We are dealing with section 4. Amendments Nos. 21 to 23, inclusive, and amendment No. 25 are related and may be taken together.
Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).
SECTION 4.
I move amendment No. 21:
In page 13, subsection (3), line 10, after "who" to insert "is not under the age of 18 years and who".
My amendments Nos. 21, 22 and 25 are self-explanatory. Section 4(3) states: "A foreign national who is present in or enters the State unlawfully shall be guilty of an offence". Amendment No. 21 proposes to insert an exception for anyone under the age of 18. I am sure the Minister will argue that we have no way of knowing whether a person is under 18 years of age. Perhaps we should consider a lower age threshold. The Minister will not disagree with the objective of the amendment, which is to ensure that children are not subject to imprisonment because they have entered the State unlawfully. I will leave it to the Minister's judgment as to whether we should apply a lower age threshold.
Amendment No. 22 seeks to include the words "and without reasonable cause" after the word "unlawfully" in subsection (3). This refers, for example, to a protection applicant, someone who has been trafficked or who was previously documented but has fallen out of the system. In his reply on Second Stage, the Minister said he intends to address the situation of those who have fallen out of the system. Under the subsection as it stands, such persons would automatically be deemed guilty of an offence and thus liable for immediate deportation.
Amendment No. 25 seeks to insert the words "not under the age of 18 years" after the words "foreign national" in subsection (6). The purpose of this is to ensure that a minor will not be arrested or detained for the purposes of securing his or her deportation. I am open-minded on the age threshold but I would like to see the principle addressed in this section.
Amendment No. 21 is essentially a technical proposal which would bring this section into line with the approach taken to minors elsewhere in the Bill, including in sections 24 and 58. Given that minors may not have the resources to remove themselves from the State, they should not be deemed guilty of an offence for being here unlawfully. Moreover, they might not be responsible for being here in the first instance. They may have been trafficked here, for example, or brought here by their parents or another adult and subsequently abandoned. Such circumstances should be taken into account in this section given the approach taken elsewhere in the Bill in regard to minors.
Amendments Nos. 22 and 23 are similar in intent. There is an excessive penalty for those found guilty of unlawful presence in the State — a fine of up to €3,000 or 12 months' imprisonment. These amendments seek to ensure that account will be taken of the existence of a reasonable excuse for a person's presence so that he or she is not subject to a fine or imprisonment.
It might be the case, for instance, that persons who previously enjoyed legal status have subsequently lost that status through no fault of their own. A person's residency permission might be revoked and, if there is a time delay in renewing it, he or she will be deemed to be unlawfully here in the interim. There are occasions where work permits have expired and there is a delay in renewing them because of the bureaucratic backlog in the system. In those circumstances, a person would be deemed unlawfully in the State and liable to a fine or imprisonment. The Minister's acceptance of either amendment No. 22 or No. 23 would allow account to be taken of circumstances where people do not have full control of the reasons for their presence in the State or the fact that their status has become unlawful while residing here.
I do not propose to accept these amendments. Far from providing clarity to the law or addressing technical questions, they constitute a major change in the provisions relating to unlawful presence in the State.
Deputies have suggested that this section may allow for the imprisonment of minors. Children under the age of 18 years are dealt with under the Children Act 2001 which I had the honour of implementing in full during the last Dáil. Detention is a sanction of last resort under that legislation. The current arrangements in St. Patrick's Institution are finite. Under the Children Act, the child detention school will become the model for the future detention of any person under the age of 18 years. The suggestion that children will face imprisonment under the provisions of section 4 of this Bill is inaccurate.
The more general question that Deputy Naughten's amendment raises is whether we should provide an exemption from the criminal law for everyone under the age of 18 years in regard to their unlawful presence in the State. This Bill provides that a foreign national who is present in or enters the State unlawfully shall be guilty of an offence. It is the practice in immigration statutes in most jurisdictions to provide for such an offence. The preferred course of action is to ensure the removal of the person who is unlawfully in the State from the jurisdiction but it is normal practice to supplement that with the creation of a specific offence.
The question then raised by Deputy Naughten is whether, in the case of a person under the age of 18 years, one should have an offence at all. It should be borne in mind that there are persons who are, for example, 16 or 17 years of age and who choose to travel independently of their parents and who, in the process break Irish immigration law. It is reasonable for the State to provide that such a person shall be deemed to have committed an offence and I do not believe there should be a block exemption of a particular age category from the concept of committing an offence. If we are to maintain the integrity of Ireland's frontiers, we are entitled to state that a person who violates that is deemed to have committed an offence. This is not an unreasonable proposition.
The other proposals made on this section by Deputy Naughten and by Deputy Finian McGrath, who has now joined members, are substantially the same. They seek the introduction of the expression, "and without reasonable cause", in the offence of unlawful presence in the State. It seems to me that the introduction of this phrase into a criminal statute would introduce a degree of uncertainty, vagueness and lack of clarity and would almost bring the law into a state whereby it could not be implemented. While there are very few occasions on which persons will be prosecuted for this offence, the issue of reasonable cause would be raised as a defence in any such prosecution.
The Bill is very clear. One either is lawfully in the State or one is not. There are procedures governing lawful admission to the State and those who comply with them are lawfully in the State while those who do not do so comply are not. The Bill is a reasonable statute and provides a reasonable basis on which people can procure residence in the State.
I take exception to this amendment because there appears to be an underlying assumption that my Department always is unreasonable in such matters. However, if one examines this statute, a reasonable framework is provided whereby persons can gain admission to Ireland from non-EU states. That is the purpose of this legislation and clear procedures are laid out in the Bill in respect of applications, the different types of permission that can be granted, permission to enter the State and to remain in the State, as well as of the duration of such permissions. A person who wishes to visit this country can comply with such procedures. Therefore, I cannot accept the idea that when one commits the offence of being present in, or entering, the State unlawfully, there can be a reasonable cause that effectively sets aside all those procedures. I of course accept that no one becomes unlawfully present in the State by surprise.
I accept the Minister's comments in respect of people under the age of 18. To an extent I am arguing against the point I made earlier regarding separated children, in that I wish to ensure the protection of the State is provided to them and this provision facilitates that.
Turning to amendment No. 22, I see where the Minister is coming from in this regard. More substantive amendments that deal with particular aspects regarding protection applicants and the undocumented have been tabled. While members will be teasing out this issue in greater detail at a later stage of the debate on the Bill, I do not wish to see someone who perhaps is eligible under some of the schemes provided for in this legislation being prosecuted or treated as having committed an offence under this section. I refer to genuine protection applicants who have been trafficked into the country or who, through no fault of their own, have become undocumented. Perhaps members will deal with those substantive issues later on. I accept the points made by the Minister regarding the amendments under discussion.
Section 4(3) provides that it will be an offence to be present in or to enter the State unlawfully. Given that minors may not have the resources to remove themselves and may be separated from their parents, they should not be guilty of an offence if they are in this State unlawfully. Amendment No. 21 removes minors from the scope of the offence and is consistent with the approach to minors adopted elsewhere in the Bill, in, for example, sections 24, 58 and 60(2).
While I take the Minister's points regarding other legislation, I will not take the high moral ground lecture on people being lawfully in the State. In particular I will not do so at a time when the Government is trying at present to fight for the Irish in America. That point should be removed from the agenda. As was noted in the outline to this legislation, members have a responsibility to be proactive and to assist people, particularly those who genuinely are in situations in which they require assistance. Members simply are trying to ensure that immigration legislation and this Bill are in line with international standards, human rights issues and United Nations policies of the past 20 years and there is nothing unusual about that. However, I will not take any lectures or comments about being lawfully in the State when our own history is steeped in the experiences of the many hundreds of thousands, if not millions, of our residents in Australia, England and America, including many of my own relations and cousins. We fought hard to ensure they got there and they made a massive contribution to the states in which they settled. Members should calm down and have a rational debate and should not take any high moral ground trips on this issue.
Beidh mé gairid go leor. In respect of amendment No. 23, there are circumstances in which people would find themselves to be unlawfully in the State if, for instance, their permission to remain had been revoked. From the time of being informed of that decision until they manage to make arrangements to leave the country, they are illegally here and therefore are liable to a fine or imprisonment. For instance, someone who is in hospital and whose permission to be in Ireland has expired, technically is illegally present in the State.
Moreover, I refer to an example that to my knowledge has occurred on several occasions in which employees on work permits have put their trust in their employers to renew the work permits but the employers have not done so. As the legal aspect of the permission to be in this country is based on such work permits, it could also have expired. Consequently, such people will be unlawfully in the country and will be liable for a substantial fine — one should consider that the people in question often do not have access to that type of resource — or imprisonment of up to 12 months. While the structure or the wording "without reasonable cause" might not be suitable, a mechanism might be made available to acknowledge there are occasions on which people can be unlawfully here. Alternatively, the Minister might consider some. other form of wording to set this out in clearer terminology, if he wishes for such clarity.
While I do not wish to get into an historical argument with Deputy Finian McGrath, many of the millions of Irish who went to the United States were obliged to go through a place called Ellis Island and quite a few of them were returned home and never got the opportunity to visit the place. However, those were other, unhappy days.
On a more positive note, I am anxious to reiterate a point I made on Second Stage because I appreciate the concern that is being expressed in the context of this section relates to the issue of persons who may fall through cracks and to persons who have obtained work visas in particular. I am anxious to undertake to the House through this committee that, before the commencement of the legislation, I will draft and publish an administrative scheme relating to foreign nationals who were holders of work permits but have become undocumented and, thereby, are unlawfully in the State. Such arrangements must and will be made prior to the commencement of the legislation. In such cases, the various factors will be weighed up. The group of people in question will be allowed to apply for residence, as it is the group with which I am concerned. I received representations from the Irish Congress of Trade Unions in this respect. In the context of section 4, it is important that this specific group has an assurance from the Minister prior to the commencement of the legislation that he will address its members' cases in a humanitarian way.
By way of regulation or by way of promulgation.
By way of an administrative arrangement on foot of the Supreme Court decision to which I referred yesterday. I am anxious to give this undertaking to the House.
Was it proposed by congress?
No, congress raised concerns with me about the position of undocumented workers who arrived on foot of work visas and subsequently changed employers or employment patterns. This serious issue must be addressed. From my analysis of the general patterns of migration in Ireland, this group has made the strongest case in the context of section 4. A scheme must be made by way of administrative arrangement for the foreign nationals who were the holders of work permits, have become undocumented and are unlawful in the State.
As Deputies are aware, the large volume of Brazilian immigrants poses a difficulty. Many arrived on foot of work visas, but others are their relatives. Somewhat different issues can arise in their cases. I will reiterate my comments on the sections in that I am unable to accept the amendments.
The Minister referred to a group comprising a sizable percentage of my county town's constituents.
The arrangement is not for a particular nationality or ethnic group.
I accept that. We will address these substantive issues later in the debate. I encountered a case in which a member of our Brazilian community who entered Ireland on a holiday visa and is eligible for other visas cannot apply for a spousal visa, for example, because he or she is not legally resident here. We can address these questions when we deal with the substantive issues. I acknowledge the Minister's commitment on Second Stage to the undocumented and I hope some of the problems can be addressed. To better understand the Minister's intentions, it is important that the matter be fleshed out during our discussions on further amendments.
Let us be clear about the basics. The Bill is clear in that one is either lawfully or unlawfully present in the State. Regarding foreign nationals who are previously the holders of work permits, a scheme will be published prior to the commencement of the legislation so that if the Minister is satisfied that the illegal presence of a foreign national was not the latter's fault and is primarily the fault of the employer, an arrangement can be made. This is appropriate.
The Deputy referred to the Brazilian community, but he should bear in mind that there are no visa arrangements with Brazil. Someone coming from Brazil enters the State by arrival at a port of entry. This matter must be reviewed. The case history of the constituent instanced by the Deputy may not be correct because he suggested that the person arrived on foot of a holiday visa. However, there are no visa arrangements. One's leave to arrive from Brazil is secured at the port of entry, but one may be permitted at the airport or so on to holiday in Ireland. These are the terms of one's admission to Ireland. If one wishes to apply for another basis for residency, one must do so under the legislation and, if necessary, return to Brazil and make the application there.
Did all of the Brazilians in Ireland arrive on that basis?
No. A substantial number of work visas were issued in respect of various industries, particularly prior to 2004. Many individuals come to Ireland to study or visit friends or relatives on holiday visas. In such cases, the arrangement is made at the point of entry. It is not a visa arrangement in which an advance application is made in Brasilia, at another Brazilian location or directly to the Department in Dublin. There is no prior written request in the case of Brazilians, who are cleared at the port of entry upon arrival. We must review this matter.
I wish to tease out a matter raised by the Minister. People with permits to work in the building or catering industry may consider themselves to be tied to their employers, sometimes in uncongenial circumstances. Under this legislation, they would be considered unlawful were they to break away from those relationships. Is what the Minister is contemplating likely to lead to a normalisation of such a person's presence in the State?
Yes.
I welcome the measure.
We all do.
I am doing it by way of an administrative scheme because the provisions of the legislation are clear. It is attractive to have clarity on the issue of lawful and unlawful presence in the State. We must recognise the existence of such a group of people, many of whom were employed in the meat industry as well as in construction. I am unsure as to how many were employed in catering — the position in that respect is different — but the representations I received concerned the meat and building industries primarily. The arrangement will involve each case on its facts. It is not a general pathway, as the Minister must be satisfied in each case. It is clear that the risks outlined by Deputy Rabbitte are real. In many cases, the conduct of an employer has put an employee on an employer-specific work visa in an impossible situation.
I have encountered a——
I mentioned the meat and construction industries, but the other area in question is domestic services. In the catering industry, it tends to be the case that persons who arrive on student or holiday visas overstay and become employed.
A Filipino woman, a qualified nurse, entered Ireland and worked in the domestic services industry but found the circumstances imposed on her so uncongenial that she joined the health service. As I understand it, she is unlawfully in the State.
Yes, and the health service was guilty of an offence in employing her.
It is probably happy to have committed that offence.
The Deputy could raise the matter with the HSE through the appropriate channels.
There are many in the HSE that I would like to see in prison.
Amendment, by leave, withdrawn.
Amendment No. 22 not moved.
I should have indicated earlier — when the question of children was raised and I was very stern on the issue — that I will be accepting a later amendment on the question of the best interests of children being factored into this provision. I understand that amendment is in the name of Deputy Rabbitte.
Amendment No. 23 not moved.
I move amendment No. 24:
In page 13, lines 16 and 17, to delete subsection (5).
This amendment is in the same territory as others in that it deals with persons unlawfully in the State and the circumstances in which they can be removed. As the Minister knows, the whole question of summary deportation in any event is very controversial but as I understand the law at present, this Bill essentially abolishes what is known as the section 3 process. Subsection (5) provides a significant new power for the State to intervene, effectively abolishing the section 3 process, which was rooted in the 1999 Act. If a person is currently residing in the State without permission, he or she can be removed from the State on foot of a deportation order. As I understand it, the person is entitled to 15 days notice in those circumstances. Subsection (5) provides for a significant new power and I am not sure, in the context of the rest of section 4, why it is necessary to include it at all. Perhaps the Minister will say that it does not mean that in all cases a foreign national would not be given notice and that what he is seeking to do is to have the power, in some cases, to have a foreign national summarily removed.
The discussion we have just had on the amendments in the names of Deputy Naughten and Deputy Ó Snodaigh shows that there are circumstances where people can find themselves here unlawfully but not because of mala fides or anything like that. Their status is illegal through no fault of their own, in some cases. Why, then, is it necessary to retain subsection (5), which makes this radical change from the existing section 3 process to confer a significant new power on the State to remove a person without even giving him or her notice in the normal way? It is a significant deterioration from the circumstances as we have known them and a great many of the organisations which made submissions to the committee have referred to this point and expressed their concerns.
I support Deputy Rabbitte with regard to this amendment. Referring back to the points I made earlier regarding protection applicants, namely people who are undocumented and have been trafficked into the country, the Minister is aware of this point because it was made during the debate on the trafficking legislation. We have seen, to date, what has happened with people who have been found to be trafficked. I gave an example, during previous debates, of the woman in Sligo who ended up in Mountjoy Prison. This legislation is going a step further in that people who may be eligible for protection, who may have been trafficked into the country, who may be undocumented through no fault of their own, can be summarily deported prior to having the opportunity to make their case.
The Minister probably has the parliamentary reply to hand because I know his officials are collating replies to parliamentary questions but I raised the issue with the Minister of the number of deportations that have taken place and the numbers of people who have gone missing from the asylum system. The Minister could not give us any idea of the number of people who have gone missing from the asylum system or the number of people who have been issued with deportation orders but have not been deported by the State. He made a very cogent argument that the vast majority of these people leave the country voluntarily. If that is the case, what is the need for having summary deportation in place? There should be no need for it. The argument the Minister has made about summary deportation is that giving people 15 days notice gives them the option to "do a runner", to get away from the authorities and avoid deportation. However, at the same time, he has said that is not the case with the vast majority of such people, who voluntarily leave the State.
I ask the Minister to clarify the issue because it is a significant one, particularly as it relates to people who may be eligible under the scheme to which the Minister referred earlier. Those who may be eligible to apply for protection as a result of being trafficked into the country may not have the opportunity to apply for such protection if they are summarily deported without any notice.
At present, the 15-day letter is issued. That is the current arrangement. The deportation orders are brought to the Minister for signature and my practice is that an official speaks to the file before I sign the order. A very substantial number of deportation orders are made. In the last four years, 6,798 deportation orders were signed, of which 1,432 were effected.
What was that figure?
A total of 1,432 of the orders, representing 21%, were implemented.
Deputy Naughten is confusing two ideas when he speaks of persons voluntarily returning. Persons within the 21% category can agree to return home and the State does not have to use the full machinery of the deportation process. That is one way in which voluntary return takes place. When I was referring to voluntary return, however, I was also speaking about the fact that among the other bloc, that is, the persons in respect of whom deportation orders are not implemented, many of those individuals, as far as the State is concerned, appear to have disappeared. While we have no evidence regarding what has become of them, we assume that a certain proportion have moved to Great Britain or elsewhere. I set out the general context because the Deputy raised certain factual issues in his consideration of the section.
The effect of the amendment would be to delete subsection (5), which provides that a foreign national unlawfully present in the State need not be given notice of a proposal to remove him or her from the State. The essence of this provision is that a person unlawfully present in the State is under a personal obligation to remove him or herself. It is only when one is in default of taking oneself out of the State, in other words, conducting oneself in direct defiance of that obligation, that the section becomes operative.
The amendment does not take account of the manner in which a foreign national may become unlawfully present in the State. Under the Bill, a foreign national will usually become unlawfully present by his or her own conscious act, either by entering in such a way as to avoid the immigration process and thereby never obtaining entry or residence permission or by remaining in the State after the expiry or revocation of permission. We will deal with revocation procedures presently. The person is unlawfully in the State because his or her permission has expired or permission was never sought in the first place.
In regard to the concerns expressed by the Deputy about trafficking and protection applicants, a person who seeks protection under this legislation is entitled to have the application considered. Removal from the State cannot arise until processing of protection application is completed. The suggestion that the section would in some way be operated to the detriment of protection applicants is not well founded because the applicant is entitled to seek protection under the legislation. I do not understand the argument that there would be an impact on protection applicants. They are entitled to be considered under the legislation.
I accept that the process is followed if someone seeks protection but, in the small number of reported cases of people who have been trafficked into this country, the majority did not speak English or know their rights and entitlements. They did not know about their right to apply for protection or that human trafficking legislation was being enacted. How do they inform themselves if they are being summarily deported on the basis that they are undocumented? It puts a significant responsibility on gardaí if they have to ensure the individuals concerned are not eligible to apply under some of these schemes.
My understanding of the legislation is that it changes the practice of dealing with these cases by immigration officers to allow any member of the Garda Síochána to process them. We cannot honestly expect every garda to be up to speed on all the provisions being made in the Bill, the trafficking legislation and in Schedules or schemes that the Minister may from time to time decide to implement.
Gardaí are immigration officers in the State and the GNIB is the dedicated body within the Garda Síochána for dealing with these matters. It is an operational matter for the Garda to decide how officers are assigned to cases. The operational assumption in the legislation is that the powers are exercised by gardaí who specialise in this area. We do not normally provide in statutes that, for example, the GNIB shall be the only body to exercise powers.
I acknowledge the other issue raised by the Deputy but it is a problem throughout refugee and protection schemes. Those concerned have to make the claim and substantial numbers do so. Our examination of refugee applications has revealed that applicants who have no other basis for residence in the State tend to invoke the protection provisions.
To move our attention from refugee applicants to trafficked persons, I understand the latter are not aware of the possibility of applying for protection and, until contacted by non-governmental organisations, have not made applications for protection.
We have few data in regard to trafficked persons and much of the commentary is speculative. We held extensive discussions on the issue in the context of the Criminal Law (Human Trafficking) Bill 2007. A national strategy is in place on trafficking and a director has been appointed to lead it.
The Minister stated 21% of those against whom deportation orders were invoked left the State voluntarily. Does that mean someone who is summarily deported from the State can opt to leave voluntarily under section 5? There are significant implications in respect of re-entry for a person leaving voluntarily rather than being forcibly deported. Will the people concerned be made aware of this option?
The current practice is that a deportation order bars the subject from returning; therefore, if the order is vacated and a person leaves voluntarily, he or she can return. Under the Bill, if the removal occurs on a statutory basis, it bars the subject for six months and the Minister has power to extend the period in appropriate cases. The option remains that the person can leave voluntarily, in which case the removal does not have a statutory effect and does not bar him or her from returning.
I am confused. If a person is picked up on the street by a garda and deported under section 4(5) of the Bill——
The removal occurs under section 54 in Part 6 of the Bill.
At present, one is given 15 days notice, with the options of leaving the country voluntarily, being physically deported or doing a runner. If somebody voluntarily leaves the country after being issued with a deportation order, the bar on applying to return is lower than it would be if he or she was forcibly deported.
It is the notice we are discussing.
It is the notice of the Minister's intention to deport, not the actual deportation order. The provision whereby the Minister will give notice of his or her intention to deport an individual is being removed from the Statute Book. As a result of that, the person does not have the opportunity to voluntarily leave the country. The only option the person has to leave the country voluntarily and have a lesser prohibition on returning to the country is if he or she leaves before coming to the attention of the authorities. This means we will have a situation where many more people will have to be physically deported from the country with the additional costs involved. Am I correct?
No. If there is a revocation issue, the notice period is the same under this legislation; the 15 days remain.
That is only in a revocation case; what about outside a revocation case?
In a revocation case——
I see where the Minister is coming from in his argument on summary deportation. He is saying a certain——
It is not deportation. It is removal from the State.
I see the argument the Minister is making on that, although we can agree or disagree with it. People have the opportunity of a yellow card, if I may use that phrase, and can voluntarily leave the State. If somebody voluntarily leaves the State after notification of the Minister's intention to issue a deportation order, he or she can return home and legally apply to come back straight away. However if the deportation order is signed there is a greater restriction on his or her applying to return to the State. This legislation as proposed does not provide for that type of yellow card system. People do not voluntarily leave the State unless they come to the attention of the authorities. The ministerial order to deport will be signed or the procedure——
There is no ministerial order.
They can be immediately deported, which means we will deport many more people than up to now because of the 1,432, some of them have paid their own way home or have gone through the migration service and been sent home that way. There will be a significant increase in the cost to the Exchequer of sending people home under the proposal put forward here.
The Deputy has made a fair point. However under this Act the deportation order procedure ends. The Minister does not make the orders. The Minister's right hand, or left hand in the case of a citeóg, will not sign all these orders. Various yellow cards are factored into the different circumstances that arise in the Bill, such as revocation and protection. There are no circumstances in which a person's unlawful presence can come as a surprise to that person. I agree with Deputy Naughten that it is desirable in the removal procedures that if a person wishes to have a yellow card removed and make his or her own way, that should be clear in the legislation. The place to consider that issue is when we come to Part 6 and examine section 54 because that is where the removal procedure is. Yellow cards are written into various different sections of the Bill, which we can examine as we proceed. The Deputy argues that in the removal process, given that there is no longer an order or the notice, there should be clear statutory opportunity for a person to voluntarily return without consequence. I am prepared to examine this reasonable proposal. One of the major difficulties with the current notice arrangement is that it is virtually an invitation to abscond.
Regarding the Minister's last remark on the current situation being an invitation to abscond, if one subtracts 1,432 from 6,798 one gets the number of people who, the Minister says, have disappeared. Do they disappear or do many of them have cases in train?
Some of them are involved in judicial review applications. Some of the persons in respect of whom deportation orders have been made are before the courts.
Does the Minister have an approximate idea of the number?
I will get the figures on that. On those who we believe go missing, in 2007 the Office of the Refugee Applications Commissioner, ORAC, completed 4,152 cases, 689 of which were deemed withdrawn. These applicants entered the asylum system but did not co-operate any further with it and the applications were never progressed. In the first quarter of this year 250 of the 1,180 applications processed by ORAC also fell into this category. As the Deputy knows, we do not provide for the detention of asylum seekers, unlike some other jurisdictions. People are free to move and it is a natural feature of migration that this happens.
Last year there were approximately 1,100 judicial reviews on migration matters against the Department but I cannot break them down into the different categories. In 2007 approximately 1,100 judicial reviews were instituted and no leave to proceed was granted. They were received across ORAC, the refugee appeals tribunal and the Irish naturalisation and immigration service. There has been an escalation in legal challenges over the last number of years despite the fact that asylum application numbers are falling. There were 252 judicial reviews in 2002 when asylum numbers were at their highest, 11,634. Last year, when the asylum claims were at their lowest point, 3,985, approximately 1,100 fresh judicial reviews were instituted and 817 judicial reviews were finalised. The number of cases on hand at the end of last year was approximately 1,500.
In 2007, 185 judicial reviews were determined in the repatriation area, which we are discussing. Of these, 81 cases were struck out, many on the basis that the applicant was readmitted to the immigration process, 40 were settled, 38 were won or had leave refused and 18 were lost or had leave granted. There were other cases related to ORAC. We can return to this topic under the different provisions of the Act. A very substantial number of cases are being brought up with regard to European Union treaty rights but that is not a subject before us this morning.
It does highlight that this is a major shift in policy. The Minister quoted in a different context yesterday the Bode case. It is interesting to have a look at the Bode judgment, which I did last night, in the context of this discussion. For example, the Minister will recall that it was held in that case that:
In making a deportation order, the Minister must comply with section 3 of the Immigration Act 1999, as amended. The Minister is required to have regard to a wide range of matters in section 3(6) of the Immigration Act 1999. . . . Thus, bearing in mind the case law of this Court, the Minister is required to consider in this context constitutional and convention rights of the applicants. . . . The section 3 process is sufficiently wide ranging for the Minister to exercise his duty to consider constitutional or convention rights of the applicants.
It seems that without introducing any equivalent of the 1999 Act into this 2008 legislation, we will inevitably have summary deportation of persons who may have become unlawfully resident in this State through no fault of their own. Listening to the Minister and the number of applications he referred to, along with the extent of judicial review being sought, it revives in my mind the argument for some kind of independent appeals mechanism, which we spoke of yesterday. That would probably be a more efficient and cheaper way of dealing with the issue than the one we have now embarked on.
Does subsection (5), which allows for the deportation under section 54 without giving notice, amount to a breach of the prohibition on refoulement? It seems inevitable that persons will be sent back to countries willy-nilly and this will, in effect, be a breach on the prohibition on refoulement elsewhere in the legislation.
Section 53 of the Act, under Part 6, dealing with removal from the State, specifically deals with the issue of refoulement and provides that a foreign national being removed from the State under this Act shall not be sent to a territory if doing so would be a refoulement. In considering the removal provisions under Part 6, we can consider that issue.
I accept that.
The fundamental point comes down to "no fault of their own". It is reasonable that the public expects us to secure the boundaries of the State. People are here through default if they have abused our hospitality by staying on with a visa when a defined period of residence was permitted.
Our great leader is over in the United States, as Deputy McGrath commented on, pleading the case on international television for our own citizens who have done precisely that — if the Minister wishes to express it that way — in the land of the free and the brave.
They are treated very toughly in the land of the free and the brave. They are treated much more toughly than anyone will be dealt with under this legislation. Our leader expressed a somewhat different opinion on this question when he visited Washington D.C. on St. Patrick's Day.
I sincerely hope the Minister is not suggesting our great leader can encompass two conflicting propositions.
I am afraid I am.
May I return to the prohibition on refoulement to which the Minister correctly drew my attention in the legislation? How does the applicant invoke section 53? If the applicant is being shipped out of the country with no requirement to give notice, how does he assert that he is in fear of his life or afraid of torture, persecution etc.?
Section 73(1) states: "A foreign national, whether lawfully or unlawfully in the State, may apply to the Minister for protection in the State." A protection application can be made by a person unlawfully in the State.
This comes back to the point I made earlier. That is all well and good if the person being deported knows his or her rights. The difficulty is that this may not be the case.
Our experience in this Department is that many such persons are well tutored in their rights. All they need do is express a fear, rather than refer to rights. That must be acted on.
I gave an example, although it is only anecdotal evidence, of trafficked persons who may not be in a position to know or assert their rights. That is a genuine difficulty.
The problem with trafficking is that we need more intelligence and information. As the Deputy knows, a major Garda operation was launched late last year to increase our intelligence capacity with regard to trafficking. The whole problem with trafficking is exactly as Deputy Naughten has outlined it. The only way of identifying the trafficked person is to get intelligence on the traffickers and trace the person. That is the positive step that the State's law enforcement authorities can conduct in that context.
What is the evidence in other member states?
Were we to require every immigration officer to ask if a person is trafficked, they would still be told by that person that he or she is not. It is not through the immigration system that one can tackle the problem of trafficking.
I am just using that as an example. I have two points I wish to make. The Minister mentioned in reference to the Office of the Refugee Applications Commissioner that 689 cases were deemed to have been withdrawn in 2000, with 250 being withdrawn in the first quarter of this year. That is somewhat misleading as they would not come under the terms of deportation anyway as they would not have gone through the process. Under the present system they would not have been issued with deportation orders.
The Minister made the point that, with regard to the 79% in the past four years where a deportation order was not implemented, this is an invitation to abscond. That is a different category of individual. The Minister made the point previously that it is his understanding that a sizable percentage of that 79% of people not before the courts left this country voluntarily. If that is the case——
We do not know.
The Minister made that point to me. I can dig it up and come back here to quote it to the Minister.
I illustrated it in reply to Deputy Rabbitte a moment ago by reference to the asylum applications. A certain number of those are discontinued. It is reasonable to assume that, likewise, with those on whom deportation orders have been served, some have left the State.
The Minister gave the impression that a sizable percentage of them——
I cannot give a statistical abstract.
I know the Minister cannot provide statistics because it is impossible to do so at the moment. The impression was that a sizable percentage has left the State. We really do not know how big an issue this is. That is the straight answer the Minister has provided. We do not know if there is a big number of people who take up the invitation to abscond. That is a similar argument that is being made on the other side——
We do know that many of those on whom deportation orders are served do not report at the required time. Whether they are around still is the point the Deputy is making, and some are not.
Yes. The Minister made the point that a sizeable percentage of them are not; he gave the impression that this applies to the majority of them.
The Minister quoted extensively from the Irish Human Rights Commission with regard to the previous piece of legislation we dealt with.
I wish to correct my reply to an earlier point relating to trafficking. I said the immigration system cannot provide a comprehensive response to trafficking but under our national strategy immigration officers will be trained to look out for signs of trafficking.
The point I was about to make was that the Minister quoted extensively from the Irish Human Rights Commission with regard to the previous legislation we dealt with. I will refer to the commission's views on the issue of summary deportation. The Irish Human Rights Commission considers that the proposal in this Bill relating to removal from the State raises serious questions regarding compliance with our own Constitution and the European Convention on Human Rights. Could the Minister respond to the concerns that have been raised by the Irish Human Rights Commission regarding this provision? We do not want this legislation to be struck down by our courts because we failed to ensure due process was followed on these provisions.
The commission expressed concerns but I act on the advice of the Attorney General, the legal adviser to the Government. The concerns referred to have not been conveyed to me by the Attorney General. Did the Irish Human Rights Commission have a specific concern relating to an article of the Constitution? Only a brave man could predict what the European Court of Human Rights in Strasbourg will do these days. We have a distinct obligation in our Constitution.
The Irish Council for Civil Liberties considers that the power of the Minister to remove a person without notice and without provision to review the revocation of entry permission or non-renewable resident's permission, as the Minister mentioned to Deputy Naughten, may be in breach of the constitutional right to fair procedures in decision making. The Irish Council for Civil Liberties says this right comes from Article 40.3.1° of our Constitution, which is procedural in character and relates to all civil proceedings. Fair procedures are essential to protect against unfair, arbitrary and discriminatory decisions. The council goes on to deal with one of the two common law rules of natural justice, audi alteram partem.
Is this in our report?
Yes. To be honest, I do not know how to read this as the introductory table does not say where it can be found. I am referring to page 7 of the Irish Council for Civil Liberties, ICCL, piece.
It is not in the Irish Human Rights Commission document that I have, the presentation to the Oireachtas joint committee.
It is on page 83, relating to recommendations under C.
Where is the reference to the commission?
All of them are on page 83. It is under topic 2 "Removal from the State", in subsection C, "Recommendations".
And this is from the Irish Human Rights Commission?
The key point is that some of the sentiments expressed by Deputy Rabbitte and the citation he made from the Irish Council for Civil Liberties document are unexceptionable. There must be fair procedures and fair procedures are provided in this Bill. For example, we will have an opportunity to examine revocation. Procedures are set out in the Bill relating to this matter, protection and the various ways in which a person can be lawfully resident in the State and have that residence terminated or adjudicated upon.
We will come back to a core principle of section 4; a person is either in the State lawfully or not. This is the key point in section 4 and we are drawing this sharp distinction in this legislation. If a person is not in the State lawfully the State must have an effective removal procedure. This is acknowledged again and again in Supreme Court judgments.
The Minister says this is acknowledged again and again in Supreme Court judgments but I ask him to comment on this in the context of Mr. Justice Keane's comment regarding section 26 of the Illegal Immigrants (Trafficking) Bill 1999. He said:
It would be contrary to the very notion of a State founded on the rule of law, as this State is, and one in which, pursuant to Article 34, justice is administered in courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right to access the courts to enforce their legal rights.
They have that right under this legislation.
Regarding the example we have been, the ICCL agrees that this could be a breach of the prohibition of refoulement. What happens in this case? When this legislation is enacted a person will not get notice, there will be a knock on the door and he or she could be deported to, for example, a part of the Congo where he or she genuinely fears for his or her safety. How will a person access justice in such a situation? He or she will be sped to the airport to get on an aircraft that is ticking over on the runway.
How did this person get here in the first place? Did he or she smuggle himself or herself into the State?
Perhaps.
In that case the individual is unlawfully present in the State.
Does that mean the protection of refoulement no longer applies?
It does. If this point is raised by such a person it will be considered and adjudicated upon and he or she will have the full right for the Minister to consider it. I should say the individual will have the right to the full statutory procedure that applies because this is not a ministerial procedure.
The Deputy is talking about a knock on the door but the key matter is how such a person arrived here in the first place. How did a person come to be in the State unlawfully?
The Minister is correct that this is a key question but some people who are unlawfully present in the State have gone through due process. They may have applied for protection or one of their entitlements may have been revoked. The largest cohort the Minister is referring to relates to the invitation to abscond.
A work permit may not have been renewed due to an economic downturn and a person may decide to stay in the country.
In that case a person has abused our hospitality.
He or she may have formed attachments.
In the situation referred to by the Deputy a person has been admitted to Ireland by the Minister for a designated period. He or she has exceeded the given period and breached the condition of admission to the State. That is the position in those circumstances.
There may be a valid argument supporting a person who has breached the condition.
There is no valid argument because the Minister has only permitted them to stay for——
The Minister already acknowledged this point regarding undocumented migrants who have fallen out of the system. This means that a valid argument can be put forward for the unlawful presence of some people in the State.
The point I am trying to make is that some people have gone through a valid process, either through revocation or because a decision has been made relating to a protection application. Such people have been given notice and through this process there is a mechanism for appeal. Notice is given and they know the decision that is pending if appeals are not successful.
Other individuals, who could be picked up off the street, may not have gone through any type of consideration. The Minister has acknowledged——
How did these people get here? I am being pressed all the time by people who have been picked up on the streets. How are they on the streets of Ireland in the first place? We must examine this matter in the context of our consideration of all of this legislation. We have to provide in this legislation for each of the circumstances that may arise. It is hard to reply to a question when the basis upon which the person is unlawfully present in the State is not being outlined in the first place.
The point I am trying to make is that while I accept there are a number of areas in which people go through due process, there are other people who are unlawfully resident in the State who have not gone through any process. The Minister himself has acknowledged a weakness in the legislation as it is currently drafted with regard to these people having an opportunity to leave the State voluntarily, and we will consider this at a later stage. However, surely there must be some mechanism in place for them to have their case adjudicated upon before they are actually deported.
I am sorry to interrupt the Deputy. The point I was trying to make is that while there are, as the Deputy outlined, persons to whom the protections envisaged in this legislation apply — there will be persons whose permission has been revoked, and there is a revocation procedure — we need to outline who the people to whom the Deputy refers are. The largest group, I suggest, consists of people who have been permitted to enter the State on foot of a visa. The length of time they can stay here, the conditions of their stay and the termination of their stay are clear from the time they apply for their visas, and they are on notice of these conditions from the time of their application. If they opt to stay beyond that period they are unlawfully present in the State. They are fully aware of this.
There are a substantial number of possible circumstances in which the situation the Deputy has outlined may occur. I refer also to foreign nationals who have made no contact whatsoever with the Irish State in terms of registering their presence. They are unknown to the State. These are the two categories of people that make up most of those to whom the Deputy refers. The Deputy is suggesting that some sort of procedure should be set up for these people even though they have already defied the laws of the State with regard to visas or defied them entirely by their presence in the State.
There may be a valid argument put forward for some of these people. For example, they could have been trafficked into the State. However, unless a person brings it to the attention of the authorities that he or she may fall into one of these categories, consideration is not given to the application. That is the point I am trying to make.
With regard to trafficking, I have already explained that there is an intelligence-led operation under way and that we will train our officers to look for the vital signs of trafficking. That is all we can do.
What if the person in question is a minor?
Such minors are committed to the care of the HSE. The HSE must make a determination as to whether a protection application can be taken.
I do not want to stifle this discussion, but is some of it relevant to later sections in terms of the mechanism for deportation and so on?
That is a fair point, but my own experience suggests that it is better to have the discussion up front and we will find it will not be repeated to the same extent in later stages. Otherwise it is too late to do anything about it.
I accept that the Minister and the Department have a challenging task to discharge on behalf of the State. The Bode judgment has to be seen as being somewhat in ease of the task confronting the Minister and his officials. The Bode judgment, as I mentioned, speaks clearly about making a deportation order in the context of the Minister having to comply with the section 3 process that we have discussed. That was the context in which the court was seized of the Bode case, and the decision was made.
We are now excising the section 3 process entirely and we are not putting anything into the new Bill. It is a new concept of summary deportation without notice and none of the exceptional circumstances posited by Deputy Naughten, for example, are adequately provided for. Removing section 3 and moving to summary deportation without notice seems to be fairly drastic.
Deputy Rabbitte makes a fair point. There is a shift in this legislation. I accept that and I believe it is in the interest of the State. The question of fairness can be addressed in the context of the various procedures that arise throughout the legislation, but the legislation is drafted in such a way as to ensure that a person is either lawfully or unlawfully resident in the State.
I do not accept that the State's deportation procedures should be hampered by extensive judicial reviews or the types of operation we have seen in the Four Courts in recent years, which have dramatically weakened the State's capacity to deport persons who are not entitled to be here. The legislation is an attempt to restate the position that the State has a robust power of removal. I make no apologies for this; it is essential for any sovereign state to have such a power. This power must be exercised in a fair way, with detailed procedures for protection relating to the revocation or granting of permission to stay. All of these must be written into the legislation. I accept that. However, it should be possible to exercise the power to expeditiously remove a person who is unlawfully in the State. This is not out of line with international practice.
I take the Minister's point about revocation, protection and so on. Summary deportation is dealt with in section 54. We have spoken about a yellow card system of deportation, under which a person can voluntarily leave, and the Minister will consider this before we come to that section.
Could the Minister also consider putting in place a mechanism to ensure that a person who may be eligible to apply under another scheme is subjected to a test before being deported? I see where the Minister is coming from, but we do not want to see people who could legitimately have applied for protection being deported from the country. For example, certain people could apply under the scheme for migrant workers about which the Minister spoke earlier. We must ensure that people who are eligible under these categories are not deported without consideration of this. There should be a mechanism in place. There is a mechanism for a person whose immigration status is revoked and protection is provided for persons whose protection applications are denied. However, for this category of person there is no protection built into the legislation as it stands. People who have come into the State unlawfully may have an arguable case to put forward.
They may come into the State lawfully but remained unlawfully or they may have entered the State entirely unlawfully. Those are the two main possibilities.
I ask the Minister to provide some mechanism to consider the merits of a person's case before he or she is deported from the State. There is no opportunity to do so in the legislation as it stands.
If they seek protection from the State, they have that.
That is if they know they are entitled to apply for protection.
They do not have to know they are entitled to protection. Once they express a fear——
Yes, but they must express it. Thus, they have to know they must do so. The Minister is basing all of this on the presumption that every individual picked up by the Garda Síochána is aware of the fact that he or she can apply for protection. Every individual picked up by the Garda Síochána is aware that he or she can apply for protection. There are instances where people may not be in a position to know that and in those circumstances the State must ensure that their rights are upheld.
This is a matter to be looked at in the context of consideration of the actual removal provisions.
The Minister might look at it prior to——
I will look at it. I must also maintain the integrity of the visa system, which is a fundamental issue.
The Minister has said that there are two categories. What about the category of person who is no longer lawfully in the State because a work permit has expired?
Then that person goes.
I ask the Minister to bear with me. In many cases the person has put trust in an employer to apply for him or her. If the employer has applied for a renewal of the work permit but did so too late for the permit to roll over, is the person legally here? If today were the last date for a person's permit to be renewed and the employer did not apply until next week, theoretically, as far as I can judge, that person is illegally here during that week.
The work permit does not confer the right to reside. The residency permission is distinct from the work permission.
Can it be based upon it?
It can be.
If the work permit based on the other permit expires, is there leave to remain?
That is not the case. Sometimes the residency permit is for a longer period than the work permit.
Often there is bureaucratic delay because of the numbers involved and it can be months before the renewal happens. There are other cases and I am not trying to invent them. What if a person is ill in hospital and the leave to remain or the visa expires? Once that person comes out of hospital he or she is illegally here, the reason being that there was no opportunity to regularise that situation because of the incapacitation period in hospital. I agree with Deputy Naughten that there might be cases where a person should be afforded the opportunity to say that he or she messed up because of being in hospital and that there is a need now for a week or whatever period to make a renewal application. There may be other cases. A person might be incommunicado. We must be humane about this and offer the opportunity for a case to be made prior to summary deportation or removal.
I appreciate that Deputy Ó Snodaigh is not inventing cases. What he describes does happen and the present practice is that the residency period is extended to cover such instances. That will remain the practice under this legislation in the context of residence permissions.
I indicated before commencement of the hearing that the committee might take a brief break. This would be an opportune time. The Chair has an engagement.
Sitting suspended at 11.44 a.m. and resumed at 12 .10 p.m.
The meeting has reconvened. We are discussing amendment No. 24.
We have had a reasonable discussion on this amendment, which gives rise to an important issue that recurs elsewhere in the Bill. We need to examine much of what has been said between now and Report Stage. One of the changes I wish to see — I do not know the Minister's mind on the matter — relates to the idea of all politics being local. There are cases one hears of in one's clinics of chaps coming from building sites — and there has been a fairly dramatic turnabout in the construction sector — who technically under this Bill are unlawfully in the State. The Minister, Deputy Brian Lenihan, has indicated that he is preparing a scheme that would assuage much of the concern about this type of migrant. It would be helpful to know what time schedule the Minister has in mind for the preparation of that scheme. I do not know how soon we will reach Report Stage but it would be interesting to have sight of the bare outline of that scheme before we enact the Bill. I will withdraw the amendment and examine what has been said. The Bode judgment is relevant in this case. It was given in the context of the deportation process using section 3 of the Immigration Act 1999. That has changed and I am sure the Minister, Deputy Lenihan, like everyone on this side of the table, does not especially want to have the matter tested again. We will look at this between now and Report Stage.
Does the Minister wish to reply?
Deputy Rabbitte asked about the scheme of the Bill. There is an undertaking to publish the scheme this summer. Ideally — I do not want to pre-empt the Parliament's consideration of this legislation — I would like to be in a position to commence this legislation by 1 January 2009 and publish the scheme for non-EU national workers this summer so that my officers have ample opportunity to deal with these cases before the Act is commenced.
Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Amendments Nos. 26, 365 and 375 are related and will be discussed together.
I move amendment No. 26:
In page 13, subsection (6), line 18, after "detained," to insert "in a place other than a prison,".
Deputy Finian McGrath has included me in a codicil to his will after asking me to move this. He is preoccupied with broad policy matters.
The intent of these amendments is to state clearly that prisons are not suitable places for people whose only offence is related to immigration matters or, in some cases, refugee applicants whose case has been rejected. Such people have committed no offence. At the end of this process they can be made to leave the country. The issue raised is similar to a debate I had in the last Dáil with the former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, concerning people found to have a mental disability. We argued that prison was not a suitable place for such people. Mr. McDowell accepted that people committed to the Central Mental Hospital should not be placed in prison. Most of the people involved in these cases are not criminals, although they may have committed an offence. The Bill at present has the term "detained" and it does not specify a prison. However, up to now people awaiting deportation were held in Cloverhill Prison, which is not a suitable place for people who have not committed a criminal offence and probably not a suitable place even for those who have.
Earlier, Deputy Finian McGrath spoke of undocumented Irish being held in prisons while their case was being examined, or pending their removal or deportation from the USA. People seeking protection should not be kept in prison. This is the unanimous view of both Irish and international human rights organisations, including the UNHCR and the European Committee for the Prevention of Torture. For the rare occasions when there is a legitimate reason to detain someone, we need to explore where that detention should take place. It should happen in places that are specially adapted, with consideration for these people's needs and the circumstances that have brought them here. We also need to consider that such people are facing "removal" — this is the new term used — to where they first came from and all that that entails for them. I do not think it unreasonable to allow for this and we have already catered for children, who are kept in detention schools and not prisons. Those seeking protection are another category of people that should not be detained in prison any more than those who have a mental disability. We should examine this and consider the particular circumstances that apply to them.
The Government has plans to provide for a separate detention centre in the proposed Thornton Hall prison to accommodate 45 people. Detention in a prison or a detention centre should only be a last resort and should only apply in the case of someone who is likely to try to avoid deportation or abscond.
There is a situation in my constituency involving two of its newest residents. These two individuals are mystery men in Castlerea Prison, where they seem quite happy to stay, and are not prepared to disclose their identity to the authorities. One is quoted as saying to the authorities that they can leave him there as long as they want, he does not care. This highlights the other argument. One is suspected to be of eastern European origin, possibly Russian, and the other from Africa. They appear to be quite happy and satisfied to remain in a prison rather than to be deported, which is an unusual situation.
Other than two individuals, the vast majority of people should not be detained in prison pending deportation. There is a need for a system of checks and balances to be put in place to ensure this happens only in rare and exceptional circumstances. The number of people deported annually stands at 1,432. Based on those figures and the proposed capacity of Thornton Hall, virtually all those being deported would spend some time in Thornton Hall prior to deportation. Is it reasonable to expect that all of these people would abscond pending deportation? Other alternatives need to be put in place to save human resources and the financial resources of the State to ensure these people are dealt with in as dignified a manner as possible prior to deportation.
I assure the committee that I am always anxious to reduce, as far as practicable, the numbers confined to our prison system. In this context, section 56 makes provision for an alternative to detention to allow the foreign national, rather than be detained, to be required to remain in a particular district on foot of a direction from the immigration officer making the arrest for the purpose of removing him or her. If a judgment is made that the person is anxious to comply with the removal he or she can, for a necessary period, sign on at a local Garda station. That is a new and welcome provision.
Apart from that there are cases where detention has to take place for the purpose of removal. I agree that in general we should work towards a position where we have dedicated facilities for this purpose. The Irish Prison Service is integrating into the design of the proposed new prison at Thornton Hall a separate purpose-built facility for immigration detainees at the new complex that conforms to best international standards. To provide in legislation that the prison system be excluded in its entirety in this context would have serious and significant financial implications for the Exchequer. Clearly the periods of detention tend to be very short, in most cases a matter of days. In most cases, an attempt is made to have the person held with remand prisoners but they also, of course, are unconvicted prisoners. That addresses the point raised by Deputy Ó Snodaigh. That is a practical operation.
We cannot rule out entirely the use of the Irish Prison Service because some of the persons so detained are at provincial locations. The intention is to develop a facility at Thornton Hall which will be dedicated to this purpose. Of course, Thornton Hall is very close to Dublin Airport.
Following on from the Minister's last comment, if people are being detained in Castlerea Prison, the exception is perhaps the two individuals who are detained there at present——
They come become constituents of the Deputy.
In Castlerea Prison there is an alternative to the main prison in The Grove where an individual who needs to be detained can be placed. In this case alternatives such as The Grove would be used rather than the main prison. Castlerea Prison is probably the exception when compared with other prisons in that it has an alternative which could be utilised, rather than put people in with the main prison population.
In recent years approximately 1,200 people per annum have been detained within the system and 1,432 have been deported either voluntarily or forcibly during the past four years. It appears large numbers of people are detained compared to the numbers being deported. If that is the case, it appears that not many fall into the category to which the Minister referred, that is, those who are awaiting deportation and are detained for a number of days, and that people are being detained under different circumstances for considerable periods. I would be very concerned if people were being detained for considerable periods within the Irish Prison Service.
I welcome the fact that implicit in section 56 is the opportunity for a person not to be detained. However, I am still concerned about the detention in prison of somebody who is innocent. At least those who are on remand have the opportunity of bail; because they are charged with an offence they come before a court. The individuals in question here have been found to be unlawfully in the country but have not been charged with an offence while the applications of others for refugee status have not been found to stand up to the rigours of the rules as set out by the Department.
I am concerned that 1,200 people are detained, even for a short period, while the State makes preparations to either chart flights or other arrangements to remove them from the country. Surely it is not beyond the bounds of possibility that alternative arrangements could be made until such a purpose-built facility, which will be located within a prison complex, is available. I am concerned about such a facility because of its association with guilt. It is not beyond the ability of the local gardaí in some rural part of the country to arrive at an arrangement, if the need arises, such as, to rent a house or an apartment where a person can remain until he or she is due to be removed. At least he or she should be given that type of dignity. It will involve a cost but much less than would be the case if he or she was put in prison where the security and other costs involved are higher. I ask the Minister to look again at this issue to see whether it can be taken on board in the way it was intended.
As I indicated, section 56 makes provision for an alternative to detention. We will discuss that section in due course. There are cases where detention is essential. Deputy Ó Snodaigh built on the annual figures and suggested very large numbers. To give the committee an impression of what is happening in practice, yesterday, 13 persons were detained on foot of the similar provisions in the existing legislation, seven at Cloverhill — a remand facility so they are not being grouped with any convicted prisoners — two in Limerick and three in the female side of Mountjoy. The committee will be aware there is only one large female detention facility in the State. In the annual report for 2006, the total number was 1,113. As I said to Deputy Naughten earlier these persons are not detained for substantial periods.
In regard to Deputy Naughten's very interesting question about the discrepancies between the numbers detained and the numbers deported under the current arrangements, those who are apprehended and brought into detention commonly invoke protection or judicial review proceedings. That is where the gap opens up.
In 2007, 225 asylum applications were made from prison. That was approximately 5.6% of the total applications last year. Many of those applicants were detained on the basis of their illegal presence in the State, their documentation or the fact that they stayed here too long. A variety of immigration offences may have been committed by them but in substance, that was the basis of their detention. In the first quarter of this year we had 58 such asylum applications, 6.2% of our total this year.
A steady trickle of applications are made from prison and I do not envisage that changing under the new legislation. The right to seek protection remains. It illustrates a point that arose in our discussion on the previous section as to what will happen when the new Act comes into place. When the person is detained for the purpose of removal from the State many of them will make protection applications but it will be a single procedure under this legislation. In current practice, when an asylum application is made or injunctive proceedings are sought in the courts, the person is not continued in detention but released pending the determination of the asylum claim, the injunctive proceedings or the judicial review proceedings in the courts.
Deputy McGrath's amendment was moved by Deputy Rabbitte.
On amendment No. 26, the Minister has dealt with the issue regarding a place other than a prison. That is important because we must be conscious in the legislation of the need for proper places in which to go through the process and ensure that people are treated fairly and with respect. I accept the Minister's point regarding other places where people can be detained.
By way of reminder, I indicated before the Deputy arrived that this amendment will be discussed in conjunction with amendments Nos. 365 and 375.
On the projected costs of operating the detention centre in Thornton Hall, I presume we are talking about costs significantly less than those necessary to keep people within the prison system. As we are aware, there is a substantial cost involved of between €60,000 and €90,000 per annum, depending on the prison. Are we talking about a significantly lower cost regarding the detention centre proposed for Thornton Hall?
It will be under the direction of the governor of Thornton Hall and the staff will be Irish Prison Service staff. It is difficult to make an estimation of that because much of the discussion about the cost of incarceration is on the basis of the cost of incarceration on an annualised basis of a single prisoner. If we were to treat this bloc on an annualised basis it would be a small number of prisoners, as my daily statistics from yesterday illustrated, and therefore the cost is quite small. It is fair to say that the basic costs of securing, maintaining and accommodating the prisoner will be incurred as with any other prisoner. There may be some lesser expenditure in respect of the more general services of a rehabilitative character that are provided in prison institutions because with such a short duration of stay they would not be required for such a person.
Amendment, by leave, withdrawn.
Amendment No. 27 is in the name of Deputy McGrath. Amendment No. 28 is related, therefore, amendments Nos. 27 and 28 may be discussed together.
I move amendment No. 27.
In page 13, subsection (7), to delete lines 21 and 22 and substitute the following:
"Where necessary, only forms of restraint constituting responses that are strictly proportionate responses to the actual or reasonably anticipated resistance of the returnee with a view to controlling him or her".
Section 4(7) provides that force, not exceeding the minimum necessary, may be used to remove a foreign national. This amendment incorporates guidelines contained in the Council of Europe treaty guidelines on forced return. Procedures to be followed by immigration officers in line with the Council of Europe's 20 guidelines on forced return should be put in place to ensure that restraint techniques and coercive measures likely to obstruct the airways, partially or wholly, or forcing the returnee into positions where he or she risks asphyxia shall not be used. I tabled the amendment because of public safety concerns.
My concerns are similar to those of Deputy McGrath. The amendment proposes a change in the emphasis because it refers to forms of restraint constituting responses that are strictly proportionate. It is a wording used elsewhere. Occasions will arise where force is necessary but in the majority of cases force will not be necessary. We must ensure that when force is used, a restraint technique is used by immigration officers who are removing somebody, which is an emotional time for some of the people in question who are being separated from family, friends, school friends, work mates or whatever. The people involved can get emotional and become disturbed. We must understand that and the officers involved must be mindful of it also.
I am aware of incidents where there were too many officers present, which adds to the overcrowding effect, especially for people whose application for refugee status was refused. If those people outlined on their applications abuse in their home countries on the part of the police force or whomever, they can become concerned when they are faced with five or six uniformed members of the Garda Síochána standing in their bedroom early in the morning asking them to get dressed and to go with them. I know of a case recently where somebody was being transferred from one refugee centre to another. Four gardaí went into a room that held only two beds and told the individual to get up. When the person reached for his telephone he was immediately put in a headlock and his arm pulled behind his back. He intended to telephone a member of the residents' committee.
On any operation such as that the gardaí must be aware of the proper procedures and restraint techniques to be used. They are the same restraint techniques used in schools and elsewhere where a child is uncontrollable and is likely to cause harm to themselves. That means their airways are not obstructed and they are not likely to injure themselves or anybody else around them. The text of the amendment has come from the Council of Europe's 20 guidelines on forced return. It is not unreasonable for us to use similar language. The amendments should be accepted.
I will comment briefly on my amendment No. 28. We want to protect against the isolated incidents that occurred in the past involving overzealous officers, a number of whom have been reported in recent years. One such incident occurred in the constituency adjoining mine. We must ensure that the proper checks and balances are being put in place and that proper provision is made to ensure that the force required is the minimum necessary to remove someone from the State.
The proposed amendments do not add anything to the substance of the Bill as it stands, which provides that force, not exceeding the minimum necessary, may be used to secure the removal of a foreign national. The force used cannot exceed the minimum necessary. That is the principle of proportionality. It is clear from the provision in the Bill that if an immigration officer were to use force in excess of the minimum necessary to effect the removal, that would be disproportionate. The exercise of such disproportionate force could lead in a case to a claim for damages for trespass against the officer concerned.
In providing in this subsection that the force cannot exceed the minimum necessary, we are laying down the standard, which will be applied by the courts in determining when officers are personally liable in the performance of their duties. The simple basic formula used by the Parliamentary Counsel encompasses our international obligations and ensures that the courts have a clear guideline to apply in any appropriate case.
The amendment before us sets out more clearly the forms of restraints to be used, where necessary, and is a more appropriate formula of words than the wording of the subsection.
Amendment, by leave, withdrawn.
Amendment No. 28 not moved.
Amendment No. 29 in the name of Deputy Finian McGrath is out of order.
Amendment No. 29 not moved.
I move amendment No. 30:
In page 14, subsection (11)(a)(iv), line 3, to delete “is”.
This is a purely technical amendment. The word "is" is unnecessary in subparagraph (iv) and it is contained in paragraph (a).
Amendment agreed to.
I move amendment No. 31:
In page 14, between lines 12 and 13, to insert the following subsection:
"(12) In making any decision under this Act in relation to a child, the Minister shall have due regard to the best interests of the child.".
This amendment seeks to insert a new subsection. In the previous debate the Minister indicated he is minded to take this amendment on board and, therefore, I will not labour the point. Essentially, the philosophical basis of it is that in the case of a child in the circumstances described, it should not be regarded solely as a migration issue but should be primarily regarded as a matter of child protection. In that sense, the test of what is in the best interests of the child is paramount.
We have had some discussion on the limited reference in the Bill to minors and the necessity to have included in the primary legislation this commitment to the best interests of the child. We took submissions on this from a number of interested bodies. We have had some considerable debate on examples in our own jurisdiction of why this is necessary. If it is the case that the Minister has indicated that he is minded to accepted it, I very much welcome that, and I do not want to otherwise go into detailed arguments that might be made in support of it.
This amendment is, in principle, accepted, subject to further consideration with the Attorney General and the Parliamentary Counsel. It is clear that the State is committed to the principles of the UN Convention on the Rights of the Child, to which we are full party since 1992.
In welcoming Deputy Rabbitte's proposal that there should be an acknowledgement in the Bill of this important principle, I want to outline how I see this principle operating in practice in our immigration and refugee law. In some circles there is an assumption that the interests of a child from a country without the economic advantages we have are best served by keeping the child here or by letting the child stay here. There is a somewhat glib assumption based on a view that Western civilised society is at or near the pinnacle of social and economic achievement and is the place to which all other societies and individuals should aspire. The assumption can be patronising and dismissive of societies where there may be other measures of success than economic ones and where human flourishing may take place.
I have to make a decision that involves the return of a person to another country in the circumstances of each case. It is not the case that because there is a child, I must first examine how the interests of the child are to be served and then make the decision in relation to the parent based on the conclusions I have reached in regard to the child. Therefore, if, having taken into account all the relevant circumstances of the parent and child, I apply the policy underlying the amendment, the correct decision may not always be a decision that the child should remain in the State. Cases can arise where the best interests of a child can or can only be satisfied by returning that child to his or her family in his or her country of origin or by returning the family to their country of origin.
I would like to reflect in consultation with the Parliamentary Counsel on the best language to employ in expressing the principle underlying the Deputy's amendment. I also want to reflect on where best in the Bill to place this proposition. I understand why the Deputy tabled the amendment in the context of section 4, but I would like to think further about where precisely it can be located in the Bill to give the principle effect and scope. I undertake to come back on Report Stage with a suitable amendment to give effect to the proposal made by the Deputy.
I do not want to quibble with what the Minister has said, nor do I want to look a gift horse in the mouth. I am not arguing that in all circumstances the interpretation of what is in the best interests of the child is necessarily that the child should stay in this jurisdiction. I accept that. It may be very evident in many cases that the best interests of the child is that he or she be reunited with his or her family. I am merely saying that the issue ought to be viewed from the child protection dimension and not purely as a migration issue. It is clear that in the case of children there is an exceptional vulnerability that does not apply to adults. As long as the principle and the test of what is in the best interests of the child is enshrined in the legislation, I would be happy with that.
Accordingly, will the Deputy withdraw his amendment?
I will withdraw it, and we will see the shape of the Minister's amendment on Report Stage.
Amendment, by leave, withdrawn.
We are about to begin to deal with the amendments on family reunification and, subject to the wishes of the committee, would this be an appropriate point at which to adjourn because I do not envisage that the discussion on this subject will be completed in 11 minutes?
Is that agreed?
That would be a sensible place to break. With regard to our discussion this morning, a further Denham judgment is due today, which the Minister's trusty advisers will undoubtedly voraciously examine later. The judgment makes the point that the Minister is required in this process to consider the constitutional and convention rights of the applicants. This includes express consideration of and a reasoned decision on the rights of the Irish citizen child.
In this particular case, the court found this was not done and it therefore affirmed the decision of the High Court quashing the deportation order in respect of the applicant, whose name I am incapable of pronouncing. I can give the reference to the Minister. Mrs. Justice Denham dismissed the appeal in this case with regard to the second issue before the court, namely, the decision of the Minister to make a deportation order under section 3 of the Immigration Act 1999, as amended. We had a section 3 process but with its excision there is nothing to replace it. The further judgment of Mrs. Justice Denham might require some study in the Department.
We anticipated this judgment. Procedures are written into this Bill but I do not wish to revisit that argument. It is an interesting judgment because it deals with the position of the Irish-born child and the arrangements pertaining to that. The Supreme Court ruled in a previous decision that it is possible, in principle, to deport an Irish-born citizen child from Ireland, which is a remarkable legal proposition. Clearly, however, that is qualified by the expressions of Mrs. Justice Denham in this case.
No doubt we will discuss the case in greater detail in forthcoming sessions. We will adjourn until next Thursday, when we will begin the meeting with consideration of the European Council framework decision on the organisation and content of the exchange of information extracted from criminal records between member states.
Progress reported; Committee to sit again.
The select committee adjourned at 12.53 p.m. until 5.30 p.m. on Tuesday, 20 May 2008.