Vol. 1 No. 20
I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting to resume consideration on Committee Stage of the Immigration Bill 2002.
Amendments Nos. 1 to 18, inclusive, to amendment No. 47 and amendments Nos. 47, 48, 50 and amendment No. 1 to amendment No. 50 are related. Amendment No. 48 is an alternative to amendment No. 47. Therefore, all amendments may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 47:
In page 9, line 52, and in page 10, lines 1 to 32, to delete paragraph (d) and substitute the following:
"(d) by the substitution of the following section for section 13:
Recommendations and reports of Commissioner.
13.-(1) Where the Commissioner carries out an investigation under section 11 he or she shall, as soon as may be, prepare a report in writing of the results of the investigation and such report shall refer to the matters raised by the applicant in the interview under section 11 and to such other matters as the Commissioner considers appropriate and shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee.
(2) Where an application for a declaration is withdrawn or deemed to be withdrawn pursuant to section 9 or 11, then-
(a) any investigation under section 11 shall be terminated,
(b) the report referred to in subsection (1) shall state that the application has been withdrawn or deemed to be withdrawn, as the case may be, and shall include a recommendation that the applicant concerned should not be declared to be a refugee, and
(c) no appeal under section 16 shall lie against a recommendation under paragraph (b).
(3) The Commissioner shall, if so requested by the High Commissioner, notify him or her of the making of the recommendation under subsection (1).
(4)(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) (other than a report to which subsection (2) applies) includes a recommendation that the applicant should not be declared to be a refugee, the Commissioner shall, subject to subsections (5) and (8), send a notice in writing to the applicant stating that the applicant may appeal to the Tribunal under section 16 against the recommendation and may request an oral hearing within 15 working days from the sending of the notice.
(c) Where the applicant has not appealed against the recommendation referred to in paragraph (b) within 15 working days after the sending of a notice under that paragraph, 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.
(e) Where a report under subsection (1) includes a recommendation pursuant to subsection (2) that the applicant should not be declared to be a refugee, the Commissioner shall, as soon as may be, furnish the report to the Minister.
(5) Where a report under subsection (1) includes a recommendation that the applicant should not be declared to be a refugee and includes among the findings of the Commissioner any of the findings specified in subsection (6), then the following shall, subject to subsection (8), apply:
(a) the notice under paragraph (b) of subsection (4) shall, notwithstanding that subsection, state that the applicant may appeal to the Tribunal under section 16 against the recommendation within 10 working days from the sending of the notice, and that any such appeal will be determined without an oral hearing;
(b) notwithstanding paragraph (c) of subsection (4), where the applicant has not appealed against the recommendation within 10 working days after the sending of a notice under paragraph (b) of that subsection, the Commissioner shall, as soon as may be, furnish the report under subsection (1) to the Minister.
(6) The findings referred to in subsection (5) are-
(a) that the application showed either no basis or a minimal basis for the contention that the applicant is a refugee;
(b) that the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded;
(c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State;
(d) the applicant had lodged a prior application for asylum in another state party to the Geneva Convention (whether or not that application had been determined, granted or rejected); or
(e) the applicant is a national of, or has a right of residence in, a safe country of origin for the time being so designated by order under section 12(4).
(7)(a) The Minister may give a direction in writing to the Commissioner requiring him or her to investigate under section 11 such class of applications as may be specified in the direction in accordance with the procedures referred to in subsection (8) and the Commissioner shall comply with a direction given to him or her under this subsection.
(b) The Minister may by a direction revoke or alter a direction given by him or her under paragraph (a).
(8) Where an application referred to in subsection (7) has been investigated under section 11 and the relevant report under subsection (1) includes a recommendation that the applicant should not be declared to be a refugee and contains among the findings of the Commissioner any of the findings specified in subsection (6), then the following shall, subject to subsection (9), apply:
(a) the notice under paragraph (b) of subsection (4) shall, notwithstanding that subsection, state that the applicant may appeal to the Tribunal under section 16 against the recommendation within 4 working days from the sending of the notice, and that any such appeal will be determined without an oral hearing,
(b) notwithstanding paragraph (c) of subsection (4), where the applicant has not appealed against the recommendation within 4 working days after the sending of a notice under paragraph (b) of that subsection, the Commissioner shall, as soon as may be, furnish the report under subsection (1) to the Minister.
(9)(a) Where an application is to be investigated in accordance with the procedures referred to in subsection (8), the Commissioner shall notify the applicant accordingly in writing and shall send a copy of the notice to his or her solicitor (if known) and, if so requested by the High Commissioner, to him or her.
(b) Paragraphs (a) and (b) of subsection (8) shall not apply to such an application unless the applicant concerned has been notified in accordance with paragraph (a).
(10) Where a report under subsection (1) (other than a report to which subsection (2) applies) includes a recommendation that the applicant should not be declared to be a refugee, then, subject to subsection (11), the Commissioner shall furnish the applicant concerned and the High Commissioner, whenever so requested by him or her, with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 and an indication in writing of the nature and source of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her under that section.
(11) Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.",".
For the information of Deputies, amendment No. 47 is No. 14 in the explanatory memorandum.
This amendment provides for the replacement of the current section 13 of the Act of 1996. It incorporates the amendments to that section already contained in the Bill. I will describe what I regard as the key feature of this new section. The mechanism provides for cases which are refused a recommendation by the commissioner in the first instance and where, in addition, the commissioner's recommendation contains one or more of the findings at subsection (6) of the new section.
The subsection lists the characteristics which, in the Government's view, warrants a case being dealt with in an accelerated fashion on appeal. The features of that accelerated process are threefold. The applicant has ten working days within which to appeal, rather than the standard period of 15 days. The appeal is on the papers only, with no oral hearing and the appeal is to be dealt with as a matter of priority. Another important feature is the possibility of providing for selected classes of cases, particularly a fast, accelerated process, whereby the commissioner's recommendation is negative and the application has one of the characteristics listed in subsection (6). In those cases, the appeal period is to be four working days.
Subsection (1) is substantially the same as the subsection as it now stands in the 1996 Act, but is modified in tandem with the new section 11(2), which we discussed earlier on amendment No. 32, by simplifying the paper trail associated with the investigation of the application by confining the scope of reports under section 11(2) to a report of the interview itself. As I indicated on that amendment, a small chunk of the investigative process is being moved from section 11(2) to this new subsection. Thus, the report to be prepared under this new subsection (1) will contain the material regarding the other aspects of the investigation of the application that has heretofore been done under section 11(1). This will permit greater flexibility for the commissioner's deployment of resources than at present, but will otherwise not affect the investigation process. The substance of the two subsections taken together is unchanged.
Subsection (2) replaces the new subsection (1)(a), as it stands, which is in section 16(1) of the Bill. The purpose of the new subsection is to provide that the withdrawal or deemed withdrawal of an application under sections 9 or 11 will result in a negative and unappealable recommendation. I have already strongly voiced the Government’s stance on the position of asylum seekers in regard to the State whose protection they seek. As was recently and aptly described by a Muslim imam at a public talk on another matter within my remit, there exists a form of contract between the State and the asylum seeker. The State undertakes to examine the claim for protection and fair procedure with the necessary interpreter and legal advice facilities and, while the claim is being examined, the State undertakes to permit the applicant to remain in the State and house, feed and clothe him or her. For the other part, the asylum seeker is expected to co-operate in the investigative process. That involves, in broader terms, remaining in contact with the investigators by ensuring that the commissioner is kept informed of the applicant’s address in the State, making himself or herself available for interview and providing whatever information is possible to assist in the investigation process.
An applicant who does not keep his or her end of the bargain cannot ask us to be allowed to go about this country indefinitely. If an applicant fails to co-operate in the process, having been given fair opportunity to do so, the application will be deemed withdrawn. The State will conclude that someone who acts in that fashion has, by that action or inaction, withdrawn his or her claim and will treat the application accordingly. Thus, there will be no appeal and the Minister will make a negative declaration. If such a person wants to make a fresh application, it is open to him or her to seek the Minister's consent under section 17(7) of the Refugee Act to make that application.
Deputy Finian McGrath's amendment No. 48 seeks to delete the words from the current provisions of the Bill relating to withdrawing applications, which would have the effect that applicants would have the right to appeal when, by their failure to co-operate in the asylum process, they had demonstrated that their applications were withdrawn. In effect, the amendment proposes that applicants should be allowed to say that they wish to appeal against their own decision, which is clearly an untenable proposition. I need hardly say that I neither accept the amendment nor the principle that lies behind it. Subsection (3) reproduces the current subsection (2) of the 1996 Act, with the modification that information will be supplied to the UNHCR, only if that body requests it. The purpose of this modification, made at UNHCR's own request is to preserve the right of the UNHCR to preserve whatever information it requires about individual cases in the asylum process, while at the same time ensuring that it is not overloaded with volumes of information that it cannot handle.
Subsection (4) retains certain of the substance of 13(3) of the Refugee Act, but with some important changes reflecting the accelerated procedure in subsections (5) and (8) of the new section. In paragraph (b), where the report of the commissioner includes a recommendation that the person is not to be declared a refugee, no appeal shall lie where the application is withdrawn or deemed to be withdrawn. This makes sense as the person is not around to pursue the appeal or has made claim that he or she is no longer interested in pursuing the application. In all other cases of a negative recommendation, the entitlement to appeal is subject to subsection (5) and (8), where the recommendation is a finding of the type set out in subsection (6). In such cases the period in which to appeal will be ten or, in certain circumstances, four working days rather than the norm of 15 working days and the appeal will be dealt with on the papers alone.
Paragraphs (c) and (d) of subsection (4) reproduce without modification the corresponding paragraphs of the current section 13. Paragraph (e) of subsection (4) reproduces the content of the amendment at section 6(d)(ii)(II) of the Bill as it stands, superseded by this new section. This will ensure that the Minister is notified immediately of a negative recommendation of the commissioner arising from a withdrawal or deemed withdrawal. The question of waiting for a period before doing so does not arise since no appeal is to lie in such cases.
Subsection (5) is in effect the replacement for the "manifestly unfounded" process set out in section 12 of the Refugee Act 1996. Where the commissioner makes a negative recommendation and the report which includes that recommendation also includes a finding of the type set out in subsection (6), the time for making an appeal is to be shorter and the appeal will be determined without an oral hearing, both aspects the same as applies in the case of an application deemed manifestly unfounded under section 12 of the Act.
Subsection (6) sets out the characteristics which warrant an application on which a negative recommendation has been made being dealt with on the papers only at appeal and a shorter time period within which to make an appeal. In effect, they replace section 12(4) of the Act as it stands. The findings set out at the new section 13(6) of the 1996 Act proposed in Government amendment No. 47 are broadly comparable with, though not necessarily equivalent to, certain of the "manifestly unfounded" criteria at the current section 12(4). They cannot be treated as equivalents because these findings would apply only after the negative recommendation has been made following investigation of the claim to establish whether the applicant is a refugee, and do not necessarily go to the core of the negative recommendation.
The broad correlations or comparisons, which are set out in the explanatory memorandum prepared by the Department, are as follows: paragraph (a), a finding of “no basis or minimal basis” for the claim, is broadly comparable to the present section 12(4)(a); paragraph (b), where there was false, contradictory, misleading or incomplete information, is broadly comparable with the present section 12(4), paragraphs (b) to (f) and (k); paragraph (c), where the application was not made as soon as reasonably practical after arrival, can be compared with the present section 12(4)(h); paragraph (d), which deals with a prior application’s having been made elsewhere, is broadly comparable with the present section 12(4)(g), (i) and (l); and paragraph (e), safe country of origin, is loosely comparable to the present section 12(4)(j).
The question of whether a finding listed in this subsection is to be included in the report only arises in cases in which, at the conclusion of the investigation, the commissioner's recommendation is negative. Thus, for instance, the fact that an applicant did not apply as soon as reasonably practical after arriving in the State and had no reasonable cause for applying late would not be relevant if the commissioner's investigation of the claim led to a positive recommendation that the applicant was a refugee and would not affect that positive recommendation. Findings of the type listed in the subsection are a basis for accelerating the hearing of the appeal where a negative recommendation has been made by the commissioner but are not necessarily a basis for the negative recommendation itself.
Subsection (7) enables the Minister to specify classes of applications to be dealt with at first instance by the commissioner under the new powers provided for in the new subsections (8) and (9). What we have in mind here is that for a category of cases specified in a direction under this subsection, there will be in place a team of the staff of the refugee applications commissioner dedicated to dealing with applications coming within that category within a matter of days of the application being made. Selecting the category by reference to, say, a safe country of origin or a small number of safe countries of origin will mean that the commissioner's interviewing and decision-making staff can be steeped in the background information on the selected countries of origin and with the economies of scale that that brings, they will be able to address the protection issues of the applicants in the selected category quickly and directly. For example, if Canada, New Zealand and Australia were banded together for this purpose, a selected team in the RAC's office would have full knowledge of all matters to do with Canada and this would enable the process to be speeded up because there would be no need to do research on a case by case basis. Other practical features of such a system would be the ready availability of legal advice to applicants, and where necessary the ready availability of interpreters to service the needs of both the legal consultations and the interviews under the Act.
Applicants in this stream will be notified early in the investigation, under subsection (8) of the new section, that if the investigation results in a negative recommendation and the negative recommendation includes a finding of the type listed in subsection (6), they will have four working days within which to appeal, as against ten working days for other recommendations with such findings, and that any appeal will be dealt with as a matter of priority and without an oral hearing. For this system to operate fairly and with a fast turnaround time, it is likely that the applicants selected for this high priority process would be accommodated in specific locations within the direct provision system and required under section 9(5) of the Act to reside there and report at regular intervals to an immigration officer at that location. This arrangement would facilitate the hand-delivery of letters and notices to applicants and their legal advisers and thus help to ensure expeditious processing of the applications.
In some other countries applicants such as these would be accommodated in a detention centre so that effectively certain categories of applicant would remain in custody. We have not gone down that road, all we have said is that we will require the applicant to be reasonably near at hand while the accelerated process is taking place. There is the possibility of a Report Stage amendment to section 9(5) of the Refugee Act for inclusion in this Bill to ensure that there is sufficient flexibility to permit that provision to operate well in practice while ensuring certainty among applicants as to what is required of them under that provision. As a safeguard for applicants, subsection (9) provides that this shorter appeal period cannot apply unless the applicant has been notified in advance of the investigation that the application is to be dealt with in this way. Nobody will wake up one morning to find they have been fast-tracked without having been told.
Subsections (10) and (11) reproduce the substance of subsections (6) and (7) of section 11, which Government amendment No. 32, subparagraph (iv), proposes to delete from that section. The effect of these two changes, taken together, will be to oblige the commissioner to supply the applicant with copies of documents and so on submitted in the course of the investigation in any case where there is a negative decision that is appealable. At the moment this information must be supplied in every case irrespective of the outcome. I believe that overall this is a fair and balanced approach to the types of rejected cases envisaged in subsection (6), namely, flimsy claims - those where the applicant lied or suppressed the truth in a gross fashion; failed claims made to prolong or postpone deportation; failed claims where the applicant has already had a shot elsewhere at the asylum process; and failed claims made by people who live in safe countries. As with all other cases, every such case will be examined on its merits at first instance and if the examination shows that the applicant is not a refugee in these special instances we will demonstrate, by disposing of the appeal in an accelerated manner, that we are serious about not letting our asylum process be abused. I urge Deputies to support the amendment.
Amendment No. 50 is linked to amendment No. 47. It provides an amendment to section 16(1) and (2) of the Refugee Act 1996. The new subsection (1) incorporates changes consequential on the adjusted reporting arrangements under new sections 11 and 13 designed to simplify the reporting paper trail and on the withdrawal provisions whereby the negative recommendation in such cases under section 13(2) will not be appealable. The new subsection (2) reflects the fact that the question of the appeals tribunal remitting manifestly unfounded cases under the existing section 12 will no longer arise due to the new sections 12 and 13 of the Act inserted in amendment No. 47 and the earlier amendment No. 46. As I said when we discussed amendment No. 46, the operation of section 12 of the Act, the "manifestly unfounded" procedure, and remission of those cases, has proven difficult at times in practice because it has led to duplication of work and a prolonging of the asylum process rather than, as was its aim, a shortening of it for cases considered lacking in merit or good faith.
In the proposed amendment the application will move forward with the tribunal deciding to affirm a recommendation of the commissioner or setting aside that recommendation and deciding that the person is a refugee. We are getting rid of the notion that a manifestly unfounded matter, when it is appealed, goes back to first principles and we are substituting for it a system whereby every appeal will be decided on its merits in its entirety.
That is certainly a mouthful dealing with a huge number of sections, amendments and amendments to amendments. I was pleased to hear the Minister is considering an amendment on Report Stage to let people know that they are being fast-tracked. It will be a tremendous relief to them to know they are on the fast train out of the country.
We have gone through a lot of this material before but, in many ways, this section is at the heart of the refugee process. It covers what was envisaged by the Geneva Convention and how we go about it. There should be a set of procedures, everyone should get an individual interview and a decision should be made on that basis. People should not be categorised, there should be no fast-track, manifestly unfounded scenarios should not be put in place, there should not be designated safe places to which people could be sent and people who might be found to be in breach of the Geneva Convention should still get a hearing. The Minister is proposing to do away with all that in this fast-track procedure.
The UNHCR appreciates the need to tackle the problem of applicants who fail to comply with required procedures but it does not propose that it should be done the way the Minister does it. In page 7 of its documentation it says that such applicants should not be deemed to be rejected, as the Bill envisages. The UNHCR's position is that a person can be found to be or not to be a refugee only after a substantive interview has been conducted in light of the refugee definition. Therefore, rejecting an applicant who has not been interviewed is not in keeping with the object and purposes of the 1951 Convention and the 1967 Protocol. The UNHCR recommends that such applications be considered abandoned and closed. This is a technical matter which has no impact on efforts to remove withdrawn cases.
The Minister is proposing accelerated procedures that will create a situation where someone who does not comply with those procedures will be deemed to have his application withdrawn. It is as if he withdrew it himself, a horse of a different colour, and he will be dealt with in the pre-emptory fashion the Minister has proposed.
The UNHCR is saying that such cases should not be deemed to be withdrawn, they should be abandoned because there could be a valid reason people did not meet the 15 day deadline for a letter sent or the three and four working day deadlines and are, as a result, deemed not to be refugees. They are then fast-tracked out of the system on the bullet train. They cannot appeal and effectively find themselves outside the system.
This section deals with the proposal to fast-track these people and it does not accede to the spirit or letter of the Geneva Convention in dealing with people. The Minister is cutting short the procedures that are part and parcel of that convention.
Will the Minister comment on amendment No. 50 to section 6, which states that the role of the tribunal is to affirm a recommendation of the commissioner or to set it aside? A limited role has been given to the appeals tribunal in relation to any decision that is taken by the commissioner in this matter. The Bill does not envisage a full appeal hearing in any cases that the commissioner has deemed to be manifestly unfounded. Those involved who are in the fast-track process will be sent to the designated safe countries, deported or dealt with in a manner different from that which all asylum seekers are expected to be dealt with.
The new provisions run counter to the requirements of the Geneva Convention and the UNHCR has many reservations about what the Minister is doing.
That passage in the UN commentary looks more disputatious than it is. The UNCHR is saying that instead of what we are putting in our Bill, we should categorise those cases as abandoned and closed. This is about terminology. There is no substantive difference between deeming something withdrawn and rejecting it on the one hand and deeming it to be abandoned or closed on the other.
The difference is that a person cannot be deemed to be a refugee and cannot re-enter the application process.
This is the point, it is possible under section 17(7).
The Minister is rejecting these people. This section deems that they are rejected but it is different if someone withdraws himself or herself. If they are deemed withdrawn under the Minister's process, they are deemed not to be a refugee and rejected.
In either case that is what happens. We do not accept someone as a refugee unless he or she is established as a refugee - we do not have presumptive refugees. If someone goes through this process and is rejected he can come back provided he asks for permission to do so.
Only through the Minister.
Yes.
The Minister has absolute discretion on this matter.
I do not have absolute discretion, I have to consent to do it and that consent is a legal step that is subject to judicial review; I have to exercise that power on reasonable grounds. It is not an absolute discretion that I can simply say no and not tell someone why I said that. I have no doubt that if I tried that, the person asked me to explain why and I refused, I would be dragged to the courts and made to explain myself. I have no doubt, equally, that the courts would slap me on the wrist and quash my decision if it was made unreasonably.
It is not as if I regard myself as a gatekeeper who can on personal whim or from underlying malice say no to people. If someone reapplies for refugee status I have to take it as a serious application and I must have a reason for not consenting to the renewed application. I stress that the notion of rejection in these circumstances will be included in the EU directive in relation to asylum seeking, which is coming down the tracks at us. In large measure, we are talking about terminology here, and the UN is saying it prefers its terms to our terms. The UN is entitled to its view, and I will just have to agree to disagree with it. What I am doing is in line with what the European Union is proposing to make it obligatory for me to do when the new directive comes into operation either this year or in early 2004.
I will not dwell on this much longer——
I should have said 2005.
The directive will come from the European Union in 2005?
Yes.
This would more or less be to consolidate——
It is designed to standardise all these procedures. To a large extent, it is six of one and half a dozen of the other. The substance of this is not different, no mater which way one looks at it. The EU takes the view that rejection should be the outcome, and that is what the Irish Government is doing also so we are consistent with EU practice.
I suppose that is the heart of the matter, whether it should be absolute rejection, with the only way back being through the elevated means of coming through the Minister. Very often, there are technical reasons for the breach of procedures and there are now more and more deadlines to be met in the Minister's procedures. If any of them is missed, it is not a case of three strikes and one is out. One can be out right down along the line if one misses out on the deadlines that are now specified. That is the present approach and the spirit of the Geneva Convention.
Under the new proposals, the only way to get back into the game now is to go right to the top and get the permission of the Minister. The Minister is taking away the possibility of either the independent commissioner or——
When one starts in the game, as the Deputy describes it, the application is made to the Minister. The RAC deals with the application but it is to me one applies for protection. There is nothing unusual about providing that it is to me one applies for consent to get back into the game.
No, there is nothing unusual except that there may be minor and technical reasons as to why somebody does not meet one of the deadlines. The deadlines are now very constricted. If one is not able to reply within a certain period of time - the various timescales outlined have diminished and contracted enormously - one is deemed to be out of the loop and deemed to be rejected. It is such a substantial decision that enables individuals to be fast-tracked, and once they are on the fast track train there is no way off it. One is out of the system straight away.
The problem is the inability to come back into the system anywhere along the line without going to the Minister, especially when the Geneva Convention indicates that there should be greater flexibility at that level. That can be done in a humane fashion without undermining more streamlined procedures in dealing with the problem.
We will have to agree to disagree. The apparent conflict between the UN position and the Government's position is more about terminology than substance. The actual commentary itself uses the phrase "this is a technical matter", and it is purely technically.
Is Deputy Costello moving amendment No. 1 to amendment No. 47?
Does the Minister want to say anything about the amendments?
I want to say something about the Deputy's amendments.
I am sure it is complimentary.
Yes indeed. I start by paying the Deputy the compliment of proposing to accept amendments Nos. 16 and 17 to amendment No. 47. I do not propose to accept the remainder of the Deputy's amendments, for the obvious reason that I have argued my case positively so there is not much point in me saying negatively why I am not prepared to accept them.
That is about the asylum percentage, two out of 16.
That is one eighth, which is incredible.
Does the Deputy want to discuss them?
We have discussed the substance of them. We will proceed.
I move amendment No. 16 to amendment No. 47:
In the proposed new section 13(9)(b) of the Refugee Act 1996, in the third line, after “concerned” to insert “and his or her solicitor (if known)”.
I move amendment No. 17 to amendment No. 47:
In the proposed new section 13(10) of the Refugee Act 1996, in the fifth line, after "concerned" to insert "and his or her solicitor (if known)".
Amendments Nos. 49, 51 and 58 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 49:
In page 10, paragraph (e), line 33, after “section 16” to insert “(as amended by the Immigration Act 1999 and the Illegal Immigrants (Trafficking) Act 2000”.
These are simply drafting issues or technical matters.
I accept the second and third amendments but not the first.
Two out of three.
They deal with technical matters.
I move amendment No. 50:
In page 10, paragraph (e), to delete lines 34 to 37 and substitute the following:
"(i) the substitution of the following subsection for subsection (1):
'(1) The applicant may appeal in the prescribed manner against a recommendation of the Commissioner under section 13 (other than a recommendation pursuant to section 13(2)).',
(ii) the substitution of the following subsection for subsection (2):
'(2) The Tribunal may-
(a) affirm a recommendation of the Commissioner, or
(b) set aside a recommendation of the Commissioner and recommend that the applicant should be declared to be a refugee.’,”.
I move amendment No. 1 to amendment No. 50:
In the proposed new subsection (1) of section 16 of the Refugee Act 1996, in the fourth line, after "section 13(2)" to insert "which relates to an application which has been withdrawn by the applicant".
I wish to ask the Minister about his amendment No. 50 and my amendment No. 51 in relation to the operation——
We did not discuss the Deputy's amendment to amendment No. 50.
It is designed to insert the words "which relates to an application which has been withdrawn by the applicant".
The Deputy is arguing for making the withdrawn applications appealable, an argument which I have dealt with substantively already. Our view is that a withdrawn application is not appealable because the individual concerned has effectively decided that it should not be decided at first instance. Therefore, that person cannot claim the right to have the outcome of the first instance process appealed.
How does paragraph (2) of amendment No. 50 differ from the present role of the appeals tribunal? What changes are taking place?
The new subsection (2) reflects the fact that the question of the Refugees Appeals Tribunal remitting manifestly unfounded cases under the existing section 12 will no longer arise when the new sections 12 and 13 are in operation. As I said when we discussed amendment No. 46, the operation of section 12 of the Act has proven difficult at times in practice. It led to duplication of work and a prolonging of the asylum process, rather than, as was its original aim, shortening it for cases that were considered to be lacking in merit or good faith.
Cases were dealt with as manifestly unfounded. They were appealed at first instance and on some technicality they went back again to first instance, instead of having the matter dealt with substantively on the appeal. There were several cases in which they would be allowed and it had to go back to first instance. We decided to replace that with a new system in which the appeal will always be a substantive one rather than one purely on the technical issue as to whether it was manifestly unfounded. It will be an appeal on the merits always, even if in certain cases it will be on the documents only.
I move amendment No. 51:
In page 10, paragraph (e)(ii), line 38, after “subsection (2A)” to insert “(inserted by the Immigration Act 1999)”.
I move amendment No. 52:
In page 10, paragraph (e)(ii), line 42, to delete “3” and substitute “20”.
I move amendment No. 53:
In page 10, paragraph (e)(ii), line 42, to delete “3” and substitute “5”.
Amendments Nos. 1 and 2 to amendment No. 56 are related and will be discussed with amendment No. 56, by agreement.
I move amendment No. 56:
In page 11, paragraph (e), between lines 17 and 18, to insert the following:
"(iii) the substitution of the following subsection for subsection (3):
'(3) An appeal under this section shall be brought by notice in writing within the period specified in section 13(4)(b) or 13(5)(a) or 13(8)(a), as appropriate, and the notice shall specify the grounds of appeal and, except in a case to which section 13(5) or 13(8) applies, shall indicate whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal.’,
(iv) the deletion in subsection (5) of 'or 12',".
This amendment refers to No. 16 in the explanatory memorandum. The amendment is to section 6(e)(iii) of the Bill, which modifies the appeal provisions in section 16(3) of the Refugee Act 1996 consequent on the provisions in the new section 13 of the Act to reflect the appeal period provided for in subsection (4)(b), which is 15 days, and subsection (5)(a), which is ten days, and in subsection (8)(a), which is four days. Since it is a consequential amendment only, arising out of the earlier amendments which have been debated at length and accepted by the committee, I do not propose to go over the arguments again.
I need hardly say that on that basis I have to oppose amendment No. 1 to the amendment. Amendment No. 2 to the amendment seeks to give the tribunal discretion in certain cases to extend the fixed appeal periods provided for in the Act beyond the duration they will be given when this Bill is enacted. Predictably, I do not propose to accept that either as it would have two negative effects. First, it would introduce an element of uncertainty into a process where the fixed periods with no possibility of extension have worked well in practice up to now. Second, the process of considering whether to extend the time for late appeals will be time-consuming and could be an additional burden on the tribunal's capacity to address its caseload.
Furthermore, where there is a procedural discretion of the type which the amendment would bring about there is scope again for judicial review litigation. People would go to the High Court arguing that we should have extended the time and the merits or demerits of a decision not to extend the time rather than deal with the substance of the case. Without in any sense being against judicial review, I do not want to open new grounds of judicial review unnecessarily because our experience in the operation of this system has shown that those who are in the business of delay have an almost infinite capacity to think of new lines of judicial review. Sometimes the judicial reviews are in parallel, sometimes they are in series. One can get tied in knots in the Four Courts.
I move amendment No. 1 to amendment No. 56:
In the proposed new subsection (3) of section 16 of the Refugee Act 1996, in the fourth and fifth lines, to delete "except in a case to which section 13(5) or 13(8) applies,".
Effectively, the Minister is denying anyone the possibility of an oral hearing and my first amendment seeks to allow that. The second amendment seeks that the Refugee Appeals Tribunal may extend the time for an appeal. This section states "if reasonable cause is shown by the appellant". We have deleted the concept of reasonable grounds. It seems to have gone out of the legislation entirely.
That is the Deputy's opinion, but we have not deleted it.
The Minister has, I have not. We are trying to ensure that the legislation includes what most legislation regards as a necessary and desirable part of the legislation, namely, that things are done on reasonable and practicable grounds, but this legislation has deleted that concept and it is done exclusively on grounds of stricture, fast-tracking and deadlines. The Minister needs to put a bit of humanity into the legislation.
There is humanity, but I do not want to make provision for the other side of humanity which is to put temptation in people's way to prolong and abuse the system.
I would never accuse the Minister of doing that.
I move amendment No. 2 to amendment No. 56:
After the proposed new subparagraph (iii), to insert the following:
"(iv) the insertion after subsection (3) of the following subsection:
"(3A) The Tribunal may extend the time for appeal under this section if reasonable cause is shown by the appellant.".
Amendment No. 57 and amendment No. 1 thereto are related and will be taken together by agreement.
I move amendment No. 57:
In page 11, paragraph (e), between lines 32 and 33, to insert the following:
"(iv) the deletion in subsection (16)(b) of ’the recommendation of the Commissioner under section 12 or, as may be appropriate,’,
(v) the insertion of the following subsection after subsection (16):
'(16A) The Tribunal shall affirm a recommendation of the Commissioner unless it is satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.',
(vi) the deletion in subsection (17)(b) of ’(other than a decision of the Tribunal under subsection (2)(d))’, and
(vii) the insertion of the following subsection after subsection (17):
'(18) The Tribunal shall ensure that an appeal against a recommendation of the Commissioner to which section 13(5) or 13(8) applies shall be dealt with as soon as may be and, if necessary, before any other application for a declaration.',".
The changes provided for in this amendment are consequential on amendments Nos. 46 and 47 and the changes to subsections 16(b) and 17(b) of the Refugee Act 1996 proposed by this amendment are largely technical in nature. They delete references which are now redundant following amendment No. 46 to recommendations in manifestly unfounded cases under what will now be the former section 12. The new subsection (16A) proposed in the amendment is to reflect in statute the fact that the tribunal may overturn only a negative recommendation of the commissioner where satisfied that the person is a refugee.
Error in certain respects of the conduct of the investigation or on arriving at a particular finding on the basis of the facts disclosed in the investigation is not on its own a sufficient basis for overturning the commissioner's recommendation. In other words, this is an appeal effectively by way of rehearing on the merits, it is not an appeal on some technical deficiency at the first instance. The tribunal is required to consider the substance of the issue before it, not whether an error in procedure was made in the RAC. That is effectively what we are providing here. We do not want things to go back on the basis of error when the substance can be decided one way or the other.
I move amendment No. 1 to amendment No. 57:
Before the first line of the proposed new subparagraph (iv), to insert the following:
"(iv) the insertion in subsection (14) after 'private' of 'unless the appellant so requests'.".
Is the Minister referring to a full appeal?
It will be a hearing on the merits, but some of these cases will be paper-based appeals.
There will be a full file.
It will be full in the sense that it will not be the case simply that there was a comma missing first time around.
A full file.
It will not be just that there was a comma missing. One result of this amendment will be to underline the change from the existing manifestly unfounded process where on the basis of an error or technical defect the tribunal had power to overturn the commissioner's recommendation. A recommendation under the present circumstances does not change from being a negative one to a positive one. It is simply a referral back to the commissioner for full investigation. Now that the possibility of remittal on those technical grounds is gone, a mere technical defect in the commissioner's work should not result in the recommendation being overturned where the person is, notwithstanding the error, not in need of protection.
I oppose the amendment to the amendment because it is essential that hearings should be heard in private. Applicants should be free to tell their story to the tribunal safe in the knowledge that what is said will be kept confidential. It is conducive to a full and open exchange of views which is vital to ensuring the hearing remains useful.
I believe it was Deputy Costello who said on a previous occasion that some hearings are intimate. I do not believe it would be in the interests of anybody to open up the asylum process to public hearings. Under the Constitution one has to protect the good name of other people, and if the cases were heard in public, allegations that people had abused or tortured applicants would be put into the media. I presume they would have to be on an occasion of privilege, then one would be under "re Haughey" principles, and those impugned by an asylum seeker's story would have the right to redress, cross-examine, rebut or contradict it. I do not want to go down that road.
There are some things which even in this politically correct and transparent world are better off done in private. The complexity of doing them in public is that one would have to bring the lawyers in every direction to correct misstatements that adversely affect the reputation of their clients - whether the comments are made under oath is another question. If an asylum applicant impugned a named person in another State and accused him or her of some appalling act of barbarity, I would have to provide some mechanisms to allow that person to rebut it if I was to give him or her any immunity from being sued for publishing the proceedings.
The Minister has been persuasive on this. However, I am concerned that refusal of refugee status is done in secrecy and privacy.
The UNHCR is always entitled to attend these meetings and observe what is going on, and it does attend them. Obviously, there is a solicitor there too.
Does the UNHCR attend these meetings?
It is entitled to attend whenever it wishes for training purposes and on a general oversight basis. We have nothing to hide. I stress, in any event, forgetting about the interpreter, there is a solicitor or barrister present throughout the meeting so it is not as if terrible things happen in secret about which none of us knows.
It is not that we want to envisage a Gauntanamo Bay operation.
We do not want a tribunal either.
We do not want a tribunal. Present would be the applicant, his or her lawyer——
An interpreter would be present if the applicant cannot speak English and perhaps a UNHCR person, but that is rare. If the UNHCR thought for any reason that a particular case required to be heard, it can sit in at the hearing. There is also a presenting officer who presents the application to the commissioner's officer.
Is that person a member of the Department of Justice, Equality and Law Reform?
A member of the Office of the Refugee Applications Commission. Lest there is a misunderstanding of this, this is an independent process. There is no reporting back to me or my Department as to what is happening in any individual case. We find out about it after the event. It is not a process that is part of the organic operations of the Department of Justice, Equality and Law Reform.
It is important to ensure that, where an appeal is made and where a member of the tribunal is charged with hearing that appeal, everything is as transparent and accountable as possible.
I will put it this way, the lawyer acting for the applicant would probably take a comprehensive note of the proceedings, as would the presenting officer from the other side, so there are two people taking a note of everything that happens. Either side, but in particular the applicant's lawyer, is perfectly free to go to the High Court and say this is what happened. Although it is not like a court that is heard in public, anything said at the meeting is reviewable by the courts, it is not a secret.
Has it ever happened that there was an appeal to the courts?
Yes, it has. Some people alleged that they were not treated properly and sought judicial review in the High Court, and some succeeded.
It is important to ensure that a solicitor is present and it is not a totally private process.
Obviously an applicant could dispense with legal advice if he or she wanted, but I believe the practice - subject to correction - is almost invariably that he or she takes the legal advice - it is independent legal advice, not in-house. If the Department had a view on the matter, it is that we would prefer that there is a lawyer present. Otherwise, allegations could be made that would be hard to rebut, as it would end up in a swearing match.
I have another amendment with regard to the tribunal appeals.
I move amendment No. 58:
In page 11, paragraph (f), line 33, after “section 17” to insert “(as amended by the Immigration Act 1999)”.
I move amendment No. 59:
In page 11, lines 41 to 47, to delete paragraph (g) and substitute the following:
"(g) in section 19, by-
(i) the substitution of the following subsection for subsection (2):
'(2) Subject to sections 9(15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person.',
and
(ii) by the insertion of the following subsection after subsection (4):
'(4A)(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17)) a decision of the Tribunal which in his or her opinion is not of legal importance.
(b) Any decision published shall exclude any matters which would tend to identify a person as an applicant under the Act or otherwise breach the requirement that the identity of applicants be kept confidential.’,”.
This is amendment No. 18 in the explanatory memorandum. The first part of this amendment repeats without change for drafting reasons the amendment to section 19 of the 1996 Act, removing the requirement of the Minister's consent to the publication of asylum seekers' identities. The requirement to obtain the consent of the applicant will of course remain. The provision was welcomed by all sides in the House and I do not propose to go into the matter now.
The real purpose of this amendment is to insert a new subsection (4)(a) into section 19 of the 1996 Act to facilitate publication by the chairperson of decisions of legal importance, with any details that would identify an applicant expunged. This provision will be useful tool for applicants and legal representatives in preparing their appeals and will facilitate consistency of decision-making among members of the tribunal. I urge Deputies to support the amendment.
Amendment Nos. 1 to 11, inclusive, to amendment No. 60 are related. Amendments Nos. 8 to 10, inclusive, to amendment No. 60 are consequential on amendment No. 7 to amendment No. 60. We will discuss amendment No. 60 and amendments Nos. 1 to 11, inclusive, to the amendment. Is that agreed? Agreed.
I move amendment No. 60:
In page 11, between lines 47 and 48, to insert the following:
"(h) the substitution of the following section for section 22:
22.-(1) The Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of giving effect to-
(a) the Dublin Convention,
(b) Council Regulation (EC) No. 343/20031,
(c) the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway done at Brussels on the 19th day of January 2001,
(d) any agreement of the kind referred to in subsection (5).
(2) Without prejudice to the generality of subsection (1), an order under this section may-
(a) specify the circumstances and procedure by reference to which an application for asylum-
(i) shall be examined in the State,
(ii) shall be transferred to a convention country for examination or to a safe third country, or
(iii) shall be accepted for examination in the State pursuant to a request made by a convention country in which the application for asylum was lodged or pursuant to an agreement to which subsection (1)(c) refers,
and the powers referred to in this subsection shall be exercised by whichever of the persons mentioned in subsection (4)(a) is specified in the order,
(b) provide for an appeal against a determination to transfer an application for asylum to a convention country or a safe third country and for the procedure in relation to such an appeal,
(c) provide, where the order specifies that the making of an appeal shall not suspend the transfer of the application or of the applicant to the convention country or the safe third country, that such transfer is without prejudice to the appeal decision,
(d) require that an application for asylum shall not be investigated by the Commissioner until it has been decided whether a convention country is responsible for examining the application or whether the application should be transferred to a safe third country,
(e) require that an application for asylum which is being investigated by the Commissioner shall be transferred to a convention country for examination,
(f) provide that where an application has been transferred to a convention country for examination or to a safe third country the person concerned shall go to that convention country or to that safe third country,
(g) provide for the transit through the State of a person whose application for asylum has been transferred from a convention country to another convention country for examination,
(h) provide for the investigation of an application for asylum by the Commissioner notwithstanding that a convention country has responsibility for examining the application,
(i) specify the measures to be taken for the purpose of the removal of a person whose application has been transferred to a convention country or a safe third country from the State to that convention country or safe third country including, where necessary, the temporary detention or restraint of the person, and
(j) provide for the temporary detention (for a period not exceeding 48 hours) of a person who, having arrived in the State directly from a convention country or a safe third country, makes an application for asylum until a decision on the matters at paragraph (a) has been made.
(3) An order under this section may make provision for such consequential, incidental, ancillary and supplementary matters as the Minister considers necessary or expedient.
(4)(a) The persons referred to in subsection (2)(a) are the Minister, the Commissioner, and an immigration officer.
(b) The Tribunal shall consider and decide appeals under subsection (2)(b).
(5)(a) The Minister may, after consultation with the Minister for Foreign Affairs, by order designate a country as a safe third country.
(b) In deciding whether to make an order under paragraph (a), the Minister shall have regard to the following matters:
(i) whether the country is party to and complies generally with its obligations under the Geneva Convention, the Convention against Torture (within the meaning of section 12) and the International Covenant on Civil and Political Rights (within the meaning aforesaid);
(ii) whether the country has a democratic political system and an independent judiciary;
(iii) whether the country is governed by the rule of law;
and that country and the State are parties to an agreement which contains provisions providing for-
(I) the prompt transfer to that country of an application for asylum made in the State by a person who has arrived from that country, and
(II) the prompt transfer to the State of an application for asylum made in that country by a person who has arrived in that country from the State.
(c) The Minister, may, after consultation with the Minister for Foreign Affairs, by order amend or revoke an order under this subsection including an order under this paragraph.
(6)(a) The Minister for Foreign Affairs may by order designate the countries which are parties to the Dublin Convention or to any convention or agreement referred to in subsection (1)(b).
(b) The Minister for Foreign Affairs may by order amend or revoke an order under this subsection including an order under this paragraph.
(7) The Minister may by order amend or revoke an order under this section (other than an order under subsection (6)) including an order under this subsection.
(8) Where an application has been transferred to a convention country for examination or to a safe third country, the application shall be deemed to be withdrawn.
(9)(a) The Minister shall, pursuant to Article 14 of the Dublin Convention or the corresponding provision of the agreement referred to in subsection (1)(c), communicate information to convention countries or to any relevant country pursuant to that agreement in relation to matters referred to in that Article.
(b) The Commissioner shall, pursuant to Article 15 of the Dublin Convention or the corresponding provision of the agreement referred to in subsection (1)(c), communicate information to convention countries or to any relevant country pursuant to that agreement 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.
(10) The Minister and the Commissioner may communicate to a safe third country such information relating to an application for asylum or to the person making such application (including personal information) as may be necessary for giving effect to an agreement to which subsection (1)(d) refers:
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.
(11) In this section, "an application for asylum" means a request whereby a person seeks the protection of the State or a convention country or a safe third country by claiming refugee status under the Geneva Convention and includes an application for a declaration under this Act.',".
This amendment replaces the current section 22 of the Refugee Act 1996, although the new provision restates, unchanged, many of the provisions of the section as it stands in the 1996 Act. Section 22 of the Act is the section that sets out the power to make orders to implement the Dublin Convention. That is the Convention that has as its principle, broadly speaking, that an application for asylum in an EU member state should be examined in whichever of the member states the applicant first arrived.
The amendment is primarily designed to extend that order-making power so that the Minister will also be able to give effect under this section to a number of other related instruments and to any future agreements with similar features which the State may enter into. One related instrument, at subsection (1)(c), is the parallel agreement, based on the Dublin Convention, between the EU and Norway and Iceland that in effect extends the operation of the Dublin Convention to those two countries which are not EU member states but have managed to become party to Schengen.
The other instrument, referred to at subsection (1)(b), is Council Regulation (EC) No. 343/2003, known colloquially, and I think charmingly, as the Dublin Regulation or Dublin 2 - just as well it is not Dublin 4. This regulation comes into effect on 1 September 2003 and will supersede the Dublin Convention. As a Council regulation it is of course of direct effect in Irish law and any secondary legislation necessary for it to have full effect can be made under the European Communities Act 1972, but in light of the special features of the regulation and its similarity to its predecessor, the Dublin Convention, I consider it desirable that there be power to implement it by order under this section, to preserve continuity with its predecessor. Otherwise I would have to use the European Communities Act and make statutory instruments under that.
The final possibility catered for by the new subsection (1) is that Ireland may enter into agreements with other designated safe third countries which would have features similar to the Dublin Convention for the transfer of applications, and their applicants, between the two countries. Subsection (5) spells out the detail of the criteria for designating a country as a safe third country, and Deputies will no doubt note the similarity between these criteria and those for safe countries of origin spelt out in the new section 12 of the 1996 Act which the committee approved in an earlier amendment. The important addition is that the third country cannot be designated unless both it and Ireland have entered into an agreement whereby the two countries agree to accept back asylum seekers who have arrived from the other country. The effect of this is that although there are many countries throughout the world which would be safe places for a person to make an asylum claim and have it dealt with properly, Ireland will not send an asylum seeker back to such a country unless we have proper arrangements to ensure that the person will be accepted back. This is a sensible provision, if for no better reason than that sending people back without such an arrangement in place would result in them being returned straight away to this country, but it also safeguards the rights of people returned in this way.
All these instruments and potential instruments exemplify what is known as the "first safe country" principle, whereby those who are fleeing from persecution in their own countries are expected to seek protection in the first country that can offer a safe haven. Both nationally and internationally, legal academic commentators on human rights and refugee law acknowledge that the right to seek asylum does not imply a right to seek it where one pleases. It follows that the right is satisfied if the individual in need of protection has the opportunity to obtain protection wherever the individual finds himself or herself, but it is a matter for the individual to seek to avail of that opportunity.
Provisions on safe third countries are an essential feature of any asylum system. They bring an element of order and rationality internationally to the question of providing protection to those who need it; they pose no threat to the genuine refugee and they act to reduce the prevalence of multiple asylum claims and related abuses of national asylum systems.
This is the final part of the Minister's structures, the paraphernalia that he is establishing to fast-track the application process. People are being moved to safe countries that are now designated and the procedures for doing that are being put in place. I ask the Minister about one or two points regarding cases where an appeal is made after a removal. What is the status of an appeal at that stage? If one is already deported to a safe country and can appeal from its safety and comfort, one is very unlikely to make a successful appeal. How is that expected to operate? In the case of a person under the current rules being locked up for 48 hours to have his or her credentials checked before being put back on the boat, how does the Minister expect that to operate?
I may have been cutting back on the explanations. I do not want to leave the record as bare as I perhaps might have done had I just stopped there. The differences between the present section 22 and the proposal in this amendment are set out in some detail in the explanatory material which my officials have supplied, in particular in the consolidated text of the Refugee Act and in the footnotes to the appendix. Most of those differences are merely technical changes to allow for the additional instruments to be implemented under the section and I do not propose to go into them now. I will concentrate on the more important innovations in the new section.
The first new feature is at subsection (2)(a), in combination with subsection (4)(a). That provides that the decision at first instance whether to send back an asylum application may be taken by the Minister, the Refugee Applications Commissioner or an immigration officer, as may be specified in an order under the section. Under the Act as originally passed in 1996, those decisions were taken by an authorised officer of the Minister. They are currently dealt with by the Refugee Applications Commissioner. This proposed change will cater for the possibility that for applications made at a point of entry into the State, the first instance transfer decision could be made by, say, an immigration officer, while for applications made inland the responsibility could be left with the Commissioner or taken on by staff of the Minister’s Department, as before. This offers more flexibility in devising procedures to deal with different streams of applications.
The new subsection (2)(c) provides for the possibility of an appeal against the transfer of an application being what is termed non-suspensive, in other words, that a decision to transfer an application to a convention country or a safe third country can have immediate effect even in cases where an appeal has been made, on the basis that sending the person there will not put the person at risk of persecution and the country will be processing the person’s claim for asylum, in the case of convention countries, or consistent with analogous terms of any future agreement that might be negotiated with a safe third country.
Where an order provides such non-suspensive effect for appeals, it will be without prejudice to the outcome of an appeal in any particular case. Thus, where an appeal resulted in a determination that the application should be processed in Ireland, the application, and of course the applicant, would be taken back into the State for that purpose. For example, in the case of a safe third country, if someone were to come from Switzerland to Ireland, or from Canada to Ireland, and we had an agreement of this kind with those countries so that we could send people back——
Are you speaking of the Dublin Convention?
No, we are talking of a safe third country agreement. It is analogous to the Dublin Convention but it is not the same thing. It might for instance be possible for Ireland and the United Kingdom to negotiate such an agreement, or for Ireland and Switzerland, or Ireland and Canada. If a person presents at Dublin Airport, having arrived from one of those countries, and we had an agreement with that country, we could tell the person that he or she must return there. If the person wants to appeal that decision, he or she can be told to make the appeal from there.
Go back and appeal.
Yes, and we will then allow him or her in. The safe third country idea is that if one does not have some system of non-suspensive appeal, someone can gatecrash Ireland and say "I am coming in and you can make a first decision against me, but I will appeal it, and will stay here while it is appealed." If that is the case, someone is effectively putting the boot to the door of Ireland without regard for the merits of the first decision, getting a toe in the door by means of an appeal, and staying in Ireland. We want a system under which countries with which we are cheek by jowl come to an agreement with us that we will do the same for them in order that, if someone steps off an aeroplane from Dublin in Toronto, Canada, and the authorities wish to send him or her back, he or she can appeal to get into Canada in his or her own good time but he or she will not be allowed to remain during the appeal. The alternative is to provide for extensive detention of appellants. If one does not detain them, one leaves them on the loose in Ireland while their appeals are pending, in which case one is effectively admitting that one cannot control abuse of the system. This will also apply within the European Union. Under the Dublin Convention, we are not obliged to have an appeals system in place. Therefore, this represents something extra being granted.
Does the Dublin Convention not deal merely with sending people back to the country where their application was made?
We have provided for the making of an appeal but we could simply send people back with no argument or discussion.
Perhaps I might ask about the concept of a safe country. The Minister is in consultation with the Minister for Foreign Affairs, in which the UN High Commissioner for Refugees also comes in.
There is no doubt that the commissioner would have a say if he or she felt we were using the convention inappropriately.
How does the Minister propose to go about it - by creating a pool of safe countries? If that was the case, there would be reciprocal arrangements between the two countries concerned in each case. We would reciprocate with other non-nationals arriving. What would the criteria be for sending someone to one country rather than another?
If we had an agreement with Switzerland, it would be bilateral. We would both agree to take people back who had been rejected by the other under this system. We would also both agree that if someone arrived in Dublin on an aeroplane from Zürich, we would be able to invoke the agreement, detain him or her for a short period, find out who he or she was and, in certain circumstances, send him or her back to Switzerland, saying any point should be made to the Swiss. If someone from Dublin arrived in Zürich, the authorities could, having identified him or her, detained him or her briefly and worked out that he or she wished to apply the agreement to the case, send him or her back to where he or she came from. We trust the Swiss enough to know that they would not do anything barbaric to anyone in those circumstances, and they trust us.
This is effectively a bilateral agreement with third countries. It does not apply to countries about which the asylum seeker alleges persecution. It is a safe haven. If a person claimed that the Swiss Government was trying to kill him or her, the Irish Government would not invoke the agreement to send him or her back. The agreement's great merit will be that it will prevent totally brazen applicants kicking the door in on us. Having passed through a totally safe country, they appear in Ireland wishing to be treated as an asylum seeker, despite having no reason or excuse for not having made the application in the first country.
Perhaps I might make a final point. In such cases where someone was coming from Switzerland to Ireland, would he or she not have been likely to have made an initial application in the first European country, if he or she was from outside western Europe? The Minister described it as asylum-seeking shopping. In most circumstances which he envisages would this not come under the Dublin Convention?
That is possible but the agreement supplements the Dublin Convention. The purpose of the detention would be to find out who the person was and whether he or she had applied somewhere else. The idea is to create another possibility for underlining the "first safe country" principle. Despite all the laws and duties under the 1951 convention, we have a bilateral arrangement with another country bound by it which we will trust enough to send a person back, refusing leave to remain in Ireland while he or she argues the toss with us.
Do we have a mechanism for reviewing the situation once we establish a safe country? There might suddenly be a right-wing Government. Let us say something happens in Austria and a certain gentleman comes to power. All of a sudden, a strong racist tenor will be introduced into all activities. Is there any mechanism built in to review the matter or to monitor the continued operation of the principle of safe countries?
I do not wish to insult friendly states but, after consulting the Minister for Foreign Affairs, I have the power to revoke the designation of a country as a safe third country. For instance, if Ireland or Switzerland went to the bad, either of them could decide to tear up the agreement.
I understand the Minister's points and presume that most countries making such arrangements will be those with which we have direct flights or boat links.Ultimately, we are making it very difficultfor an asylum seeker to reach Irish shoreswithout first passing through one of the safe countries.
Why do they need to reach Irish shores if they are crossing someone else's shores, which are just as good a place for them to claim asylum?
I was going to finish. I am not saying we should open the doors but there are places to which people travel from Africa, for example, France or Belgium. As I said, some of these countries have former or current imperial interests, for example, in supporting an existing Government. People fleeing persecution by that Government might not want, when they land in France, to apply for asylum in the belief that France is supporting the Government. Instead, the refugees might seek another country in Europe which they believe would be more likely to accord a sympathetic hearing. That is the point I am making. I am not saying a person should not apply for asylum in the first country but there are incidents, especially regarding Africa, where people will not want to apply in the first port in which they land but instead try to get out as quickly as possible. In what is proposed is there a facility to allow such people to arrivehere?
I made a point about the formulation under which the Minister may, in consultation with the Minister for Foreign Affairs, designate a country as a safe third country where the country is party to and complies generally with its obligations under the Geneva Convention. The word at issue is "generally". Either a country complies with its obligations or it does not.
I shall reply to DeputyÓ Snodaigh's last point first. Generally, Ireland complies with the ECHR but on the odd occasion - less than ten times in 50 years - we have been found to be in breach of it. I do not want somebody to run down to the Four Courts to say Ireland does not generally - a word we could leave out - comply with the ECHR, citing those ten occasions.
What about the word "sub-stantially"? The word "generally" is veryvague.
I think the definition of the word "generally" includes "substantially" but I will examine the matter for Report Stage.
Is that what the Minister means?
That is what I mean - general compliance. As a general rule, Ireland complies, although there are exceptions.
Deputy Ó Snodaigh raised the question of people going to France from Francophone Africa and being hung up. France is a party to the 1951 Geneva Convention as well as the Dublin Convention. In the near future it will be a party to this common asylum policy also.
I was not specifically referring to France.
No, but to be clear about this, I am making the point that in the very near future France, in all probability, will be one of the member states which, by qualified majority voting - if the outline treaty now being put through remains the same - may be in a position to impose obligations on us with which we are not absolutely happy. The former imperial powers, as Deputy Ó Snodaigh refers to them, are our partners in the European Union. I am not in a position to start cherry-picking among them.
The Deputy is suggesting that somebody from Francophone Africa - the former French controlled regions of Africa - might have a particular reason for not wishing to go to France. One of the curious aspects of asylum flows is that the number who come to Ireland from Francophone Africa is tiny, whereas the number who come here from Anglophone Africa is huge. There could be theoretical cases such as the Deputy mentioned but the huge preponderance of asylum seekers go where they can speak the local language. Afghans go to England, rather than France. People from Mali, Mauritania and Chad go to France, Belgium or Luxembourg where they can speak the language, rather than Ireland.
There is usually a great population mix also. In France one will find quite a number of——
North Africans.
——north Africans from Chad because they have a receptive community to which to go. That is usually the logic. I raised the matter as a concern.
Is Deputy Costello moving amendment No. 1 to amendment No. 60?
I move amendment No. 1 to amendment No. 60:
In the proposed new section 22(1)(c)of the Refugee Act 1996, in the second line, to delete “the Republic of”.
May I ask the Minister to give me a general response? Perhaps he has good news on some of the amendments to the amendment.
On the proposed new section 22, there are a couple of drafting errors that the parliamentary counsel has noted. I should signal, therefore, that there may be amendments on Report Stage. The Deputy is proposing to remove the reference to the Republic of Iceland.
It should read the Republic of Ireland.
It was a typographical error, about which I am sorry. I ask the Deputy to withdraw the amendment in view of the fact that we have picked up a typo.
The Minister has already corrected it.
What does amendment No. 2 to amendment No. 60 seek to achieve? I cannot follow what it is about. I do not know what the Deputy is driving at.
I am not sure about that.
Perhaps the Deputy will leave it until Report Stage.
Yes, I will leave it until then.
I move amendment No. 3 to amendment No. 60:
In the proposed new section 22(2) of the Refugee Act 1996, to delete paragraph (c).
I am satisfied that the removal of an applicant from the State to another safe country which has undertaken to entertain the asylum claim poses no threat to him or her. An appeal is not based on the substantive asylum claim but is only concerned with the decision to transfer the applicant back, the question being: were the criteria for return laid down in a relevant instrument applied correctly in the case? Appeals in Dublin Convention cases are dealt with on the papers only and it is my intention that this will continue to be the case. There is no need for the applicant to be present in the State while the appeal is being decided. If it is successful, the applicant will be brought back and the merits of the asylum claim investigated and decided by the independent bodies in accordance with the Refugee Act. Either way, there is no disadvantage to the applicant because he or she will be awaiting the outcome of the appeal in a safe place - a country which has agreed to take him or her back pending the outcome.
Is the Deputy pressing the amendment?
The case has already been argued but I cannot see the likelihood of great success in the outcome of an appeal from a great distance.
If I get the agreements up and running, they could be very useful.
I am sure they will. It is great to have the appellants thousands of miles away. It is a safe spot in which to have them.
In many cases, they might accept that the whole enterprise was bogus in the first place. They will not waste their money on a postage stamp because, effectively, they will have been rumbled in trying to do something they should not have.
That is an aspect of the matter. How will appeals be processed? It does not concern only the cost of a postage stamp; it takes in a little more. What facilities will be available in safe countries to enable appellants to process appeals properly?
They are safe countries and the appellants will have to make up their own minds whether they should, at that stage, redirect their applications to us.
We will have to deal with the same situation when somebody comes here from Switzerland. This is a safe country but what will we do? Will we lock them up and say, "Look lads, you can spend your time writing out your appeal?"
If we accept them back, it will normally be on the basis that they will make an asylum claim to us, or else they will say they have no asylum claim to make anywhere and will return to where they came from in the first place.
We are talking about the appeal stage.
If someone is sent back from Switzerland to Dublin - Switzerland has an appeals system in place - he or she can do whatever he or she wants in Ireland. We will hold onto them while his or her appeal is being processed in Switzerland. Alternatively, he or she might decide that he or she does not want to continue with his or her appeal to the Swiss and appeal to us for asylum, which might be the intelligent thing to do.
If someone is sent back to Canada and wishes to pursue his or her appeal here, how will we progress the appeal from that distance? Will it be done through the Canadian system or will we have to send officials to Canada?
Under the Dublin Convention, appeals against decisions are made on a paper basis. There are no hearings. These are simple matters of fact - either one was in country A and is now in country B, or one was not. There is little argument because there is little to appeal against on a factual basis. One can argue about the law but either one came from country A to country B, or one did not. Not being there in person makes no difference.
Problems will arise when someone is deported or transferred to a safe country.
Many problems will be avoided if we get this agreement operational.
It is intended to avoid problems.
The State deserves the odd break.
I move amendment No. 61:
In page 13, line 10, after "it" to insert "and shall assign work to members equitably without regard to the proportion of appeals rejected by such members, and shall regularly publish statistics and information as to the number of appeals assigned to each member and the number of such appeals allowed and the number rejected".
This amendment relates to the appeals tribunal. I am seeking to insert a section outlining how the chairman should assign work to the members of the tribunal. We need to ensure there is a strong level of transparency in the operation of the appeals mechanism. Earlier we discussed the public nature of the appeals process. I believe only 7% of applications were granted on the first occasion while up to 21% were successful in the appeals mechanism.
Each member of the tribunal is paid on a per case basis. On the surface, there appears to be a discrepancy between who gets cases and who does not. It is possible to calculate the number of cases somebody gets from the payment received. A few get no payment, which means they get no cases to process. I want to ensure the work will be assigned by the chairman equitably, without regard to the proportion of appeals. There should be statistics and information on the number of appeals assigned to each member. This should be public knowledge.
The number of appeals allowed and rejected should be made known. While I am not alleging anything, it could be that some members are refusing appeals all the time. Equally, other members might be allowing them all the time. None of us knows what is happening. One individual processes the appeal. We need to tighten public accountability and ensure transparency. Even if the Minister does not want to do this by way of my amendment, we need a structure in order that we can be satisfied the process is operating in a fair and equitable fashion.
When the Deputy raised this issue in the Dáil, I suggested that he table an amendment, as this would be a better forum to discuss the issue. Some material was recently published about earnings etc. The Deputy referred to two individuals who had received no money, from which he deduced they had no caseload. Having been appointed to this position, for personal reasons one of them is not in a position to accept work. This has nothing to do with a choice made by anybody else. The second person who got no money has only recently been appointed and is being trained. Any inference that two people are being starved of work is not correct.
All members contract to carry out a certain caseload per annum. In general, the problem is not one of members being given too little work. On the contrary, problems have arisen because they are not reaching the minimum threshold they undertook to reach for us because of their other commitments. The chairman of the tribunal has indicated to me that if he has a problem, it is not that he does not want to give out work but that some members are not in the position to do it, even to the extent that they contracted to do it. I need to give consideration to this. In some cases the chairman reduced members' caseloads because of their commitments.
Most members of the tribunal come up for reappointment in November and I will ask the chairman to determine if he needs more. It is a matter of indifference to the Exchequer whether individuals earn much or little. I will ask the chairman to inform me whether the maximum number, currently 32, is adequate for his purposes and whether he is happy with the way the system is going.
I accept, as the Deputy is suggesting, that some members of the tribunal are more towards one end of the spectrum than the other in their decisions. Undoubtedly, that is so but I do not intend to have a form sheet published in order that people will say: " A good one to bring your case to is Mr. So and So or Miss So and So. He or she is a 24% person whereas the other is a 3% person." We do not do this with the Judiciary; nobody goes around saying how many times District Judge So and So has disbelieved the Garda. Perhaps some rely on gossip to form an opinion but we do not produce league tables for judges. If there was something egregiously wrong, I would expect the chairman to do something about the matter because he is a very eminent lawyer who has much experience. If he thought from the figures that somebody was acting in a prejudiced way, I think he would draw this fact to the person's attention. I do not intend to go down the road of publishing league tables or say to the public at large that Mr. McDowell, as a member of the tribunal, is a soft touch or as hard as nails by reference to a published league table. That would be a disastrous way to do business.
While the chairman was appointed following completion of the normal Civil Service recruitment process, the members were appointed by the Minister's predecessor. I presume the Minister will make the appointments in November. He has already indicated that at least one person was not in a position to take any cases and, therefore, could not be assigned any. Obviously, the discrepancy in the range of earnings from zero to €319,000 for the top earner indicates a degree of availability. Presumably, the caseload assigned was related to availability to process cases. In 2002 there were approximately 5,000 cases assigned to be dealt with by the appeals tribunal - a substantial amount of work.
There should be a normal recruitment process whereby the Civil Service and Local Government Appointments Commissioners would interview people in the same way as the chairman was interviewed. The degree of availability to do the work should be an integral part of the process. It seems that this needs to be put on a better footing. The Minister says there is more work to be done than members can do. He also raised the question of availability. It seems the tribunal is a little amateurish and its methods ad hoc. Does the chairman come in and say: "I will contact Mr. X or Ms Y to ask him or her whether he or she has a case running in the courts and if he or she has, too bad, we cannot process an application through the appeals process," or does he say, "I will try to get somebody else?" To my mind, this does not seem to be a very satisfactory way of dealing with the matter. I ask the Minister to review the process in November to see whether it is adequate to deal with the workload or needs to be put on a better footing.
Approximately 40% of the tribunal members will come up for reappointment in November, it is by no means all. These are fee per item positions which are not pensionable. Members of the tribunal are not civil servants, unlike the chairman who is a full-time officeholder subject to the Civil Service Acts. Members of the tribunal are paid on on a per case, per file basis. I would be very slow to start paying daily, weekly or monthly remuneration because at least the system has the advantage that the harder one works, the more one earns. Obviously, we cannot run the whole country on this basis because under the Constitution our judges have to be paid salaries and cannot be dealt with on a per case basis. In this case I would be very reluctant to walk away from the principle that the remuneration of tribunal members should reflect what they do.
It is primarily a matter for the chairman to organise the business of the tribunal and manage its caseload. I will be in consultation with him in relation to these matters. It should be noted that he may from time to time convene a meeting with a member or members to discuss matters relating to discharge of the business of the tribunal, including, in particular, such matters as the avoidance of undue divergence by members in the exercise of their functions under section 16. He has a statutory mandate to do this. That said, they are independent in carrying out their functions and the chairman is not there to ask them to decide more cases in favour of the State or the applicant. That is not their function.
The Minister has said the harder a person works the more he or she will earn. That should not be the basis for the work of a tribunal. Cases should be distributed equitably among its members. Some may work harder and be given more cases. If members are appointed by the Minister, they should be appointed on their merits to do a good job, not just for some of their number to work hard and earn more and for others not to be available. There is a substantial flaw at the heart of the manner in which the caseload of the tribunal is organised. It is not equitable.
I do not wish to adopt an ideological approach one way or the other. It is for the chairman to do this and he is entitled and duty bound to allocate the work in a proper and effective way in order that the tribunal works efficiently. If there was absolute equality and strict rotation, regardless of the capacity of a person to do the work and their availability, bearing in mind his or her other professional, social or family obligations, there would be a situation where a backlog would quickly pile up for some who were under more pressure than others. As a result, the process would become slower.
What I do not want to do is give work to members who are unwilling to do it and would regard it as an imposition. As I understand the system, every member of the 32 person panel is entitled to work as much as he or she wants. I do not want a situation to arise where some of them will say they are quite prepared to process another case and others: "Oh no, not another case, I do not have the time to do it." That would not be a good way to run the tribunal.
That is the way it is being run.
I do not think it is. The discrepancies in earnings show it is not.
The discrepancies in earnings show that some are working full-time while others are working on a part-time basis. There is not an equitable distribution of the caseload. Given that members are appointed for a particular purpose and that there is a substantial amount of State money involved - €3.5 million over a period of two and a half years - there should be an equitable distribution, the only way to ensure an equitable result.
For the last three days the Minister has been talking about having a streamlined system to have applications fast-tracked but if we have to wait for someone to be available and if everybody is up to his or her tonsils in work——
That is what the Deputy is arguing for.
No, I am arguing for the caseload to be equitably distributed in order that one will know in advance how much time one will have. When a person is being appointed or recruited to a job, he or she should know whether he or she will be available to carry out his or her work. If the 32 members do not have a similar workload and a similar rate of work, an individual may be dealing with 20% or 30% of cases.
The Deputy is missing the point. By and large, these are practising barristers and solicitors. There are a number of exceptions but nearly fit into that category. I do not want to be the barristers' advocate but if one is a practising barrister or solicitor, one's availability in a given year will increase or decrease depending on whether one's practice requires one to do other things. If one is a solicitor and one's biggest client is involved in a massive High Court action, one's availability to do other work decreases.
One is appointed to do this job. One is not appointed because one will be working in the courts.
One is contracted because of one's skills, impartiality, legal experience and availability to do this work.
It depends on when one is available, not when the work is available.
Yes.
The work is not done if a barrister or solicitor is not available, even though it needs to be done.
That is not the case.
It makes a nonsense of the Minister's attempts to streamline the system.
I reject that.
Is it because of the legal profession?
No, it is not. I reject the——
Everything is tailored to suit the needs and availability of the legal profession.
I reject that completely.
That is what is happening.
The system——
l have the statistics to prove it.
I ask the Deputy to let me finish. The system is working well. The number of delays has decreased and appeals are being disposed of.
In a disproportionate fashion.
A panel of 32 members with different obligations is doing a very good job in processing appeals quickly and effectively. The system is working well. I do not see the reason an ideological decision to ensure they all do exactly the same amount of work should come into the equation.
There is nothing ideological about equity.
The mathematical idea that all persons should handle the same number of cases does not represent an intelligent way to conduct one's work.
I am not talking about the same number of cases but the discrepancy between the figure of €319,000 and zero.
I have explained to the Deputy at least twice that the figure of zero——
The Minister has explained that one person was not available.
Every time the Deputy mentions the figure of zero he is talking about a particular person——
Who was unavailable.
——who is in training. The person in question should not be conducting this work until the training is complete. Another person could not do the work for personal reasons.
What about the person who received a sum of €5,694.01? Why did that person receive that amount of money?
I have no idea and do not want to start speculating.
The Minister is able to tell me that the system is working excellently. That is not the only discrepancy.
I have no idea why that is the case but at least it does not suggest the person is greedy.
Others are greedy.
What does the Deputy propose to do with this amendment?
I am pressing it. The Minister has not given us an answer about this issue.
It is unsatisfactory to ask me whether an independent chairman is carrying out his or her work. If the committee has a problem, it should correspond with the chairman directly to ask him about these matters. If an independent officer is expected to be independent of me, it is very unsatisfactory to expect me to comment on implied criticisms of the way in which he is carrying out his functions.
I would not have tabled this amendment if the Minister had not invited me to do so.
I move amendment No. 62:
In page 13, line 37, after "refugees" to insert "and such guidelines and guidance notes shall be made publicly available and shall be laid before both Houses of the Oireachtas as soon as may be after they are made and shall cease to have effect if annulled by resolution of either such House within 21 sitting days after being so laid".
Does the Minister wish to speak to this amendment?
I oppose the amendment. In effect, the Deputy wants the guidelines and notes used to be placed in the public domain. I do not think this should be done as they would be used by people traffickers as a system to coach people, etc. There is nothing secret in the notes but I do not see the reason they should be placed in the public domain. I certainly do not see the reason they should be laid before the Houses of the Oireachtas. Enough material is laid before the Houses without the guidelines being added.
I move amendment No. 63:
In page 14, before section 7, to insert the following new section:
7.-(1) Notwithstanding any provision of any other enactment but subject to section 11(4) of the Refugee Act 1996 ('the Act of 1996'), whenever so requested, an information holder shall give to another information holder such information, including personal information, in his or her possession, control or procurement regarding non-nationals, including applicants within the meaning of the Act of 1996 for the purposes of that Act or for the purposes of the administration of the law relating to the entry into and the removal from the State of non-nationals.
(2) The Minister for Social and Family Affairs may, for the purposes of the Social Welfare Acts, request an information holder to furnish him or her with such information including, personal information, in his or her possession, control or procurement regarding non-nationals, including applicants within the meaning of the Act of 1996 and the information holder shall comply with any such request.
(3) Following the receipt of a request under subsection (1) or (2), the Minister or the Minister for Foreign Affairs may withhold any information in his or her possession or control in the interests of national security or public policy ('ordre public’).
(4) In this section 'an information holder' means a Minister of the Government, a local authority (for the purposes of the Local Government Act 2001) a health board, the Garda Síochána or any other body established-
(a) by or under any enactment (other than the Companies Acts 1963 to 2001), or
(b) under the Companies Acts 1963 to 2001 in pursuance of powers conferred by or under any other enactment,
and financed wholly or partly by means of moneys provided or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government and a subsidiary of any such body.".
I do not want to waste the committee's time. This amendment is intended to put on a statutory basis the obligation of public bodies to share information for the purposes of the Refugee Acts. In the absence of a statutory basis, there is a doubt in some circles about whether the powers of the Data Protection Commissioner apply to the exchange of information. The Government's view is that this material should be fully exchanged. We do not live in separate and isolated compartments. It is perfectly reasonable for the Department of Social and Family Affairs to inform the Department of Justice, Equality and Law Reform, and vice versa, under these provisions. I will do some tidying up on Report Stage to ensure information in the hands of the Garda or otherwise will not be released if such a release would prejudice the detection or prosecution of offences.
I move amendment No. 1 to amendment No. 63:
In the proposed new section 7(4), in the ninth line, to delete "partly" and substitute "mainly".
I oppose the amendments to the amendment. It would be rather difficult to assess the idea of an agency funded mainly by public money. We do not want to categorise agencies by how much money they do or do not receive from the Exchequer. On amendment No. 2, lawyer-client confidentiality is a matter of privilege and common law. The new section does not adversely affect the question of common law privilege. The Deputy should have no fears in that regard.
I will consider whether we will refer to the rule of law instead of "notwithstanding any provision of any other enactment". We may think about this on Report Stage. As it would affect it, I will not do so. The rule of law is what protects one from this.
I move amendment No. 64:
In page 14, before section 7, to insert the following new section:
7.-The Immigration Act 1999 is amended in section 3(5)(b) by the deletion of ’, (d) or (e)’ and the substitution of ’or (d)’.”.
The effect of this amendment would be to introduce a new procedural layer into the process for transferring asylum applicants to other Dublin Convention countries in order that their applications can be examined. The Dublin Convention (Implementation) Order 2000 sets out a procedure, including appeal to an independent body - the Refugee Appeals Tribunal - for determining whether an applicant should be transferred to another safe country where it is proper that the claim should be examined. Once that is over, the Minister can make a deportation order to give effect to the transfer. It appears, however, that this is not protracted enough for the Deputy who wants a further process. The whole purpose of the Dublin Convention is to get on with moving people to the correct country. I do not believe there is any need for this amendment.
While I remind the Minister that a further humanitarian application could be made, I will not press the amendment.
I move amendment No. 65:
In page 14, before section 7, to insert the following new section:
7.-The Immigration Act 1999 is amended in section 6(2) (inserted by the Illegal Immigrants (Trafficking) Act 2000) by the deletion of 'third day' and the substitution of 'third working day (within the meaning of section 3(12))'.".
This amendment would extend the time limit yet again. It proposes the extension of the current time limit for deemed receipt of notices under the Immigration Act from the third day after the day it was sent to the third working day. The Supreme Court is satisfied that the current period is fair and reasonable, as it said when it considered the matter in the Article 26 referral of the Bill a number of years ago, and I have no intention of changing it.
I move amendment No. 66:
In page 14, before section 8, to insert the following new section:
8. Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000 is hereby amended by the substitution of the following paragraph for paragraph (d):
'(d) a refusal under Article 5 of the Aliens Order 1946 (S.R. and O. No. 395 of 1946),’.”.
I move amendment No. 1 to amendment No. 66:
In the proposed new section 8, in the first and second lines, to delete "Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000 is hereby amended" and substitute "The Illegal Immigrants (Trafficking) Act 2000 is hereby amended:
(a) in section 5(1)”.
These amendments were also tabled in the Seanad and are opposed. As I outlined at the time, the Supreme Court, in the matter of Article 26 of the Constitution, did consider all of these time limits and said they were reasonable, and I do not propose to abandon them. They are useful and working.
The new section to be inserted by amendment No. 66 makes a technical amendment to section 5 of the Illegal Immigrants (Trafficking) Act 2000 which deals with judicial review in immigration and asylum matters. The proposed replacement paragraph (d) to that section will insert an appropriate reference to the statutory provision in Article 5 of the Aliens Order 1946 for refusals of leave to land to non-nationals. There may be a Report Stage amendment to the trafficking law.
Amendments Nos. 67 to 70, inclusive, have been ruled out of order.
I move amendment No. 71:
In page 14, between lines 28 and 29, to insert the following subsection:
"(3) Every regulation made by the Minister under this Act shall be laid before both Houses of the Oireachtas as soon as may be after it is made, and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.".
I accept the Deputy's amendment and I am grateful to him for tendering it.
I thank the Minister very much.
I move amendment No. 72:
In page 14, before section 10, to insert the following new section:
10.-A restatement of the enactments relating to non-nationals, immigration and asylum as amended inter alia by this Act shall be prepared under the Statute Law (Restatement) Act 2002 as soon as may be after the passing of this Act.".
I intend to ask my departmental officials who for their own purposes must carry out an informal restatement in order that they can follow the law to invoke the restatement procedure because it is now desirable that the law be available in one coherent text.
Therefore, the Minister is accepting the amendment.
No. I am merely saying to the Deputy that the statutory power of restatement is available and once this process is out of the way, we will invite the Office of the Attorney General to assist us in a restatement.
I move amendment No. 73:
In page 14, between lines 32 and 33, to insert the following subsection:
"(2) The Aliens Act 1935, the Refugee Act 1996, the Immigration Act 1999, the Illegal Immigrants (Trafficking) Act 2000, the Employment Permits Act 2003 and this Act may be cited together as the Immigration and Asylum Acts 1935 to 2003.".
I am advised by the parliamentary counsel that a collective citation of this nature would be unusual and inappropriate. I am opposed to the amendment for this reason.
Does the Minister have a more elegant citation in mind?
No. A citation including the Employment Permits Act 2003 would be inappropriate. I could imagine circumstances in which certain sections of that Act could be collectively cited but do not think the Acts the Deputy mentioned should be cited together.
The Minister should consider the collective citation in tidying up.
I will consider it between now and Report Stage but do not know whether anything will result.
I thank the Minister and his officials for attending. They can now move on to Report Stage. There will be no rest for them.
