We resume on section 45. Amendments Nos. 271 and 282 are related. Amendment No. 281 is an alternative to amendment No. 282 and must be grouped with it for discussion purposes. Amendments Nos. 271, 281 and 282 will be discussed together.
Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).
SECTION 45.
I move amendment No. 271:
In page 52, lines 20 to 29, to delete subsection (11) and substitute the following:
"(11) (a) A foreign national present in the State whose permission is the subject of a proposal mentioned in subsection (1) shall, if present in the State, be deemed to be lawfully present in the State until the relevant date although his or her permission has earlier expired.
(b) In the case of an entry permission which states that its holder is eligible to apply for permission to reside in the State, the relevant date shall be such a date as the Minister may appoint, being no sooner than whichever of the following dates is later-
(i) one month after the date on which the period within which representations under subsection (4) may be made expires, or
(ii) if representations under subsection (4) are duly made, one month after the date on which a decision to revoke is notified.
(c) In the case of an entry permission which does not state that its holder is eligible to apply for permission to reside in the State, the relevant date shall be such a date as the Minister may appoint, being no sooner than whichever of the following dates is later-
(i) the date on which the period within which representations under subsection (4) may be made expires, or
(ii) if representations under subsection (4) are duly made, the date on which a decision to revoke is notified.
(d) In the case of any other permission, the relevant date shall be such date as the Minister may appoint, being no sooner than whichever of the following dates is latest-
(i) 3 months from the date on which the period within which representations under subsection (4) may be made expires,
(ii) if representations under subsection (4) are duly made, 3 months from the date on which a decision to revoke or not to renew the permission is notified,
(iii) in the case of non-renewal only, the date of expiry.
(e) Nothing in this subsection prejudices the right of the Minister to renew or not to revoke the permission”.
I welcome the Minister of State. This is my first public opportunity to congratulate him and to wish him well in his new role, particularly given his serious responsibility.
My amendment refers to a "foreign national present in the State whose permission is the subject of a proposal mentioned in subsection (1) shall, if present in the State, be deemed to be lawfully present in the State until the relevant date although his or her permission has earlier expired”. The other subsections address other details. I seek the Minister of State’s opinions and I ask him to consider my amendment seriously. Nothing in it would prejudice the right of the Minister to renew or not to revoke permission. Will the Minister of State take on board the ethos of the amendment?
I thank the Deputy for his kind remarks. The amendments are opposed. The effect of the first and second amendments would be to add a further layer of procedure to the Bill, which arguably has robust, fair and transparent procedures whereby an individual can apply for the status as appropriate, the State considers the application as fairly as possible, several opportunities are given for review and due criteria are applied.
The overarching principle of the Bill is that an individual is either lawfully or unlawfully present in the State. To allow for this further period would be to step down from this general principle. It would add a layer of procedure. The Bill is framed so that an individual is already on notice of the fact of unlawful presence in the State by reason of his or her actions in coming here unlawfully in the first place, being notified of a revocation or being aware of the conditions of an existing permission. In those circumstances, while there is no doubt about the bona fides of Deputy McGrath in tabling this amendment, it does not fit into the principles of the Bill and it is opposed.
I thank the Minister of State and take his point about layers of procedure. It is important that we reflect on the need for a strong human rights, humanitarian ethos in the legislation. I tabled amendment No. 271 to bring that situation on board to ensure people's rights are protected and that they are in a safe situation. When referring to lawfully and unlawfully present in the State, we have the example of the Irish in the US. We are constantly arguing with the US about the protection of the rights of our citizens, many of whom are there unlawfully. This is an important point. I am trying to put forward ideas to ensure immigrants are treated with respect and dignity and that the rights of those arrested are protected.
The Bill in general reflects current international thinking on immigration, which has as one of its core principles the recognition of human rights. The Bill also reflects the rights of those who apply for status in the correct way, who are at the forefront of our thoughts. We want to direct our resources to protecting the rights of those who comply with the conditions of a residence permission. We should favour and protect those who comply with the law over those who seek to avoid proper procedures and conditions.
It is worth noting that there is one exception. An individual who has been here for more than five years is given a period of three months' grace, although it would be unusual that someone who has been here for five years would be required to leave the State. In any case, the provision is there and acknowledges the human rights element.
We have come across numerous instances of the five year calculation, especially when it applies to those who apply for citizenship. A person may go on holidays or go home to the country of origin within that five year period and that time is taken out of the five year period. I refer to the definition in section 45(15). Does the continuous five year period make provision for a person visiting relatives, for example? It is not unusual for many Irish people living abroad to come home for a funeral, wedding or other family occasion. Does the clock start ticking again once they return to this country? Many people could be under the impression based either on their work or residency permit that they have fulfilled the five year condition. However, the fine print could cause them difficulties.
I support Deputy Naughten on what he stated. It is a disincentive for people to return to their home countries in that if we have a fixed five year provision which does not take account of normal holidays or the family events to which Deputy Naughten referred there is no reason for people to take the risk of returning. If we have a flexible attitude to the five year period with normal life and family events taken into account there is a chance that a certain percentage of people who go back may not even return to Ireland so we should not be so rigid on it.
The comparison with those in the US illegally does not apply because they are not there lawfully whereas we are dealing with individuals who are here lawfully. The phrase used in section 45(15) is that they are "lawfully resident". I am thinking in terms of tax legislation of what constitutes lawful residence. Although it states it must be continuous for a period of five years, I am informed this is interpreted fairly liberally. It is probably informed by the concept of lawful residence, not necessarily meaning being present in the State at all times over a five year period so if someone visited Carlingford for an afternoon it would not be a break in the five year period.
Perhaps we can get clarification on this for Report Stage. This is an issue and I am sure it was not the intention of the citizenship legislation either but it is the interpretation being given. If one visited Carlingford for an afternoon the period of time must be made up before one is deemed eligible under the citizenship legislation. We are dealing with the letter of the law on one interpretation of five years. This is why the manner in which it is calculated must be clarified in the Bill. Clarity is not provided at present.
I am informed by my advisers that Carlingford is in the Republic. I do not even cross the Liffey that much, never mind--
Jonesboro.
If one departs from an airport or seaport it is taken into account.
In fairness to Deputy Naughten, I will seek clarification on it.
Does the Minister of State agree that the Minister will provide clarity on Report Stage?
It not an unreasonable request.
Amendment, by leave, withdrawn.
Amendments Nos. 272 and 273 not moved.
I move amendment No. 274:
In page 52, lines 38 to 41, to delete subsection (14) and substitute the following:
"(14) The date on which a decision is notified is the date when the notification of the decision was received or deemed to have been received by the foreign national under section 121 (whichever was the earlier).”.
Section 45(14) provides that a decision to revoke a residence permission becomes effective from the date on which the notification decision is received or deemed to have been received by the foreign national concerned. In this manner, the Bill clearly defines a date from which the decision is to have effect. The effect of Deputy McGrath's amendment is that the subsection would no longer fix the date of effect of the decision but merely the date on which the decision was notified. In these circumstances I cannot accept the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 275 to 278, inclusive, are related and will be discussed together.
I move amendment No. 275:
In page 52, lines 42 to 46 and in page 53, lines 1 and 2, to delete subsection (15).
Amendment No. 276 provides additional clarity to the Bill and I hope the Minister can accept it.
Deputy McGrath's amendment follows on from what we have discussed previously concerning amendments Nos. 271 and 282. They contemplate that those two amendments would have succeeded. Having dealt with and withdrawn them, I submit that amendments Nos. 275 and 277 would consequently fall, in logic, assuming as they do that there is a three month period of grace that is not provided for in the Bill.
The aim of amendment No. 276 is to ensure that notice of the moratorium is to be given to a person to whom it applies. We do not have a problem with that in principle and undertake to bring forward a suitable amendment on Report Stage to achieve that aim. On that basis, I urge Deputy Naughten to withdraw his amendment.
Amendment No. 278 is necessary for consistency of language throughout the Bill.
Does Deputy Naughten wish to make any further comment?
No, I am happy with the Minister's response.
Does Deputy McGrath wish to make any comment?
How stands amendment No. 275?
Amendment, by leave, withdrawn.
Amendments Nos. 276 and 277 not moved.
I move amendment No. 278:
In page 53, subsection (16)(a), lines 5 and 6, to delete all words from and including “to” in line 5 down to and including “remain” in line 6 and substitute the following:
"to national security, public security or public order or contrary to public policy ("ordre public“) that the foreign national should remain”.
Amendment agreed to.
Amendments Nos. 279 and 280 not moved.
I move amendment No. 281:
In page 53, lines 15 and 16, to delete subsection (18) and substitute the following:
"(18) When providing notification to a foreign national under this section, the Minister shall not disclose information if to do so would not be in the interests of national security, public security or public order or would be contrary to public policy ("ordre public”).
(19) Where the information referred to in subsection (18) has been supplied to the Minister by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information will be kept confidential, the information shall not, except with the consent of that government, be dealt with otherwise than in accordance with the undertaking.”
Amendment agreed to.
Amendment No. 282 not be moved.
Question proposed: "That section 45, as amended, stand part of the Bill".
On the section, I refer again to subsection (11) which begins: "A foreign national present in the State whose residence permission is the subject of a proposal mentioned in subsection (1).” The subsection then refers to residency permission that has earlier expired. How does this comply with the summary deportation provision under section 54, where it only needs to appear to the immigration officer that a person is unlawfully present in the State? There seems to be a contradiction between section 54 and section 45, subsection (11). I ask the Minister to clarify that issue.
The phrase "summary deportation" does not arise in the Bill, although it has been referred to by Deputies on Second Stage and during earlier Committee Stage discussions. Subsection (11) is what guarantees that and is the basis on which I can assert that there is no summary deportation. There will not be summary deportation. That is something all of us would oppose. It is an important ingredient in ensuring fair procedures in all circumstances where a revocation takes place, particularly in respect of renewable permits.
The previous subsections which set out the criteria on which the decision shall be taken reflect the way our European colleagues deal with these types of application. It could be argued that it would be difficult to describe the process as summary given the amount of care and thought devoted to the application and the opportunities for individuals to provide explanations.
I shall rephrase my question. How does subsection (11) comply with section 54? It only needs to appear to the immigration officer that a person is unlawfully present in the State. Under the law as it stands, a person is either lawfully or unlawfully present in the State. That has been reiterated on numerous occasions by previous Ministers in their discussions on this Bill. It seems to me that subsection (11) contradicts what has been argued thus far. If the Minister of State is saying subsection (11) supersedes section 54, that is fair enough. I merely want clarity on the matter.
I should have brought it to the Deputy's attention that, if the committee is so minded, it is the Minister's intention to move an amendment to withdraw the phrase where it appears in section 54. That will allow us to address the inconsistency to which the Deputy refers. We can discuss this matter further when we reach section 54.
Deputy Naughten has teased out an apparent conflict in the revocation of renewable residence. Under this section, "revocation" seems a separate matter from "not to renew" despite having pretty much the same effect in terms of the people with whom I interact. Somebody residing in Ireland who worked here for three or four years before his or her work permit expired cannot get an answer regarding where he or she stands. Presumably, that person is technically illegal even though he or she has been working in the State for several years in a job for which he or she was exhorted to apply if not positively recruited. How long can a person be left hanging in such a situation and what, if any, avenues are available? Letters written by me do not produce results.
The courts have obviously dealt with the question of reasonable delay on applications. There is nothing in the Bill that requires any of these applications to be processed within a particular time frame, except in so far as they are guided by decided cases over the years. It is unquestionably the case that they need to be dealt with in a timely fashion.
As the Deputy noted, revocation is not necessarily a different matter to failure to renew a renewable permit. I would have thought that revocation is a more serious event because it could take place during the course of the permission. There is no conflict here with section 54, to which Deputy Naughten is trying to draw the committee's attention.
I am taking Deputy Naughten's clarification for granted and we will see the shape of the Minister's amendment to section 54 when it comes. I am not asserting the same point as Deputy Naughten. For a person earning his or her living in this jurisdiction by consent and in accordance with the law to be left hanging in the matter of renewal puts him or her in the same position as if permission were revoked. It is subject to being stopped by the Garda in terms of his or her doing a driving job. Yet one cannot find a way through the bureaucracy. He or she does not qualify for a revocation because he or she meets none of the conditions set down here, for example, being fully in compliance with the law and having no criminal record.
Section 40(9) deals with this issue where it states "A foreign national who has made a residence review application under subsection (2) shall, if present in the State, be deemed to be lawfully present in the State until the residence review has been determined, notwithstanding that his or her residence permission has expired in the meantime". That deals with the question of non-renewal.
So although a person has not been told about the work permit, for example, he or she is regarded as being lawfully here.
That appears to be the import of the subsection.
The subsection to which the Minister draws my attention seems to relate to a particular subsection (2).
Subsection (11) to which the Deputy refers reflects the same principle that applies in section 40 regarding the decision not to renew a renewable residence permission.
I accept this is very tricky for the Minister to walk into cold. Let us forget about subsection (11) and I will rephrase the question. Let us say a person has residence in this jurisdiction and has been properly working and in receipt of a permit renewed every year for some four or five years but has not had it renewed this year and cannot establish, through me or otherwise, whether it will be renewed. Is that person lawfully working in our jurisdiction?
I am informed that a person working without a work permit is unlawfully in the State.
That was my presumption when we began. It is entirely unsatisfactory that when the economic tide is in flood and it suits us, we can solicit a person in here and give him or her a work permit, but when the tide is falling we leave that person hanging and unable to get an answer.
I will undertake to achieve some clarification on this because we are going around in circles.
May I ask a supplementary question to what Deputy Rabbitte asked? That is the follow-on from that and the people in limbo about whom we have spoken before, the undocumented migrants who came here legally and, through no fault of their own, have fallen out of the system. Maybe the Minister, through his officials, can clarify the situation. I understand the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, planned to introduce a scheme to try to address the anomaly regarding these individuals. Will the Minister of State inform the committee when this scheme will be up and running? My understanding is that it would last for approximately six months prior to the enactment of the legislation. The people involved would have been able to get a job easily 12 months ago. If they find it difficult to get a job now in the changed economic circumstances, will they find it difficult to get back into the system?
I am informed it is a transitional matter. There will be a need for an information campaign to ensure everyone likely to be affected by the changeover from the present to the new arrangements is kept fully aware of the changes. The Minister, on a number of occasions, has referred to his proposals to bring forward an administrative scheme to deal with some categories and that is being worked on at the moment.
Has the Minister of State an idea when it is likely to be in place?
It will be in place in advance of the new system becoming effective but it is being worked on at the moment.
When? I, Deputy Rabbitte and all other members of the committee constantly receive contacts on this matter. Can the Minister of State give us some idea?
By way of explanation, the previous Minister for Justice, Equality and Law Reform committed to doing this on an administrative basis. We have prosecuted a number of matters with a view to giving them expression in primary law but have not had much success. We are promised various regulations but it is very unsatisfactory that so much that is substantive will not be given expression in primary law, emerging instead in regulations at a date we do not yet know. Perhaps there is some merit in the select committee not meeting again until September as the resulting slow progress may facilitate some of those regulations. It would be very helpful if, before we go into the House on Report Stage, we had the bones of some of the schemes promised as well as those yet to be promised.
As I said, the scheme is being worked on. I cannot commit to saying when it will be ready or when the regulations will be laid before the Houses. The scheme will be part of the transition in advance of the new Bill becoming law and will facilitate people in the specific categories to which the Deputy referred. A scheme for people who, through no fault of their own, find themselves unlawfully in the State is being worked on at the moment. I cannot put it any more strongly than that.
Question put and agreed to.
SECTION 46.
Amendments Nos. 283 and 284 are related and may be discussed together.
I move amendment No. 283:
In page 53, subsection (4)(b), line 40, to delete “100” and substitute “100(3)”.
This amendment corrects a cross-reference in subsection (4).
I wish to say something about my amendment No. 284. We discussed this issue at the previous meeting. I have tabled this amendment because it is important. It gives an incentive to a person to leave the State voluntarily. As a result, it will reduce the cost to the Exchequer of having to deport someone forcibly. The suggestion I made to the Minister at the previous meeting was for a window of opportunity for someone who has been picked up by the authorities for deportation to voluntarily leave the State, either through the international office for migration or using their own resources, on the understanding that the person's exclusion from the State would be for a lesser duration. It does not make sense from the taxpayers' perspective that we forcibly deport people from this State. People should be given the opportunity to leave voluntarily.
As we know, provision is now being made in Thornton Hall to detain people pending deportation. There has been much controversy here with regard to our own citizens who have been forcibly detained in US prisons pending deportation. We do not believe it to be an acceptable procedure and a person who is illegally resident here should and must have the opportunity to leave the State voluntarily. That would benefit us and the individual. This amendment allows for the Minister to make provision and give consideration to providing an incentive to a person to leave the State voluntarily. I hope the Minister of State can accept the principle of what I am talking about.
The principle is already in the existing subsection (5) with regard to providing an incentive. The window of opportunity exists and, as such, the Deputy's amendment could be said already to be contained in the section. It is unnecessary and, for that reason, the amendment is opposed.
Is the Minister of State arguing that what I propose in this amendment is a duplication of what is already in subsection (5)?
That is right.
Is it that I am looking for something that is not provided for in legislation? They are two different things, so will the Minister of State clarify the matter?
As currently drafted, subsection (5) is intended to qualify the provisions of subsection (4) and restate the Minister's discretion - which is already section 45(6) - not to make a non-return order or make a non-return order of a reduced exclusion duration when a person has voluntarily left the State before his or her residence permission is revoked. The opportunity exists.
What was the previous sentence?
It is "before his or her residence permission is revoked".
If a person is resident illegally in the State for one reason or another, and working on the presumption the person is fully aware that he or she is resident illegally and not through an administrative error, would such a person come under the provisions of the legislation? The person's residency would not have been revoked because there was no residency in the first place.
We were trying to get to the nub of this issue the previous day with the Minister. He has stated a person can leave voluntarily while still being considered for leave to remain. Once the avenue is exhausted, the person will be forcibly deported. When a person is resident illegally in the State already, the opportunity should be available to such a person to leave the State voluntarily, and the concessions as outlined in section 45(6) would apply.
I am not quite sure what kind of a situation the Deputy is talking about with regard to a person already in the State illegally. Will he give an example?
For example, a person may have come into this State undocumented and he or she may continue to work here. There are a considerable number of such people in this country. There also may be a person issued with a notice of intention to deport who did not submit an appeal for leave to remain. The Minister has considered "leave to remain" applications even when the person concerned has not requested it. On occasion, notification has been sent out - although I do not know the exact procedure - to the former address of an applicant stating that his or her request has been rejected and the Minister's intention is to deport, but the person cannot be found. The person is then illegally resident in the State and, if he or she is picked up by a member of the Garda Síochána, can be deported. At this stage such people should have the opportunity to leave the State voluntarily rather than being forcibly deported.
I do not think so. A person who comes here illegally has ignored the various opportunities available in his or her home country to apply to come here legally and through the correct channels, as others from his or her country have done. People who have come here illegally are on notice that they are here illegally by the very fact of their having come to the country without documents. If a person never had lawful residence in the State under such circumstances, he or she should leave. That is the system.
I am not disputing that. I am asking why the taxpayer should foot the bill for sending such people home if they are prepared to leave the State voluntarily.
The point is that the person concerned would not have shown any intention to leave up to that point--
No, he or she has not.
--so why would one believe that the person would leave voluntarily if he or she were allowed out of a Garda station and given the opportunity to disappear into the night? Even if we hope the person will go down to Rosslare and take him or herself home, he or she may not. Such people have come here without good faith and by ignoring all the existing opportunities. The Deputy is saying we should give them a second bite at the cherry.
I gave several examples and that was just one of them. If such a person is picked up by the Garda, no matter what the circumstances, he or she is illegally resident in the State for one reason or another. Is the Minister of State telling me that in all circumstances, even in the case of someone who, for argument's sake, won the national lottery the previous week, the taxpayer should pay for him or her to be deported? Surely it makes financial sense for that person to be put on a plane and sent home at his or her own expense. However, in the Bill as currently drafted, there is no incentive for people to go home at their own expense.
Section 60 provides for liability for costs of removal, which deals with the problems correctly identified by the Deputy.
How do we get access to the funds of the person deported?
The section is not designed as an incentive for an individual to leave. The Deputy mentioned a person who has won the lottery, but I know he is just trying to illustrate the point. In any case, the provision is there. How it is carried out administratively is not the subject of anything in section 60 or in the Bill.
That is the difficulty we have. We are trying to deal with a Bill even though we do not know how it will be applied on the ground. That is the sad part about it. It is leading to major frustration on this side of the House; we will deal with this issue later when discussing other amendments. There is a fundamental flaw in this legislation and I do not think the Minister of State or the senior Minister is aware of the problems that may result later and the additional unwarranted expense to the taxpayer. I will withdraw the amendment with the intention of reintroducing it on Report Stage and I urge the Minister to give serious consideration to what I say because it is in everybody's interest.
Section 60 deals with many of the Deputy's concerns. It is quite detailed, in fairness, and it is worthwhile reading that section and giving it some thought. Subsection (8) states the costs will be recovered from the foreign national in question as a simple contract debt in any court of competent jurisdiction, with that as the basis on which the moneys shall be recovered. I accept the Deputy is concerned about the nuts and bolts of how that will happen. In primary legislation, however, the overall aim is to provide a broad principle concerning what is to be provided. If the Deputy is looking for an appendix in the Act to consist of a form for the recovery of the contract debt those matters will come under the rules of the District Court or the Circuit Court. One would not expect to find such detail in primary legislation.
I know the Minister has been thrown in at the deep end but if we, as members of the Opposition and as legislators, ask how a particular section in the Act might be enforceable, I think we are entitled to a response.
It is considered to be a contract debt.
I asked how that might be the case. The Minister of State said we should not have questions about the nuts and bolts. We have every right to ask such questions and every right to receive an explanation as to how that rule will be enforced. The Minister of State may not be able to provide that information today but as members we are entitled to have it.
If a person asks how a debt might be recovered from a foreign national who is to be deported, the answer is that recovery is enforceable by way of a contract debt. Section 60 deals comprehensively with those issues.
We shall return to the issue under section 60. We are dealing with amendment No. 283 in the name of the Minister.
Amendment agreed to.
Amendment No. 284 not moved.
Section 46, as amended, agreed to.
SECTION 47.
Amendments Nos. 285 to 287, inclusive, are related and will be discussed together.
I move amendment No. 285:
In page 54, subsection (1), lines 11 and 12, to delete "as part of a group of persons".
These amendments are editorial in nature. Amendment No. 285 removes the requirement for a programme refugee to be part of a group of persons who have been given permission to enter the State for temporary protection or resettlement. In this manner, a person admitted as a one-off will be comprehended by section 47.
Amendment No. 286 clarifies the benefits available to programme refugees and re-states the provisions of the Refugee Act that are applicable to programme refugees. Amendment No. 287 is a drafting amendment.
This relates to an individual who may be a member of a category of programme refugees yet who might not come on the same boat as the rest of his group, arriving instead as an individual. He or she has the rights as enshrined in section 47.
That is correct.
Amendment agreed to.
I move amendment No. 286:
In page 54, subsection (3), line 22, to delete "section 97(3) and (4)” and substitute the following:
"paragraphs (a)(iii), (b) and (c) of section 97(3)”.
Amendment agreed to.
I move amendment No. 287:
In page 54, subsection (4), line 25, after "of" to insert "programme".
Amendment agreed to.
Section 47, as amended, agreed to.
SECTION 48.
I move amendment No. 288:
In page 56, subsection (15)(b), line 33, after “document” to insert “relating to the foreign national”.
The purpose of this amendment is to clarify that the travel document referred to in subsection (15)(b) is that which relates to the foreign national in respect of whom the Minister is co-operating with another member state for the purposes of subsection (13), namely, the transfer of the foreign national to the State or to the member state or for family reunification purposes.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49.
I move amendment No. 289:
In page 57, subsection (2)(b), lines 13 and 14, to delete all words from and including “interests” in line 13 down to and including “public”).” in line 14 and substitute the following:
"interests of national security, public security, public health or public order or would be contrary to public policy ("ordre public”).”.
Amendment agreed to.
Section 49, as amended, agreed to.
SECTION 50.
Amendments Nos. 289a, 289b and 289c not moved.
I move amendment No. 290:
In page 58, subsection (6), lines 11 and 12, to delete all words from and including "he" in line 11 down to and including "97(3)" in line 12 and substitute the following:
"the conditions attaching to that permission are those specified in paragraphs (a) (iii), (b) and (c) of section 97(3)".
This amendment clarifies the benefits available to family members of persons granted protection in the State either as refugees or persons eligible for subsidiary protection and restates the provisions of current law in this regard.
My three amendments in this regard are, presumably, regarded as an imposition on the Exchequer and that is why they were ruled out of order. My amendment No. 289a sought to insert “or a person to whom section 47(1) applies”. Section 47(1) refers to programme refugees. Under section 47(1) by injunction of the United Nations a number of people are accepted in Ireland by the Government in circumstances. I am aware that technically I am out of order, but does that mean that if I am a Bosnian Muslim my family member cannot join me because I am a programme refugee, although I may not be a refugee in terms of the definition of the Act generally?
The status of programme refugee is granted by virtue of an assessment by the United Nations High Commissioner for Refugees. A considerable time is invested by the UNHCR in the areas where programme refugees are located in advance of selection missions from Ireland. The practice is for the UNHCR to then submit a dossier in respect of each family unit to the office of the Minister with responsibility for integration which co-ordinates the resettlement programme. The selection mission then travels to the location in question to interview the family members. Effectively the situation is that whereas in the case of a person applying for protection in the State the inquiry is made by the Irish State, in this case in regard to programme refugees the investigation is carried out by the UNHCR.
So a family member such as is contemplated in my amendment could hope, through that route, to join his family members in this jurisdiction.
That is my understanding of it.
Amendment agreed to.
Amendment No. 290a not moved.
I move amendment No. 291:
In page 58, subsection (9), lines 28 and 29, to delete paragraph (a) and substitute the following:
"(a) that it is in the interests of national security, public security, or public order or necessary for reasons of public policy ("ordre public”), and”.
Amendment agreed to.
I move amendment No. 291a:
In page 58, between lines 32 and 33, to insert the following subsections:
"(5) A decision of the Minister under this section shall be subject to an independent appeal, and the Minister shall make regulations governing such appeals.
(6) Where-
(a) the applicant has ceased to be a person entitled to protection;
(b) the applicant has died;
(c) the circumstances giving rise to the grant of residence permission under this section have otherwise materially changed (whether by breakdown of marriage, the cessation of dependency or otherwise);
the person who was granted a residence permission under this section may apply to the Minister for the renewal of his or her residence permission notwithstanding paragraphs (a), (b) or (c) above and in deciding on his or her application the Minister shall have regard to the best interests of any child affected and the matters listed in sections 45(8) and (9) and shall comply with section 53(1).”.
Amendment No. 291a seeks to insert a new subsection, the purpose of which would be to enable an independent appeal in the circumstances described. I do not wish to be prescriptive about this issue. It does not matter a great deal in this particular case whether the independent appeal mechanism concerned was devised through regulation or by way of incorporation in the Bill but it is important that the decision of the Minister should be subject to independent appeal. I have set out the arguments for that.
As the Minister indicated on a previous occasion, the proposal is to introduce a system of independent review on immigration matters on an administrative basis at first and to appoint a person to act as chief review officer with the function of ensuring there is consistency in the decisions taken. If that does not prove satisfactory in due course or the experience gained in this model shows that it needs either adjustment or a complete rethink, the Minister has committed to examining a legislative model. The approach will enable the commitment in An Agreed Programme for Government, to ensure a visibly independent appeals process in immigration matters, to be fulfilled.
I am sure the Minister's of State's bona fides is not to be questioned but when we have enacted this legislation there will not be the stomach to revisit it in the short term, which I imagine will be about 2014. I do not know, without questioning the Minister of State's bona fides, the value or weight is to be attached to what he has said, namely, that the Minister will rebalance if it transpires that it is not functioning as envisaged. The concept of an independent appeal is the net point I am trying to make and in the overall circumstances of section 50, that is desirable.
When responding the Minister of State might clarify a point. My understanding was that an independent appeals process would be established on an administrative basis and if that is successful, either primary or secondary legislation would be introduced to put it on a statutory footing. The Minister of State has just indicated, and he will correct me if I am wrong, that it will be introduced on an administrative basis and if it does not work, it will be revisited with a view to bringing forward proposals through the legislative process, which seems to contradict my understanding of the position up to now. The Minister of State might clarify that aspect.
The method of introducing an element of independence may prove satisfactory - that is the administrative basis. If it does it can be rolled out to include other aspects of the immigration process and, in time, be put on a statutory footing. The Deputy is correct, therefore. I may have misled him in my initial comments.
How stands the amendment?
I will withdraw the amendment. I accept what the Minister of State said in good faith but it may turn out to be important that we see it delivered.
Amendment, by leave, withdrawn.
Question proposed: "That section 50, as amended, stand part of the Bill."
It is agreed but on the assumption that there is somebody following the proceedings of this committee, and there are not many of them - we could be like the group in the Andes that were found dead years after they had eaten each other; I have a fear that may happen here - they would find it odd if we did not refer to the front page story in The Irish Times today. I presume it was the first matter on which the Minister of State’s trusty officials briefed him this morning. What is the explanation for that kind of situation? It seems awful beyond contemplation that such a cock-up could occur. Can the Minister of State at least assure us that it is an exceptional circumstance and that there are not other such cases in the system? It is worrying that the person must resort to the Freedom of Information Act and the courts to establish this information.
As Deputy Rabbitte stated, I am sure the Minister of State was briefed on that before he came in here today. It is an extraordinary report. Perhaps the Minister of State can explain how it happened. I can not understand that, first, the letter was not issued to the individual stating that visas were to be given to her family. She subsequently wrote to the Department over a three-year period and it seems no one in the Department wrote back stating these visas had been authorised. Initially, the request under the Freedom of Information Act was denied, but when she got the information she was then told by the Department that the visas had been sent to Ethiopia. When the family contacted the embassy in Ethiopia there was no record of any of the information on those visas coming from the Department of Justice, Equality and Law Reform. Subsequently, she had to go before the courts to get the visas issued.
This seems extraordinary. There has been a number of weaknesses within the system on the basis of the media report on it and the Minister of State can clarify whether the media report was accurate in that regard. If it was, it shows that the system is failing completely. There is a considerable cost involved, first to the individuals in question who were authorised to enter this jurisdiction in 2005 but who are only now getting the opportunity to arrive here, but also to the taxpayer who has been funding the cost of taking this issue through the courts when it seems, as outlined in the media today, that the Department did not have a leg to stand on.
I am at a loss in that I have not seen this report today. Does the Minister of State wish to comment on it?
I knew I was coming before this committee today and when I opened the newspaper this morning and saw it was the first item on the front page, I had an idea it might come up. The case is in for mention tomorrow in the courts and, as such, is sub judice. The usual rules apply. I can comment in general only. It is unacceptable when a family is separated due to some kind of administrative fault. There can be no debate or dispute about that. Unfortunately, I cannot comment on the particularity of that case.
When the matter is resolved in the courts we could perhaps ask the Minister of State to provide the members with an explanation of what occurred. Can he give us a commitment that we will not see a repeat of this?
I will not quibble with the Minister of State taking shelter behind sub judice, but I am unable to see what is sub judice here. The case has been decided and the facts, as presented in the newspaper and which we have no reason to believe are untrue, are clear.
Last evening I was at a Bar Council seminar on the Bill where reference was made to the fact that there have been 1,000 judicial reviews. There is no body in existence in the country that has been subjected to such judicial review. As Deputy Naughten stated, the taxpayer is footing the bill. The Department's approach seems to be that people should do their utmost and take High Court proceedings if they so wish. In the case to which I refer, the person had already established her rights but nobody bothered to communicate them to her. She must have received good legal advice in the interim, which is interesting, particularly in the context of the unprecedented proposal in the Bill that solicitors or lawyers who act vexatiously or frivolously will be penalised. This proposal is extraordinary because, if the shoe was on the other foot, the Minister of State would indicate that court rules already provide for situations of that nature.
Some responsible person in the legal profession counselled the woman to whom I refer. I do not wish to in any way play down the horror of this situation for the family detained in a refugee camp. Is the Minister of State in a position to provide assurances that there are not similar cases in the system? Those of us who play by the rules, engage with the INIS system and do not pepper the Department with parliamentary questions find it difficult to obtain meaningful answers. We are elected Members of the Oireachtas and we are supposed to represent the people.
I was present in the master's court when a solicitor was directed to pay costs in respect of a matter that was deemed frivolous and vexatious.
He probably richly deserved it.
There was a look of shock on his face. As the Deputy stated, this happens from time to time.
That is the basis of my argument. Why is it necessary to give expression to this in primary legislation when judges are already in a position to penalise people for acting frivolously?
With regard to the problem highlighted by Deputies Naughten and Rabbitte, the process of dealing with family reunification applications for recognised refugees is being examined in the context of ensuring better efficiency. In any event, the Irish Naturalisation and Immigration Service is implementing new technology - including new visa, fingerprinting and case management systems - and replacing some 40 disparate systems which apply at present. I am also informed that with the enactment of the Bill, further restructuring will be required in order to allow staff to deal with backlogs in a number of areas, including that which relates to family reunification. These issues are being dealt with and the case before the courts will certainly assist in expediting the process.
I welcome the Minister of State's comments on efficiency. However, the comments of Deputies Rabbitte and Naughten on the broader issue are correct. There are more aspects to this matter than merely ensuring efficiency, updating systems and introducing changes in order that there might be proper implementation. There is an attitude emerging within the Department of Justice, Equality and Law Reform about which many of us are concerned, particularly in the context of legislation and matters such as immigration and the treatment of refugees. The Minister and Minister of State will be obliged to take action in respect of the matters to which I refer because they have been the subject of much discussion both within and outside the Houses of the Oireachtas.
Many questions arise in respect of this particular case. However, the fundamental question relates to how this matter ended up before the courts in the first instance. The woman involved wrote to the Department on numerous occasions over a three-year period but, for some unknown reason - perhaps because the computer system is not adequate - no one appeared to realise that the visas had already been authorised. In addition, her initial request for information under the Freedom of Information Act was denied. When that request was received, someone would have been obliged to review her file, would have seen the correspondence attached to it and would have discovered that the visas had been granted. She was not, however, informed of the actual position, even after she had received the documentation. I am sure this was brought to the Department's attention at that stage. The matter had to go before the courts before action was taken.
If the reports relating to this case are accurate, what happened is a damning indictment of the system. The reports seem to be accurate. No one has disputed their content in today's media. We need an explanation of how something like this fell through gaps in the system on numerous occasions.
The media reports indicate that the lady in question hired legal assistance, who initiated the freedom of information application. In other words, the matter was before the courts before the freedom of information request revealed the problems we are discussing here. That is how the matter came before the courts. The lady was anxious that her legal rights had not been properly vindicated. She got legal representation, her lawyers took a very sensible route and the matter came before the courts.
Question put and agreed to.
SECTION 51.
I move amendment No. 292:
In page 58, line 33, to delete "In" and substitute the following:
"Without prejudice to the generality of section 125, in”.
This is a technical drafting amendment intended to clarify that the power to prescribe fees under section 51 is without prejudice to the provisions of section 125.
Amendment agreed to.
Amendment No. 293 not moved.
Section 51, as amended, agreed to.
SECTION 52.
Amendments Nos. 294 to 299, inclusive, not moved.
Amendments Nos. 300 to 303, inclusive, are related and may be discussed together by agreement.
I move amendment No. 300:
In page 59, line 8, to delete "in the opinion of the Minister,".
Officials in my Department are engaged in further discussions with the Attorney General's office about the approach in the section as it stands, as against the changes this set of amendments would bring about. For the moment, I would like to withdraw amendment No. 300.
Amendment, by leave, withdrawn.
Amendments Nos. 301 and 302 not moved.
I move amendment No. 303:
In page 59, to delete lines 20 and 21.
This amendment removes the definition of the term "safe country", which is not used in Part 6 in that form and is, accordingly, not needed.
Amendment agreed to.
Section 52, as amended, agreed to.
SECTION 53.
I move amendment No. 304:
In page 59, subsection (1), line 25, to delete "if doing so" and substitute "if to do so".
I have been advised by the Office of the Parliamentary Counsel that the phrase, "if to do so" is the more appropriate in the context of subsection (1).
Amendment agreed to.
I move amendment No. 304a
In page 59, subsection (1), line 25, after "be" where it secondly occurs to insert ", either directly or indirectly".
This arises also in the ensuing subsection (2) where refoulement is not expressly prohibited in the Extradition Acts. Neither is it clear to me in respect of subsection (1) as it stands. The inclusion of either “directly” or “indirectly” would be a safer framing.
We oppose the amendment as it appears the intention is that a person would not be able to be deported to a country where there would be a danger that the person would be passed on to a country not considered a safe country. However, the designation of a country as safe requires consideration to be given to the extent to which the countries concerned comply with their obligations under international human rights instruments, such as the Geneva Convention, the Convention against Torture and the International Covenant on Civil and Political Rights. Clearly, a country cannot be designated as safe, unless it respects the principle of non refoulement. Hence a person could not be sent to such a third country, if there was a danger that he or she would be moved on from there.
Is the Minister of State saying that there is no doubt about section 53 (1) and that it is clear that refoulement could not be breached if this subsection was invoked?
That is correct.
On that basis, I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 305 not moved.
Question proposed: "That section 53, as amended, stand part of the Bill."
There is a net point that I am worried about, notwithstanding the discussion some weeks ago. Given that refoulement is not prohibited in the Extradition Acts, will this section allow a person be extradited, even if he or she could not be deported under the provisions of the Bill or even if it would be a refoulement? Are there circumstances where a person could be extradited, in breach of the refoulement principle?
The Extradition Acts and the European Arrest Warrant Act 2003 are subject to international agreements in court oversight. The Minister previously indicated that he is satisfied there are sufficient safeguards within those processes to ensure that a person would not be extradited or subjected to removal on foot of a European arrest warrant where to do so would amount to a refoulement. On that basis, the previous amendment was opposed. The Minister indicated clearly in previous discussion on Committee Stage that the necessary safeguards are contained in the existing legislation, the Extradition Acts.
That is an interesting commitment by the Minister. However, I would think that a lawyer might approach it differently. It states baldly that nothing in this Act prevents the extradition of a foreign national under the Extradition Acts. I would think that is an unequivocal and bald statement of the power to extradite, irrespective of anything in the Act.
The point made previously by the Minister is that the principle of non-refoulement is contained in the Extradition Act and in any case, the phraseology in subsection 53(2) reflects what was in the Refugee Act 1996 and is a continuation of that process and that principle which applied before. The dangers which rightly concern the Deputy have not manifested themselves in the period since the Refugee Act. The Minister has stated previously he believes the Extradition Acts are sufficiently robust against the usual international agreements on human rights and that non-refoulement is central to them and the manner in which they are framed.
Question put and agreed to.
SECTION 54.
Amendment No. 305a not moved.
Amendments Nos. 306, 307 and 310 are related and may be discussed together.
I move amendment No. 306:
In page 59, subsection (1), line 30, to delete "it appears to".
The effect of amendments Nos. 306 and 307 will be to require an immigration officer to be satisfied that a foreign national is unlawfully present in the State before the question of removal of that person comes under consideration. This is, I believe, the proper test that an immigration officer should be required to apply rather than the lesser standard implied by the expression, "it appears to an immigration officer". Deputy Naughten has tabled a similar amendment.
I am on a bit of a run here at the moment. A considerable number of my amendments are being accepted or have been accepted in principle. I refer to the issue under discussion earlier with regard to section 54.
Will the Minister of State clarify that the previous section 45 takes precedence over section 54? I will make the argument again although I think it is falling on deaf ears. In the very limited circumstances in a situation of a trafficked, traumatised person who may not be aware of his or her right to apply for protection, surely there is a moral duty on the agent of the State, be that the immigration officer or member of the Garda Síochána, to bring it to the attention of that individual that he or she is eligible to apply for protection. I do not believe this would be invoked on many occasions but it would strengthen the legislation and there is a responsibility, in those very limited circumstances, for a member of the Garda Síochána to inform the individual that he or she may apply for protection. This situation does not arise often and such a proposal may never need to be invoked, but it strengthens the legislation and gives a stronger hand to a member of the Garda Síochána.
Before the Minister of State responds to Deputy Naughten, can I just seek clarification?
We are not on amendment No. 308.
We are on amendments Nos. 306, 307 and 310.
Have I been speaking to the wrong amendment?
It is easy to understand why. Will the Minister of State say how section 54 reads now after amendment No. 306? How does it make sense?
Amendment No. 307 needs to be inserted as well, which would make it read, "Where it appears to an immigration officer or a member of the Garda Síochána" and then "is satisfied".
I am sorry, I understand.
Perhaps the Minister of State could answer my first question. I accept - apologies to the committee - that I have been addressing amendment No. 308. However, in relation to my first question, on how that applies to section 45, perhaps he can explain.
Section 45(11) is the guarantee, as I said, that a person will not be removable from the State until the final decision to terminate lawful residence, even where a residence permission has expired.
Is the Minister of State saying that such persons are lawfully present in the State even though they do not have any document to affirm this?
They are deemed to be lawfully present in the State until such time as the representations are duly made, even though the residence permission may have expired.
They will have no documentation to that effect. Is that correct?
There will be some record, obviously, of particular circumstances.
I know the Department will have a record. However, will the person concerned have a record?
The garda or immigration officer will have access to the record.
The difficulty is that the law is being changed here. At the moment only an immigration officer can deport someone. The immigration officer, having access to the relevant information, is ideal and perfect in the present circumstances. The difficulty is that a member of the Garda Síochána can deport someone who may not have access, for whatever reason, to that information.
This Bill has enormous implications for individuals in those circumstances. We are not talking about Irish citizens who understand Irish solutions to Irish problems but rather someone who was not born in this jurisdiction. Such persons are in a legal limbo. Surely they should have some piece of paper to indicate they may not be deported until a decision is made on their circumstances - because the permits have expired and they are no longer legally resident. They should have something to authorise them to walk around in this country.
To have possession of a document that will allow them to get about during the period of investigation is an administrative matter, I am informed. However, it is very clearly contemplated within the phraseology of the section that a garda or an immigration officer has to satisfy himself or herself, as provided for under section 54, and will obviously have to check a record, which will show the status or otherwise of the individual. Whether the individual is given some type of transitional arrangement is an administrative matter that is contemplated specifically by the legislation.
This is the difficulty we have with this Bill. Much of the detail is being provided by administration. Our amendments strengthen the Bill and hopefully this situation will not arise. I do not know what the procedure is regarding the administration. Are people currently issued with some kind of documentation? There is no great need for it at the moment because they must receive notification of the intention to deport. However, under this Bill they can be deported without notification being given. I hope this clarifies what I have been trying to say.
We are going around in circles to some extent. We can easily establish the current position, but the Deputy's amendment and the Minister's amendment strengthen substantially the requirement on the Garda Síochána to create an objective situation.
Is it correct to say that no document exists at the moment?
At the moment, we are here to discuss the Bill. If the Deputy wants me to make an inquiry for him, I will do so, but I cannot tell him off the top of my head.
I thank the Minister of State. At least he is being honest. Will he come back to the committee with information on the current situation?
Yes.
Amendment agreed to.
I move amendment No. 307:
In page 59, subsection (1), line 31, after "Síochána" to insert "is satisfied".
Amendment agreed to.
Amendments Nos. 308 and 309 are related and may be discussed together.
I move amendment No. 308:
In page 59, subsection (1), line 32, after "State" where it secondly occurs to insert the following:
"and not eligible to apply for protection or residency".
I have already made the argument on this and I would like to hear what the Minister of State has to say on the matter.
Can I move amendment No. 309?
We can discuss it with amendment No. 308.
Let me do a Deputy McGrath on this, because I want to read my amendment out. It states:
A removal under subsection (1) shall not be effected against a protection applicant while his or her application is pending, and shall not be effected against any foreign national without giving the foreign national concerned a reasonable opportunity to avail of advice in relation to any issue concerning the legality of the removal and a reasonable opportunity to vindicate his or her right of access to the courts.
The Minister will readily recognise that what is involved in that amendment is the whole question of access to justice. I accept that he changed the context of my amendment somewhat. When my amendment was drafted, the Bill contained this business about "where it appears" to a garda or an immigration officer that the person is in the State unlawfully. We have now excised that reference, which I welcome. Nonetheless, it is necessary to make clear that this does not apply to asylum seekers while their applications are still pending. There is a necessity to have access to advice, including for asylum seekers and other foreign nationals. Every day we see why legal advice or access to justice may be necessary in order to vindicate one's rights. For that reason, I will want to move my amendment when we reach it.
There are three different categories in which the opportunity to seek leave to take advice ought to exist. The first comprises persons who are already in the State. A second category would include those who arrive at the frontiers of the State. Such persons should be entitled to access legal advice. The Minister of State will say that access is available where the person concerned is an asylum seeker. That raises several questions about the system we are putting in place under this Bill. The third category comprises those who have no basis - at least in law - for entering the State. I accept, however, that a different situation ought to obtain for such persons. In the case of the first two categories, the opportunity to take legal advice and have access to justice is an essential principle. It is important that we vindicate their rights in terms of accessing the courts.
Both amendments seek to prohibit the removal of protection applicants. This element of the amendments is unnecessary for two reasons. First, the removal provisions apply to foreign nationals unlawfully present in the State, but protection applicants are, by definition, lawfully present in the State. What makes them lawfully present is that they must, under section 68, be granted a protection application entry permission for that purpose. A foreign national who is unlawfully present in the State may apply for protection and he or she must, under section 68, be granted a protection application entry permission. That changes his or her status from unlawfully present to lawfully present in the State.
Second, under section 68(4), a protection application entry permission guarantees to the protection applicant an entitlement to be present in the State until his or her application has been determined. Thus, the question of removal of a protection applicant arises only when the application is refused and the person is not granted permission to remain in the State, that is, when he or she is no longer a protection applicant.
In regard to the second element of both amendments, namely, non-protection applicants who are unlawfully present in the State, the committee has already heard that the Bill effectively introduces a binary system whereby a person will be either lawfully present in the State or, in the absence of permission from the Minister, unlawfully present in the State. Under the Bill, a foreign national will usually become unlawfully present in the State by his or her own conscious act, that is, either by entering in such a way as to avoid the immigration process or, having been given a permission, remaining in the State after it has expired or is revoked.
After this Bill is enacted, what will be the position of those already in the State?
Transitional arrangements will apply to people who are already in the State. As soon as the Bill becomes law, their position will be made clear. As I said earlier, there will be an attempt to inform such persons of their status and of the changes which apply to them.
This goes to the nub of the argument that we in opposition have been making for some weeks. At a minimum, these regulations ought to be in the public domain before we conclude this Bill. This is a huge pig in the poke to ask us to buy. What is the Minister of State's estimate of the numbers involved? I presume it runs to several thousands.
There is no figure for the numbers residing unlawfully in the State. One can only make a guess.
What is the Minister of State's guess? I estimate it to be several thousands.
Yes, considerable numbers are involved.
The Minister of State is saying that, after the Bill is enacted, a scheme will be published telling us precisely the position of this category of persons. This is highly unsatisfactory.
As I noted earlier, these transitional arrangements are being worked on. Obviously, they will be brought to the Deputy's attention as soon as they have been finalised. Given the rate of progress, I daresay it will be before the Bill concludes Committee Stage. I can put it no stronger at present.
I wonder whether that will be the case. It is possible to delay such finalisation, no matter how lengthy the deliberations on this Bill, until after it has been passed. The greatest pressure on Members of the House in this regard comes from those who exist in the State at present, a great many of whom may be deemed to be unlawfully in the State after the enactment of this legislation.
I seek clarification from the Minister of State. My interpretation of his statements differs slightly from that of Deputy Rabbitte. While I hope Deputy Rabbitte's interpretation is correct, my understanding was that although such transitional arrangements would be in place prior to the enactment of this legislation, they would no longer apply once the legislation was enacted as the position thereafter would be either black or white.
While asking previously when such transitional arrangements would be put in place, I made the point that economic circumstances have changed greatly. My understanding is that until now, the thinking that has informed the proposals of the Minister and his officials resembles the procedure that is in place on an administrative level currently, whereby people are given a temporary residency permit for three months to enable them to find an employer and apply for a work permit. The difficulty at present, however, is that trying to find an employer could be like trying to find a needle in a haystack. The people affected will have a gun to their heads in that they must find an employer and must have a work permit issued to them before the enactment of this legislation. The Minister of State should correct me if I am mistaken.
The transitional arrangements will be in effect prior to the implementation of the Act. That is the first point.
Will they lapse thereafter?
Naturally, by their definition, they will lapse as transitional arrangements.
Before the implementation of the Act and after the Bill has been enacted?
The implementation is the key date.
Will it be after the Bill has been enacted?
Yes, that probably is the case. All I can say to the Deputies today is they have emphasised their concerns about when the transitional arrangements will be made available, when the regulatory framework will be finalised and whether it can become part of the process of reviewing the Bill, whether on Report Stage or otherwise. All I can do is to confirm I will bring this matter to the attention of the Minister and will emphasise to him the anxiety felt by members of the committee.
Amendment put and declared lost.
I move amendment No. 309:
In page 59, between lines 33 and 34, to insert the following subsection:
"(2) A removal under subsection (1) shall not be effected against a protection applicant while his or her application is pending, and shall not be effected against any foreign national without giving the foreign national concerned a reasonable opportunity to avail of advice in relation to any issue concerning the legality of the removal and a reasonable opportunity to vindicate his or her right of access to the courts.”.
Amendment put and declared lost.
I move amendment No. 310:
In page 60, subsection (5), line 31, to delete "for" and substitute "for,".
Amendment agreed to.
Question proposed: "That section 54, as amended, stand part of the Bill."
Subsection 5 states: "A parent or guardian of, or other person having charge of or responsibility for a person who is under the age of 18 years". This relates to our discussion on unaccompanied minors, a matter under the Minister of State's jurisdiction, and the scandal that is the disappearance of so many such persons from HSE-provided accommodation. In some circumstances, should provision not be made for third party supervision of minors by, for example, the HSE? We have argued this issue with the Minister because there is a significant difference between having charge of a person under the age of 18 years and being that person's guardian or parent.
Unaccompanied minors arrive in a number of guises. For example, a person under the age of 18 years could present at a port of entry on his or her own or with someone who is over 18 years of age but who may not be his or her parent or guardian. Non-governmental organisations and anyone with an interest in this issue have serious concerns regarding unaccompanied minors presenting at ports of entry. I tabled amendments to place an onus on the immigration officer to try to adjudicate on whether a person was a guardian of the minor, but the Minister threw cold water on the proposals. I flag this issue and to ask whether provision should be made in respect of the HSE in such circumstances.
What would the provision allow the HSE to do?
The subsection refers to a parent, guardian or another person having charge of or responsibility for someone under the age of 18 years who is being removed from the State. While I may be wrong, provision does not seem to have been made to include the HSE in the definition. Previously, the HSE was mentioned in legislation. For many members of the committee, it is a matter of specific concern.
I am informed that the concern raised by the Deputy is dealt with by virtue of the broad definition of another person having charge of or responsibility for someone. This encompasses the possibility that the HSE would be such a person having responsibility for or being in charge of a person under the age of 18 years.
The definition is too broad and could include anyone. For example, I could claim to be in charge of or have responsibility for a minor. The definition allows for someone whose intention is not honourable to be the alleged guardian of the minor.
Clearly, what the Debuty is contemplating is an individual being deported in these circumstances who is required by the subsection to co-operate with the Garda. The Deputy's concern is that it might not be in the best interests of the minor in those circumstances. My adviser says that this would already have been determined by the process described in the previous sections of the Bill.
That may well be but the concern I have is the broad definition. I do not want to labour the point but I ask the Minister to examine it prior to Report Stage because it is far too broad. I have serious concerns about this area relating to minors. I acknowledge that the previous Minister, Deputy Brian Lenihan, gave a commitment to discuss this with the HSE. I am thankful he did and I hope to see a resolution. In his role as Minister of State with special responsibility for children and youth affairs, I ask Deputy Andrews to examine this.
The former Minister, Deputy Lenihan, met the HSE on several occasions, as have I in recent months. It is an area of considerable concern. The HSE states that only so many children go missing per year but, as an article in a newspaper stated, it is not like losing a set of keys. It is serious and specific protocols are being developed between the Garda Síochána and the HSE in respect of separated children. The process is under way but I will examine the Deputy's amendment and speak to the Minister about this part of the section.
Question put and agreed to.
SECTION 55.
Amendments Nos. 311, 312, 313 and 316 are related and may be discussed together.
I move amendment No. 311:
In page 61, subsection (2)(a), line 21, to delete “detention” and substitute “detention,”.
These amendments are editorial in nature. Amendments Nos. 311 and 313 insert commas, amendments No 312 clarifies that the text should refer to an immigration officer and amendment No. 316 is necessary because, given that the definition of travel document in section 2 includes a passport, it is not necessary to refer to a passport in section 55(10)(c).
Amendment agreed to.
I move amendment no. 312:
In page 61, subsection (2)(b), line 23, after “the” where it thirdly occurs to insert “immigration”.
Amendment agreed to.
I move 313:
In page 61, subsection (3)(b), line 29, to delete “case” and substitute “case,”.
Amendment agreed to.
I move amendment No. 314:
In page 61, lines 44 to 47 and in page 62, lines 1 and 2, to delete subsection (5) and substitute the following:
"(5) A foreign national arrested and detained under this section may, subject to subsection (6)-
(a) be detained only until such time (being as soon as practicable) as he or she is removed from the State in accordance with this section, but in any event may not be detained for a period, in relation to any one removal or attempted removal, exceeding 30 days in aggregate,
(b) be informed that he or she is entitled to leave the State at any time during the period of his or her detention and, if he or she indicates a desire to do so, he or she will, be facilitated as soon as practicable.”.
Under section 55(5), a foreign national can be arrested and detained for a period of eight weeks in aggregate. My amendment proposes that it should be a maximum of 30 days. I thank the departmental officials for providing information on this recently. The average prison stay of a person prior to deportation is 33 days. In the past 18 months, we have had one individual detained for 35 weeks prior to deportation. This is a significant period for someone to be kept behind bars pending deportation. There is no justification for people to be detained for such extended periods, even up to eight weeks. Surely people can be expeditiously deported, given that we have provision in the legislation for the intention to deport from the State. Whatever reason there was for having such a provision where notification of the intention to deport was in place, where there is no necessity for such provision or provision for such notification there is no need to keep someone in prison for such an extended period prior to deportation. I hope the Minister of State will accept my amendment.
The amendment is opposed. I remind Deputies that removal only arises on foot of the unlawful presence in the State of the foreign national concerned. He or she is breaking the law by being present in the State without permission to be here. Arrangements for removal can take some time and it is often necessary to arrest and detain the person to ensure he or she continues to be available for removal immediately the arrangements for removal are put in place.
I also remind Deputies of the innovative provisions of section 56 which provide an alternative to detention. The person can be directed to dwell or remain in a particular district or place in the State, report to a Garda Síochána station or an immigration officer as specified in the direction, surrender any travel documentation he or she holds or enter a bond or secure a surety or guarantee. Thus arrest and detention will not necessarily be the first course of action for the purposes of effecting a removal.
Under the Bill, intervention by the State to remove someone will arise only because that person, being unlawfully present in the State, has failed to meet the obligation the Bill places on each such person to remove himself or herself. The notion in paragraph (b) of the Deputy’s amendment of informing such a person of his or her entitlement to leave the State simply does not arise in that context. It is not an entitlement. It is a duty.
The provisions in section 55(5) reflect the current law and have been upheld by the courts on numerous occasions. It is not the case that once detained for the purpose of removal, the foreign national will thereby be detained for eight weeks. The courts have held that the person will have to be released where the prospect of removal is not imminent. The reality is that most persons detained for the purpose of removal are held for no more than two or three days prior to removal.
That is not true. The average is 33 days and this is according to a reply to Parliamentary Question No. 380 of 24 June 2008 and a letter from the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, dated 11 July. At least one individual was kept for 35 weeks which is a significant period. I know the provision is that this will be reduced to eight weeks. However, I cannot see the logic of someone being held for eight weeks.
The Minister makes the point that the reason for it is so that the person is available when the plane is arranged to deport him or her from the country. Under the present system, this makes logical sense. However, there is nothing to stop the immigration officer going to the person's place of residence, picking him or her up and bringing him or her straight to the airport under the new legislation. I do not see why we need to keep people in prison for up to two months. Surely we can ensure people are deported in a shorter time.
I will turn the issue around. We have had situations where our nationals have been held in prison in the United States indefinitely pending deportation. None of us are happy with this. If we are trying to make a case that people illegally present in the United States should be treated in a certain manner surely we need to have at least basic standards here if we are to argue the point with the authorities in the US or anywhere else.
Each week a person is kept it costs the state between €1,100 and €1,700 depending on the prison or place of detention where they are being held. That is a considerable cost to the State, when the legislation ensures there is no need to keep people in prison.
As I said in my original reply, section 56 gives an opportunity for an individual to have alternative arrangements made pending deportation. Obviously, the opportunity is also there for the person to leave of his or her own volition. In any case, the comparison with the United States, where people are held indefinitely, is unfair because the maximum period here is eight weeks.
I am not familiar with the case where an individual was detained for 35 weeks or if there is even any power allowing for that to have occurred. The current maximum term is eight weeks.
The Deputy's concerns about the costs to the taxpayer of the detention of individuals are dealt with by section 60 of the Bill, as I mentioned earlier, where--
We will come to that later.
Yes, we can come to that later. There is no question but that it will be difficult to recover that debt but the provision acts as a deterrent and as an incentive for individuals to find their own way home and not wait to be deported.
Subsection (b) of my amendment, along with the argument I made earlier regarding the length of time someone would be excluded from the State, would act as a better incentive for individuals to return home. I will withdraw the amendment and hope the Minister will see the light before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 315:
In page 62, lines 23 to 25, to delete subsection (8).
I have been advised by the Attorney General that the clarification sought to be provided by subsection (8) is not required in the Bill.
Amendment agreed to.
I move amendment No. 316:
In page 62, subsection (10)(c), line 38, to delete "passport or".
Amendment agreed to.
Question proposed: "That section 55, as amended, stand part of the Bill."
I wish to ask a question on section 55, subsection (4), which begins, "A foreign national detained under subsection (2) or (3) may, on the direction of an immigration officer or a member of the Garda Síochána, be moved from the prescribed place". Could this include another member state?
Question put and agreed to.
SECTION 56.
I move amendment No. 317:
In page 63, subsection (1), line 9, to delete "it" and substitute "it,".
This is a technical drafting amendment, the effect of which is to insert a comma after "it" in line nine.
It corrects the punctuation, in other words. Why did Deputy McGrath not think about that?
I will think about it for the next Bill.
Amendment agreed to.
Section 56, as amended, agreed to.
SECTION 57.
I move amendment No. 318:
In page 63, subsection (3), line 40, to delete "56" and substitute "56(3)".
This amendment introduces a correct cross reference at section 57(3).
Amendment agreed to.
Amendments Nos. 319, 376, 571, 684, 685, 686, 688 and 691 are related and will be discussed together.
I move amendment No. 319:
In page 63, between lines 40 and 41, to insert the following subsection:
"(4) Every regulation made under subsection (3) shall be laid before and approved by each House of the Oireachtas, prior to its enactment.”.
Amendment No. 319 amends section 57, which regulates the treatment of foreign nationals who are detained. Amendment No. 376 amends section 71, which concerns the arrest and detention of protection applicants. Amendment No. 571 amends section 104 in regard to the transfer of protection applicants to a third country which, I presume, is a safe country or a member state of the EU under the Dublin II regulation. Amendment No. 684 amends section 125, which is the first of the enabling, or blank cheque, sections to the Bill. Amendment No. 691 amends section 127, which is the other blank cheque section.
I will begin by addressing sections 125 and 127. As the Minister of State has been repeatedly told today, once this Bill is enacted and after members of this select committee have scrutinised it line by line and section by section, we will be none the wiser in regard to the type of immigration system we have in place. I accept that the Minister for Justice, Equality and Law Reform must be allowed a degree of discretion and flexibility, but the system we will have put in place will be as obscure and lacking in clear rules as the current one. That will be bad not only for migrants who want to regularise their situations or want to come to this country and contribute to our society and economy, but also for Irish citizens because it will break down trust between State and citizens. The difficulty we have with our current immigration system is its vagueness.
This Bill refers 116 times to regulations and 151 times to orders, all of which will be introduced through secondary legislation in the absence of adequate scrutiny by the Oireachtas. This Bill needs to enable us to say who can come into this country under what circumstances and the rights and responsibilities of immigrants, but it does not at present answer any of these questions. That is why it is imperative that the regulations are laid before the Houses, which in practical terms means they would be debated by this committee. Throughout the Bill, sections provide that the Minister may make regulations on granting immigrant or protection status, family reunifications, etc., all of which are fundamental rights. This is not only frustrating for migrants resident in Ireland, but also for Irish citizens who are trying to regularise non-Irish spouses.
Section 104 deals with regulations on the transfer of protection applicants to a third country. I am aware the issue of defining a "safe country" is close to the Minister of State's heart. Even within EU member states, no agreed list exists of safe countries. I do not know what implications that has for the Dublin II regulation. If we are to have any consistency on immigration policy across Europe, surely we should at least have a consistent view on safe countries. We have had submissions from the Irish Human Rights Commission on weaknesses regarding it. We have had a submission from the representative of Congolese nationals in this country on their specific concerns on the Democratic Republic of Congo being defined as a safe country. A further submission was made to the committee by a number of other organisations along the same lines. The Association of European Parliamentarians for Africa, AWEPA, has made a submission to us, of which the Minister will be aware. We are handing over this power to the Minister to put a regulation in place. He does not have to defend to Members of this House the basis on which he defines a country as being safe, either as a country of origin or a third country, for a person to be deported to.
We have section 71 on the arrest and detention of protection applicants and the Minister will make the same argument he made on the previous amendment. Nonetheless, it is important that such regulations be discussed by Members of this House and that we know the exact criteria for the arrest and detention of a protection applicant. The same applies to section 57, which deals with the treatment on detention of a foreign national. These are pretty significant powers that are being given to the Minister and we should not facilitate in legislation a situation where this is left solely at the discretion of the Minister without coming back to Parliament to be discussed. I am sure the Minister has no difficulty providing a justification for it but there should be an onus on the Minister to provide that justification to the Members of both Houses through the mechanism I have outlined, namely, that before its enactment the regulation would have to be approved by each House of the Oireachtas so that additional element of scrutiny is put in place. That fundamental issue must be addressed in the legislation as a minimum.
Is the Chairman taking amendment No. 688?
Yes.
This is a very important section to the debate on immigration. I point to the details of amendment No. 688 to subsection (3) as follows:
(3) Before the Minister makes regulations under this section, he shall:
(a) publish in such manner as he or she sees fit draft regulations for public consultation;
(b) allow a period of at least two months in which responses to the consultation may be submitted; and
(c) have regard to responses submitted during the period referred to in paragraph (b).
It also states: "Subsection (3) shall not apply where there are compelling reasons of public security, public policy or public order why this would not be appropriate.”
The important point in this amendment is that this immigration Bill should be based on proper and detailed consultation. If one looks across Europe or other countries, any successful legislation dealing with immigration must be built on these types of principles. Our people, ourselves and our citizens need to have confidence in the legislation. I agree with the idea that one needs scrutiny by the Houses of the Oireachtas. When we hand over such powers to the Minister, particularly dealing with regulations, it is essential that we have the maximum security to ensure the protection of the people and their human rights.
The question of regulation-making powers has arisen through the course of the debate today. Section 127 of the Bill contains provisions for the making of regulations covering many aspects of immigration, including the granting of permissions, the extent to which family reunification may be enjoyed and the extent to which foreign nationals may access publicly-funded services. This regulation-making power in the Bill must comply with principles and policies set out in the Bill, principles and policies which are well developed in the Bill and which are now to be considered by both Houses. The Bill will give this and successive Governments a set of legislative provisions which will enable Government to put in place a wide variety of immigration policies designed to suit different people in different sets of circumstances.
The need for immigration policy changes and developments, even on a minor scale, arise quite frequently and often at short notice. The Government should not have to bring draft legislation before the Oireachtas for every adjustment to immigration policy, nor would it in any sense be international best practice to do so. The UK, Australia, and Canada make extensive use of subsidiary legislation for putting their policies into effect. The Minister, however, has indicated that he has no difficulty, in principle, in bringing major immigration policy initiatives before the Dáil in draft form. This process is all about overhauling the State's immigration system and that is being done in a very structured way.
There is no objection to the principle of consultation but the Minister requires the flexibility in the legislation to bring regulations into force without undue delay. What is contemplated by these amendments is a period of discussion in the Houses of the Oireachtas, in respect of Deputy Naughten's amendments, and a period of two months in regard to what Deputy Finian McGrath is suggesting. In both cases it would prevent the Minister from dealing with the matter expeditiously.
I broadly support the case Deputy Naughten has made in this batch of amendments and I support Deputy McGrath's amendment No. 688. I also speak to my own amendment No. 685. I cannot take with a straight face the Minister's argument that his desire is to be able to act without undue delay. That has not characterised the responses up to now. The requirement to publish regulations and to allow a short period for public consultation on the regulation in question is a very reasonable request. It is not as though there is a warm environment, politically speaking, for what some of these regulations seek to do. I cannot see how the house of cards would come tumbling down on top of the Minister if he were to permit, for example, NGOs and others at the coalface to offer an opinion or a reaction to a particular proposed regulation.
Whatever reservation the Minister may have about the drafting of any particular amendment, the net point is very difficult to argue with. If the Minister proposes to make regulations and the Bill is designed in a fashion such that he must inevitably do so, then even where we took the view that it would be wiser to incorporate them into primary legislation the opportunity should at least be provided for some public feedback, rather than pursuing the secretive enactment of a regulation of which nobody will ever hear until it becomes judicially reviewed or comes to attention in some similar way.
I ask the Minister to reconsider his response to the arguments made by Deputy Naughten.
Regulations are not generally subjected to Oireachtas scrutiny in advance.
Section 125 of the Bill is fairly standard and provides that the House, within the 21 days of a regulation being passed, has the capacity to annul the order or regulation. There is a measure.
Has the Minister of State ever seen that used?
The principle exists. The Deputy has raised this issue on three or four occasions already but I do not mind going through it again. The principles and policies central to the entire immigration process are replete with opportunities for an individual to have his or her case heard in a transparent way, to have access to the best advice and ensure the person is in compliance with all the basic principles of immigration policy. We have drawn on best practice internationally. To suggest we are trying to shoehorn by way of regulation other provisions that we are trying to hide from the Oireachtas in general is to take a leap into an area of conspiracy which is inappropriate.
The fact is that regulation is the normal way to proceed in terms of administrative structures and in placing something before the Houses of the Oireachtas. It is in compliance with best practice internationally, including our neighbours in the UK, as well as Australia, Canada and other common law countries. We are not departing wildly from any set of practices that have been in force in Ireland and put in place by the Oireachtas over the years. Nor are we departing from the practices of other countries which apply similar immigration policies.
We are not alleging conspiracy but we are alleging unnecessary secrecy. To point to the theoretical possibility of annulment is not a reassurance. The Minister of State, along with the rest of us, will know of the wodge of documents we get every morning of our working lives, even the mornings of our working lives when "Morning Ireland" thinks we are not working. When I get a statutory instrument, the possibility of me having time to pore over it and the knowledge of particular minutiae which it concerns is pretty remote.
The purpose of it being publicly available is that persons who have an interest, knowledge and expertise in the area would have the opportunity to look at it and exercise the democratic system, then cause it to come to the attention of the Minister, etc. Nobody is alleging a conspiracy but regulations will be made and Members will not know that a particular term has been enacted by way of statutory instrument until it is brought to his or her attention post hoc.
Following from Deputy Rabbitte's point, what I have proposed by amendment has been accepted and is on the Statute Book with regard to a number of past provisions. It has not previously caused any great difficulty. I accept the Minister of State's indication that he does not want a position where every small technical change would have to go before the Oireachtas and require positive approval. As I stated in my initial contribution, we are talking about pretty extensive powers being provided, which have major implications for the individuals concerned. These powers directly affect these people's human rights. Surely between us we can come up with a satisfactory amendment that would deal with the points which I acknowledge the Minister has accepted. Substantive issues relating to immigration policy should be discussed by the Houses of Parliament. Surely we can come up with a draft that would facilitate discussion of such substantive issues without necessarily creating a bureaucratic nightmare with regard to technical issues such as the format of identification cards or application forms. When we are talking about regulations on the treatment of foreign nationals being detained here, the arrest and detention of protection applicants, or the transfer of persons from this jurisdiction to other member states of the European Union, their countries of origin or third countries, we must recognise that these are extensive powers, the implementation of which will have major implications for those concerned and the integrity of our immigration system. These issues should come before Parliament to be discussed and approved. Unless the Government allows time for a particular regulation to be debated, it will not happen, even if it is the case that it comes to the attention of Members on this side of the House. To the best of my knowledge, the Government has never been forthcoming in the allocation of time.
The Minister has said he will consult as widely as possible in the preparation of regulations and undertaken specifically to publish regulations on major immigration matters. He has made that commitment. However, he reserves the right to speedily introduce changes required, sometimes almost overnight, as circumstances change. It would not be possible to do this if the proposals made in the amendments were adopted. This goes to the heart of what the Deputy is saying. He referred to major powers and is correct in that regard. The Minister has acknowledged that in the circumstances he will bring draft regulations to the attention of Opposition Deputies and NGOs with an interest in these matters. However, he must reserve the right, in line with best practice and normal procedure, to introduce regulations in a speedy fashion.
The Minister of State is saying it now and the Minister stated it previously, but it is not specified in the legislation. I am saying it should make such provision for major immigration matters.
The Deputy has made that point.
Will the Minister of State agree to--
All I can say is the Minister is not prevented from publishing regulations.
I know he is not prevented from doing so.
He has made a political commitment, in public, to do so.
That brings us back to the definition of a major immigration matter, which is solely at the discretion of the Minister.
Yes, but there has to be some discretion for the Minister.
For example, the majority of citizens may agree that something is a major immigration matter, but if the Minister believes it is not, it will not go through the system. The fundamental point I have been making is that we do not know what that is.
The Minister must meet minimum standards in this regard. He cannot drive through major regulatory changes by putting them before the Houses and hoping nobody will notice. He would not get away with it. In my experience, that has not been the practice in the Houses of the Oireachtas. While I understand the Deputy's concerns, I have already said to him on a number of occasions--
We must bring this to a conclusion.
I hope the Minister--
--is telling the truth.
That is not true. Any of the Minister of State's colleagues--
What is true is that the Minister is committed to that position.
Any of the Minister of State's colleagues from a rural constituency will tell him about the volume of regulations that have come through and the major implications for various sectors in their constituencies, especially the agricultural community. As the matter has never been debated, that is not the case. There have been significant shifts in policy as a result of regulations that have never been discussed. I ask the Minister of State to look at what he has just said and at how he might make provision in the legislation for these major immigration matters in order that they might go through the system in the way I have proposed. We do not want a situation where every technical regulation would have to come before us but there must be statutory provision for major immigration matters. The only argument is whether statutory provision should be made. I say it should and ask the Minister of State, in consultation with the Parliamentary Counsel, to see if such provision can be made.
In fairness, the position is very different. Obviously, I am not familiar with the regulations mentioned by the Deputy that have made made a major difference in the agriculture sector, but in this instance the Minister has been very clear, repeatedly so. He will publish major regulations and allow for a significant consultation period in order to ensure the concerns expressed well by the Deputy Naughten are allayed. That is the difference. A political commitment has been made and that is as strongly as I can state it.
Amendment, by leave, withdrawn.
Section 57, as amended, agreed to.
SECTION 58.
I move amendment No. 320:
In page 63, subsection (2), line 45, to delete "believes and has reasonable grounds for believing" and substitute "is satisfied".
The amendment is self-explanatory and brings us back to the argument made previously that a person should be treated as a minor until evidence to the contrary is available to the immigration officer or a member of the Garda Síochána. In a nutshell, there should always be that presumption.
Section 58(2) deals with the question of whether a person is over the age of 18 years. The situation is that where an immigration officer believes and has reasonable grounds for believing a person is over 18 years, that person is to be treated as being over that age. That is a sensible provision which works well. The Minister has acknowledged that there can often be difficulties when there is uncertainty about a person's age. A person may appear younger or older than he or she actually is. This can be of significance, not only because of the obvious desire to avoid treating as an adult a person who is under age but also because of the need to ensure an adult is not mistakenly treated as an under-age person and accommodated with those under 18 years. In the context of this provision, however, where what is at issue is the removal of a person from the State, any question of that person's age will have been settled, either by documentary evidence or tests carried out earlier during the person's stay in the State. The formulation in the Bill is the appropriate one. For this reason, I cannot accept the amendment.
As I understand the Minister, he is essentially saying that the test being applied by Deputy Naughten is too high a hurdle in that Deputy Naughten requires the immigration officer or the garda to be satisfied as to the age of the person concerned. It raises an important issue and one that seems to be becoming more prevalent. As the Minister of State concedes, there are misjudgments in this area as to age one way or the other. In the trafficking area we have had the example of young women, when interfacing with the law, passing themselves off as being 18 or older when, in very many cases, they are considerably under that age. If the argument is being made that Deputy Naughten's test is too severe, there is extraordinary laxity in the subsection as it is framed currently in terms of the capacity to pick up the trafficking phenomenon of very young women in particular.
What is proposed, that is, to replace the words "believes and has reasonable grounds for believing" with "is satisfied" is more an objective test. Am I correct that this is what is contemplated by Deputy Naughten? There are arguments to permit that. If somebody has grounds for believing something I do not believe he or she they could not be satisfied in that regard. I am not sure if we are making much difference one way or the other.
My wording strengthens the legislation.
It does not appear to depart wildly from what is already there.
It may not depart wildly but, with respect, the objective test is different.
Only if that is what is sought. Is that--
Yes. Deputy Naughten is seeking to enshrine the words "is satisfied".
In fairness, the Minister of State used the term "is satisfied" in the earlier amendment on which we are in agreement.
If it is for consistency it is something that should be examined.
How stands the amendment?
I will withdraw it with leave to reintroduce on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 321 in the name of the Minister has already been discussed with amendment No. 14.
I move amendment No. 321:
In page 64, lines 3 to 8, to delete subsection (3) and substitute the following:
"(3) Where an unmarried person under the age of 18 years is in the custody of another person (whether his or her parent or a person acting in loco parentis or any other person) and that other person is detained under the provisions of section 55 or 56(3), the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Health Service Executive of the detention and of the circumstances thereof.”.
Amendment agreed to.
Amendment No. 322 not moved.
Question proposed: "That section 58, as amended, stand part of the Bill."
On section 58, is similar treatment given to a person who is over the age of 18 but not deemed mentally competent to act on his own behalf?
There is no specific statutory provision regarding mental incapacity.
Should there not be such provision? We are making provision--
--for vulnerable individuals and therefore the Deputy wants to spread the net wider for other vulnerable individuals. Is that the Deputy's point?
Yes. The legislation regards children under the age of 18 as vulnerable individuals. I am not aware if the issue has ever arisen in respect of people over the age of 18. Surely we should make provision for someone, whether it be the Health Service Executive or whoever, to act as an advocate in those circumstances. I am only flagging it. I have flagged it previously. I ask the Minister to look at it in the context of Report Stage.
That is reasonable.
Question put and agreed to.
SECTION 59.
Amendment No. 323 is in the name of the Minister. Amendments Nos. 324, 325, 326 and 329 are related. Amendments Nos. 323 to 326, inclusive, and amendment No. 329 will be discussed together.
I move amendment No. 323:
In page 64, subsection (1), line 16, to delete "56” and substitute “56(3)”.
The amendments in this group are all technical drafting amendments. Amendment No. 323 introduces a correct cross reference to section 59(1). Amendment No. 324 substitutes the word "person" for "carrier".
Amendments Nos. 325 and 326 delete unnecessary text from lines 39 to 42. The reference to complying with the direction under subsection (4) is sufficient to comprehend arrangements under subsection (5). Amendment No. 329 is a consequential amendment arising from amendments Nos. 325 and 326.
Amendment agreed to.
I move amendment No. 324:
In page 64, subsection (5), line 36, to delete "carrier" and substitute "person".
Amendment agreed to.
I move amendment No. 325:
In page 64, subsection (6), line 39, to delete "or to implement an arrangement under subsection (5)”.
Amendment agreed to.
I move amendment No. 326:
In page 64, subsection (6), lines 40 and 41, to delete all the words from and including "(including" in line 40 down to and including "made)" in line 41.
Amendment agreed to.
Amendments Nos. 327 and 328 are out of order.
Amendments Nos. 327 and 328 not moved.
I move amendment No. 329:
In page 65, subsection (10), line 8, to delete "(including one given by virtue of subsection (5))”.
Amendment agreed to.
Question proposed: "That section 59, as amended, stand part of the Bill."
What change, if any, are we introducing here that is different from the status quo in respect of the responsibility of carriers?
None, I am advised. Little or none.
The situation is as was?
Yes.
Could a vehicle mean an aeroplane or a ship as well?
Yes.
What is the experience here of dealing with the carriers? If the situation is as was, has this been much invoked in terms of the carrier taking his responsibility for a situation contemplated, for example, in section 54?
It has been on the Statute Book for a considerable period. It simply is a case of transposing and updating it. It makes no major difference to the previous regulations.
Question put and agreed to.
SECTION 60.
I move amendment No. 330:
In page 65, subsection (6), after line 47, to insert the following:
"(d) the costs to the State of removing a foreign national from a member state, including the costs of maintaining him or her while in custody.”.
Here I am being an advocate for the Department and for the State. Provision is made for costs that are incurred in this jurisdiction, but there has been a situation, as reported earlier this year, where the State had a jet share between other member states. Under the most recent jet share with other member states, the jet departed from this jurisdiction to the third country. However, I know that in the past we have transported individuals to France and they were subsequently taken to the third country. Is there an anomaly within the provision as set out in section 60, namely, that where the cost is incurred outside of the State, it cannot be applied to the individual in question? Will the Minister of State comment on that?
The provision does not specify whether the cost arises in the State or outside of it. Therefore, it could contemplate the costs arising from a jet share. I cannot see any reference to--
It does specify it, from the point of view that it states: "The Minister may require a foreign national removed from the State under this Part to pay ....". Therefore, for example, a person might be removed to France and subsequently held there for a period of 24 or 48 hours and then put on a shared jet to Brazil. That person has already been removed from the State when taken to France. Can the Minister then apply the cost of the flight from Paris to Brazil to the individual?
I would think the answer is "Yes". The provision is not limited to the costs arising in the State, which I understand is the nub of the Deputy's question. The cost of the removal from the State envisages the final destination, rather than a transit situation where a person may remain for a few days. That is what is envisaged in the section.
I will withdraw the amendment.
What is the practicality of this measure? I understand the desirability of it being in the Act, but in terms of its invocation, what is the experience?
It is not the law currently, but what it is intended to do is to provide an incentive to individuals to go home of their own volition so that if, for example, there is an opportunity for them to return to this State at a later time, a debt will not await them on their arrival. That is the thinking behind it, but it is not the law currently. It is a new measure.
Were there deportations this week? I had a meeting with people who received notice that they were being deported on Tuesday. In a case such as that, has the thinking behind section 60 ever been applied?
It is not the law currently, so it would not be possible to levy any cost.
What is the view on the provision, since we are predominantly dealing with impecunious individuals? Other than the salutary effect of deterring them from seeking to re-enter the State, does the provision have any practical application?
Some individuals who are not impecunious are deported. Some refugees whose applications have been refused came here at enormous expense. Assuming people have not been trafficked and have come of their own volition, it is not true to say that all such individuals are from an impecunious background. There is a reason for imposing this provision of the Bill in cases where people have substantial resources. It is an extremely expensive enterprise to come from certain countries to Ireland. We all know there are some people who apply for refugee status who are not genuine refugees and in those situations there may be resources that can be chased. The deterrent effect would be significant if these people contemplated returning to the country at another time.
It will be next nigh impossible to enforce this section. I will not dwell on it but my mechanism to achieve the same result is a lot more simple and could be more effective than that proposed by the Minister. My mechanism would actually save the State money. However, we will agree to differ.
Does the Department have any figures for the number typically issued with notice to present for deportation who go AWOL, absent without leave, as distinct from the number actually put on a aeroplane?
I do not have the figures to hand. However, we are all aware of the case in which an aeroplane flew back to Nigeria half full because a considerable number of people had disappeared and did not present themselves for deportation. That is not desirable. We are not just dealing with people who sought asylum but also with foreign nationals whose deportation is sought. Some of the people concerned may have been working here and may have good reason to return. This section acts as an incentive for them to organise themselves to leave the country. I can inform the Deputy that as few as 21% of all deportation orders signed in the past four years were effected. A total of 51% of all transfer orders signed in the past four years were effected. In the first quarter of this year 15% of all deportation orders signed were effected.
What is the Minister of State's expectation, post-enactment, of the impact of the section on the 79% who did not present?
The difference in the new regime is that the same notification procedures do not apply, whereby an individual is given advance notice. There is no deportation order in place; hence, it will be easier to avoid such circumstances.
I appreciate the point but regarding the persons who have evaded deportation orders in the past three to five years, is it expected that the section will have any import for them?
If they are found to be in the State unlawfully, it will, unquestionably, have consequences for them.
I ask the Minister of State to repeat the figure he cited for 2008.
It was 15%.
There seems to be a discrepancy with regard to liability under sections 59 and 60. For example, a carrier is not liable for the cost of detention; neither is a carrier liable in section 59(8) for the cost of removal, whereas in section 60 the individual is so liable. Why is that the case?
I ask the Deputy to repeat the first reference.
I referred to subsection 59(8) which states:
Amounts may, for the purposes of subsection (7), be prescribed in relation to the receiving, accommodation and maintenance of a foreign national under subsection (2) and any amount so prescribed shall be taken, for the purposes of subsection (7), as a reasonable expense.
Section 60 also deals with the issues of detention and removal, in respect of which the carrier does not seem to be liable for the costs involved. Surely the carrier should be liable for the same costs as an individual.
The carrier could be fixed with the cost of removal; that is the intention of the section.
Is the Minister of State satisfied provision is made for this?
Yes.
Amendment, by leave, withdrawn.
Section 60 agreed to.
I am conscious that it is almost 5 p.m. On looking at the amendments to section 61, I do not believe we can get through them this evening. It might be as well to adjourn at this stage. Is that agreed? Agreed.
I thank the Minister of State and his officials for attending. I also thank members of the committee and hope they will enjoy the next few weeks and try not to think too much about the Bill. We shall get back to it at a later date.
I am sure Deputy McGrath has already started to think about it.
Just to keep the committee on its toes.
Progress reported; Committee to sit again.
The select committee adjourned at 5 p.m. sine die.