Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).
SECTION 23.
Amendment No. 111 not moved.
I move amendment No. 112:
In page 26, subsection (1)(a), between lines 40 and 41, to insert the following:
"(ii) on arriving anywhere else in the case of a person who has made or wishes to make a protection application, as soon as practicable to an immigration officer at any immigration area office in the State, and".
This amendment would allow a protection applicant to present to an immigration officer without having committed an offence by entering the State. While this issue would not arise in normal circumstances because the applicant would be met by the immigration officer at the port of entry, someone who has been illegally trafficked into the country and is as a consequence entitled to protection should be given the opportunity to present. The amendment would facilitate this.
I would like the Minister to take the amendment on board. We must ensure those who find themselves in difficult circumstances are protected. The amendment is both positive and constructive in this regard.
I concur with the amendment which would allow protection to be given to applicants who present themselves to an immigration officer, even where they have not arrived at an approved port. It takes into account the particular circumstances and needs of persons who require protection and would ensure they would not be found guilty of an offence for not having presented at an approved port. As has been the case, there will be circumstances in which people will not have such an opportunity. The amendment proposes a minor change and would allow the immigration system to work better and provide persons with an extra opportunity to apply at the nearest available office of the State instead of being required to present at an approved point of entry.
I ask the Deputies to withdraw the amendment to allow us time to consider the matter further. There is no need to make special provision for protection applicants in section 23, but we want to ensure a provision would be drafted in a manner that would place a clear obligation on a protection applicant to present to an immigration officer upon arrival. If there is any doubt as to whether the provision in the Bill is sufficient for this purpose, I would like time to reconsider it. Applying the amendment to a person who has already made a protection application would be unnecessary and inappropriate, as the person concerned, having been given permission to enter, is in the State lawfully. The issue we want to consider relates to the arrival of the protection applicant in the State.
I have a related question for the Minister. If he does not have the legal information to hand, he might supply the committee with a note. What is the legal position of an immigrant who has not reported to an office or officer of the State, does not have a passport and cannot otherwise confirm his or her identity? Likewise, what is the legal position of a person with a passport but who has not reported?
Either person would be regarded as being unlawfully in the State.
Would there be severe penalties?
Yes, under the old legislation. Once a person claims asylum, he or she is lawfully in the State.
What if he or she does not claim asylum?
He or she is in the State unlawfully.
If a language difficulty means that he or she cannot inform anyone of how he or she arrived, officers of the State will be confused as to his or her purpose here or mode of arrival.
That arises frequently. Every opportunity to claim asylum is afforded.
Amendment, by leave, withdrawn.
Amendments Nos. 113 to 115, inclusive, not moved.
I move amendment No. 116:
In page 27, between lines 19 and 20, to insert the following subsections:
"(5) A person who enters the State in order to present himself or herself in accordance with subsection (1) shall be deemed to have lawfully entered the State and to be lawfully present in the State for so long as is necessary so to present himself or herself in accordance with that subsection.
(6) A person who applies for permission to enter the State in accordance with subsection (1) shall, if in the State, be deemed to have lawfully entered and to be lawfully present in the State pending notification of the determination of the application to him or her.”.
This amendment is similar to amendment No. 112 and deals with a protection applicant or migrant who may be eligible under a departmental scheme for a residency permit to present to an immigration officer without having committed an offence by entering the State. A similar problem arises in the case of trafficked persons or persons who may be eligible under departmental schemes, including that which the Minister will initiate this month. I ask him to consider the amendment.
For similar reasons to those of Deputy Naughten, I believe the amendment would ensure protection applicants who have arrived in the State would be deemed to be lawfully here provided they travel to an immigration officer as quickly as practicable. They would be deemed to be lawfully in the State upon their arrival. Theoretically, they could present themselves and be in the waiting room in an immigration office but unlawfully present in the State. It would be a minor change, but the Minister should reconsider the issue to ensure persons will not be caught in a legal limbo while on their way to present themselves to an immigration officer or at the door of an immigration office.
I support the amendment which is both positive and constructive. When discussing terms such as "lawfully entered the State" and the issue of immigration, it is important to remember that 95% to 96% of the people in question come to Ireland for personal, political or economic reasons. A section of society and sections of the media seem to have turned the debate into a discussion on criminals and so on. While a small minority of immigrants are involved in crime, we must protect the majority who have emigrated for logical, sensible and humanitarian reasons. Of the Irish emigrants who travelled to America, a minority may have been involved in crime. That still obtains. Let us be open and realistic and present the facts. The majority of those who try to emigrate to Ireland do so for personal, economic and humanitarian reasons, an important fact that we should remember constantly during the debate.
I understand the Deputies' intent, but the proposed subsection (5) is unnecessary. Section 23(1)(a)(iii) provides that a foreign national must present “as soon as practicable to an immigration officer at the immigration area office for the immigration area in which he or she will have his or her dwelling place while present in the State”. This provision addresses the issue involved in the proposed subsection (5).
As regards the proposed subsection (6), in order to seek permission to enter the State, a foreign national must, unless he or she has received the Minister's consent to do otherwise, arrive at an approved port and present to an immigration officer. Following an examination by the immigration officer, permission to enter the State will be given or refused, either on the spot or after a short delay if that is necessary to verify any aspect of the case. A person who has applied for an entry permission and is in the process of having a determination made under subsection (1) is, by virtue of that very fact, neither lawfully nor unlawfully present in the State as he or she is in the process of seeking permission to enter. The most that may be said of such a person is that he or she is at "the frontier of the State", a phrase used in the Bill to comprehend that situation. We believe the proposed subsection (6) in the circumstances is unduly prescriptive and unnecessary.
Following from what the Minister said, will he look at it again in the context of the comments he made regarding amendment No. 112? The objective of this is to ensure someone is not summarily deported, where he or she might be eligible under a particular scheme. In 99.95% of cases this will never arise, but where people have been illegally smuggled into the country situations such as this might arise. The Minister is looking at this issue in the context of amendment No. 112. Perhaps he might examine it as regards what we are talking about here in relation to amendment No. 116 as well.
I will undertake to do so.
Amendment, by leave, withdrawn.
I move amendment No. 117:
In page 27, subsection (5)(b), line 24, after “document” to insert the following:
"(save where the process indicates that he or she has made or wishes to make a protection application in the State and the person cannot produce such a document)".
A protection applicant may not have a travel document due to the circumstances of his or her exit from a particular state. Again, this amendment applies to a person who has been illegally trafficked, for example, and is entitled to protection as such. Surely he or she should not be considered guilty of an offence by not having a travel document. It is pretty much along the lines of what we have been talking about.
When one considers how many asylum seekers have travelled here they should not be penalised solely on the basis of travel documents. In some circumstances no travel document was required, whether a person travelled illegally by sea or in the back of a truck. The last thing on the mind of somebody fleeing persecution is to return for his or her passport. We have to be mindful of this when dealing with this issue. It should not be an offence not to have the travel document per se. Obviously, it is useful for immigration officials if there is a passport or some other form of formal identification, since it makes it easier to adjudicate on the application. However, asylum seekers should not be penalised solely on the basis of not having a travel document, as indeed the UNHCR guidelines indicate. This amendment ensures that what is not explicitly provided for in the other provisions in the Bill relating to the protection of applicants is inserted at this stage.
Is the Minister satisfied that essentially the criminalisation we are talking about here is consistent with the 1951 convention and Article 31, in particular, as regards asylum seekers or protection applicants? The answer to an earlier question was to the effect that an offence is committed, as matters stand, where somebody lands in this country without a travel document. I do not know whether the Minister's earlier reply suggested he was looking at this for Report Stage and that he prevailed on Deputy Naughten to withdraw with leave to re-enter. There is an issue here and Article 31 seems to be fairly clear in this regard.
Article 31 states, as the Deputy said, that asylum applicants coming here should not be penalised because they do not have documents. However, sections 23(9), 23(10), 25(1)(b), 68(1) and 68(2) operate as a guarantee to protection applicants, allowing them to enter the State whether they possess travel documents. The effect of this particular amendment would relieve every protection applicant of the requirement to produce a travel document that he or she might possess. Again we must oppose this amendment. We believe that not merely is it unnecessary, it is undesirable as it may, in fact, encourage persons to enter the State without proper documentation and then claim protection, thereby being allowed to enter the State.
To give some interesting figures as regards asylum applicants travelling without documents, in 2007, 63.2% of the total number arrived with no documentation. Out of that--
Is the Minister saying 63.2% arrived with no documentation?
No documentation, that is correct. Some 38.8% travelled by air only, 63.7% travelled by air at some stage and 63.3% said their route was "unknown" at some stage. Some 29.3% said their route was unknown, but that they had travelled by air at some stage. These figures are interesting in showing that a considerable number of applicants get leave to enter the State despite the fact they do not have documentation.
That goes back to my earlier point, reading some of the sad and horrendous stories in the media pertaining to the exploitation of individuals, particularly young women. It is very obvious that our laws need to be sufficiently robust. Everybody has an identity and surely the onus on them, as citizens of the global world, is to have that identity with them unless they are innocent people who are being totally exploited and do not understand their situation. From an Irish viewpoint, however, as a small island people in the common travel area, it is vitally important that our laws require it be mandatory that anyone over 18 should have some type of travel document, and it is important we enshrine that in our law.
Obviously, we all want people to have travel documents, but the reality is that many do not, when they arrive, as the figures indicate. Equally, many of those people would have had travel documents en route to Ireland. A substantial number of people come across the Border into the Republic and obviously they would have had to travel through other states to get here, so it is more than likely that at some stage they had some documentation. Again, I believe this subsection would have the opposite effect to that intended by the Deputies, which is already guaranteed. We acknowledge that it is already in the convention, and we have to comply with that to the effect that people cannot be discriminated against because they do not have travel documents. At the same time we do not want to insert something into our legislation that will encourage people not to have travel documents.
I agree with the Minister on his final point. The area of concern is narrowed to the genuine protection applicant who lands in the jurisdiction who does not have travel documents for reasons which, as I understand it, the Minister accepts can happen from time to time.
Section 119 of the Bill provides for a liability on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months, or on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding five years or both. Are these penalties proportionate?
There are penalties but as the Deputy can see from the figures, a substantial number of people come without documentation. Realistically most of them had documentation at some stage. The Deputy is correct. We are trying to be fair to those who genuinely did not have documentation at some stage. With regard to the penalties in section 119, the reality is that very few people will be prosecuted. What would happen is that they would leave the State eventually.
Article 31 of 1951 convention states:
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
This legislation more than complies with this. The sections to which I referred previously provide a guarantee for applicants that they can enter the State whether they possess travel documents. I accept the Deputies' bona fides on this but we believe this amendment would have the opposite effect of what is intended because it would relieve people of having to have travel documents and therefore it would be seen as a bit of a draw.
I am amazed by the Minister's statistics, particularly with regard to that fact that four out of every ten people who travelled solely by air to the jurisdiction did not have any travel documentation.
That is what they say. These figures are based on what we are told.
I presume on the basis of carrier liability that they had some form of travel documentation at the port of departure. I understand airlines are very strict on this point. I know we will discuss carrier liability later and I do not want to go into too much detail. Will the Minister throw some light on this aspect?
With regard to this amendment, I hear what the Minister is saying. None of us wants a situation where we will open a floodgate and leave a gaping loophole within the legislation. The Minister states the guarantees are there, and we will re-examine the situation and table an amendment on Report Stage if we feel it is required.
I accept the Minister's main point on protection application. Did the Minister state 63% of total applicants turned up without any papers?
What reasons do they give?
Every reason under the sun such as that they lost them.
A total of 63% lost does not sound right. Are there three or four common real and valid reasons?
I have heard some reasons.
Between 85% and 95% of the people who apply do not apply at ports and airports. They apply when they are already in the State. We do not know where they have been or how long they have been in the State prior to applying. When they apply they state they do not have any documentation. The number that applied at airports and ports in 2007 was 8.3% which was 335 people. In 2006, it was 400 people, which was 8.7% and in 2005 it was 9.1% which was a total of 392 people. All of the others materialised and from my anecdotal evidence I suspect many of them came across the Border.
Amendment, by leave, withdrawn.
I move amendment No. 118:
In page 28, subsection (7)(k), line 36, to delete “and” and substitute “or”.
Amendment agreed to.
I move amendment No. 119:
In page 29, subsection (8), to delete lines 1 to 6 and substitute the following:
"(8) The powers referred to in subsection (6) may, in relation to a person who is a national of the United Kingdom and Northern Ireland who has travelled directly from Great Britain, Northern Ireland, the Channel Islands or the Isle of Man,".
Amendment agreed to.
Amendment Nos. 120 and 123 are related and will be discussed together.
I move amendment No. 120:
In page 29, subsection (9)(a), line 11, to delete “has made or”.
The text sought to be deleted in both amendments in this group refers to persons who have made a protection application. Persons who have made a protection application will already be in possession of a protection application entry permission and will be in a protection determination process. The text being deleted would be inconsistent with the requirement on an immigration officer to grant a protection application entry permission and to provide information as to how the protection application can be made and accordingly it can be deleted.
Amendment agreed to.
I move amendment No. 121:
In page 29, subsection (9), line 19, before "the" to insert the following:
"or where the immigration officer has any reason to suspect that a foreign national may be in any of the situations in paragraphs (a) to (d),”.
The objective behind this amendment is that where an immigration officer is of the belief that a person requires protection or would be eligible for protection surely the person should be informed of the protection procedure. It should not be left to the individual to express a wish when it is clearly evident that he or she is genuinely eligible for consideration. An 18 year old who was trafficked into the country a number of years previously and is found in a brothel is clearly entitled to apply for protection and he or she should not have to request this protection. It should be offered. I hope the Minister can accept this amendment.
I must oppose this amendment. By virtue of subsections (9) and (10), and subsection 25 (1) (b) a protection applicant is guaranteed entry to the State for the purpose of having his or her protection application determined. This is predicated on the applicant informing the immigration officer that he or she wishes to claim protection. The applicant does not have to claim asylum but simply give an expression of fear. Once an expression of fear in relation to the place from whence he or she came is expressed, he or she is then entitled to become part of the application process.
The Deputy's proposed amendment would effectively require the immigration officer to inquire of every foreign national seeking entry to the State whether he or she wishes to claim protection, which would be impractical. A proposal of that nature would have the effect of inducing people, particularly those being refused entry, to make protection claims, even if there was no actual basis for such a claim. Such an arrangement would be unworkable and would adversely effect the operation of an effective and efficient immigration process and could also cause significant delays at some of our airports.
That is not what the amendment says. We do not want immigration officers at the port of entry asking every foreign national coming into the country if he or she wants protection. The amendment states:
or where the immigration officer has any reason to suspect that a foreign national may be in any of the situations in paragraphs (a) to (d),
I have given the Minister an example of how such a situation could arise. As I pointed out, a person could be seriously traumatised and in those circumstances, where there appears to be a good and genuine reason, the immigration officer should inform the person that there is a mechanism for him or her to apply for protection. The amendment seeks only that consideration be given to that. It does not go nearly as far as the Minister is claiming. Immigration officers, in the course of their work, will come across situations where they believe that a person is a likely candidate for a successful determination of a protection application. In those circumstances, if the person does not express fear or the wish to apply for protection, the option to do so should be brought to his or her attention by the immigration officer.
Subsection (9) puts the onus on the person to indicate fear or misapprehension. To put the onus on the immigration officer to make inquiries and form a reasonable opinion would put enormous pressure on our system. I am told that no other immigration system in the world has a provision such as this. The net effect would be that immigration officers would have to inquire about or form an opinion on every person coming through, which would be totally impractical.
That is not where I am coming from on this issue. I am not asking that immigration officers form an opinion in relation to every single individual who comes through the port of entry. However, if there is good reason for the immigration officer to suspect that a person may be eligible for protection, because he or she has, for example, been trafficked into the country or has been seriously traumatised, it is not correct nor proper that the person must express a fear in order for the protection procedures to kick in. It should be clearly evident to immigration officers that certain persons are likely candidates for favourable consideration for protection and they should proceed on that basis, without the individual having to explicitly express that he or she is in fear and requires protection. It is not an issue that concerns every individual who comes through a port of entry.
The likelihood is that this will arise in relation to people who are already in the State, especially now, in the context of what is being proposed in this legislation regarding summary deportation. People will not be prepared to confide in any member of the force because they will be afraid that once they are identified as being illegally resident, they will be deported from this jurisdiction. As a result, they will not express what could be very genuine concerns. All we are asking for is that a mechanism be put in place so that if an immigration officer is of the belief that a person would be likely to successfully claim protection, the officer would bring that fact to his or her attention.
I cannot agree. In effect, this would mean a significant shift of onus from the applicant to the immigration officer. There will be circumstances where officers may act in the way described, but they would have to hear some expression of fear from the proposed applicant. The Deputy is attempting to shift the onus onto immigration officers and is being overly prescriptive. I am not prepared to accept the amendment because it would be very unworkable in reality.
I am pressing the amendment.
If a foreign national comes to the attention of an immigration officer or an officer of the State in the circumstances which Deputy Naughten has described, does he or she have the right to summon a lawyer for advice?
However, if the person is not a protection applicant, he or she does not have the opportunity to summon a lawyer.
Amendment put and declared lost.
Amendments Nos. 122, 126 and 386 are related and may be discussed together.
I move amendment No. 122:
In page 29, subsection (9), lines 19 and 20, to delete all words from and including ", where" in line 19 down to and including "understands," in line 20.
I wish to refer to the related amendments Nos. 126 and 386, which I have tabled. It is imperative we have a fair and transparent protection procedure in place. We do not want the current situation to continue, whereby there is a litany of court actions taking place involving challenges to the procedure being employed for making a determination on an application. Throughout the protection process, the initial examination is referred to continually. In considering any application, it is vital that an independent advocate is present to ensure all the correct procedures are complied with and that notes are taken on behalf of the applicant. This is to ensure, as far as possible, that there is an accurate record. It is also to ensure that person puts forward all the relevant information at that time. From talking to protection applicants or asylum seekers I know it is very difficult to remember everything. This relates not just to asylum seekers. Each of us here deals with ordinary cases on a day-to-day basis such as assisting a person in filling out a medical card or old age pension application. In such cases it is not unusual for the applicant to telephone the next day to add something he or she forgot. It is important that, in so far as possible, all the information is provided through this mechanism. To ensure that happens it is important there be an advocate on behalf of the protection applicant.
From his previous Ministries the Minister will know about the appeals office of the Department of Social and Family Affairs. A person making an oral appeal has the right to have a representative there such as a family member or legal representative. In many cases we public representatives have gone along to such oral hearings to ensure that person puts forward the best possible case and that all aspects of the case are fully considered in the context of the application before the Department. In light of the fact that this interview is of such importance, it is imperative that all the possible checks and balances are put in place to ensure people get a fair hearing. In the context of dealing with later wrath, I hope we will see a fair system put in place to ensure people do not take court challenges and that our courts are not tied up with many of these cases in the future.
The Deputy is lucky he is getting a mobile phone signal.
No call is coming in, so I do not know how I am getting a signal.
This would be a great place for a prison. It is a mobile signal desert.
The officials might get signal blockers, as they are suggesting for the jails. Some of us are trying to be in two places at once.
Members will excuse me in this instance. I wish to speak on amendment No. 122, which is related to amendment No. 125. These amendments are trying to ensure the initial examination of a protection applicant is conducted in a language the applicant understands. This has been a serious failing of the system. The law, as drafted, requires only that the language issue be examined where necessary and practical. While I understand there may be practical difficulties in ensuring one has a qualified translator on every occasion, it is necessary, and if it requires a little extra time, that should be given. That will deal with some of the concerns people have because having the initial examination in a language the applicant understands means there will be no doubt at a later stage whether the applicant understood exactly what was required of him or her. It also means the State knows exactly what the protection applicant seeks and the full circumstances of his or her case at a very early stage. It is practical, necessary and in the long-term interest of the State to ensure people get a fair hearing at the initial stage, given all the other changes suggested.
I have to oppose these amendments. Regarding amendment No. 122, to which Deputy Ó Snodaigh referred, one must accept that it would not be practical to provide an interpreter in all circumstances at the frontier for the purpose of the ordinary immigration examination under section 23 of all non-EEA nationals on arrival. It may not be possible to provide an interpreter for the language or dialect spoken by the applicant. I emphasise that the absence of an interpreter does not in any way prevent an applicant from being granted entry to the State for the purpose of having his or her application determined. The absence of a common spoken language between immigration officers and arriving foreign nationals occurs on a daily basis at our points of entry but does not prevent those arriving from conveying the information an immigration officer may require of them or, when necessary, conveying an expression of fear that gives rise to the protection application.
If this requirement were to be included in the Bill, it would require that many perfectly ordinary people arriving at our shores would have to be detained at the point of entry, perhaps for some hours, until the services of a suitable interpreter could be secured, whether they seek protection here. We should be careful not to impose statutory requirements on immigration officers with which, through no fault of their own, they may be unable to comply and which would do a disservice to a substantial number of travellers passing through our ports of entry.
The idea of guaranteeing the entry of people who require protection to allow them to apply is in the Bill. From a practical point of view, to put in an absolute requirement in this respect would cause serious difficulties. We are aware that in cases where interpretation is deemed necessary by the GNIB officers, telephone interpretation has taken place at ports of entry. These details are then transmitted to the ORAC, with specific reference made to the interpretation having been provided.
Amendments Nos. 126 and 386 presuppose that all foreign nationals require an advocate when making an initial protection claim to an immigration officer or an official of the Minister. They also presuppose that it is within the UNHCR mandate to certify advocates for the purpose of assisting foreign nationals making such applications. The interview envisaged under sections 23(9) and 73(4) is a preliminary interview which entails the taking of basis facts and details from the protection applicant. It is not the substantive interview which seeks to determine whether a protection applicant is entitled to protection in the State. This initial interview is the first acceptance of the protection application but the applicant does not need an advocate to be able to tell an immigration officer or Minister's official such basic, biological details as name, gender, age, nationality and route taken to arrive in Ireland. These details are referred to in section 23(7) and are fairly basic facts to start the application. Nor is it necessary to have a legal advisor present when conveying in very general terms that one has a fear of being returned to the country of origin, which is all that is required at the preliminary stage to allow a person to make an application. In the normal course of events, once a protection application has been made, the applicant is made aware of the services provided by the Refugee Legal Service so that he or she may have the opportunity to avail of free legal assistance on completing a questionnaire relating to the protection claim and every other step thereafter in the protection process.
Could the Minister indicate the section under which the substantive interview takes place?
It is found in sections 73 and 74 to which I referred.
The Minister actually said that section 73 did not refer to a substantive interview. That was in his note.
Section 74 refers to the Minister's investigation of protection applications.
Is the Minister referring to section 74?
Section 73 concerns the preliminary stage, that protection application and information be given to the protection applicant about procedure.
How does the amendment stand?
I do not know if it is covered in amendment No. 122. Regarding amendments Nos. 126 and 386, I accept what the Minister said in his response. I must examine section 74. Perhaps the protection is already in place in that section with regard to having an advocate present. It appears to be.
I refer the Deputy to section 74 subsection (2) where it states: "As part of the investigation under subsection (1), the Minister shall cause the protection applicant to be interviewed.” If a person wishes to have a lawyer that is provided for in the text as an entitlement.
The applicant can have an advocate present at that interview.
That is the case. The Refugee Legal Service provides free legal advice.
I have a simple question for the Minister. Under section 74 and the relevant subsection to which the Minister has referred, I presume that if the applicant seeks a lawyer the State is required to discharge the cost.
Amendment, by leave, withdrawn.
I move amendment No. 123:
In page 29, subsection (10), line 23, to delete "foreign national who indicates that he or she has made or" and substitute the following:
"A foreign national who has made or who indicates that he or she".
Amendment agreed to.
Amendments Nos. 124, 158, 161 and 162 are related and may be discussed together.
I move amendment No. 124:
In page 29, subsection (10), lines 24 and 25, to delete ", subject to section 25(4),”.
These amendments refer to section 25(4) which we propose to delete. That section provides that a person who is subject to an exclusion order may be denied entry even if he or she wishes to seek protection. That sounds logical unless the person has sought the consent of the Minister in the first place. In most circumstances there might be a logic to that but the right to seek protection is a fundamental right in international refugee law and should not be subject to such a requirement.
This would become especially important if in the future Ireland opts into the Schengen information system or any similar arrangement under which an exclusion order may be made simply because of information received from those systems. Such information is not always accurate. There is a possibility that a person might be excluded from this country on the basis of inaccurate information and would therefore be denied the right to seek protection unless the permission of the Minister were granted. However, since the Minister would be acting according to the same wrong information I cannot see that he or she would overturn the initial exclusion order.
I ask the Minister to accept these amendments or, at very least, to examine them again so that we can assure ourselves that there is no possibility that such a circumstance would arise. Far too often, incorrect information has been provided by these systems. I instanced the McBrearty case on several occasions. In that case, incorrect information prevented Frank McBrearty Junior from entering the United States because of uncorrected information that country had on its system although Mr. McBrearty had subsequently been found not guilty. There are cases where incorrect information is exchanged between countries or kept on systems such as the Schengen information system. We must make sure people have the right to seek protection.
I apologise because I must to go back to the Dáil but I shall return.
My interpretation is that, first, we are not in the Schengen agreement, although we are in the common travel area, and, second, to enter the agreement would require legislation. I assume that only in that event would it be necessary to obviate a circumstance such as Deputy Ó Snodaigh has instanced. It is a matter for the Minister.
I oppose these amendments. Section 117, which is based on section 4 of the Immigration Act 1999, enables the Minister, by order, to exclude a foreign national from the State if that is considered necessary in the interests of national security, public security, public order or public policy. It would be a rare and serious step to make such an exclusion order in respect of an individual and I understand that the most recent such order made related to Peter Menton, a Dutch art collector and war criminal, who had a property in the south east of this country. It was thought likely that he would come and live in that house after his release from prison in the early 1980s.
The order is made against a person who might seek to come to this State but whose presence in the State is undesirable from the perspective of national security, public security, public order or public policy, for example, war criminals or persons who have committed particularly heinous acts against humanity. I point out that the type of person against whom an exclusion order would be made would generally be excluded from protection under the EU qualification directive. In such circumstances I am satisfied it is correct that the person in question be excluded from making a protection claim in the State unless the Minister gives consent.
I stress that the purpose of section 25(4) is not to prevent a person who has arrived here from making a protection claim but rather to let the decision to permit a protection claim in those very rare and serious circumstances be a matter for the Minister of the day, rather than one by simple operation of the law. For that reason I cannot agree with this group of amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 125 to 127, inclusive, not moved.
I move amendment No. 128:
In page 29, between lines 33 and 34, to insert the following subsection:
"(13) Where a foreign national has given an indication referred to in subsection (9), due regard shall be had to the particular circumstances of the person concerned, including—
(a) when assessing whether the person presented himself or herself as soon as practicable under subsection (1), and
(b) when seeking information or the production of documents under subsections (5)(c) or (6).”.
There are two elements to this, the first regarding the assessment of a person who presents himself or herself as soon as is practicable under subsection (1). We have discussed situations where this might cause problems in respect of previous amendments, namely, amendments Nos. 112 and 116. In that context I ask the Minister to look at that aspect of the matter.
The second element regards the seeking of information or the production of documents under subsections (5) and (6). It comes back to a situation in which a person flees a country without having time to get required documentation. We have discussed this issue along with other amendments. I wish to hear the Minister's response to this amendment.
My view is that the proposed amendment is unnecessary in that it seems to be predicated on the interview in subsection (9) being the substantive interview. We referred to what is the substantive interview in section 74 where all aspects of the applicant's claim, including credibility, will be assessed. It is not at the initial stage. The interview under section 23(9) is a preliminary interview which entails the taking of the basic biological and journey details from the protection applicant. In essence, it is the taking at first instance of the protection application. The officer will not be concerned as to whether the application is being made as soon as practicable. Once the foreign national gives the indication that is required in section 23(9), he or she will be granted the protection application entry permission. That would then allow him or her to enter the State for the purpose of having the application determined, therefore, we believe the amendment is unnecessary.
Amendment, by leave, withdrawn.
Amendments Nos. 129, to 131, inclusive, and amendments Nos 388, 390 and 404 are related and may be discussed together.
I move amendment No. 129:
In page 29, subsection (13), line 34, to delete "A record" and substitute "An audio recording".
Again, the Minister will say we are looking at this issue in the wrong section. I accept we should be examining the amendments in the context of section 74. Will he have a look at what is being sought in the context of section 74? Rather than us having to draft amendments, if required, for Report Stage, will the Minister and his officials look at what is being sought in the context of section 74 and table amendments if deemed necessary to ensure the proper checks and balances are put in place. The Minister is aware of where we are coming from and what we are trying to achieve.
I can undertake to look at it but I have to say that recording of the substantive interview could be a very expensive operation.
Amendment, by leave, withdrawn.
Amendments Nos. 130 and 131 not moved.
Amendment Nos. 132 is in the name of the Minister. Amendment No. 133 is related and an alternative. Amendments Nos. 132 and 133 may be discussed together.
I move amendment No. 132:
In page 29, subsection (15), line 45, to delete "subsections (9) and (10)” and substitute “subsection (9)”.
This is a drafting amendment. There is no need to refer to subsection (10) at subsection (15) as the words being defined only appear in subsection (9). Deputy Finian McGrath's amendment No. 133 is opposed. The words being defined in subsection (15) are not used in sections 19 or 22. The amendment is, it appears, predicated on the Deputy's earlier amendments to sections 19 and 22 which have not been accepted. The words being defined are not included in the Deputy's earlier amendments.
Amendment agreed to.
Amendment No. 133 not moved.
Question proposed: "That section 23, as amended, stand part of the Bill."
Section 23(6)(b)(vii) reads:
where the officer has reasonable cause to believe that a person has any of the diseases, illnesses or conditions set out in subsection (14),to require the person to undergo a medical examination by a registered medical practitioner.
I appreciate this is at the initial stage. I presume there are certain procedures that must be adhered to. For example, an officer must have good cause to refer a person for a medical examination. In that context, perhaps the Minister would come back to us with a note on the issue of screening of migrants coming in. My understanding is that screening is offered to asylum applicants and for one reason or another they may or may not take up that offer. Perhaps we should do more to encourage people to avail of the voluntary screening and point out to them that this will have no bearing on the determination of their application for protection here. I ask the Minister to look at that issue in that context of the medical examination.
I will provide the Deputy with a note but obviously it is a very fine line.
There could then be a suggestion that the State is, in fact, demanding that all applicants be screened. We have to be very careful. They are encouraged to avail of screening which is voluntary and that is laid down in this legislation.
Perhaps we should be more proactive by encouraging screening. I know it is a very fine line.
It goes back to the point that 85% to 90% of applicants are already in the country for a considerable time before they apply.
Question put and agreed to.
SECTION 24.
Amendments Nos. 134 to 139, inclusive, not moved.
I move amendment No. 140:
In page 30, subsection (1)(b), lines 10 and 11, to delete all words from and including “that” where it firstly occurs in line 10 down to and including “responsibility.” in line 11 and substitute the following:
"that person to satisfy him or her that the person is taking that responsibility and is authorised to do so.".
Amendment agreed to.
Amendments Nos. 141 to 153, inclusive, not moved.
Question proposed: "That section 24, as amended, stand part of the Bill."
The Minister will note that the next amendment is amendment No. 154, but it has been ruled out of order because it would impose a charge on the Exchequer. However, the objective underpinning it is to ensure that protections are put in place--
Is that amendment not to section 25?
No, this relates to section 24. Certain provisions have been put in place covering people under the age of 18, rightly so. We had a long debate on that issue. I want to ensure that similar protections will be put in place to cover a person with a mental impairment. I do not know how often such circumstances might arise, but similar protections should be put in place to provide for those people. I do not know if the legislation provides for this. As my amendment was ruled out of order, I will not have the opportunity to debate what it proposes. I suggest that a mechanism, similar to that providing for minors in section 24, be put in place to provide for a person who is mentally impaired and requires the protection of the State and an advocate, such as the HSE - if it can be called an advocate, but that is a debate for another day.
I accept the Deputy's point concerning the implications for people under the age for 18 years in section 24. This matter is essentially a discussion for section 25 and the Deputy's amendment has been disallowed. To impose a requirement on an immigration officer to make an assessment of a foreign national as to whether he or she is mentally impaired would put a huge onus on him or her. The reality is that, from a practical point of view, an officer would have a discretion to consult the HSE if something came to his or her notice, but to put a specific statutory onus on him or her in that respect would be over-prescriptive. It would also place a huge burden on individual immigration officers. That matter would be better left to their discretion.
What would happen if an immigration officer consulted the HSE and it was found the individual in question was not competent enough to be an advocate for himself or herself?
I suspect that a legal advocate from legal services would be taken on board in such circumstances.
Will the Minister come back to me with a note clarifying the position regarding such an individual?
Yes. It would be rare, but there may be circumstances where that could happen.
Question put and agreed to.
SECTION 25.
Amendment No. 154 has been ruled out of order.
Amendment No. 154 not moved.
Amendment No. 155 is in the name of Deputy Finian McGrath; amendments Nos. 156 and 157 are related and alternatives. Therefore, amendments Nos. 155 to 157, inclusive, can be discussed together.
I move amendment No. 155:
In page 30 subsection (1), lines 38 to 43, to delete paragraph (a) and substitute the following:
"(a) The Minister shall permit or refuse to permit a foreign national to enter the State in accordance with this Act and regulations made under section 127 and may, in permitting a foreign national to enter the State, make that permission (in this Act referred to as an “entry permission”) subject to conditions.”.
I will speak on this amendment and the related amendments Nos. 157 and 157. My concern in this respect is that the Minister is being given a blank cheque in regard to regulations. These regulations covering the restrictions we are discussing should at least be published and, thus, be in the public domain. It is imperative to ensure there is public confidence in our immigration system and that people know who is being given or denied permission to enter the State. I hope the Minister can accept these amendments.
No, unfortunately, I cannot. Subsection (1)(a) already provides what Deputy Finian McGrath’s amendment seeks. As drafted, the subsection allows the Minister to permit or refuse to permit a foreign national to enter the State and may make any permission given subject to any conditions. Where regulations have been made under section 127 that are relevant to the circumstances of the particular person, the exercise of that power will be subject to those regulations. It is intended to be an empowering measure rather than something that is prescriptive, although, obviously, the regulations will be prescriptive.
It could also be the case that what is set out in the proposed amendment could limit the power of the Minister to exercise discretion in individual cases and in particular to grant immigration permission to a person who, by strict application of the Act and regulations, is not entitled to it. Examples would include individual hardship cases or more general schemes such as the IBC/05 or action in the area of undocumented workers. Deputy Naughten's amendments do not enhance the provision; they could have a negative effect for essentially the same reason.
Once the regulations are in place under section 127 that apply to a particular entrant, then both the granting of the entry permission and the attaching of any conditions can only apply in accordance with the regulations, whatever they provide. However, we need to consider the possibility of a set of circumstances arising which were either not anticipated by regulations or not appropriate to be dealt with in that manner.
Experience has shown that the prospective migrant population is enormously diverse and that there are many reasons people come to Ireland. Even countries with long migration histories and large administrations still come across new scenarios. The system has to retain capacity to deal with such cases and to supplement these regulations with administrative guidelines and operation instructions which cannot be invalidated by the absence of a specific regulation. I am all in favour of the objective providing greater clarity in the immigration system for the benefit of all who have dealings with it. However, we must ensure the desire for clarity is not at the expense of becoming so rigid that the system is hamstrung in its operation.
Does this presume there are regulations on the stocks contemplated by the Minister that he will make as soon as section 127 is enacted? What is the difficulty with promulgating the regulations so that we are able to know precisely what conditions apply here?
We are in the process of bringing forward regulations under section 127 to cover as many circumstances as we can.
Let us suppose the Bill is ready to be taken on Report Stage when the Dáil resumes, although I doubt it and I am not saying in which year--
I hope before the apples fall.
On a critical matter such as this - the granting of permission to enter the State - how soon thereafter does the Minister see such regulations being available to practitioners and others interested in the issue?
It is our desire to have the regulations in place as soon as possible, although I cannot say how many months after the Bill has been passed. Given the fact that we are working on the Bill which is sizeable, most of the attention is on dealing with the amendments and having the legislation passed. It is our intention to have regulations in place as soon as possible after the Bill has been passed.
In a critical area such as this it is not too difficult to foresee regulations being made that would greatly constrain what might normally be read into section 127. It is a little difficult for us to form an opinion in the absence of finished guidelines before us in terms of what regulations are likely to be made.
I can give the Deputy an undertaking that, as far as possible, we will have the bones of what we intend to include in regulations as we proceed with the Bill. However, there are practical issues in trying to deal with the legislation and getting as far as section 127. I accept the Deputy's point that it would be desirable for the Oireachtas to have the regulations. Quite a number which will be required under the Bill will be available contemporaneously, but there will be others to be made under section 127. As Deputies understand, they are complex as they concern the issue of granting permission. As I said, there is a desire to have clarity but at the same time that may constrain us in terms of what circumstances may throw up.
I cannot see why the Minister has a problem with amendment No. 156. The legislation, as drafted, states the Minister may, subject to any regulations under section 127, permit or refuse to permit a foreign national entry to the State. That means that there do not need to be regulations under section 127 and that everything can be decided by administrative guidelines. The difficulty with the guidelines is that they have not been published. As such, we do not know what they will contain. The amendment seeks to ensure they would set out broad parameters concerning who would or would not be granted permission. If the Minister is serious about having transparency about the immigration system, surely amendment No. 156 would facilitate him in so doing. It would ensure such regulations were passed, published and placed in the Statute Book. It is important to accept it.
I can guarantee that we will have regulations under section 127.
I am seeking a guarantee that section 127 will provide for regulations concerning section 25(1).
If that is the case, why is the word "any" required?
Therefore, we do not need to have any regulations.
The regulations may not cover every aspect.
I accept that, but that does not take away from the point I am making. As drafted, the Bill states the Minister may, subject to any regulations under section 127, permit or refuse to permit a foreign national entry to the State. The regulations may still not cover that aspect, however.
If we were to remove the word "any", it may well make some situations difficult in the context of decisions to be made in specific cases which may not comply with, or be anticipated under, the regulations. My advice is that it would leave us with no discretion.
In the light of the fact that the Minister is giving a commitment that there will be regulations under section 127 concerning section 25(1), I am prepared to withdraw both amendments on that basis.
Amendment, by leave, withdrawn.
Amendments Nos. 156 to 162, inclusive, not moved.
Amendments Nos. 163 to 166, inclusive, are related and may be discussed together.
I move amendment No. 163:
In page 31, subsection (5), lines 15 and 16, to delete "permits to enter the State" and substitute "grants an entry permission to".
This amendment contains drafting changes to subsection (5) for the purposes of consistency of terminology. The amendments will ensure the Bill refers to the granting of an entry permission at lines 15, 16 and 20 and a requirement to hold a valid residence permit at lines 17 and 19.
Amendment agreed to.
I move amendment No. 164:
In page 31, subsection (5)(a), line 17, after “a” to insert “valid”.
Amendment agreed to.
I move amendment No. 165:
In page 31, subsection (5)(b), line 19, after “a” to insert “valid”.
Amendment agreed to.
I move amendment No. 166:
In page 31, subsection (5)(b), line 20, after “the” where it secondly occurs to insert “entry”.
Amendment agreed to.
I move amendment No. 167:
In page 31, subsection (7)(b), line 31, after “Minister” to insert “or any other information holder”.
Amendment agreed to.
Amendments Nos. 168 and 170 are related and may be discussed together.
I move amendment No. 168:
In page 31, between lines 31 and 32, to insert the following subsection:
"(8) The duration of an entry permission shall not exceed 90 days.".
Amendments Nos. 168 and 170 are drafting amendments which have the effect of moving subsection (2) of section 26 to be a new subsection (8) of section 25 where we believe it properly belongs.
Amendment agreed to.
Amendments Nos. 169, 187, 193, 207 and 208 are related and may be discussed together.
I move amendment No. 169:
In page 31, between lines 31 and 32, to insert the following subsections:
"(8) Subject to subsection (9), where a person has been granted a visa and that visa has not been subsequently revoked, he or she may not be--
(a) refused an entry permission; or
(b) granted an entry permission subject to conditions or for purposes which are less favourable to him or her than those in the visa.
(9) Subsection (8) shall not apply where the Minister, or an immigration officer acting on his or her behalf, is of the opinion that:
(a) the visa was granted on the basis of information (including information about the purpose of entry or presence) which was false, incomplete or otherwise misleading;
(b) the presence in the State of the holder of the visa would not be conducive to public security, public health, public policy or public order (“ordre public”);
(c) circumstances existing at the time when the visa was granted have changed and the nature of the change is such that, had the new circumstances existed at that time, the visa would not have been granted.”.
These are substantive amendments. Could we leave them until the next meeting?
They are significant and will need significant discussion.
As it is 1 p.m., we will adjourn and meet next Tuesday between 2 p.m. and 5 p.m. and next Wednesday between 2 p.m. and 5 p.m.
Progress reported; Committee to sit again.
The select committee went into private session at 1 p.m. and adjourned at 1.10 p.m. until 2 p.m. on Tuesday, 15 July 2008.
