The purpose of this meeting is to resume Committee Stage of the Immigration, Residence and Protection Bill 2008. We will suspend at 1 p.m. and reconvene on Tuesday, 17 June. I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials.
SECTION 14.
I move amendment No. 72:
In page 19, subsection (2)(c), line 32, to delete “or” and substitute “and”.
Amendments Nos. 100, 167, 238, 416, 420 and 421 are related to amendment No. 73 and they may all be discussed together, by agreement.
I move amendment No. 73:
In page 20, lines 10 to 12, to delete subsection (7) and substitute the following:
"(7) The information referred to in subsection (6)(b) includes any information available to any information holder.”.
These amendments are intended to bring consistency to the drafting of the Bill. Where references are made to information to be shared between bodies for the purpose of the Bill, the amendments will substitute a simple reference to the sharing of information between information holders rather than using superfluous references to "the Government and any other information holder", or references to "any person". An "information holder" is defined in section 2 as "the Minister of the Government, the Revenue Commissioners, local authority, the Health Service Executive, the Garda Síochána" and also certain offices or bodies "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".
Will these provisions be subject to any amendments to be tabled on Report Stage on foot of the discussion we had with the Minister's predecessor?
Yes.
Who would be the obvious holder of information other than the Government? Is this the provision of a Parliamentary Counsel or is it more rigorous?
There may well be certain bodies with privileged information relating to an applicant to which we would not be entitled. The definition included in section 2 attempts to address this issue. There is certain information between the applicant and a service provider to which the decider of the application would not be entitled to receive.
Section(14)(7) states, "The information referred to in subsection (6)(b) applies to any information available to the Government or any other information holder in the State”. This definition needs to be clarified. I accept the Minister’s argument that this is subject to——
We could have a more substantive discussion when we deal with sections 106 and 107 which I will be examining in the context of data protection issues. The Data Protection Commissioner has submitted views on them.
Will the Minister be bringing forward further amendments to those sections?
More than likely.
I move amendment No 74:
In page 20, subsection (10)(b), line 23, to delete “nationality” and substitute “origin”.
The purpose of this amendment is to substitute "country of origin" for "country of nationality". By doing this we create consistency throughout the Bill with regard to the terminology used, "country of origin" being the correct term. "Country of origin", as defined in section 2, is a broader term than "country of nationality" which includes a person's country of nationality, as well as a person's country of former habitual residence in circumstances where the person is stateless.
I move amendment No 75:
In page 20, subsection (10)(d), line 30, to delete “any” and substitute “the”.
I have been advised by the Parliamentary Counsel to the Government that "the" is the more appropriate word to use at the beginning of paragraph (b).
Amendments Nos. 77, 79, 173, 194, 195 and 268 are related to amendment No. 76. Amendment No. 78 is related and an alternative to amendment No. 77. Amendments Nos. 196 and 197 are related and alternatives to amendment No. 195. Therefore, amendments Nos. 76 to 79, inclusive, 173, 194 to 197, inclusive, and 268 will be discussed together.
I move amendment No 76:
In page 20, subsection (10)(f)(i), lines 37 and 38, to delete “or any member of his or her family”.
I received power of attorney from Deputy McGrath to move his amendments. I am not sure if he has taken it back but I will still move the amendment.
It is somewhat unusual, to put it mildly, that it is not just the conduct of the applicant but of any member of his or her family that could determine the refusal of a visa. What is the thinking behind this?
Amendment No. 196 addresses the rare situation where a family member of an applicant may decide to damage their potential to access the State by committing a criminal offence. While this may be rare, marital breakdown, for example, can result in a serious fall-out between both partners. Solicitors involved in such cases often claim serious allegations and counter-allegations are made against both partners. The provision in respect of family members should be waived in circumstances where a family member has deliberately committed an offence to prevent a visa applicant from entering the State.
This group of amendments deals with two disparate issues; they are connected only by a technicality in the overlapping way in which two amendments have been expressed.
The first of the issues covered is that of references to a person's family in several contexts throughout the Bill. Deputy McGrath's amendment mirrors Government amendments Nos. 77, 79 and 195 which delete references to the criminal record of members of a person's family as matters to be taken into account when determining the person's application for a visa or residence permission. The applicant is not his brother's keeper. While the criminal record of a family member would be an issue in determining an immigration application by the family member, it is not appropriate that it be a factor to be considered in respect of the applicant. This is an issue that the applicant needs to be mindful of in choosing to immigrate, as a conviction against a family member may be taken into account and may have implications as regards the possibility that that family member may make an application to come to the State for the purpose of family reunification.
However, I cannot accept Deputy Finian McGrath's amendments Nos. 76 and 194, which would exclude from those considerations the conduct, as distinct from the criminal record, of members of the applicants' families. These exclusions would prevent me taking into account, for instance, the fact that a visa applicant was seeking to visit a member of the family living here who had a history of breaches of immigration conditions — or who might even be unlawfully present in the State. The latter of these amendments would prevent me from considering, say, the immigration conduct of a parent living here as a matter relevant to the question whether to renew the resident's permission of that parent's child.
The intention behind sections 14(10)(f)(i) and 31(h) is to allow the Minister to take account of any conduct of an applicant for a visa or residence permission, or any member of his or her family, in connection with immigration in determining whether to grant a visa or, as the case may be, a residence permission, to the applicant. This is clearly a relevant consideration that I am satisfied should remain in the Bill. The second issue dealt with in this group of amendments is that of the types of criminal conviction which might be taken into account when considering a person’s application for a visa or residence permission. This matter is dealt with in Deputy Finian McGrath’s amendments Nos. 78, 173, 197 and 268. I am in agreement with the notion that convictions for say, chewing gum in Singapore, which I believe is an offence there, should not militate against a person’s chances of getting an Irish visa or residence permission.
I am reluctant to accept these amendments as they stand but I want to verify the wording with the Parliamentary Counsel. I will accept them, in principle, and bring forward suitably worded amendments on Report Stage to take account of this principle. In view of this I ask Deputy Finian McGrath to withdraw amendments Nos. 78, 173, 197 and 268.
With regard to Deputy Naughten's amendment No. 196, I am not convinced that it would be of any relevance, now that he has proposed to delete the reference to other people's criminal records from the paragraph, therefore, I do not propose to accept it.
The Minister is drawing a distinction between where there is a criminal conviction and its effects on the members of the applicant's family. It would be very unfair to have an applicant, in all cases, loaded with the conviction of a member of the family, especially where it might be regarded in our culture to have been for a very trivial matter. In terms of conduct, does the Minister, in considering the applicant's case, mean members of his or her family already in this jurisdiction — or not necessarily here?
That would be one of the instances where, perhaps, the applicant has family members already who have come to the attention of officials from an immigration viewpoint.
The Minister is referring to people here who might have come to the attention of the Garda or immigration officials, where their conduct was unbecoming, for whatever reason, and saying that this might weigh against another member of the family being an applicant.
Yes, if they were here illegally. While the vast majority of people will have permission of some sort for being in Ireland, there may be evidence of clear illegality involving trafficking in people, for example, or other information against an applicant that the officials might have.
Take a situation where somebody is here and has been loaded on two occasions with traffic points. I had a most extraordinary situation a couple of weeks ago where a young Angolan man, stopped by the gardaí and asked to produce his insurance, did so scrupulously and with the full support of his employer. The Garda station concerned claimed it never got it, and worse than that, misrecorded his address. He was banned from driving for 12 months. When he sought to appeal it, he was twice given the wrong date. Eventually, he successfully appealed it and was then told by the motor tax office that his licence was endorsed anyway, and the HGV licence he had secured during the period he was banned, was withdrawn — he had spent €1,500 preparing for it. Ultimately, it was all cleared up.
However, in the case of somebody stopped for a speeding offence, for example, would that merit against the application of a member of the family joining him or her in Ireland?
No. Subsection (7)(f) refers to any conduct of the applicant or any member of his or her family in connection with immigration or criminal convictions. We are making amendments to this.
To which paragraph does the Minister refer?
It is page 20, paragraph (f). It refers to any conduct of the applicant or any member of his or her family in connection with immigration or, in sub-paragraph (ii), criminal convictions of the applicant. We are removing the words “any member of his or her family” in sub-paragraph (i). It has to be linked with the following lines: “indicates that the applicant or any member of his or her family would be unlikely to comply with a condition of permission to enter and be present in the State;”.
The Minister is saying that the offence has to be in connection with immigration.
That is correct, and it refers to any member of the family. It is restricted to immigration. Elsewhere in those paragraphs we are removing the reference to "or any member of his or her family" in sub-paragraph (i) and in the last three lines of paragraph (f), which state: “...the applicant or any member of his or her family would be unlikely to comply...”. We are restricting it to the applicant.
Approaching the matte from the other extreme, if a family has a member here whom the Garda believe, for good reason, is involved in the drugs trade, what would happen in that situation? Would it mean this would not apply because that person will have his or her visa or residence permit revoked and would be deported? Could we have a situation because of the lack of firm evidence that he or she could continue to reside here and apply for other family members to join him or her and perhaps get involved in the same type of business?
It could be dealt with under paragraph (h).
Which amendment represents the Minister's amendment to paragraph (h)?
Amendment No. 80.
This is just a rewording of it.
That is correct — it is a technical amendment.
I share the Minister's concerns when he referred to the criminality issue. However, it is very important that we do not necessarily label families. If one member of a family is directly involved in crime, the parents or brothers and sisters would often be disgusted at that family member. That has been my experience on the north side of Dublin. Some of the parents of those involved in violent drug crime are disgusted, so we must be cautious about labelling people. If they are involved in criminal activity, they are responsible for their actions, and not their extended family. However, I take the Minister's point and I agree that he is accepting some of the ideas in the amendment.
I move amendment No. 77:
In page 20, subsection (10)(f)(ii), line 41, to delete “or any member of his or her family”.
I move amendment No. 79:
In page 20, subsection (10)(f), lines 42 and 43, to delete “or any member of his or her family”.
Amendments Nos. 80, 83, 86, 176, 198, 240, 289, 291, 530, 625 and 674 are related. Amendment No. 84 is related and an alternative to amendment No. 83. Amendment No. 241 is related and an alternative to amendment No. 240. These may all be discussed together by agreement.
I move amendment No. 80:
In page 21, subsection (10)(h), lines 2 and 3, to delete all words from and including “be” in line 2 down to and including “public”);” in line 3 and substitute the following:
"be a risk to national security, public security, public health or public order or be contrary to public policy ("ordre public”);”.
This is the first of a series of Government technical amendments throughout the Bill that provide an appropriate formulation of wording to allow for matters of national security, public security, public health, public order and public policy to be taken into account.
Amendment Nos. 84 and 241 contain the same wording. The objective behind these amendments is that if a person is refused on the basis that he or she is a risk to national security under the definitions provided by the Minister in amendment No. 80, reference should be made to the fact that the refusal is because of a reason set out in the relevant section.
The Minister has reworded the section and perhaps he might elaborate on it. My reading of it indicates that it may address part of the problem that I see with the Bill. As the Bill is worded, the section means that the Minister has no obligation to explain the reason for the refusal, as it could be prejudicial to public policy. This could mean anything. I am not sure whether the rewording restricts that definition. If someone is refused entry, then he or she should be given some reason for the refusal. If the refusal is related to security, reference should be made to subsection 10(h) so that at least there is some reason given.
The Deputy is insisting that information would have to be disclosed, and there may be certain circumstances——
No, I am not insisting that it should be disclosed. I am saying that the refusal notification should state that the person is being refused on the basis of subsection 10(h), without disclosing the information. The objective behind the Minister’s wording in the legislation is that he does not want to be in a position where he discloses the information which is the basis for the decision. I accept that and I know that there are issues of public security involved. However, if somebody is refused on that basis, it could be stated in the refusal that he or she is being refused under subsection 10(h). It does not have to elaborate any more, but at least there are some grounds given for a refusal, rather than a straight “No”.
My other concern is with the original wording, which states that an explanation does not have to be given if it is prejudicial to public policy, which could mean anything. Does the rewording of the section made any difference in the interpretation of the Bill?
The whole idea is to have some flexibility on this issue. The reasons for refusal will be given as often as possible, but the effect of the Deputy's amendment would be that the person concerned would have to be informed that such information was available. The fact that such information is available could prejudice the interests in public policy, national security and so on.
What about the second element?
What is that?
The original section states that the applicant's entry or presence in the State would be a risk to public policy. The reworded section refers to being contrary to public policy, or ordre public. Is there any reason for the change in emphasis?
Is the Deputy asking if our amendment to the original section is narrowing the situation?
That is not our view. The whole idea was to extend it.
The argument that I would make is that based on the wording, the Minister could refuse to give a reason for the refusal in every case, as it would be prejudicial to public policy.
I go back to the original point. There would be instances where we would have to have flexibility. The fact that there is information would raise issues that would cause us some difficulty. An effort will always be made to explain why an application has been refused, but there may be exceptional instances where reasons could not be disclosed.
I accept the point being made by the Minister on public security and so on. However, the provision incorporates the consideration of anything that is prejudicial to public policy. This is a broad-ranging provision which could allow for non-disclosure in cases where, for example, the application form is not properly filled out.
A large part of the frustration experienced by those whose visa applications are rejected is that they are not given the reason for that rejection. In one case I dealt with, having succeeded in getting through to the Department, I was told that the application in question was refused because of inadequate documentation. When I asked what documentation was required, the official essentially listed all the documentation the individual might have, including bank statements going back several years and so on. It was such a long list that it would require a wheelbarrow to submit the application. Under this subsection, existing practice will be allowed to continue because the Department can simply claim that disclosure of the reasons for a visa application would be prejudicial to public policy, even where the reason might only be that the applicant has not submitted a full set of bank statements. The provision is far too broad and goes far beyond what the Minister says is the objective of this subsection.
I cannot elaborate much further than I already have. Efforts are being made in regard to disclosure. We spoke at the previous meeting about customer charters, making the response process more efficient and providing more information to applicants. The need for those improvements is accepted. One would have to have a particularly malign view of our intentions to suggest that this subsection might be brought into play for every applicant. We accept that people whose applications are rejected are entitled to be given the reason for that rejection.
They are given a reason but it does not necessarily explain where the fault lies. That is largely the cause of the frustration people experience in dealing with the existing system. I accept the Minister's bona fides on this. However, what happens if he is transferred to another ministry? A new Minister could use the provisions in this subsection to prevent the disclosure of information. The power to refuse disclosure on the basis that it would be prejudicial to public policy is too broad.
I brought to the attention of the Minister's predecessor the case of a person from South Africa who was granted asylum and has been living in the State for some years. This person is essentially stateless and has found it extremely difficult to discover from the Department why impediments were put in his way when he wished to travel recently to Sweden, where his father had died. If there is a security dimension or some other reason for these impediments, we have not been able to establish it. This case seems to fit into the rubric of what Deputy Naughten is arguing.
What is the definition of "public order" in this subsection? I am not familiar with the phrase "ordre public”. Does it have some nuance that one might not be familiar with in common parlance? Are we talking about a person entering the State who is likely to cause a riot? What specifically is intended by “public order”?
There is no doubt that it could encompass situations of public disorder. However, public policy encompasses something broader and more general. As I said, this is something that would be used in rare circumstances. The tenet of Deputy Naughten's argument is effectively to require the State, in certain exceptional circumstances, to disclose information where the very fact of disclosure is against general public policy, perhaps for reasons to do with the security of the State. There are plenty of other provisions in this Bill under which a refusal could be given and where there would be no need to reference this subsection. The Department, on all occasions, would give reasons for the refusal of applications.
I am not familiar with the case to which Deputy Rabbitte referred but I will investigate it.
There is no point talking about specific cases because this is an issue that applies across the board. People do not receive a reasonable explanation as to why their visa application was refused. In some cases, it is a spouse or other family member who is refused permission to join the person already resident here. As public representatives, we should at least be able to tell individuals who seek our help that it would be a waste of time for them to reapply for a visa, as the case may be, because of A, B or C, or that the Department may look favourably on a renewed application if they can provide specific documentation or supporting evidence. However, we are unable to obtain that information from the Department.
I asked in a parliamentary question some months ago what are the common mistakes people make in their visa and residency applications. The Department could not furnish me with a response. That information would enable us to steer people away from common pitfalls and advise them to be sure they have signed the application form, included six months of bank statements or whatever the case may be. I accept the Minister's bona fides on this issue. However, the difficulty remains that every application that is made to his Department could be declared to come under the provision in subsection (10)(h) regarding public policy.
As I said , there are many other reasons that an applicant could be refused which would have no reference to this subsection. This provision relates to the general interest of the State. As I said, there may be circumstances which do not fall within any of the other reasons for which refusal can be given where, in the interests of the State, it is decided that an applicant is not a fit person to be in the State. This is the clause that covers such eventualities. The disclosure of the reasons for that decision would be against the general public policy of the State over the decades. Information must not be forced out of the State in circumstances where normally it would not be given.
Deputy Naughten is referring generally to administrative difficulties. It is accepted that difficulties may arise in regard to individual applications, but they can be dealt with through better administration, customer charters and so on.
They have not been dealt with to date.
There is an understanding and acceptance of the difficulties that arise. However, it is erroneous to hone in on this section in that respect. This clause in effect looks at the wider interest of the State. The State, that is, the Department and the Government, have a duty to manage immigration into this country in a way that is suitable according to the normal standards of what has been accepted here over the years.
When we get to it, I will withdraw my amendment and will reconsider the issue on Report Stage.
I wish to raise a point on section 14(10)(i), which states “the applicant’s presence in the State would result in an inappropriate expenditure of public resources”. Could something as straightforward as an illness on the part of the applicant be sufficient to rule him or her out under this clause?
No, this does not refer to an issue such as the requirement for hospitalisation. This goes back to the committee's discussion as to whether a person is able to look after themselves and has the financial resources to do so when he or she comes here.
I move amendment No. 81:
In page 21, subsection (1), line 19, after "application" to insert "("visa refusal")".
Amendments Nos. 82, 93 and 101 are cognate and may be discussed together by agreement.
I move amendment No. 82:
In page 21, subsection (2), lines 25 and 26, to delete paragraph (a).
This amendment has been tabled to ensure the reasons for a refusal are put into the public domain with protection for a person's confidentiality. This comes back to the point of my previous amendment, which was that one should know the reason people are refused or granted entry to the State. As has been highlighted a number of times, the present system is obscure as the rules that are involved are not known and information is not freely available. As I noted, were one to table a parliamentary question to ascertain the common errors made in applications, such information would not be disclosed to Members of the House. It is bad for people who are trying to come in here. It is extremely frustrating for them not to know the reasons or conditions under which they will be considered.
From an Irish citizen's perspective, it gives rise to concern when one does not know who is coming in, how they are coming in or how they are evaluated prior to entering the State. No transparency exists in this regard and I believe it is fundamentally important to put into the public domain, with protections put in place to maintain confidentiality, the reasons applicants are allowed in or are refused. This is the reason I have sought to delete section 15(2)(a) which makes such reasons accessible only to the visa applicant or his or her representative. Section 15(b) is adequate and should be used.
At this stage another commitment obliges me to absent myself from this meeting. Does anyone object to my nomination of Deputy Seán Connick to take the Chair in my absence?
No, as long as he does not get into the same trouble as on the last day.
Deputy Seán Connick took the Chair.
An tAire to respond.
The paragraphs that the amendments under discussion seek to delete in sections 15, 16 and 18 make provision for the placing on the Internet of a notice in such a manner that the notice is accessible only to the applicant or his or her representative. These arrangements are in place at present on an administrative basis and are working to the satisfaction of visa applicants generally. The only reason they must be set out specifically in the Bill is to ensure they are not subject to the more usual requirement that information of this nature be given in writing, a matter dealt with generally in section 121 of the Bill.
Deletion of this paragraph in each case would not appear to be in the interest of the visa applicant. The paragraphs are each supplemented by a paragraph (b), which is intended to make provision for the issue of a personal identification number, PIN, that will enable the visa applicant or his or her representative to verify the identity of the visa applicant to whom the notice relates. This allows for future refinement of the present visa notification system.
I am satisfied that the provisions in sections 15,16 and 18 are sufficient to ensure that visa applicants can access decisions regarding their visa applications via the Internet in a secure manner and that the paragraphs proposed for deletion are essential for that purpose. Accordingly, I cannot accept the amendments proposed. I again accept there must be greater transparency in the system. In itself the Bill is the first step towards providing greater certainty. Clearly there is more work to be done. As was noted at the last meeting, there has been a significant investment in the roll-out of a computer system. These sections, in effect, underpin the present system and provide an opportunity to build on it.
The Minister is correct to state this is a very small step in the right direction. The difficulty is that even after the enactment of this legislation, one still will be none the wiser as to who is getting in, under what conditions and so forth. The objective underlying this amendment is that it would make available to the public the reasons applications are being refused. At least this information could be used to explain to potential applicants some of the common errors that arise. At present, the Department will not disclose such information and it would help to reduce the number of applications that are being submitted. Moreover, it would help to speed up applications, were people to have available all the appropriate documentation in the first instance. Today's edition of the Irish Independent includes a letter to the editor in which a woman from Citywest in Dublin, who has applied for citizenship, wrote:
There seems to be no helpline that can provide reliable information on the process [and] timings ... At the time of application, I needed to clarify some of the application questions and the information helpline only provided vague subjective information.
She is extremely critical of the unavailability of basic information on dealing with the documentation and information that must be provided in applications. It is like the third secret of Fatima, in that the State does not wish to let people know how to make a valid application.
The point I am trying to make in respect of this amendment is that were the reasons people are being refused visa applications to be in the public domain, one then could provide some advice on the common mistakes that are made. Hopefully thereafter, applications would be valid and could be assessed based on the available documentation. Applicants would not be in a position in which their applications were refused, thereby obliging them to resubmit their applications that then might be refused a second time and resubmitted again. This is leading to greater bureaucracy and further delays and is choking up the Department in undue amounts of paperwork. It benefits everyone to have that information in the public domain.
This refers to information relating to specific applicants. The Deputy is talking about more general information. I think I listed the issues relating to customer services at the previous meeting. One of the issues was frequently asked questions. Again, I agree that there needs to be a better effort at providing public information on the commonest reasons applications are refused. I accept we need to do more on that and we intend to do so. Customer services are looking at this in the context of providing a better service to the public in individual cases. We are looking at the expansion of telephone lines, etc. At the same time, we are investing in the computerised system to make the service more accessible to applicants and their representatives. I understand that provided they have their PIN, they can track their individual applications through the Internet to see where they are in the computerised system.
The difficulty is that the Minister is saying one thing and the legislation is saying something else. That is the contradiction here. I accept that the Minister is saying that these issues are being looked at and the need for more information is being acknowledged. However, when one goes through the Bill, no statutory provision is made in respect of access to such information. It seems that in every such circumstance, provision is being made why it will not or cannot be released into the public domain.
The difficulty is that even if the Minister is as good as his word in respect of it, and I do not doubt he will be, how long will it be before such a provision will be put in place? At least if something is written into the legislation, there is some chance of it being enacted and enforced. Commitments have been given which acknowledge that there is a problem and say that it will be looked at but when will this happen? How long down the road will we be before we have access to this information? When will we see the charter of rights and these helplines put in place?
Once this legislation is enacted, that is it. The doors close again in respect of us as parliamentarians trying to get access to information because we have not been able to get it to date. This has led to the significant frustration that exists.
There is an important public policy dimension here. It is important that we should know this information and be able to make judgments on it rather than it being applicant-specific, as the Minister proposes. It is like the arguments that have gone on for a very long time about the family law courts where cases were held in camera and it was impossible to get a view about the operation and performance of these courts. Allegations were brought to Deputies in their clinics but we were in no position to give an opinion because we simply did not know because we did not have access.
Why should organisations and non-governmental organisations concerned with these issues not have the information? Let us evaluate the information on its merits. Different Deputies in this House may draw different conclusions from the information but at least it would be available. At the moment, it is not. Saying that the individual applicant may access it is not a response in the sense that we cannot be chasing around after individual applicants asking them to show us their individual leaving certificate results so that we can see what we think of them and put them together with other individuals whom we might happen across.
We are talking about specific applications. The Deputies are referring to more general information about——
No, it is to collate the specific applications.
That is the reason an effort and an investment are being made. I hope Deputy Naughten will not criticise us for investing in the computerised systems to pull together about 40 different computer systems within the Department into one system to ensure overall and better information can be given. I understand some information is given in the annual report to the Oireachtas Committee on Justice, Equality, Defence and Women's Rights in respect of these issues. However, it is probably not as good as we would like it to be. Again, this is because of the need to invest in the computerised systems so that we can correlate all of this information, produce it and give out to the wider public some of the more common reasons applications are refused and some of the other difficulties that are inherent in the system from the applicant's point of view. Here, we are dealing with specific cases, be they dealt with under the Internet, as in these sections, or through the paper trail, as in section 121.
I do not know if the Minister is aware of the system but in my day, when we did our leaving certificate, one's number was published in The Irish Times along with the points one received. There were pages upon pages of it. Nobody else knew who got what set of points but that information could then be collated and was in the public domain.
The Minister is providing for those tables of information to be collated and put up on the World Wide Web but they will only accessible by the individual applicant or their representative. Surely, this information could be made available while protecting the confidentiality of the individual so that we could see the reasoning for it.
It might be worth the Minister's while to have a look at the website and the information that is available there, or the lack thereof, because this is hugely frustrating for people. We are talking about very basic information not being available at the moment. The difficulty is that we do not know what sort of timetable about which the Minister is talking in making this information available to the individuals. We must then go a step further as to when it will be available in the public domain. How long is a piece of string? We are making no provision in this legislation in respect of putting basic information into the public domain.
I accept that this may not be the section to deal with it but it is the section that deals with the disclosure of the information as to the reasons for refusing an application. The point we should be highlighting is that this information should be put into the public domain.
Again, I cannot put it any further. I have said that we are investing heavily in an automated visa application and tracking system which was piloted in 2007 and is currently available in 12 countries across the world. That, ultimately, will give us a much better grasp. It may very well be that, in future, the Department will produce something similar to the type of statistical report that the Department of Social and Family Affairs produces on an annual basis. We will not be in that position until the new computer system is fully operational.
In respect of many of the customer charter issues about which Deputy Naughten asked, it would be the intention to have as much as possible in place when the Bill finally passes.
We are like ships in the night, we are not communicating very well. We need this information to draw conclusions. What the Minister suggests is that he and the Department will have the information under the new system but the rest of us will not. This system has been operating unsatisfactorily for almost 15 years. Much effort has been put in by the Department to enable the officials to deal with the new situation. Some of the staff must be under an awful lot of pressure but we are waiting a long time for this Bill. We are discussing a major issue in the life of the country — immigration is a new phenomenon. It is difficult to understand the obsessive secrecy. Some of us may draw different conclusions from it but we should have the information available to form public policy. Like Deputy Naughten, I do not doubt the word of the Minister. When we are finished with this Bill, we will be so tired of it that the proposition that we should revisit any of it will drive any of us who take strong drink immediately to the bar. Either we avail of the opportunity to put it on a reasonably accessible footing or we will not be coming back to it. That is the importance of Deputy Naughten's point.
The Minister keeps saying that this is about specific applications as if that were a defence to his amendment. That is the whole point — it is a question of specific applications but many of them amount to a collective and it is this data that should be available to public policy analysts and organisations working in this area.
I do not disagree with the Deputy but we are in a situation where we are catching up after significant levels of applications. Some 150,000 visa applications, including re-entry applications are made every year. We are trying to grapple with these and deal with them as expeditiously as possible. The system is trying to catch up and the issue of collection of data for public policy discussion and discussion in the Oireachtas is very important. We give priority to this but there are other priorities, namely, dealing with as many of the applications as possible. To an extent, we are in difficulty because we are using computer systems that were not designed for the major influx of applications that were made in a relatively short space of time. We are trying to redress that by investment in computerisation.
While I accept what the Minister's comments, he is saying that when public money is invested in the computer system and it will be possible to put decisions on the Internet, while the taxpayer pays for it, we cannot see the reasons people are being refused. The Minister makes it clear in section 15(2):
(2) Notwithstanding section 121, the placing of the notice referred to in subsection (1) on the internet as soon as practicable in a way that—
(a) makes it accessible only to the visa applicant or his or her representative, or
(b) ensures that only the visa applicant or his or her representative can ascertain (whether or not by means of other information separately provided to him or her) the identity of the visa applicant to whom the notice relates,
I have no problem with the availability of information on the identity of the visa applicant, which should only be available to the visa applicant or his or her representative, but I do not see why that information is not available to the public, with protection in regard to confidentiality. It can be done, the question is whether there is the will to do it. It can go some of the way to dealing with concerns raised by non-governmental organisations, Oireachtas Members of all political persuasions and none, and by Irish citizens who want to bring in a spouse or legally resident migrants who want to bring in family members. Everyone is saying that they cannot get straight answers on what must be done to comply with the application process. This will not address the overall problem but will be a small step in the right direction if this information is accessible. Then we would have some idea why applications are refused. It is the minimum that is required and it should be included in legislation. If the section remains as it stands, the information can never be made available to the public because of the way the Bill is drafted. I accept that it may not be available in 12 months' time but if we are including the information so that it can be collated, surely it should be available to more than the Minister and the officials.
I do not agree that this is setting the situation in stone so that we cannot get general information.
The Minister will receive information but I am talking about us.
No, I have already said we must do more about the statistical information generally in respect of this. I can ask INIS and GNIB to examine producing information on a periodic basis, perhaps annually, giving details of applications and the general reasons they have been refused. Regarding specific information, an applicant would not want Deputy Naughten to know his or her specific reason for refusal. There are also data protection issues we must consider.
The Department of Social and Family Affairs goes into intricate detail in respect of applications in the examples it gives in the annual report.
Yes, that is fair enough in its annual report but there is no identification of people.
I am not asking for that.
That would be possible in a general statistical report. I have no difficulty with that but Deputy Naughten seems to be interested in intervening and getting information about a specific application so that he could go in on a whim, examine all the applications and pick one out without having access to the identity. That would not be acceptable. I do not agree there is secrecy here but because we are catching up with a situation where dramatic numbers arrived within a short period, we are trying to claw back the position. Through the customer service report, to which I referred the last time, and computerisation, we are trying to redress that. As soon as possible, we will be in a position to give general statistical information along the lines of the information given by the Department of Social and Family Affairs. It does not go into specific information.
I wish to interject because we have had a long debate.
It is a fundamental issue.
For clarification, Deputy Naughten seeks to delete section 15(2)(a). Would it not have been better if Deputy Naughten had proposed to insert a section seeking the information?
With all due respect to the Acting Chairman, Deputy Rabbitte and I are the Opposition legislation drafting team. We do not have the resources which the Government has. Our objective with regard to tabling amendments is to highlight weaknesses as we see them in the legislation. To be honest, in my 11 years in the House I have yet to see any Minister accepting an amendment tabled by an Opposition Member and enacting it in legislation. Normally, it is referred back to the parliamentary draftsmen——
This is not the case. I have done it many times.
——and the Minister comes up with his or her own wording. This is true in 99% of cases. Perhaps we have one or two exceptions to it. The point I wish to make on this amendment is that this information will not be made available to members of the public or to Members of the Oireachtas because of the way the legislation is worded.
I do not want access to an individual applicant's information. The Minister did not listen to the point I made. I am trying to ensure we have an idea as to why people are refused applications and this is a mechanism to do so. The Minister stated that I am making a point about an element of secrecy in the Department. As I stated, a basic question to ask any section of any Department is to identify what problems frequently arise with regard to applications. I could not get an answer to this.
If the Minister states statutory provision will be made for an annual report on application statistics, I will be happy to withdraw the amendment. The wording of the Bill is specific with regard to where information will not be provided. However, no provision is made within the 140 pages of the Bill for information to be provided and put in the public domain. It is extremely difficult for us to deal with the Bill when we do not know its background or context. We have to rely on information and statistics provided by the Minister from time to time during discussion on various sections of the Bill and take his word that they are the statistics without having them independently verified.
Will the Minister point out where I am mistaken if I state we are dealing with a section which permits the Minister to refuse a visa application, that is implicit in it and nobody questions it, and that he will give notice of the refusal and the reasons for it? The only purpose of subsection 2 seems to be to ensure this information is only available to the visa applicant. What other purpose does it have? If we allow subsection (2)(a) to remain in the Bill it seems to restrict forever access to general information. It states that it makes the information accessible only to the visa applicant or his or her representative.
If one looks at the matter from the other point of view, if we were to in any way allow a situation whereby ordinary members of the public, not the applicant or his or her representative, were able to access information on a specific file we would be accused of breaching the applicant's rights to privacy and data protection.
We are not saying that.
We are not at cross-purposes on this. We have gone around the house on this matter. I accepted the need for more general statistical information on how applications are dealt with. If Deputy Rabbitte wishes to table an amendment on the requirement for a statistical annual report I would have no difficulty with it. We would discuss it within our system to see whether it could be put in place from a statutory point of view. Information on what is happening generally with applications should be available and the general reasons for refusal. It would be informative.
Let us take the case of the Refugee Appeals Tribunal and the way it operated initially. If this House had the information which became available to the High Court we would not have permitted what went on to have gone on for as long as it did. We did not have the information. Policy makers and policy analysts are entitled to the information we seek. If the Minister can assure me, and I will let Deputy Naughten speak for himself, that subsection (2)(a) does not disbar the type of general information being made available, I am prepared to live with it. However, it seems to disbar the general information we seek.
The type of detail in the analogy Deputy Naughten advanced with regard to the social welfare system shows the extremely personal nature of the data governing whether a person qualifies for a disability benefit. We do not want to access such personal data but we do want a general overview of the performance of the system and the legislation in respect of social welfare.
Subsection (2) only refers to the placing of a notice which will be accessible only to the applicant or his or her representative. It is not with regard to the decision. I assure the Deputies that this is not designed to prevent general information on applications being made available for statistical reasons similar to the social welfare example or even down to where a particular case can be included in a report, obviously without reference to who the persons are. We have a duty to maintain the confidentiality of applicants. This is the purpose of subsection (2). I indicated already that I am prepared to table an amendment requiring the Irish Naturalisation and Immigration Service, INIS, to produce an annual report on statistical information. I will have to check with my officials on when the computerised system will be up and running so we can provide it.
To clarify, the Minister is prepared to consider tabling an amendment on Report Stage. I know it may not be possible to put a report in place immediately following enactment of the legislation because the data may not be in a format which is easily collated. However, when the data is in a format which is easily collated, statutory provision will be made for such an annual report.
Absolutely.
That is grand.
A list of decisions is made available weekly on www.inis.gov.ie.
Does it give the reason a decision was granted or refused?
The decisions are published on a weekly basis, normally on Tuesdays. They are located through a link on the visa page. The decisions are in a table which shows the application number, the decision number, the decision, the visa type and the reason for refusal. A brief elaboration of the reason for refusal is also provided. Once the applicant has an application number he or she can search. I will have to double-check as to whether this information is widely available to the public or only through the use of the PIN number of the particular person.
For the sake of clarity, I ask the Minister to confirm that the web address is www.inis.gov.ie.
Yes.
This is only just up and running. Primarily it was for individuals to look at their applications. It may be that it is more widely available, we will have to double check.
Subject to double checking on that, let us say at the moment that it is more widely available. If so, that is welcome because that is what I have been talking about here. If that is the case, then subsection (2)(a) will ensure that it will not be available in the public domain.
I move amendment No. 83:
In page 21, subsection (3), lines 35 and 36, to delete all words from and including "would" in line 35 down to and including "public”).” in line 36 and substitute the following:
"would be prejudicial to national security, public security or public order or would be contrary to public policy ("ordre public”).”.
I move amendment No. 85:
In page 22, subsection (1), line 1, after "visa" to insert "("visa revocation")".
I move amendment No. 86:
In page 22, subsection (2)(b), lines 9 to 11, to delete all words from and including “holder” in line 9 down to and including “public”);” in line 11 and substitute the following:
"holder of the visa would not be conducive to national security, public security, public health or public order or would be contrary to public policy (“ordre public”);”.
I move amendment No. 87:
In page 22, subsection (2)(c), line 14, to delete “new” and substitute “changed”.
I move amendment No. 88:
In page 22, subsection (2), line 16, to delete paragraph (d).
If this amendment was to be accepted, it would mean that the Minister would not be able to revoke a visa if it had been granted in error. That would be an unacceptable situation.
Amendments Nos. 89 to 92, inclusive, are related and may be discussed together by agreement.
I move amendment No. 89:
In page 22, lines 17 and 18, to delete subsection (3) and substitute the following:
"(3) Where the Minister revokes a visa, he or she shall—
(a) record in writing the reason or reasons for the revocation forthwith and
(b) take all reasonable steps to inform the holder of the revocation and the reason or reasons as soon as practicable.".
This is a positive and constructive amendment which aims to keep the holder of a visa properly informed. I agree with the Minister's comments earlier regarding the need for transparency and certainty. In the context of this amendment, there is also a need for efficiency. This links in with the broader debate on public sector reform and is very important. Paragraph (b) of the amendment touches the core of the issue and phrases like “reasonable steps” and “as soon as practicable” make sense. Such phrases capture the mood of the amendment and I ask the Minister to consider accepting it.
Are we dealing with amendment No. 90 at the same time?
No.
In that case, I will wait until we reach that amendment, but I am broadlysupportive of what Deputy McGrath has said. It is important in the context of ministerial discretion.
I advise Deputy Flanagan that he must enter the debate now as the amendments are grouped.
That is what I thought. Can I speak to amendment No. 90 now?
Yes.
I agree with Deputy McGrath although I am not sure I would extend it as far as the wider issue of public sector reform. However, where ministerial discretion is an option in the revocation or otherwise of a visa, sufficient consideration should be given by the Minister when making that decision to the reason or justification, in all cases. It is important that the applicants would know where they stand. The absence of such knowledge does and will give rise to situations where matters will be referred to the courts.
If a reason is not given for a revocation and we are dealing with a blanket refusal without any reason or justification on the part of the issuing authority, the applicant will feel aggrieved. That sense of grievance will be taken to the courts and delays and costs will ensue. In many cases, the provision of an excuse or the outlining of a reason or justification on the part of the Minister for his or her decision is not an unreasonable request. To provide such a justification could be seen as progressive, as well as important. It would also have the effect of dealing with matters in a much more transparent fashion than would otherwise be the case.
I hope the Minister will consider the amendments, particularly No. 90 in the name of my colleague, Deputy Naughten. It is important that the reasons for revocation be outlined so that a person's sense of grievance can at least be tempered.
Approximately 45,000 applications for visas were approved in 2007 and a total of 65,690 applications for re-entry visas were received in the Department. Of all of the visas that have been issued, only a handful have been revoked. This section deals with the revocation of a visa.
Revoking a visa usually arises in circumstances where some defect is discovered after issue but before the person arrives in the State. An example of the circumstances in which a revocation would arise is where the visa is affixed to the passport of one person but another person, not the proper holder of that passport, is using the passport in question as a travel document. Irregularities will most often be discovered when the person is in transit, on the way to Ireland, and may be picked up by an alert immigration official in Hong Kong, Amsterdam or elsewhere.
A telephone call to the Irish immigration authorities will trigger the revocation of the visa. This action can take place at any hour of the day or night, at weekends or on public holidays, and must have immediate effect. The Bill provides for that situation, as well as providing that the person aggrieved by the revocation may apply for the reasons to be given. This is to cater for the fact that immediately notifying a person who is in transit at the time of the revocation is impractical. Instead, the Bill provides for a ten day period after revocation within which the reasons for the revocation can be sought and given. Under section 17(2)(b), the appeal period of eight weeks runs not from the time of the actual revocation, but from the notification of those reasons. This is to ensure fairness for the affected person.
In most cases where a visa is revoked, the person concerned does not bother seeking reasons formally or appealing because he or she knows that the documentation is fraudulent or that another impediment exists which was not previously made known.
One could ask why we do not proactively provide the information within ten days of the refusal but in a large number of cases we might not even have an address for the person concerned. That is why the onus is put on the person to apply if he or she feels aggrieved.
The Minister made reference to a visa that may be granted in error but we are dealing in this instance with circumstances where a visa was not necessarily issued in error. Something would have occurred between the issuance of the visa and the arrival of the person concerned which gave rise to a need on the part of the authorities to revoke the visa as granted. If the visa was not granted in error, it was granted in circumstances where insufficient information was provided on the occasion of its issue. The Minister might give an example of the circumstances in which this could arise. I am encouraged to hear from him that we are discussing a handful of cases. If the visas are not issued in error, is he implying the applicant attempted to perpetrate a fraud on the State?
The conditions set out in subsection (2) are that the visa was granted on the basis of information which was false, incomplete or misleading.
I do not want to prolong the proceedings but the amendment would appear to copperfasten a duty on the part of the issuing authority to set out the reasons for refusal if this is not because of error.
Practical problems arise. If somebody arrives in Amsterdam in the middle of the night, we would not have any official available to respond. A decision will be made based on the information provided and if the person is aggrieved he or she can apply within ten days. The provision is made from a purely practical point of view. It would seem reasonable in normal circumstances that we communicate within ten days.
I move amendment No. 94:
In page 22, lines 39 to 43, to delete subsection (1) and substitute the following:
"17.—(1) On receipt of an application which complies with subsection (2) (“visa review application”), the Minister shall arrange for the review of a visa refusal or a visa revocation.”.
I move amendment No. 95:
In page 23, subsection (3), line 12, to delete "in this Act referred to as a".
I move amendment No. 96:
In page 23, subsection (3), to delete lines 14 to 18 and substitute the following:
"out by an independent person appointed by the Minister ("a visa review officer").".
This amendment was discussed with amendment No. 19. Is Deputy Rabbitte pressing it?
I missed that debate, which was my fault. Is it possible to hear the Minister's note on the amendment?
I cannot recall the Latin phrase used when I studied law but it effectively means that one cannot be judged in one's own case. The people who issue the visas also make the decision and conduct the review. An element of independence should exist in that regard.
If the Minister agrees, we will once again hear his note on the amendment.
Apparently my predecessor gave an undertaking that he would consider a review officer, commencing with the visas. Was Deputy Rabbitte here for that discussion?
I have been here all the time. It is my own fault that it passed me by. I welcome the Minister's position because the point is of some importance.
Before we commit ourselves to a legislative solution to this matter, I am taking the approach of introducing systems of independent review of immigration matters on an administrative basis at first. That is why I have indicated my intention to appoint, on an administrative basis at first, a person to act as chief review officer with the function of ensuring that there is consistency and a high quality of decision making among those who deal with visa reviews under the Bill. This way of introducing an element of independence may prove satisfactory and, if so, can be rolled out to other aspects of the immigration process and subsequently put on a statutory footing.
I had completely forgotten that. I thank the Minister for facilitating me.
I move amendment No. 97:
In page 23, subsection (3), line 14, to delete "in this Act referred to as a".
I move amendment No. 98:
In page 23, subsection (5), line 22, after "review" to insert "application".
I move amendment No. 99:
In page 23, subsection (7), line 27, after "review" to insert "application".
I move amendment No. 100:
In page 23, lines 31 to 33, to delete subsection (8) and substitute the following:
"(8) The information referred to in subsection (7) includes any information available to any information holder.”.
Deputy Finian McGrath opposed the section but he is not here to confirm that.
I do not think I will step into the breach this time.
I am very appreciative of that.
The section is opposed by Deputy Finian McGrath but he is not here.
I want to ask the Minister whether the travel document has to be submitted with the review application. If so, a person could be stuck in this country while that is being considered because he or she cannot leave the State. Could we allow a person to bring the travel document to an INIS official or immigration officer to take whatever copies are required of it to submit with the review application so he or she can still travel in and out of the country while his or her visa is valid? It causes problems with travel documentation that has to be submitted for other applications. If the visa is approved the person could return his or her travel document to the immigration or the GNIB officer and have the new visa affixed to it, or send it to the Department and it could be returned within a day or two. It causes a problem in some other processes. I am not sure what the procedure is on this. If the travel document is submitted surely we can get such a mechanism. These are renewal applications, not original ones. We have a certain amount of background information on the individuals. A travel document could be mislaid, which could have serious implications for the individual concerned.
The travel document is required because normally the visa would be attached to it. To a certain extent, while Deputy Naughten says this related to section 18, it really relates to section 17, where it prescribes that the visa review application complies with subsection (2) if it is in various forms, including the prescribed form. I am told a practical modus operandi would be adopted on this if there were difficulties and that is as far as I can explain it.
Approximately how long does it take to process a review application?
A few days, I am told.
In this case, therefore, it is not a significant problem. I have an amendment down at a later stage on other processes.
Is the few days reconsidered?
I am told it is four to six weeks.
That person, therefore, cannot leave the State for four to six weeks. If a person is involved in business, that can be a significant period of time for him or her to be restricted to the State. Technology is at such a level that one can nearly get a very accurate copy of documentation and it could be brought to Burgh Quay and copied. This issue may not arise in many instances but it may arise in some cases and surely there should be a mechanism to allow a person to present his or her application in Burgh Quay, have a copy taken of the travel document and, if the review application is granted, return and present the original document and have the new visa attached to it. It is not unreasonable.
Deputy Naughten had better explain that to me again because I am not getting his point.
Let us say the Minister is a visa-required person in this State and has his visa in his passport. If he submits his passport for the renewal of his visa, the determination review under section 18, it takes six to eight weeks to review his application and make a decision on it. He cannot leave the State during that time because his passport is in the Department. Surely we can find a mechanism to allow him to receive his passport back while the decision is being made.
It is a practical, operational issue. I will ask my officials to examine the practical difficulties with this.
Perhaps the Minister will refer back to us on it.
I move amendment No. 103:
In page 24, subsection (3), line 31, to delete "and be present in".
Subsection (3) need refer only to entry to the State. For this reason, reference to being present in the State is being deleted.
Amendments Nos. 105, 113 and 119 are related and will be discussed together.
I move amendment No. 105:
In page 24, subsection (4), between lines 41 and 42, to insert the following:
"(d) a person who has entered the United Kingdom of Great Britain and Northern Ireland with the consent of the relevant authority and who has travelled directly from Great Britain, Northern Ireland, the Channel Islands or the Isle of Man,
(e) a person who indicates that he or she has made or wishes to make a protection application in the State,
(f) a victim of trafficking,
(g) a separated child.".
I tabled this amendment in the interests of the Minister and hope he will be able to accept it. The reason for these amendments is that as the law stands a person will require a travel document to cross the Border. Let us say a person is on holidays in Northern Ireland and wants to cross the Border to do some shopping in Dundalk or stay overnight and visit the Cooley Peninsula——
Where is this person from?
The person is from outside the EU. In normal circumstances a person would be a visa-required applicant if he or she were to come directly into this State——
Through the Border.
Chaps have been visiting from across the Border for years and I am not sure this is any different.
If the person came into Dublin Airport he or she would be visa required. The person has gone to the UK either directly into Northern Ireland or to London and travelled around the UK. I presume he or she is visa required there as there is very little difference between the two countries' requirements. Let us say that is the case. This person requires a further visa to come into this jurisdiction. The law is that such people must present to the immigration officer where they will stay. If, for example, they stay overnight in Dundalk, they must go to the GNIB officer in Dundalk and seek a visa. Surely, if we are trying to encourage cross-Border tourism, we should facilitate people who may want to come over for a day to do some shopping on this side of the Border or look at the sights here. They have already been checked out by the UK authorities and we have a common travel area. Our own officials are very careful about who they grant visas to if it is believed by the Department that the only reason a person is applying for a visa here is to get into the UK. Surely we can consider the issue in the interests of cross-Border tourism?
Deputy Naughten's amendment No. 105 proposes to allow foreign nationals to arrive in the State at an unapproved port without sanction on the basis that the persons concerned have been granted permission to enter the UK. To accept such an amendment would be to drive a coach and four through the common travel area arrangements that operate between the State and the UK.
The common travel area arrangements exist to facilitate those who are Irish nationals and nationals of the UK when travelling between the two jurisdictions. They are not a mini-Schengen. If I am a citizen of the US, the United Arab Emirates or Uruguay, I cannot travel freely within the common travel area; I must get immigration clearance to enter the UK whether from Ireland or anywhere else. Similarly, I must get Irish immigration clearance to travel to the State from the UK or anywhere else.
There is no common visa arrangement between us, whereby a visa issued by one jurisdiction would act as a visa for the other as well. There is clearly some co-operation as regards admission; both jurisdictions have provisions which enable them to refuse admission to a person who intends to travel to the other and who would not be admitted there. That is as far as the arrangements go.
The effect of paragraph (d) of amendment No. 105 would be to legitimise the arrival in the State of a foreign national who, in breach of the common travel area arrangements, enters the State from the UK without complying with this State’s normal immigration arrangements. I cannot support such a proposal. It proposes something that does not happen in respect of foreign nationals who are lawfully present in the State who travel in the opposite direction, for example, a Russian who is lawfully living and working here needs a UK visa to go to do business in Birmingham or Belfast.
The person comprehended by paragraph (e) of amendment No. 105 would be allowed to remain in the State regardless of whether he or she arrived via an approved port. I refer Deputies to section 68(2) of the Bill, which provides that a protection application entry permission operates to allow a protection applicant to enter, or as the case may be to remain in, the State for the purpose of having his or her protection application determined. In these circumstances, paragraph (e) is unnecessary. In any event, a person who is present in the UK and in need of protection should seek the protection of that jurisdiction and not travel on from the UK to seek protection here.
The provisions at (f) and (g) on a victim of trafficking and a separated child have the effect of allowing such persons to enter the State at any place in the State. In effect, the Deputy’s amendment would allow a victim of trafficking or a separated child, or indeed those who are arranging their entry to the State, to bypass immigration controls at our approved ports. This cannot be the case when border controls are considered to play an active part in the identification of possible victims of trafficking and separated children so as to protect this vulnerable group.
Section 24 of the Bill contains comprehensive provisions governing the treatment of those under 18 arriving in the State whether accompanied or unaccompanied. The Deputy's amendment to paragraph (g), therefore, is unnecessary.
The Deputy's proposed amendment No. 113 to section 23 is opposed on the basis that it will also amount to a breach of the common travel area arrangements. Government amendment No. 119, also in this group, corrects a textual error in section 23(8) where the text has been inadvertently split into paragraphs. I urge the committee to accept this amendment.
To return to my original point, are we not discouraging people who want to come on a day trip south of the Border? Perhaps the Minister wishes to do so. Let us say a wealthy American businessman happens to be over for a conference in Northern Ireland. I hope we have plenty of them after all the work which has gone on over the past number of months. If such a businessman wants to come south of the Border to spend a few of their dollars — he might not be too anxious to part with them at the moment — should we not be trying to encourage cross-Border tourism? Is this not creating a barrier to it?
I do not have a simple answer to it. I accept the Minister's point that it could end up being abused. In the interests of tourism, is there any way we could look at putting some type of an amendment in place to facilitate cross-Border tourism, even for day-trippers coming over to Dundalk to spend a few pounds in some of the shops there or visit the Cooley Peninsula, etc.
As somebody born, bred and still living within sight of the Border, I would always encourage people to come across it, provided they do so legitimately. Unfortunately, over the years we have had people who use the Border illegitimately for all sorts of reasons.
If anybody wants to travel from the North to South on business or to see the lovely sights around my constituency, they should do so with the proper visa entry requirements. If they come from the US, they would be cute enough to know they would be passing from one jurisdiction to the other and they should inquire before travelling from America as to whether they have the proper visa requirements.
There was the issue about the Indian coming to London and going on to Ireland. While there is a facility for people to apply from the UK, it would be far better, and from an immigration perspective far more secure, if the application was made in the country of origin. People on the ground would then at least have some local knowledge with regard to the applicant.
The Deputy's proposal would, in effect, be an open door. As I stated earlier, it would drive a coach and four through the common travel area, which is a benefit to our own and UK nationals.
What happens at the moment is that if a person is visiting Northern Ireland, with a visa required to come into the Republic, that person will come across the Border if they wish to look at something if he or she so wishes and head off home. The difficulty in this legislation is that such people, when they set foot on this side of the border, are illegal and can be immediately summarily deported across the Border. That would have major implications if such people were to visit the common travel area or another member state on some future date.
In this legislation we are putting up an additional barrier to cross-Border tourism. I do not have a solution but I am flagging what I see as a problem in the Bill as proposed with regard to what currently happens on the ground.
I would not want it to go out that this Bill will make people less welcome in the State. It will not do so. If somebody crosses the Border in those circumstances, regardless of whether this Bill is passed, it would still be unlawful if he or she did not have the proper visa requirements. I do not want the word going out that what we are doing here is in some way preventing people coming across the Border or making it more difficult.
The reality is they could be immediately deported from the country.
They would already be unlawfully in the State if they came over as matters stand.
How stands the amendment?
I will withdraw it but I am highlighting a weakness in the legislation. I am sure the Minister will come across it on a more frequent basis.
I move amendment No. 106:
In page 25, subsection (2), line 2, to delete "the Minister considers appropriate and".
The effect of this amendment is to remove superfluous text from the subsection. It is sufficient that an order will set out conditions that apply to a designated port. An order will not be made until the Minister is satisfied that appropriate conditions are settled.
Amendment No. 107 in the name of Deputy Naughten is ruled out of order because it could cause a potential charge on the Revenue.
I would argue that it does not cause a potential charge on the Revenue. I believe it will cause a potential charge on the port authorities, rather than the Revenue, and I contest this on that basis. I will speak on the substantive issue under the section later.
I tabled amendment No. 107, which is being ruled out of order because it is claimed that it could cause a potential charge on the Revenue. It states that the Minister should be satisfied that facilities are in place at the various ports to ensure the integrity of the State's immigration policy. It is important that adequate resources are available in terms of airport police, port authority police or the Garda Síochána, as the case may be. We are introducing strict conditions and people are liable to summary deportation as a result of this legislation. If we leave the gate wide open and people happen to go through it, the onus is on us to ensure someone is at the gate in the first place.
In the past there have been examples of people coming into this country through approved ports without proper documentation. We will deal with an example that comes to mind in a later section so I will leave it until then. However, it is important that resources are put in place to ensure we have proper facilities at all of our ports and airports to deal with individuals to enable them to be properly screened. If a person should not be allowed into the State, he or she should be identified at the point of entry. It should not be left to the State to apprehend and deport him or her once he or she has set foot in the State.
Coming back to an article in a Sunday newspaper of 3 February, a source in the Department of Justice, Equality and Law Reform pointed out that a Nigerian woman claimed €67,000 in social welfare benefits up to 2006 although she had been recorded as having left the country in November 2002. How this can happen defies logic. If she was recorded as leaving the country in 2002, surely a system should exist to contact the Department of Social and Family Affairs and inform it of that fact and request that it cease making benefit payments.
This is fine when it comes to some of our designated ports and airports, where the information technology is in place to collate this information, but I understand that such technology does not exist in all of our ports and airports at present. Surely if a port is to be designated as approved the proper facilities, resources and technology should be available to ensure we do not compromise our immigration system.
I agree with the Deputy that the Minister would not make regulations approving a port unless he was satisfied the proper facilities and staff were available.
To give an example of what I am talking about, I understand an EU citizen from outside the common travel area entering this jurisdiction must have a travel document. Is this correct?
A passport.
There was a case in my constituency of a road traffic accident involving a Polish man that is before the courts at present. When he sought bail, the judge made it conditional on him surrendering his passport. He told the judge that he did not have a passport because he entered the State without one through, I believe, Rosslare Port. Obviously, there are weaknesses in the system as it stands and we must ensure the necessary resources are put in place at our ports and airports because there is little point discussing this legislation and giving the Department these powers if we do not have the facilities at our ports and airports to screen people entering the State. We must ensure that we can identify those who should not enter the State and those who do not have the proper documentation, subject to them applying for protection status. In the case I mentioned, this did not happen, although I do not know how common this is.
Either a passport or a national identification card is acceptable to prove a person is a member of a European Union country.
Would a driving licence be sufficient?
No, a passport or a national identification card is necessary.
Seemingly he only had a driving licence. This is just one practical example of how the system is falling down. As I said, it is impossible to know how frequent such occurrences are but it happened in this case. It was publicised locally because the individual did not get bail as he did not have a travel document.
Most European countries issue passports or national identification cards. That is a matter for them.
No, it is a matter for us because we let people into the country without such documentation. That is my point and that is the reason I tabled this amendment. Surely there is a responsibility on us if we are to put this legislation in place. There is a big difference between legislation and enforcement.
In the directive that deals with the issue of the right of European citizens and their family members to move freely within the territory of member states, it states that where an EU citizen or a family member who is not a national of a member state does not have the necessary travel documents or, if required, the necessary visa, the member state shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable time or to corroborate or prove by other means that they are covered by the right of free movement and residence.
He was allowed in without the proper documentation. I only highlight this because there is a weakness in the system. It is important that the resources are put in place to ensure this remains an isolated incident and not something that happens frequently.
Amendment No. 109 is related and is an alternative to amendment No. 108 so amendments Nos. 108 and 109 may be discussed together.
I move amendment No. 108:
In page 26, lines 12 and 13, to delete subsection (2) and substitute the following:
"(2) Subsection (1) shall not apply to a national of the United Kingdom of Great Britain and Northern Ireland who has travelled directly from Great Britain, Northern Ireland, the Channel Islands or the Isle of Man.”.
I propose that the only foreign nationals entitled to enter the State without travel documents are UK nationals travelling within the common travel area. As currently drafted, subsection (2) would allow such nationals to land in the State from anywhere outside the common travel area and arrive in the State without the need to possess a travel document.
I will speak on amendment No. 109, which is my amendment. The Minister makes an exception in terms of the requirement for a travel document by a UK national in his own amendment. My amendment, No. 109, seeks to make explicit the fact that the requirement for a travel document ought not to apply to a person seeking protection in the circumstances adverted to in my amendment.
The Minister will probably say to me that there are abuses in this area, but a genuine protection seeker could, for all kinds of reasons that we would understand, find him or herself without the requisite travel document at a port of entry here. I do not dispute there may be abuses whereby people say they do not have documents when they do have them. However, by definition, a genuine asylum seeker, depending on the circumstances in which he left his country of origin, could find himself without a travel document. Unless the Minister can draw my attention to a different section of the Bill that achieves the same purpose, it is necessary to make plain here that we are not just exempting persons from Northern Ireland or the neighbouring island but also those who arrive here in the circumstances I have described.
Why has amendment No. 117 not been grouped with these amendments? It deals with the same subject.
It seems to be the same issue.
With the agreement of the committee, we may discuss it now rather than rehearsing the discussion later.
The amendment deals with the same issue as that being discussed by Deputy Rabbitte. Take, for example, a person who has been illegally trafficked into the country. That person will not have a travel document. Surely, if that is the case, he or she should not be guilty of the offence of not having a travel document. It is the same point as that being made by Deputy Rabbitte. We are creating many offences with regard to people entering the State without travel documents, but they may be genuine protection applicants. The best example of this is a person who has been trafficked. We are criminalising them and then trying to circumvent that by allowing them to have residency permits. Surely we should not be criminalising them if we are going to give them residency permits.
Before the Minister replies I would like to mention for the record that Amendments Nos. 108, 109 and 117 are being discussed together.
Under section 23(10), a protection applicant must be allowed to enter the State in order that his or her protection application can be determined. Permission to enter the State is not predicated on the applicant's being in possession of travel documents. In these circumstances, the amendment is not necessary. It would not serve any purpose to provide in statute that a protection applicant is not required to have a travel document when claiming protection from the State. Although most applicants do not have such documents, some do, and others possess false documents, so it would be wrong not to require possession of these documents. Section 76, which deals with credibility of protection applicants, states, in subsection (3):
The following are examples of the matters to which the Minister or, as the case may be, the Tribunal, may have regard for the purposes of subsections (1) and (2):
(a) whether the applicant possesses identity documents, and, if not, whether he or she has provided a reasonable explanation for the absence of any such documents;
(b) where the applicant has forged, destroyed or disposed of any identity or other documents relevant to his or her application, whether he or she has provided a reasonable explanation for so doing;
Thus, the effect of these amendments would be to relieve every protection applicant of the requirement to provide any travel documents that he or she may possess. Section 23(9) and (10), section 25(1)(b) and section 68(1) and (2) operate to guarantee protection applicants entry to the State whether or not they possess travel documents. The proposed amendments are not only unnecessary, they are also undesirable as they may in fact operate to encourage persons who seek to enter the State without proper documents to claim protection and thereby be allowed into the State.
The Minister adverted to a number of clauses, not all of which I grasped at the time. Section 23(10) states:
A foreign national who indicates that he or she has made or wishes to make a protection application in the State shall, subject to section 25(4), be given permission to enter the State (in this Act referred to as a "protection application entry permission").
This does not make any reference to the question of whether travel documents are required. Section 22 plainly states that——
It is not required, but if a person has such a document the people making the decision would wish to see it.
That is fine, but it does not state that a travel document is not required. Does it?
No, it does not say it is required.
It does not say it is not required either.
The section is as it is. There is no requirement in the section for such persons to have travel documents. However, if they have they must present them. What the Deputy is trying to do in his amendment is to exclude any possibility of them ever having travel documents. They may have travel documents, and in order to determine an application the people making the decision would wish to see them to determine whether they have been forged and so on.
I accept that protection applicants may indeed have travel documents. However, I refer to those who do not. Can the Minister explain to me why the immigration officer would not resort to section 22(1), which states plainly: "A person (other than an Irish citizen) landing in the State shall be in possession of a travel document."?
Equally, section 73(1) states: "A foreign national, whether lawfully or unlawfully in the State, may apply to the Minister for protection in the State."
Does it matter that the subsection refers to a foreign national who is already in the State?
With regard to their not having travel documents, no, it does not matter.
I can see some merit in the Minister's argument that if my amendment were to stand, as drafted, it could be an invitation to people to present without a travel document. The point on which I require to be reassured is that the absence of a travel document, of itself, would not be the cause of a person being turned around at the frontier of the State, whether this be an airport or port.
I can guarantee that would not be the case. Section 73 deals with that issue in general. Section 68(1) reads: "A protection applicant shall be granted by, or on behalf of, the Minister a protection application entry permission". In other words, it would legitimise the person's presence here. Again, there is no necessity——
Section 73.
——for them to have travel documents. It is accepted that in a large number of cases they would not have such documents.
I accept the Minister's assurances. However, I would wish to receive further advice on the matter before Report Stage.
I thank the Minister and his officials for attending.
