or more conditions specified in section 10(b)(ii). These conditions require the applicant to reside in a certain place, report to the Garda or surrender passports or travel documents. A person who fails to comply with these conditions may also be made subject to detention under section 9. Any person committed to such detention may be committed to the District Court for further periods of up to ten days and each further period of detention is subject to review in the same way.

The existing requirement of the Act that the person be brought before the court as soon as the grounds for detention no longer apply, allied to the court review arrangements, are sufficient safeguards against anyone being detained for longer than is necessary. I am concerned to ensure that, where the last resort of detention - which I stress is the last resort - is the appropriate course, it should work in a way that not only secures the rights and protection of detainees but also does so with a reasonably efficient use of resources.

My amendment proposes to extend the period to 21 days and with the view that the current ten day detention period has the potential to place an undue burden on the already heavily stretched resources of the courts and the Garda Síochána. I stress, however, that, where a District Court judge believes that in a specific case a period of detention would be excessive, the amendment gives increased flexibility to him or her not to order such detention and it will be open to the person in question to argue for a lesser period of remand or adjournment of his or her case where he or she is in detention.

This is not designed to force the District Court to a certain outcome. The court, which consists of men and women who are sworn to uphold everyone's constitutional rights and to apply fair processes, will decide the appropriate adjournment in each case. What the section as amended would do would be to give the District Court the right to increase the period of detention to 21 days if that is considered just by the individual District Court judge.

Only about 30 people have been detained under the Refugee Act 1996 since November 2000 when it came into operation. It is not the practice to detain people except in exceptional circumstances. Committee members should know it is only where it is considered to be the last resort available that it is done. I have better things to do with the cells I have available to me. I am not anxious to place asylum seekers in them. There is no policy of mass detention.

However, there are certain circumstances, such as happened in Shannon, where a group of people are detained for periods. It was the only appropriate response in the Shannon case. The people had come to Ireland from India via Moscow. They had made arrangements with people to ferry them from Shannon in buses. In such circumstances, it was abundantly clear that, if they were not detained, we would never see them again because arrangements had been made with people in England to accommodate them. In such exceptional circumstances, the power to detain was used. It is not in the State's interest to detain people except where it is necessary, but there are certain circumstances, such as that incident where a complex plan was discovered half-way through its execution and where there was every reason to believe that, if they were set at liberty, we would never see them again and that they would abuse the common travel area and disappear having abused the asylum process in Ireland.

Mr. Costello

It would appear strange, if this is a power that is seldom used and to which only 30 people have been subject since December 2000, that there is a need to more than double the period of detention. It is one of the issues on which the Office of the United Nations High Commissioner for Refugees has specifically focused and criticised. Where the UNHCR agrees with the Minister is that detention of asylum applicants is inherently undesirable and should only be used as a last resort. The UNHCR goes on to describe the list of circumstances where it could be used and states that it should only be used in the following clearly circumscribed circumstances: to verify identity, to determine the elements on which the claim for refugee status or asylum is based, to deal with cases where refugees or asylum seekers have destroyed their travel or identity documents or are using fraudulent ones, or to protect national security or public order. Perhaps the Minister's description of what happened with the people from India falls into the last category. The UNHCR indicates clearly as well that there should also be appropriate facilities and that people should not be detained with convicted criminals.

The final paragraph is where the UNHCR is strongest with its criticism, stating that it notes with concern that the Immigration Bill proposes to amend section 9 of the Refugee Act by extending the detention period of certain asylum seekers prior to judicial review from ten to 21 days. The UNHCR goes on to say that it would prefer to maintain the ten day time limit which it says is more in line with best State practice in this area. While the UNHCR has complimented the Minister in its initial remarks, that he has kept in line with good practice and refrained from exercising a policy of detention in respect of asylum seekers, and hopes he will continue along that line, it is critical of the Minister's extension of the period in which detention would take place from ten to 21 days.

Nothing the Minister has said convinces us of the need to more than double the detention period. In fact, he said the opposite, that there is a need to keep cells vacant for domestic criminals, so to speak, and that the last thing he needs to do is detain people in cells that could be used for an alternative purpose. Unless the Minister intends to use this process more often to detain more people between judicial hearings, why does he need this extension? Why incur the wrath of the UNHCR on the matter?

Aengus Ó Snodaigh

Some of the points I wished to raise have been addressed. Detention should be used as a last resort and the Minister said that. I am concerned about the extension of the detention period from ten to 21 days, not least because there are no guarantees that anyone detained under this change in the legislation will be kept separate from convicted criminals. There are no commitments in this regard and it is one of the points raised by the UNHCR, that at the very least those detained should be kept separate but also that, if it is a last resort, it should be for the least amount of time possible.

The Minister had a ten day detention limit available to him and, if it has not been used that often, I do not see why it needs to be extended to 21 days. A ten day limit is fine and it should possibly be lower than that if we are to believe it is a last resort. I urge the Minister to withdraw the amendment, leave the detention period of ten days as the maximum and give some commitment that those detained under these provisions are kept separate from convicted criminals in prisons, especially given that many of them will not have the language or will be from different cultures and are likely to be victimised in prison. We await reports to determine whether there is racism in our jails, though I and certain organisations believe it is endemic. We must be careful that this facility is used as a last resort but if it is, those convicted should not be victimised within the prison system.

Mr. McDowell

I accept that the UNHCR would prefer if we stuck with ten days but I do not accept her language was critical. She expressed the view that she would prefer the ten day period. I am dealing with a case in which, for example, 20 people engaged in a mass attempt to evade our immigration law. In order to produce the evidence to sustain their expulsion from the State, I may have to produce witnesses from the UK and make inquiries in India, Russia and so on. Deputy Ó Snodaigh might ask why, after ten days in the training unit in Mountjoy, they should not return to the District Court in Shannon for an appearance every ten days rather than 21 days. However, the District Court judge should listen to both sides and make a 15 or 18 day adjournment because he knows the State will not be able to go on after ten days as it will not have its case together. The judge should be able to make that determination after hearing both sides. The alternative is a pointless hearing involving a convoy of prison officers and gardaí, all on overtime, criss-crossing the country for a hearing everyone knew from day one would be pointless. However, the Act states ten days is the maximum so the District Court had to set a date, though it knew it could not deal with the issue, in order to satisfy the outer limit in the Act. I am trying to provide workable law.

The UNHCR report is very complimentary about the Irish system. We could have a system of closed detention centres and of routine detention. We have the most open system in Europe because we have an internal system that trusts people; we normally give bail to our own people on a basis unavailable elsewhere in Europe. We have a liberal regime. However, we are bringing 20-odd people across Ireland frequently - it is not that frequent so I should not use the word "frequently" - to court hearings which are entirely pointless. There is a convoy to a pointless court hearing just to comply with the Act, even though on day one the District Court judge knows that there will be no useful purpose served by the first hearing and that nothing would happen. In those circumstances this is a reasonable measure.

Aengus Ó Snodaigh

I disagree with the Minister. If we were to have that attitude then most District Court hearings would be pointless and futile. One need only go to Dublin District Court every day and hear the adjournments announced, some going on for two years.

The other issue about travelling around the country is that most prisons in the State are close enough to District Courts, sometimes right next to prisons, such as Clover Hill, Castlerea; it may also be the situation in Limerick. One is not talking about huge convoys and I hope the Minister is not putting the State to huge expense. There could be quick hearings within the ten days without putting the State to huge expense, until such time as the State has gathered its evidence and proceeded properly.

Mr. McDowell

At present we are well advanced in exploring video appearances by people in court. If that comes about then this provision would not be necessary as people in custody could appear in District Court in Shannon by video link while remaining in Mountjoy; all of this would not be necessary in that case. However, while it is necessary and while we do not have video links in all our courts at present, then this is reasonable. In the case I referred to there was considerable expense in shifting people around Ireland for court appearances.

Amendment put.

The Committee divided: Tá, 8; Níl 3.

Tá

Ardagh, Seán.
Deasy, John.
Hoctor, Máire.
McDowell, Michael.
Ó Fearghaíl, Seán.
O’Connor, Charlie.
O’Donovan, Denis.
Power, Peter.

Níl

Costello, Joe.
McGrath, Finian.
Moynihan-Cronin, Breeda.

Amendment declared carried.

Chairman

Amendment No. 31. Amendments Nos. 1 and 2 to amendment No. 31 are related, therefore, amendments Nos. 1 and 2 to amendment No. 31 and amendment No. 31 will be discussed together.

Mr. McDowell

I move amendment No. 31:

In page 8, between lines 40 and 41, to insert the following:

"(c) by the insertion in section 9A of the following subsection after subsection (4):

'(5) The Commissioner of the Garda Síochána shall arrange for the maintenance of a record of fingerprints taken pursuant to subsection (1).',".

This is a technical amendment to make it clear in statute that the Garda Síochána bears the responsibility for maintaining the database of fingerprints of asylum seekers taken in accordance with subsection (1). The Garda is the only body in the State with the expertise to manage such a database in the highly skilled and technical matter of fingerprint records. It is important to place that aspect on a statutory footing.

I would like to indicate that I will be proposing a further amendment on Report Stage which will address the minimum age for the taking of fingerprints. While I do not want to delay the committee now on the subject, I want to say there is evidence of a trend in movement of children and, unless we are in a position to fingerprint and identify young children, there is a significant danger that people will be trafficked at tender ages without any capacity to find out what child is moving where and in what circumstances. I will address that issue on Report Stage.

Mr. Costello

Perhaps the Minister will clarify the situation in relation to the database. It is important to clarify that the Garda is the body responsible. What security is in place in relation to the database and what arrangements are made for sharing a database of that nature with other member states of the European Union? Has the matter proceeded to that extent?

In regard to the minimum age, the Minister has not said what he intends the minimum age to be and why he settled for that particular age.

Mr. McDowell

On the minimum age, the Report Stage amendment will allow for flexibility in the case of children I consider vulnerable to be moved in circumstances where I cannot identify them other than by fingerprinting. There will be safeguards in place. Generally speaking, I do not want to fingerprint children. Equally, if an asylum seeker is being trafficked in and out of the country, I want to be in a position to identify the child I was originally dealing with. It is almost impossible unless there is some kind of objective identification of a child. Otherwise one is driven back to the proposition whereby one must rely on other people's statement as to who a particular child is. We have discovered in the past that traffickers do not tell the truth in these matters.

In relation to EURODAC this is a separate issue. EURODAC has its own rules and conventions. It self-implementing under an EU arrangement. We are putting in place on an interim basis a semi-automated fingerprint system for asylum seekers which has worked reasonably well to date. Under this arrangement, prints are taken at both ports of entry and at the office of the Refugee Applications Commissioner and inputted into an electronic database at Garda headquarters. A code of practice between the relevant agencies has been entered into to ensure that asylum seeker prints are kept separate from prints taken for other purposes.

We are turning our attention to the issue of implementing a full long-term solution to electronic fingerprinting of asylum seekers which will enable the State to meet all its domestic and EU obligations and requirements in relation to the fingerprinting of asylum seekers. A consultant, who was employed to look at how the new electronic system would be developed and implemented has recommended that the logical location for this new system would be with the Garda Síochána. There are a number of reasons for that. The acquisition of fingerprinting skills, including the expertise required to verify possible matches, takes a considerable period of time and I am advised that there is a general shortage of people with such skills outside police forces. In Ireland, that expertise lies with the Garda Síochána. The key elements of the current asylum fingerprint database are located with the gardaí who have considerable experience of running and maintaining such databases. The fingerprinting of asylum seekers is already the responsibility of national police forces in a number of EU jurisdictions. In the context of EURODAC, relatively few hits - in other words, identifications of people who have made a prior application somewhere else - are expected during its early operation with the result that there is likely to be an insufficient workload for a full-time fingerprint expert to be stationed elsewhere for the purposes of verification of EURODAC potential matches.

In relation to the proposed amendments to the Government amendment, I want to please Deputy Costello by saying I will accept amendment No. 1 to amendment No. 31. I am satisfied that it adds useful information for a person who will be looking at the statute and improves its style. I have been told by the parliamentary counsel that this type of annotation is not necessary legally, but I agree with Deputy Costello that it makes it clearer. What we want is accessible law.

As regards the second of Deputy Costello's amendments, I remind the committee that under section 9A(1) of the Refugee Act, fingerprints are to be taken for the purposes of the Act. The section goes on to provide for how long such fingerprints are to be maintained and what is to happen to them. It is self-evident that these records cannot but be maintained in accordance with section 9A. Therefore, this amendment is unnecessary and I do not propose to accept it.

Amendment to amendment agreed to.

Amendment No. 2 to amendment No. 31 not moved.

Amendment as amended, agreed to.

Progress reported; Committee to sit again.

SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate - Wednesday, 25 Jun 2003

Immigration Bill 2002: Committee State (Resumed).

Tá

Níl

SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 25 Jun 2003