We will adjourn at 1 p.m. until a date to be arranged. I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy John Moloney.
Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).
SECTION 61.
I apologise that the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, cannot be here. He is attending budgetary meetings and I was asked to deputise in his stead.
Amendments Nos. 330a and 330b are related and may be discussed together.
I move amendments No. 330a:
In page 66, lines 26 to 28, to delete all words from and including "actors" where it secondly occurs in line 26 down to and including "are" in line 28 and substitute "actor mentioned in paragraph (a) is”.
We resume on section 61 which deals with protection and sets out the interpretation. My amendment would excise all words from and including "actors" — mentioned in paragraphs (a) and (b), including international organisations — to “are” and replace them with ”actor mentioned in paragraph (a) is”. The purpose is to widen the definition of “actors of persecution”.
The reason for seeking to widen the definition is that, as it stands in paragraph (c), it includes only a non-state actor if both the state and an irregular body controlling the territory in question are not providing protection. My amendment would delete the references to a non-state body in charge of a territory or a substantial part of it because such irregular bodies are not bound by international law. That is the net point. We have seen rather painful examples of this in recent history. An irregular body controlling a territory is not subject to instruments in international law and cannot provide comprehensive or enduring protection for the purposes of the relevant articles of the Geneva Convention. We saw this in relatively recent history in the case of Srebenica, for example. My amendments propose to excise the reference in paragraph (c). The problem is that paragraph assumes the parties or organisations, including international ones, can also be viewed as actors of protection. I accept that is obviously the case where States are concerned as they are bound by international law. Other parties are not, however, and therefore I propose these amendments.
We can move only amendment No. 330a at the moment but are discussing both.
I thank Deputy Rabbitte. The amendment is opposed because the definition in section 61 is fully compliant with article 6 of the asylum qualification directive. I do not propose to deviate from the terms of that directive in the manner sought.
I appreciate the Minister of State has been sent in at the deep end but that does not essentially answer any arguments I advanced. The points I made are worthy of reply. I wish to raise with the Minister, for example, the relevant Article 1(a)(2) of the Geneva Convention which explicitly requires protection by a "country", not by an organisation. There is a substantial point here.
I take a number of points that Deputy Rabbitte raised. I do not have the full detail, obviously, but when I referred to the official journal of the European Union I referred to Article 6, regarding actors of persecution and serious harm. It deals with most of the issues the Deputy raised but besides that, the terms of the asylum qualification directive are carefully and exhaustively negotiated at EU level. The question dealt with in these two amendments is not one of law and any individual, rather of the situation in each case. The definition must therefore be read in conjunction with subsection (3) of this section. On page 67 of the Bill there is a reference to that.
With what is it is in conjunction?
Section 61(3) on page 67 reads:
For the purposes of assessing, under subsection (2), whether an international organisation controls a State or a substantial part of the territory of a state and provides protection against persecution or serious harm, the Minister, or as the case may be, the Tribunal shall take into account any guidance which may be provided in relevant acts of the Council of the European Union.
As distinct from the article I refer to in the case of the Geneva Convention, this does no more than require the tribunal to take into account any guidance provided. I presume the Minister of State is telling me there is explicit guidance in this regard from the European Union.
I understand there can be such guidance from time to time.
Do we know if there is jurisprudence on this matter recorded anywhere in the experience of the European Union? I advance again the example of Srebenica which is so recent we need not go over it. There is a substantial point of difference here between a country that is bound by international law and an organisation that intervenes in control of part of a territory or of a territory.
I am advised that the definition as it stands would apply and I cannot deviate from that.
On this point, it might be useful to have clarification on what is a matter of law and what is a matter of political opinion. In the matter of taking into account, for example, guidance which may or may not be provided but upon which the Council might also be silent, that in itself professes no certainty on the delivery of any assistance. As an outsider looking at this issue, I ask to what extent does this mitigate such protection as might exist in law or which might be provided by the international instruments to which a State may have ceded? To interpret the Geneva Convention in its widest sense, what status would an opinion held or delivered by the Council actually have? Is it an opinion to be accepted or ignored or does it go beyond that?
I refer to subsection (2) which reads:
For the purposes of this Part, protection against persecution or serious harm shall be regarded as being generally provided where reasonable steps are taken by a state or parties or organisations, including international organisations, controlling a state or a substantial part of the territory of a state to prevent the persecution or suffering of serious harm, including by the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, where the applicant has access to such protection.
One of the reasons I appreciate being able to attend this committee as an ordinary member of the Oireachtas is that this section of the legislation interests me for several reasons. I will refrain from making some of these points now and will refer to them later when we are discussing what has been circulated as amendment No. 340a. I have a concern there, and also in the argument put forward, concerning the fundamental protection required against persecution, for example, the right to bodily integrity and protection against a series of other things. To move the definition of such acts, or the establishment of the facts about them, into the realm of discretion is a serious erosion of the fundamental protection that was originally intended. My concern is about the language. Language in respect of the protection of rights is at its best when it is certain. I have a difficulty, when a Minister of State who is anxious to be helpful refers to subsection (2). Protection is to be “generally provided where reasonable steps are taken”. It is possible to see the atmosphere of vagueness now emerging with regard to the assurance which should be there to the person or groups of persons concerned.
I shall speak plainly regarding the "suffering of serious harm", including by the operation of an effective legal system. There are areas where persecution has taken place. Let us say, for instance, that a police force has been reconstructed and a complaints mechanism has tentatively been brought into place or there is an opportunity for the punishment of people who might be guilty of something. That in itself has sometimes been accepted by our Department of Justice, Equality and Law Reform as a sufficient basis for arguing that the person is free from any threat. I disagree with that. Later I hope to be able to make a point regarding the question about which I have a fundamental problem.
I have a fundamental problem in regard to the circulated amendment which refers to a severe violation of basic human rights. This has about a treble contradiction — the human right, if it is established and is basic, cannot be qualified by severity. One cannot continue to keep qualifications and again, later, in relation to——
Deputy——
I will refrain from saying any more, except to say that is the thinking that is at the base of the problem in this section. We can deal with the other in detail.
Absolutely.
Where this protection is not provided in any particular case, the definition, as it stands, will work to ensure that the person will be protected. The essential point here is that what we are debating is already part of Irish law and is referred by way of the eligibility for protection regulations of 2006. I understand it is working well.
The Minister of State has been thrown in at the deep end today. How would subsection (2) to which the Minister of State has referred, apply in, for example, Kosovo, which allegedly is under the protection of the UN given that the UN report has highlighted that it is not able to provide protection for minorities in Kosovo. It is an international organisation and how would that be interpreted in these circumstances?
I am advised that it would work to offer people protection particularly when they are not getting it in their home place.
To add to what my colleagues have said, particularly Deputy Michael D. Higgins, taking into account the long record of human rights protection and, particularly, individual protection guaranteed by the Council of Europe, what role, including the jurisprudence record of the Council, is included?
I understand the Council of Europe provisions are already covered by the European Convention on Human Rights.
Taking that into account, is there any way in passing legislation such as this without including some reference to it that we can allow an escape route for individuals and their protection? Is it absolutely guaranteed, sacrosanct and secure?
I understand it is already part of Irish statute law and it does not need to be said again.
I refer again to the article in the Geneva Convention. Generally speaking, it is true that international organisations are intended only to be present in a country for a brief time, not permanently in any event. In those circumstances, they cannot be expected to provide comprehensive and enduring protection as is envisaged by the Geneva Convention. Where do we sit in such circumstances? Section 61 defines "actors of persecution" as including: (a) a state, (b) parties or organisations controlling a state or a substantial part of the territory of that state, and (c) non-state actors, It is that latter point we are trying to clarify in terms of somewhat widening the definition of “actors of persecution”. It seems to me that we are not talking about a hypothetical or theoretical situation but we know that type of situation has actually happened.
The protection as outlined is provided. I am advised that heretofore this protection has worked well.
To make progress it would help if the Minister of State was in a position to assure us that there is no convention, no instrument of international law and no conclusion on the matter of protection which would be interpreted in any mitigated or narrow sense. That is the net issue. That should take, as near as possible, the form of a guarantee rather than an invocation of practice to say we are doing this very well in any event. That is not for me to judge, except in such cases as would come before the constituency office of any member of Parliament. That is the kind of certainty one wants. In practice what happens is that an individual would describe himself or herself as being at risk. How is one to judge that? One would start by saying that the protection of a right is there in the strongest sense, even decisions from the Council of Europe at different times say that these are all in place, so that the issue of interpretation is made narrow. If the issue of certainty is eroded to the extent to which there are large scale issues of just judgment on someone, it loses certainty. That is the net issue.
This does not limit the level of protection. It is not intended to limit the level of protection. The protection is guaranteed by international instrument. I am in a position to give that guarantee.
How stands the amendment?
It does not appear as if we can take it much further at this Stage. We will reflect on what the Minister has said and reserve our position for Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 330b not moved.
Amendments Nos. 331, 332, 333 and 335 are related. Amendment No. 334 is related and alternative to amendment No. 333. Amendments Nos. 331 to 335, inclusive, may be discussed together.
I move amendment No. 331:
In page 66, line 39, to delete paragraph (a).
The effect of this amendment is to ensure that the Bill provides subsidiary protections to European Union nationals because under the current Bill, EU nationals will not receive those protections. Everybody within the EU is safe, so to speak, but we have set different standards for member states. An example of that would be our approach recently but also in the past to two of the accession countries, Bulgaria and Romania in particular, where different standards were set when allowing citizens from those countries migrate here. Restrictions were imposed even though both countries were full member states. Those citizens did not enjoy full rights and protections within the EU.
The paragraph we seek to delete is not compatible with the EU convention, which states that protection should be available without discrimination as to the country of origin, and I believe this would do so. It is clear that there are still serious human rights problems in some locations within the EU, and potentially in the future as the EU expands, regardless of the standards being set. We must be mindful of that aspect. I cannot see the countries that have applied to join the EU in the future matching the human rights standards we have been led to believe pertain throughout the EU. One example involves Romania, which is an EU state. The European Court of Human Rights case, Stoica v. Romania, concerned inhumane and degrading treatment of Roma youths by the Romanian police. We could probably quote a number of other examples. I ask that paragraph (a) be removed.
On amendment No. 333, the Bill reflects a definition of "serious harm" contained in the EU qualification directive. When that directive was introduced, the UNHCR warned that it could create an unacceptable gap in protection. That aspect has already been debated and I will not labour the point. The problem will be if states choose to interpret that definition narrowly, and it seems many states have interpreted it narrowly, including this State. Only four people have been granted subsidiary protection since that directive was transposed in October 2006. This State must consider the reason for that and perhaps encourage the EU to change that qualification directive or at least change this Bill, which we can do.
There is an inherent contradiction in the requirement that indiscriminate violence would be shown to pose an individual threat. Indiscriminate violence, by definition, imposes indiscriminate threats. It is not individualised. Our amendment, which uses the text recommended at the time and since by the UNHCR, reflects that point. It also proposes that the phrase "international armed conflict" be replaced with "generalised violence or events seriously disturbing public order", which incorporates what happens in most countries. Armed conflict often does not fall into the category set by others.
On Deputy McGrath's amendment No. 335, the Bill suggests that non-state actors cannot provide sufficient protection, and I refer to the discussion on that. They can serve protection to persons at risk of persecution. Again, the UNHCR called for the deletion of this text on the grounds that it is inappropriate to equate national protection provided by states with the exercise of certain administrative authority or control over territory by international organisations on a transitional or temporary basis. That is some of what Deputies Rabbitte and Higgins highlighted, namely, there is a difference between organisations controlling a state and the state itself. This amendment would reflect that.
Deputy Rabbitte, do you wish to comment on some of the amendments in your name?
No, Sir, I support what Deputy Ó Snodaigh has said.
I wish to speak on amendment No. 332.
Yes, I do wish to speak, Chairman. I apologise. I thought you were talking about a different amendment. Deputy Higgins can proceed.
Amendment No. 332 should be acceptable to the Minister of State. The fundamental issue is whether what we are talking about is a limitation or a circumscribing of the quality and kind of protection or the arguments in favour of protection that will be made by an applicant. Amendment No. 332 is a modest amendment. It states: "serious harm" means serious harm to the fundamental human rights of the person concerned and includes---", and it goes on to include what is in the legislation. Why should one object to that except to say that one is offering a list that is less than the definition of "fundamental human rights"? If the Minister says he will have no breach of fundamental human rights, which includes the following as set out, he is achieving what will be suggested but he is not confining the protection to what he has listed. It is quite fundamental.
As a parliamentarian, I am reminded of the line in the film where Beckett says: "I shall take refuge in the thickets of the law." The law should not be thickets. The law should be clear and certain and by accepting amendment No. 332 the Minister is saying that anything that has not been listed is protected and is included. However, if the Minister substitutes the list for the preliminary commitment to fundamental rights in its most basic sense, he is putting that as an alternative.
I am not a lawyer but I am interested in human rights. I am a parliamentarian and I prefer the certainty that is provided in amendment No. 332. If the Minister wants to refer on Report Stage to not doing serious harm to the fundamental rights of the person or any breach of the fundamental rights of the human person and then go on to list them, he can do that. What is the construction to be put on the list? I can anticipate it. It will be that which we have agreed already and which we have been working with but with the greatest respect, that it is not good enough.
Both this amendment and the subsequent amendment No. 334 are in my name. I agree with what was said because as the Bill stands it is designed to confer the minimum possible protection on persons fleeing attacks on their human rights. All my amendment No. 332 seeks to do is to make clear that any serious attack on the fundamental rights of a person could be the basis for making a protection application. I am not anticipating that there is an objection on the part of the Minister. The test is a fairly severe one, namely, that "serious harm" means serious harm to the fundamental human rights of the person concerned. It is not an easy hurdle to jump. That definition or interpretation of "serious harm" needs to be elaborated.
In respect of the subsection (c) which makes reference to the serious and individual threat to a civilian’s life, I query the Minister of State on the reason for the insertion of the word “civilian”. What is the merit of narrowing the definition? It seems an unduly restrictive use of language, which would not protect someone fleeing from, for example, compulsory military service in an area of indiscriminate violence. Therefore, why bother inserting that word? Why can the definition not relate to a human being in those circumstances rather than excluding certain persons by reason of the uniform they wear or whatever, despite the varying circumstances in which they could find themselves? Therefore, it is necessary to expand on the interpretation of “serious harm” — as it is unduly restrictive — and to excise the term “civilian”.
On the first amendment in the grouping regarding a member state, a potential example that could arise in the not too distant future relates to Albania. Discussions have already taken place between the European Union and the Albanian Government about Albania joining the Union. From the EU's position of ensuring stability in the region, it seems likely that in the short to medium term Albania could become a member state of the European Union despite it having serious human rights issues, especially in regard to the issue of blood feuds. These will not be resolved quickly or there does not seem to be a willingness on behalf of the Albanian Government to address this issue. If Albania were to become a member state of the European Union and there were threats to a person's life as a result of these so-called blood feuds, surely that person should be entitled to protection within this State. However, as the definition is worded in the Bill, no provision could be made for such an individual. In the context of what could happen in the not too distant future, what are the implications of this wording in regard to such a situation arising?
I also raise a concern that was raised by Deputy Rabbitte regarding the issue of civilians. Perhaps the Minister of State could respond to the comments of the UN High Commissioner for Human Rights on this definition of "serious harm" and her concerns about it.
There is nothing new in what we are dealing with here. It is all part of European and Irish law. There is no change in that respect.
The amendments are opposed. Amendment No. 331 has the effect of applying the EU qualification directive to EU nationals, whereas the directive is especially aimed at third country nationals. I cannot accept the amendment as to do so would create difficulties with our EU partners and contradict the provisions of the directive.
Amendments Nos. 332 to 334, inclusive, seek to effect substantial changes to the definition of "serious harm" as set out in the qualification directive and reflected in the current text of the Bill. The State has given effect to the directive by means of the European Communities (Eligibility for Protection) Regulations 2006 and the Bill restates the provision of those regulations. I do not propose to accept modifications of the current legislative provisions in the manner sought by the amendments. Subsection (2) is based on article 7 of the qualification directive. This has been transposed in the eligibility for protection regulations.
Amendment Nos. 335 would remove the reference to parties or organisations controlling a state or a substantial part of the state from the subsection. The effect of that would narrow the definition of those who are regarded as capable of giving protection in a particular territory. Even if, say, a UN task force was in operation in an area and was effectively maintaining peace and personal safety for those in the territory, Irish law would, with the acceptance of amendment No. 335, be forced to ignore that reality in an artificial way.
The senior Minister has made it clear that he is satisfied that current legislative provisions contained in the eligibility for protection regulations are operating fairly and are not giving rise to any difficulties. The Minister would also make the point that there is no reason they should not be reproduced in the Bill and, for that reason, I am not in a position to accept the amendment.
I will deal with the points raised by Deputy Ó Snodaigh. The Deputy is wrong in his suggestion that the protections of human rights guaranteed to EU nationals within the territory of the EU are in any way hindered by the current temporary restrictions or that of the right to work for Romanian and Bulgarian nationals. There is simply no link between the two. One of the criterion for membership of the EU is adherence to the Copenhagen principles that require, among other matters, full respect for human rights by member states. If Albania, as Deputy Naughten proposed, wishes to become a member of the EU, it must first show that it has overcome the difficulties to which he referred.
I was talking about the political reality.
The political reality is that Albania is not going to be a member of the Union, therefore, it will not become a political reality.
The political reality is that it is a very unstable region. There is a push at European Union level to turn a blind eye to some of these human rights issues on the basis of bringing Albania into the European Union and creating a level of stability in that region. If that were to happen, we would have a problem in light of the wording in this legislation. That is a political reality.
To respond to the Deputy, I am not aware that the Copenhagen principles have been in any way watered down in regard to Albania.
Will the Minister of State advise how the acceptance of amendment No. 332 would in any sense contradict the transposition of the basic guidelines into Irish law? Is it not the case that it is a prefatory statement setting out that what follows is derived from a fundamental principle? How could that in any sense contradict what has happened already by way of arrangement, adaptation or acceptance?
If the Deputy looks at the content of the list he referred to, particularly the provisions in paragraph (6), they are sufficiently wide to encompass serious harm in a broad variety of circumstances. That deals with the issues.
It does not. I am not being cranky about this. The Minister is saying, therefore, that the assertion of sufficiency in the text that has been transposed is, in fact, being used as a substitute for the prefatory statement that there will be no breach in the fundamental rights of an individual. The point is, and I must be careful in how I say this, what has been agreed at the level of the European Union and transposed from the European Union into Irish practice is not contradicted one jot by the acceptance of amendment No. 332. The obduracy of refusing to accept the amendment is to say: "our text is the text that will be used and nothing else." That appears to be an extraordinary arrogance, but it is part of a philosophy of limitation.
Amendment No. 332 sets out a principle. What is the advantage and disadvantage of accepting the amendment? It creates certainty. The Minister might well argue, although I would not consider it a convincing argument, that once one has included the fundamental principle and inserted an illustrative list afterwards, one would thereby create a limitation. If the Minister says that, he is accepting a view that one can never make reference to fundamental principles in the introduction to any legislation on the basis that any specific after that will damage the general principle. That simply does not hold up.
It is a strange type of obduracy. In-house arrangements and practices and in-house drafting are being given precedence over what is internationally viable. What people want is to ensure that what is ultimately agreed is capable of being applied in every circumstance without exception, rather than people being able to run to the corners of the room and say: "We do not have to do it because of this, this and this." I am making a case for the positive assertion of the international principle, which is in amendment No. 332.
I do not wish to oppose the Deputy for the sake of it. What is proposed in amendment No. 332 reflects the issue in the terms of the asylum qualification directive. It is about bringing uniformity or achieving a gold standard throughout. It is not a matter of being disruptive. The issue conforms totally with the asylum directive.
We are going to get nowhere on it. As parliamentarians we work in a dualist system and when we sign, ratify, legislate and so forth I would have thought we would be able to state the full rigour of what we are committing ourselves to. This approach is narrow. It is opening escape hatches from commitment in a human rights sense.
It is very unfair to be brought into the middle of dealing with a legislative measure but I ask the Minister to apply his mind to what is being argued. It is not being proposed that any of the tests in (a), (b) or (c) be excised. All that is being argued is that there might be some other circumstance contemplated by the definition “serious harm” to the fundamental human rights of the person as well as those in (a), (b) and (c). We are not excluding them; we are saying they should stand but there could be other circumstances. We are not seeking to diminish or dilute the serious harm. It still requires serious harm to the fundamental human rights of the person concerned.
It appears to be obstinacy for the sake of obstinacy. When we started this morning arguing about non-State actors and so forth, the Minister had a point of view and I accept that. He says his point of view is supported by the norm in other European states. However, in this amendment we are not seeking to change the fundamentals; they are still included. We are seeking to express more elaborately the definition of "serious harm". I have not heard an argument other than: "This is the way we have written it and this is the way we will keep it."
I do not mean to be stonewalling or obstinate as the Deputies have suggested. The fact is it meets all the criteria in the directive and Irish law. More importantly, no difficulties have been encountered by case workers. I am not trying to be obstinate but I cannot accept the amendments.
Perhaps if the amendment was withdrawn, the Minister of State could bring it to the attention of the Minister for Justice, Equality and Law Reform, who might consider it again for Report Stage.
I do not wish to dodge the issue but I would be prepared to accept that advice if the Deputies were willing to let me speak to the Minister.
I support that. I am prepared to withdraw amendment No. 331 on that basis.
We are discussing amendment No. 332.
I know, but I am prepared to withdraw it on the basis that the Minister might reconsider it.
I am referring to Deputy Rabbitte's amendment.
I accept the Minister's good faith and I will accede to the Chairman's request.
I support Deputy Higgins and Deputy Rabbitte in their efforts to get clarification of what "serious harm" means and to show that there is other serious harm that might come to light in the future. I have a problem with the committee going through the mechanism of arguing about an amendment, after which it is withdrawn so the Minister can seriously consider it. We might as well withdraw all the amendments and ask the Minister to seriously consider them. We could just go through the procedure of moving the amendments before proceeding to Report Stage and having the argument then.
With regard to amendment No. 331, there could potentially be a time when a person from the EU could be deemed a refugee. It is a possibility and should not be excluded. It might be a rare possibility because of the standard set in the Copenhagen principles, but those standards were bent slightly to accommodate political realities with the acceptance of Romania into the EU ahead of schedule. I do not believe that Romania, when it joined the EU, had shown that it had, for example, ended the persecution of the Roma minorities. I also believe that the EU in the future will, for its own political purposes, bend the Copenhagen principles to allow Turkey or other states into the Union if that is the agenda at that time.
We will pull wool over everybody's eyes and say "Everything is sorted in Turkey. There is no breach of human rights and everything can be dealt with because Turkey has changed its internal justice system and there is no persecution of minorities". Amendment No. 331 would provide protection if in those changed circumstances — hopefully in extreme and rare circumstances — somebody applied for asylum even though he or she is an EU citizen. We need to be careful. Dual standards were set when Romania and Bulgaria and other accession countries joined the EU. If somebody is a member of a club they should be full members, yet at the time most EU countries set certain standards in terms of freedom of movement for the ten accession states. Then Romanian and Bulgarian citizens were prevented from travelling. The same was true when Spain, Portugal and Greece joined. There can be two sets of rules within the EU. The Minister of State should examine that matter.
I find it difficult to understand the Minister of State's refusal to accept amendment No. 333, which ensures that the definition is broadened. There are other problems with section 61 to which I will return when we have discussed these amendments.
Deputy Ó Snodaigh should not confuse access to a labour market with human rights. The EU is absolutely clear that access to a labour market in every member state of the Union becomes available after five years of full membership of the Union. Human rights is an equal treatment of each individual citizen within the Union and that has been confirmed already by the Minister of State here today. A member state has the right to waive the condition of access to its labour market if it so wishes. In 2004, the Government decided that the ten accession states would have open access without the five-year maturing period. Taking into account all the experience gained nationally and internationally on open access to the labour market, we decided later that we would not waive that right again. There is no point in mixing up this Bill with access to a labour market, however, which is a totally different situation.
It is anomalous.
I acknowledge the point made by Deputy Ó Snodaigh as to whether it is worth coming here when I have to refer back to the Minister for Report Stage. I concede that point. In the circumstances, the Minister was not available. I have come in his place and received a detailed briefing last evening.
I was not making a personal criticism.
No, but I acknowledge the Deputy's frustration at that level. However, circumstances intervened and I am not going into the specific detail to which the Deputy referred. I am not too sure how a person from an EU country could be a refugee, so perhaps the Deputy could clarify his thinking in that regard.
I shall give the Minister of State an example that could arise if Albania became part of the EU tomorrow. There is substantial political pressure at EU level to bring that country into the EU for the purposes of stability within the Balkans. UN and other international reports have been critical of the Albanian government and police force, which have done nothing to deal with the issue of blood feuds. Surely individuals who may have to leave Albania as a result of threats to their lives through a blood feud should be entitled to refugee status.
I shall detail a set of circumstances, with reference to the protocols to the treaty establishing the European Community. Given the level of protection of fundamental rights and freedoms by the states of the EU, member states shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes concerning asylum matters. Accordingly, any application for asylum made by a national of a member state may be taken into consideration or declared admissible for processing by another member state only in the following four cases: 1. if the member state of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam availing itself of the provisions of article 15 of the convention for the protection of human rights and fundamental freedom to take measures derogating its territory from its obligations to the convention; 2. if the procedure referred to in article F1 of the Treaty on European Union has not been initiated until the Council takes a decision in respect of itself; 3. if the Council acting on the basis of article F1 of the Treaty on European Union has determined, in respect of the member state of which the applicant is a national, the existence of serious and persistent breaches by that member state of principles mentioned in the article; 4. if a member state should so decide unilaterally in respect of the application of a national of another member state, in that case the Council shall be immediately informed and the application should be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way whether the case may be a decision-making power of the member state.
The provisions would need to fit one of the four categories regarding Albania, as the Deputy mentioned, but we are working on the presumption that it is most unlikely.
Let us say that, for one reason or another, a country falls into one of those four categories, how does the definition of an eligible person, which does not include a member state, tie in with that? Does the legislation then contradict what the Minister of State has said?
It does not. The definition of "refugee" in section 61(1) is as follows
"refugee" means a person——
(a) who, without prejudice to the Protocol on Asylum for nationals of a Member State of the European Union, annexed to the Treaty establishing the European Community, is not a national of a Member State,
This would override what is in the section.
I thank the Minister of State. Can we move on? How stands amendment No. 331?
Based on what the Minister of State said pertaining to European law, I withdraw it.
Amendment, by leave, withdrawn.
Amendment No. 332 has already been discussed with amendment No. 331.
I move 332:
In page 67, line 28, to delete ""serious harm" means—" and substitute the following:
""serious harm" means serious harm to the fundamental human rights of the person concerned and includes—".
As the Chairman has asked the Minister of State to consult his colleague on that amendment, I am prepared to withdraw it.
Amendment, by leave, withdrawn.
Amendments Nos. 333 to 335, inclusive, not moved.
Section 61 agreed to.
SECTION 62.
Question proposed: "That section 62 stand part of the Bill."
I will flag an issue for the Minister of State, who may return to it on Report Stage. It concerns one of the submissions we received at an earlier date. The Irish Refugee Council, the Refugee Information Service and Integrating Ireland, in their submission on proposed amendments, speak of the entitlement to apply for subsidiary protection directly. They state that as the Bill stands, a person who applies for any form of protection in the State is deemed to have applied for refugee status and that, however, there may be cases where a person is clear he or she is not a refugee but may be entitled to subsidiary protection. At present, such persons are forced to go through the refugee process. Surely there should be a provision made under which they could apply directly for subsidiary protection because they may not be eligible for refugee status but under some circumstances — I do not know what those circumstances would be considering there have only been four successful cases to date — they may be eligible for subsidiary protection. I ask the Minister to look at this issue prior to Report Stage.
I echo that call. I also remind the Minister, especially in this day and age where costs are a major issue, that this would be one mechanism for saving costs where, in a few cases only, one bypasses the refugee process.
This section, similar to other sections, deals with the presumption that a national of a safe country is not entitled to protection. I will leave that argument until we deal with that aspect in section 102, but it pertains to this section as well.
Question put and agreed to.
SECTION 63.
I move amendment No. 336:
In page 68, subsection (1)(a), lines 38 and 39, to delete “a determination in respect of the application” and substitute the following:
"the determination or, as the case may be, the decision".
I have been advised by the Office of the Parliamentary Counsel to the Government that the amendment is required to provide a distinction between the first instance and the appeal processes.
Amendment agreed to.
Amendments No. 337 and 338 in the name of Deputy Naughten are out of order as there is a potential charge on the Revenue.
Amendments Nos. 337 and 338 not moved.
Amendment No. 339 is in the name of Deputy Finian McGrath.
I move amendment No. 339:
In page 69, subsection (7), line 41, after "applicant" to insert the following:
", including the following:
(a) whether the area of relocation is practically, safely, and legally accessible to the individual;
(b) whether the claimant could be exposed to a risk of persecution or other serious harm upon relocation;
(c) where the agent of persecution is the State, there should be a presumption that the internal flight alternative is not available;
(d) where the agent of persecution is a non-State agent, there must be an assessment as to whether there is a risk that the non-State actor will persecute the applicant in the proposed area;
(e) whether, taking account of the personal circumstances, past persecution, and economic circumstances of the applicant he or she could have been reasonably expected to move to the proposed safe part of the country.”.
The amendment is opposed. Subsection (7), as it stands, is based on Article 8 of the EU qualification directive which is given effect in domestic law by means of the European Communities (Eligibility for Protection) Regulations 2006. The Bill restates the provision of those regulations and I do not propose to accept modification of the current legislative provisions in the manner sought by the amendment. There is nothing new in this. We are merely reiterating what has already been in EU law.
It is superfluous to requirements.
Amendment, by leave, withdrawn.
Amendment No. 340 in the name of Deputy Naughten is out of order.
Amendment No. 340 not moved.
Section 63, as amended, agreed to.
SECTION 64.
Amendment No. 340a is an alternative to amendment No. a340a while amendment No. 341a is related. Amendments Nos. a340a, 340a and 341a may be discussed together.
I move amendment No. a340a:
In page 70, lines 9 to 25, to delete subsection (1) and substitute the following:
"(1) Acts of persecution for the purposes of this Part must be—
(a) sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or
(b) an accumulation of various measures, including violations of human rights, which is sufficiently severe to affect an individual in a similar manner as mentioned in paragraph (a).”.
The purpose of the amendment, along with amendment No. 341a, is to provide a definition of acts of persecution that corresponds to Article 9 of the asylum qualification directive. The UNHCR had expressed concerns about the current wording of the section and following consultation with the UNHCR, I am in a position to amend the section. I am happy to do so along the lines in the amendments. I understand that Deputy Rabbitte’s amendment No. 340a was motivated by the same concerns and I believe that these amendments meet with his intentions.
The effect of amendment No. a340a is to specify the nature of acts that will constitute acts of persecution and amendment No. 341a provides the necessary link between the acts of persecution and the definition of refugee in section 61.
The UNHCR has expressed satisfaction with this proposed formulation for section 64.
I appreciate the opportunity to say a few words on this, but anything I have to say does not disregard or disrespect the quotation of opinion that has already been made.
I suggest that the opinion of the UNHCR is of less importance than the fundamental protection of a person's rights. It is obviously a valuable opinion, as is, indeed, Article 9 of the asylum qualification directive. Article 9 of the asylum qualification directive will seek to live within the more general fundamental requirements of the protection of rights. The opinion of the UNHCR is important in that regard.
I argue for this amendment strongly because the issue of parliamentarians' responsibilities is raised by it. Amendment No. a340a seeks to delete a subsection and substitute the one presented, which states that acts of persecution for the purposes of this Part must be “sufficiently serious”. My first point is that any act of persecution is to my mind serious. My problem is with the phrase “sufficiently serious”. The Minister may state that this is a conventional usage, but I assert that it is not.
The amendment states that these acts must be sufficiently serious "by their nature or repetition to constitute..." — here is the most serious part — "a severe violation of basic human rights". I have a problem with what I see as a fundamental contradiction between three terms used here.
If one is talking about basic human rights and the discourse that has surrounded that, one is talking about a fundamental right. With a basic human right, one either observes or breaches it. A purpose of law, both national and international, is, in different ways, to seek the establishment of fact and the vindication of a basic human right.
One has the question of the violation of a basic human right and then the question of what is a severe violation. We are now entering the realms of interpretation, the exercise of discretion and descriptions of adjudicated responsibility, where the Minister might state that this is the way they have said it in Europe and that should do us, or this is the way we practice and that should do us. Frankly, it is not good enough.
In a debate in Britain a distinction was made regarding Article 15.2 rights of the European Convention for the Protection of Human Rights and Fundamental Freedoms into the two categories of non-derogatable rights and derogatable rights. By the time one has got as far as that, one has abandoned certainty and piled discretion and interpretation on such a basis that one then states one will stand it on one section of the convention. One could not but see this as a very serious limitation and a narrowing of protection.
Paragraph (b) of amendment No. a340a refers to “an accumulation of various measures”. I suppose this means taking a long-term view in respect of what one is considering and what one is choosing not to consider, including violations of human rights that are sufficiently severe. The committee will have a problem in this regard because the amendment will mean that human rights protection will be pushed forward as an absolute principle. Will it then be left open to all of these judgments? Are members happy to include in law the question of what is a sufficiently severe departure? The wording used is too loose and the provision interferes with something of a fundamental nature.
I am not sure how to interpret the part which refers back to section 65. Perhaps what might be intended is that in many cases there would be an out clause similar to that used by other states — I am not indicating that it is employed here — where there is a distinction between the facts as observed and intention. In other words, that there is an intention to breach a person's human rights. I have never been impressed by that argument and I am not imputing its use to people in Ireland. However, no allowance should be made for it. Using phrases such as, "It will be as we decide to look at it", "It will be as we decide to see it", "It will be as we decide to describe it", "Whether we decide it is serious or not", "Whether it is a serious violation or not", etc., in an item of legislation that will affect the lives of people is simply unacceptable.
I am not merely seeking an out clause. However, I reiterate the point that this is governed by Article 9 of the EU qualification directive. It is in Irish and European law. I would have thought that the UNHCR would be the pre-eminent body dealing with this issue. I understand it took many months of work on the part of the officials and the UNHCR to get the wording right.
As the Minister of State is aware, the people with whom he should work in the context of getting it right are the Members of Parliament and, in particular, those who serve on this committee. The UNHCR may have an opinion and I am sure this has been made adequately clear to the Department. I am attending this meeting in the absence of Deputy O'Shea and speaking on these amendments in order to assert the right of Parliament to get the text of a Bill right. I am moved to take a strong stand on this matter. This is something upon which we should vote. The idea that the UNHCR has been cogitating on the matter for six months or discussing it with officials in the Department does not mean anything to me. This is the Parliament and its Members are responsible for that to which they will assent or from which they will dissent.
Does the Minister of State wish to continue?
Yes. In response to Deputy Higgins's point that parliamentarians are not involved in the process, I reiterate that the UNHCR is considered the pre-eminent body.
While isolated incidents of persecution are reprehensible and to be condemned, the victims of such incidents are not necessarily refugees. The formula used in this provision is based on well-recognised international jurisprudence which outlines the important elements of what makes a person a refugee. The examples provided in section 64(2) provide a clear picture in the context of what is intended. The section states: "The following are examples of acts which may amount to acts of persecution for the purposes of subsection (1)”. I cannot make it any clearer than that.
As the Bill stands, an act will not be an act of persecution if there is not a connection between it and the reasons for that persecution. This is set out in section 64(1)(a) and (b). If the amendment is accepted, section 64(1)(b) will be reworded. Is that correct?
Yes.
The Minister of State indicated that the UNHCR is the pre-eminent body. The UNHCR has actually expressed grave concern regarding this provision. Under the Geneva Conventions and the terms of the EU's qualification directive, to which the Minister of State referred, there are two steps which must be observed. First, there is a need to establish whether the acts concerned involve persecution and, second, one must establish the reasons for such persecution. The Bill provides that an act is not persecution if there is no connection to the reasons for persecution. This will only add to the confusion, particularly in the context of that with which we will be left. The UNHCR pointed out that it will be "complicated, difficult to use and open to challenge". The Minister of State indicated that it is the pre-eminent body but I have outlined its judgment on the provision.
The point, which Opposition members are arguing in favour of, in the amendment in my name, which seeks to delete section 64(1)(b), is clearer. I will, therefore, be obliged to oppose the Minister of State’s amendment.
I support the points made by Deputies Higgins and Rabbitte. I do not wish to dwell on what has already been said, except to state that a number of valid points were made.
The senior Minister has referred to a slash and burn policy in respect of various agencies. The Department and members of the Government should have become alarmed about the UNHCR's comments to the effect that this definition leaves the interpretation open to challenge. The most recent figures indicate that the taxpayer, via the Department, is paying €11 million per annum in legal fees in respect of court challenges. We will deal with this further when we come to the tribunal. We should try to ensure clarity regarding the legislation once and for all. There should not be opportunities for challenges to the interpretation of primary legislation. Therefore, I urge the Minister to accept Deputy Rabbitte's amendment.
There is a great deal of merit in my colleagues' comments. However, if the UNHCR has made an adjudication and expressed serious concern about what has been proposed, perhaps the Minister of State will consult his officials, legal advisers and the senior Minister and revisit the matter on Report Stage in the interests of ensuring sustainable legal clarity.
I thought I was bringing clarity but perhaps it may not be sustainable. We accept the provision was open to challenge. The officials dealing with the UNHCR permanent representative in Ireland went through the issues and what we have proposed in the amendment brings clarity. If I keep passing on everything to the Minister for Report Stage, this meeting will come to nought. What is proposed eliminates the possibility of a challenge and, following talks with the permanent representative, this is what we have come up with.
The Minister of State did not deal with one of the arguments I advanced, that we are standing the normal test on its head. First, it must be established whether there was an act of persecution. The reasons must then be established. However, the amendment implies there is no act of persecution, unless the reasons are known.
We will adjudicate the severity.
That is a materially different test. If the Minister of State is quoting the UNHCR, why, when he accepts the section, as drafted, is open to challenge, does he not acknowledge that body's reservations about the manner in which he has inverted the test?
We accepted it was open to challenge when issues were raised with the Minister. The reformulation of paragraph (a) eliminates the issue referred to by the Deputy. It deals with confusion and ensures the two-step process of analysis in each case will be applied. The new formulation in amendment No. 341a makes the simple and unarguable statement that an act of persecution to be taken into account for the purposes of the definition of “refugee” must be connected to the reasons listed in the definition. That is why I referred to what was accepted by the UNHCR.
Amendment put.
The Committee divided: Tá, 8; Níl, 5.
Tá
- Byrne, Thomas.
- Collins, Niall.
- Connick, Seán.
- Kenneally, Brendan.
- McGrath, Finian.
- Moloney, John.
- O’Brien, Darragh.
- Treacy, Noel.
Níl
- Deenihan, Jimmy.
- Higgins, Michael D.
- McGinley, Dinny.
- Naughten, Denis.
- Rabbitte, Pat.
Amendment declared carried.
Amendment No. 340a in the name of Deputy Rabbitte cannot be moved as amendment No. a340a was an alternative.
What is the reason my amendment No. 340a cannot be moved?
This amendment cannot be moved because it was alternative to amendment No. a340a which we have just passed.
I thought it was an alternative to amendment No. 341a.
No.
It runs directly counter to amendment No. 341a.
Amendment No. 341a will be moved in a moment.We are moving on to deal with amendment No. 341 which is also in Deputy Rabbitte’s name.
Amendment No. 340a not moved.
I move amendment No. 341:
In page 70, subsection (2)(e), line 39, after “conflict,” to insert “particularly”.
This amendment is purely for emphasis. I repeat the point I made earlier. I know the examples of persecution are not listed exhaustively in that section but it should still be stated that punishment for refusal of compulsory military service could amount to persecution even if the person will not be compelled to carry out war crimes or the like. There is a necessity, at subsection (2)(e) for the purposes of emphasis to insert the word, “particularly” which I think makes that more clear. There is nothing more substantial attached to that amendment.
The amendment is opposed on the basis that the text in subsection (2)(e) as it stands is based on Article 9.2 of the EU qualification directive which has been given effect in domestic law by means of the European Communities (Eligibility for Protection) Regulations 2006. The Bill restates the provision of those regulations.
The Deputy's amendment would have the effect of generalising in an undesirable fashion the exception for military service set out in paragraph (e) of this subsection. In that regard I do not propose to accept modification of the current legislative provisions in the manner sought by the amendments.
We have been down this road before and there is no point in my pursuing it as the Minister of State will not change his mind. I will withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 341a in the name of the Minister has already been discussed with amendment No. a340a.
I move amendment No. 341a :
In page 70, between lines 42 and 43, to insert the following subsection:
"(3) For the purpose of the definition of "refugee" contained in section 61, there must be a connection between the reasons for persecution, as construed under section 65, and the acts of persecution, construed in accordance with this section.”.
I do not wish to revive the discussion. I advanced my own amendment No. 340a.
My apologies, Deputy. We have already discussed it.
Amendment put and declared carried.
Section 64, as amended, agreed to.
SECTION 65.
Amendments Nos. 342 to 344, inclusive, will be discussed together.
I move amendment No. 342:
In page 71, subsection (1)(d)(ii), to delete all words from and including “society;” in line 26, down to and including “Part;” in line 33 and substitute the following:
"society,
and, depending on the circumstances in the country of origin, a particular social group may include a group based on a common characteristic of sexual orientation;".
Amendments, Nos. 342 to 344, inclusive, arise following discussions with UNHCR as to the manner in which the presentation of the text diverged from that in Regulation 10 of the Eligibility for Protection Regulations, which transpose Article 10 of the EU qualification directive. The intention behind the text in the Bill was to try and present the text in a more easily readable format. However, to take account of UNHCR concerns, the Minister is happy to amend the text in the manner proposed in the amendments.
Amendment No. 342 inserts the text: "depending on the circumstances in the country of origin, a particular social group may include a group based on a common characteristic of sexual orientation". We have received a number of submissions on the issue of gender. I know it arises in section 65(1)(e). An amendment to that subsection has not been tabled but it concerns the same issue as is in amendment No. 342. The issue of gender needs to be taken into consideration because there are various forms of persecution. Female genital mutilation is the one that springs to mind. There are various forms of persecution that are unique to or disproportionately experienced by women, including forced abortion, gender-based violence by a partner and so on. There are issues regarding the treatment of women by the Taliban in Afghanistan. There is the issue of honour killings. There are several different issues and the legislation should provide for the consideration of gender as a social group as defined in amendment No. 342 or if it would be more appropriate to insert in section 65(1)(e) prior to “sexual orientation” the term “gender or”. The legislation needs to provide for this issue. I understand that in many other countries, including Canada, United States, Norway, South Africa, Australia and Sweden such provisions have been written into either their asylum legislation or aliens legislation. Such provision must also be made in this legislation.
I share the Deputy's concern. However, I suspect section 64 addresses the issues the Deputy has mentioned. I will quote——
The Minister of State should not suspect. He should show me where they are.
I support what the Deputy suggests. However, it is already addressed. Section 64(12)(f) refers to “acts of a gender-specific or child-specific nature.” Section 65(1)(f) states:
gender-related aspects may be taken into account in assessing whether an applicant is a member of a social group based on sexual orientation without by themselves creating a presumption for the applicability of this Part.
I ask the Minister of State to explain that to me.
I refer the Deputy to Government amendment No. 344 which states:
(a) sexual orientation shall not include acts considered to be criminal in the State,
(b) gender related aspects may be taken into account, without by themselves alone creating a presumption for the applicability of this section.”.
It is clear from this amendment that gender-related aspects will be taken into account.
It refers to criminal acts.
It refers to criminal acts in this State.
I may question the matter again on Report Stage. However, for the moment I will take the Minister of State's word on it.
Amendment agreed to.
I move amendment No. 343:
In page 71, lines 44 to 48, to delete subsection (3) and substitute the following:
"(3) In this section, "membership of a particular social group" includes membership of a trade union.".
Amendment agreed to.
I move amendment No. 344:
In page 71, after line 48, to insert the following subsection:
"(4) For the purposes of subsection (1)(d)—
(a) sexual orientation shall not include acts considered to be criminal in the State,
(b) gender related aspects may be taken into account, without by themselves alone creating a presumption for the applicability of this section.”.
Amendment agreed to.
Section 65, as amended, agreed to.
SECTION 66.
Amendments Nos. 345 to 348, inclusive, not moved.
Question proposed: "That section 66 stand part of the Bill."
Section 66(4) states:
A person is excluded from being eligible for subsidiary protection if he or she has, prior to his or her admission to the State, committed one or more crimes, not consisting of a crime or conduct mentioned in subsection (3), which would be punishable by imprisonment had it or they been committed in the State
I do not have a principled objection to this provision, the thrust of which is acceptable. I ask the Minister of State to provide clarity on the penalty. For example in some countries a person might be convicted of theft and rather than serving time in prison he or she might have a hand cut off. Under section 66(4) that person might be denied subsidiary protection on the basis that he or she had stolen something and if that had happened here that person would have committed a criminal offence that could be punishable by imprisonment. However, if that person returns to his or her country of origin, while his or her life is not threatened he or she could lose a hand. While it might be a hypothetical situation, how would this subsection be interpreted in such circumstances?
If an applicant were to be returned to a country and subjected to inhuman or degrading treatment, I can say quite definitely it would render the applicant eligible for subsidiary protection. If the only reason that person came here was because he or she had committed a crime, obviously that guarantee would not be in place.
I ask the Minister of State to repeat the point.
It is quite clear that if the applicant came from a country where he has committed a crime, I am not in a position to guarantee that he would be——
A person who had committed a crime that was punishable by severing a hand might come here and seek protection on that basis. Under section 66(4) that person might be excluded from being eligible for subsidiary protection on the basis that the reason he or she is here is because he or she committed a crime in his or her country of origin. While that crime might be punishable by imprisonment here, the punishment might be far more severe in the country of origin.
An assessment of whether they would be entitled to protection would be made in each case. If a person being returned to his or her country of origin were likely to be subject to inhumane treatment or imprisonment in that country, a judgment would be made on the individual case. If there was a fear that the person would be subject to inhumane treatment upon his or her return to his or her country of origin, I would expect that consideration would be given to subsidiary protection.
Can consideration be given to subsidiary protection in such cases? Section 66(4) states that a person is excluded from being considered for subsidiary protection if the Minister or the tribunal believes he or she "left his or her country of origin only in order to avoid sanctions". It does not state that this rule is subject to A, B or C.
We would not give subsidiary protection to a person in the circumstances outlined by the Deputy. At the same time, we could not send him or her back to his or her country of origin. We would have to let him or her stay here on some other basis. They would not be allowed to stay here on the basis of subsidiary protection. We are trying to recognise the principles of humane and humanitarian treatment. If we become aware that a person has fled his or her country of origin after committing a crime, and is likely to be subjected to cruel or inhuman treatment if he or she is returned to that country — the Deputy mentioned the possibility of the person's hand being cut off — we will not provide subsidiary protection but we will allow them to stay on some other basis that is not defined specifically under subsidiary protection.
On what basis would such a person be allowed to stay? The difficulty is that thousands of people are living in legal limbo, completely separately to the legislation being considered in this room. I refer to people who are already within the asylum process, people who have applied for subsidiary protection and people who came to Ireland legally and are waiting for the bridging visa scheme to be put in place. Thousands of people are in legal limbo. We do not want to create another form of legal limbo. How can we protect the people I have mentioned?
The category Deputy Naughten has identified is not theoretical. There may not be too many cases involving the specific example he gave. There are plenty of examples of offences in this country which would be treated differently in the country of origin of the people we are talking about. Is the Minister of State saying that if the return of a person to his or her country of origin would lead to that person being subjected to inhuman or degrading treatment, there is a facility in legislation that could facilitate that person being accommodated in this jurisdiction, albeit not under protection?
That is exactly what I am saying. If a person is fleeing having committed a crime, I take the point that the level of punishment he or she might face in his or her country of origin could differ significantly from the level of punishment in this country. While such a person could not be granted subsidiary protection status, he or she would be allowed to stay in Ireland on some other basis. He or she might be entitled to a residency permission, for example.
There is a concern that when the Bill is enacted, it will be used by immigration officers who will be happy to reach section 66(4) and not look elsewhere for guidance. An officer may decide that a person who has committed a crime must be deported under the terms of section 66(4).
I do not see where the legislation, as it is currently drafted, provides for the discretion mentioned by the Minister of State. He has suggested that people in these circumstances could be given a residency permission. To the best of my understanding, there is no provision in this legislation for such a permission to be provided to someone. The Minister could consider each person's circumstances on a case-by-case basis. My interpretation of section 66 is that it would tie the hands of the Minister of the day — even if the Minister wanted to give a residency permission, he or she could not do so because of the way this is worded.
I am trying to be clear. There is no question of granting protection in these circumstances. I referred to granting residency. When the Bill is in operation, section 53, which has already been agreed, will ensure that a person who is not entitled to protection cannot be sent back. Section 53(1) states that "a foreign national being removed from the State under this Act shall not be sent to a territory if doing so would be a refoulement". An applicant in the circumstances under discussion would therefore have to be given some other sort of residence permission. That is our position under the Bill. Section 53 operates as a safeguard.
There is no entitlement to residency under refoulement.
I understand that there is. It is an obligation under section 53.
No, not under section 53 anyway.
We could discuss this for a long time. I understand the point the Minister of State is making, which is that protection is probably afforded somewhere else in the kind of cases we are talking about. Perhaps the Minister of State can write to the Deputies to respond to their concerns. He can clarify where exactly the protection he mentioned is outlined.
I will take up that suggestion. I will clarify the criteria for subsidiary protection, under the various headings. I will also try to clarify the protections which are available outside the subsidiary protection framework to assist someone who fears being persecuted if he or she returns home.
The Minister of State will explain what will happen in the scenarios outlined by the Deputies. Is that fair enough? Okay.
Question put and agreed to.
SECTION 67.
As amendments Nos. 350 and 351 are cognate to amendment No. 349, amendments Nos. 349 to 351, inclusive, may be discussed together.
I move amendment No. 349:
In page 73, subsection (1)(a), line 7, to delete “the” and substitute “his or her”.
These are drafting amendments.
Amendment agreed to.
I move amendment No. 350:
In page 73, subsection (1)(e), line 18, to delete “the” where it secondly occurs and substitute “his or her”.
Amendment agreed to.
I move amendment No. 351:
In page 73, subsection (1)(f), line 23, to delete “the” and substitute “his or her”.
Amendment agreed to.
Section 67, as amended, agreed to.
SECTION 68.
As amendments Nos. 352 to 356, inclusive, amendment No. 359 and amendment No. 361 are related, they may be discussed together, by agreement.
I move amendment No. 352:
In page 74, subsection (3), line 3, to delete paragraph (a) and substitute the following:
"(a) entitle the applicant to reside in the State,”.
I have been advised by Office of the Chief Parliamentary Counsel that the proposed formulation in amendment No. 352 is more appropriate than the existing text. The intention of this change is to make clear that the granting of a protection application entry permission is not analogous to the granting of a residence permission. It is a special form of entry permission that does not, of itself, entitle the protection applicant to a right of residence in the State. Rather, it entitles the protection applicant to be present in the State for the purposes of having his or her protection application determined.
Amendment No. 353 is intended to provide a clearer link with section 79, which relates to the first instance determination of protection applications. There is no substantive change effected by the amendment. Rather, it uses terminology more consistent with that used in section 79.
Amendments Nos. 354 to 356, inclusive, provide a link with section 79 and remove surplus text. In the single procedure the decision as to whether a residence permission will be granted to a failed protection applicant is made under section 79(2)(c) and not under section 30.
Amendment No. 359 removes surplus text from subsection (6). Subsection (7) requires the notice under subsection (6) to be in writing and sets out the details that should be included in the notice.
Amendment 361 is a drafting change which better reflects the current operation of the withdrawal process. It is intended to alert the protection applicant to the possibility that his or her application may be deemed to be withdrawn if he or she does not comply with the requirement in the notice. As currently drafted, the provision states that the protection application will be deemed to be withdrawn.
Will the Minister of State explain the thinking behind amendment No. 352, which provides that the granting of a protection application entry permission under subsection (1) will not, of itself, entitle the applicant to reside in the State?
The purpose of the amendment is to underline and make clear that the making of an application for residency by a person in the State does not confer any status of permanency.
Yes.
The amendment rephrases section 68(3), which states that the granting of a protection application entry permission under subsection (1) does not, of itself, confer on the applicant a right to reside in the State.
Yes, while I understand that, I am curious about the reason for the amendment. For the man or woman in the street, it is assumed that the granting of an application for protection confers on the person the right to live in this jurisdiction. Why exactly are we splitting hairs? Where would the person be granted the right to reside, if not in the jurisdiction of the country which granted him or her protection?
If a person's protection application is deemed to be successful, the right to reside in the State follows from that. However, in this case, it refers to a temporary provision for entry permission. Residence is conferred while the application is being processed. The commencement of an application process does not confer any permanent status. While a belt and braces approach is being taken, the purpose of the amendment is to ensure that in the applicant's mind there is no confirmation of status.
Will the Minister of State give an example of a case in which the Minister would grant an application for protection which does not carry a right to reside in the State?
The circumstances covered by the amendment do not refer to protection status but the temporary status of the application. It is not by way of protection.
I seem to have difficulty with some kind of suspended animation. I am sure the draftsman had——
I understand clarification will be given when we address all these questions at a later stage.
Amendment agreed to.
I move amendment No. 353:
In page 74, subsection (4), lines 14 to 24, to delete paragraph (b) and substitute the following:
"(b) where the Minister has determined under section 79 that the protection applicant is not entitled to protection in the State, the later of the following dates:
(i) where the applicant has appealed under section 84 against the Minister’s determination, the date on which notice is sent that the Tribunal has, under section 88(2)(a), decided to affirm the determination of the Minister, or
(ii) where the applicant has not so appealed, the latest date for making such an appeal specified in the notification of the Minister's determination of the protection application.".
Amendment agreed to.
I move amendment No. 354:
In page 74, subsection (4)(d), line 29, after “has” to insert “, in accordance with section 79(2)(c),”.
Amendment agreed to.
I move amendment No. 355:
In page 74, subsection (4)(d), line 30, to delete “under section 30”.
Amendment agreed to.
I move amendment No. 356:
In page 74, subsection (4)(d), lines 30 and 31, to delete “on other grounds”.
Amendment agreed to.
Amendments No. 357 and 358 not moved.
I move amendment No. 359:
In page 74, subsection (6), lines 41 and 42, to delete ", by notice in writing,".
Amendment agreed to.
Amendment No. 360 in the name of Deputy Naughten is out of order.
Amendment No. 360 not moved.
I move amendment No. 361 :
In page 75, subsection (7)(b), line 14, to delete “will” and substitute “may”.
Amendment agreed to.
Question proposed: "That section 68, as amended, stand part of the Bill."
I am a little confused about the apparent contradiction between subsection 5(c), which requires an applicant to inform the Minister of his or her address and any change of address as soon as possible, and subsection 6(a), which requires a person to comply with any requirements on him or her to dwell or remain in a particular district or place in the State. The former appears to give the impression that a protection applicant is free to live wherever he or she chooses. When I raised this issue in the House with the former Minister for Justice, Equality and Law Reform in the context of asylum seekers who have left asylum accommodation provided for by the State, he stated:
The question appears to imply that asylum seekers are not free to leave State accommodation centres. That is not so. Asylum seekers are not prisoners. They are free to leave such centres, or opt not to avail of the facilities that lie therein from their day of arrival in the State.
However, the rights and obligations of asylum seekers listed on the website of the Reception and Integration Agency states:
You may be required to report at specified intervals to an Immigration Officer, to a person(s) authorised by the Minister or to a member of the Garda Síochána. You are required to reside or remain at the accommodation centre allocated to you by the R.I.A.
You can only move from this accommodation with the permission of the R.I.A. and only in circumstances where the R.I.A. is in a position to offer you alternative accommodation.
The Minister's statement and the rules laid down by the Reception and Integration Agency appear to be in conflict, as do the provisions of subsections (5) and (6). What is the position? Clarity is required in this area because the Minister's words and the requirements laid down by the RIA are completely different.
To clarify, in circumstances where a person is in RIA accommodation, it is expected that he or she will make the agency aware of any change of address.
No, it is not just to make them aware, one is required to remain or reside in the accommodation. The only circumstances in which one can move is where one is offered alternative accommodation by the RIA. That is directly contrary to what the former Minister said on the floor of the House. What he said complies with one of the subsections and what the RIA said complies with the other subsection. Which of them is right because the two of them cannot be?
I am trying to figure out where Deputy Naughten sees the contradiction. I presume the two of them can be right.
Section 68(5)(c) states, a protection applicant shall “inform the Minister of his or her address and any change of address as soon as possible.” That gives the impression a protection applicant can move from one location to another. That is also the impression the Minister gave in the House when I questioned him on the issue, that people are not forced to remain in RIA accommodation. However, section 68(6) states an immigration officer or authorised a person may, by notice in writing, require a protection applicant to comply with the requirement that he or she shall dwell or remain in a particular district or place within the State. When one takes that in conjunction with what is on the RIA’s website that means the person cannot move. The RIA’s website states those two issues are obligations on asylum seekers, that they are required to reside or remain in the accommodation centre allocated to them by the RIA, which is the direction under section 68(6).
I do not want to confuse matters any further. What it clarifies is that if a person is in RIA accommodation he or she cannot move to other RIA accommodation, but he or she is free to move without permission. The provision is purely for practical reasons so that the Department is aware of where the applicant is and not by way to curtail freedom of movement.
I do not dispute what the Minister of State said but on the RIA's website it states there is an obligation on an asylum seeker to only move from his or her accommodation with the permission of the RIA, and only in circumstances in which the RIA is in a position to offer alternative accommodation. That means persons do not have the freedom to move. That is legally binding under section 68(6)(a). There is a contradiction there.
The Deputy referred to section 68(6)(a). Section 68(6) states:
An immigration officer or an authorised person may, by notice in writing, require a protection applicant to whom subsection (1) applies to comply with either or both of the following conditions:
(a) that he or she dwell or remain in a particular district or place in the State; or
Is the Deputy's point that the legislation is in conflict with the website information?
According to the RIA's website, one of the obligations placed on an asylum seeker is that he or she must remain in the accommodation.
There are cases where applicants have opted to move to private accommodation with the permission of the RIA. That is on record as having happened. Is it the case that Deputy Naughten has a problem with the notification system?
We know hundreds of people have left RIA accommodation without getting authorisation to move. The Minister's response to that on the floor of the House is that they are free to move as they wish, but that is not the case according to the RIA's obligation that if persons are in RIA accommodation, at the very least they must get permission from it to leave that accommodation. That is supported by section 68(6)(a) but section 68(5)(c) gives the impression they are free to move, and that is the response the Minister gave to me on the floor of the House. The obligations on an asylum seeker in section 68(6)(a) as laid down by the RIA run contrary to that.
I am not in a position to bring clarity to the matter. I accept there is a contradiction between what the Minister said and what is on the website. I need time to seek clarification.
We would all appreciate if the Minister of State could drop us a note on the issue. It is something we all meet on a day-to-day basis. The point is not to highlight that the Minister was wrong, but we need clarity on the position.
Yes, that is reasonable.
I thank Deputies Rabbitte and Naughten for that and the chance to come back with clarification.
I thank the Minister of State.
Question put and agreed to.
Amendment No. 362 not moved.
Section 69 agreed to.
SECTION 70.
Amendments Nos. 363 and 364 are related and both may be discussed together by agreement.
I wish to move amendment No. 364.
We need to move No. 363 in order to move No. 364.
No, that is not the case. In an earlier group of amendments the Minister did not move the original amendment but the subsequent amendments were moved and discussed.
Amendment No. 363 not moved.
I move amendment No. 364:
In page 76, lines 13 to 19, to delete subsection (2) and substitute the following:
"(2) An immigration officer complies with this subsection by-
(a) requiring the foreign national to remain in a place specified by the officer for a period not exceeding 24 hours, or
(b) where the officer is satisfied that the foreign national will not comply with paragraph (a) arrest and detain him or her for a period not exceeding 12 hours, so as to facilitate the issuing by the Minister to the foreign national of a protection application entry permit as a matter of priority.”.
I would like to hear the Minister of State's response. The only issue that arises is in regard to entry permits. I do not see why there should be a huge delay in issuing an entry permit. It should be reasonable to issue an entry permit in 24 hours rather than detain a person in a prison or require them to remain in another place until an entry permit is issued. I can understand a delay arising at the other end of the system. We can discuss that point later as I have tabled an amendment in that regard. Surely there is no logic in detaining a person for a considerable period pending the issue of an entry permit.
When the Minister spoke about Thornton Hall he made clear that the accommodation provided for the immigration system was not intended for people who have just entered the country who are awaiting entry permits but for people being deported. That means if someone is being detained, he or she would be detained in a prison. Many international agencies and human rights organisations, including the UN High Commissioner for Refugees, and the recent UN human rights report have been critical of Ireland in that regard. I hope the Minister of State can accept the amendment.
I understand the Minister outlined to the committee that the Bill is introducing a binary system within which a person will either be lawfully or unlawfully present in the State. Special arrangements are necessary to ensure that protection applicants do not find themselves rendered unlawful for the want of a protection application entry permit, and are not in a position to be at large around the State without their permit. At present, temporary residence certificates for asylum applicants are issued centrally by the Office of the Refugee Applications Commissioner. They are not issued at the frontiers of the State. This does not present many difficulties as the vast majority of protection applications are made inland at the Office of the Refugee Applications Commissioner. By way of example, in 2007, 85% of protection applications were made by people who presented themselves at that office, having already entered the State for the most part surreptitiously. This figure rose to 86% in the first half of 2008.
The overall purpose of the provisions of section 70 is to ensure the issuing to a foreign national of the necessary protection application entry permit as evidence of his or her permission to remain in the State for the sole purpose of having his or her protection application investigated. In this context, it is important to ensure that the presence of any protection applicant in the State is subject to the control necessary to ensure the protection application entry permit is issued as soon as practicable to him or her.
The Deputies' concerns over section 70 have also been raised in other quarters, in view of which the provision in question is the subject of ongoing discussion with the Office of the Attorney General. The Minister expects to table an appropriate amendment on Report Stage to address the concerns raised.
What about the concerns raised by Deputies?
I recognise that concerns were raised by Deputies at the last meeting in addition to those raised by others. In view of the fact that these concerns will be raised on Report Stage, I ask the Deputy to consider withdrawing the amendment.
I will withdraw it on the grounds that I will have leave to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 365 not moved.
Amendments Nos. 366 to 372 are related and are to be discussed together.
I move amendment No. 366:
In page 77, subsection (7)(a), line 11, before “the” to insert “that”.
These are all drafting amendments.
Amendment agreed to.
I move amendment No. 367:
In page 77, subsection (7)(b), line 13, before “the” where it firstly occurs to insert “that”.
Amendment agreed to.
I move amendment No. 368:
In page 77, subsection (7)(c), line 16, before “the” to insert “that”.
Amendment agreed to.
I move amendment No. 369:
In page 77, subsection (7)(c), line 18, to delete “into” and substitute “to”.
Amendment agreed to.
I move amendment No. 370:
In page 77, subsection (7)(d), line 20, before “failure” to insert “that”.
Amendment agreed to.
I move amendment No. 371:
In page 77, subsection (7)(d)(iii), line 27, after “unlawfully” to insert “present”.
Amendment agreed to.
I move amendment No. 372:
In page 77, subsection (9), line 36, to delete "into" and substitute "to".
Amendment agreed to.
Section 70, as amended, agreed to.
SECTION 71.
Amendments Nos. 373 and 374 are related. The latter is an alternative to the former and they may be discussed together.
I move amendment No. 373:
In page 78, subsection (1), lines 11 to 13, to delete paragraph (f) and substitute the following:
"(f) without reasonable cause—
(i) has destroyed his or her identity or travel document, or
(ii) is or has been in possession of a forged, altered or substituted identity document,".
The purpose of the amendment is to make clear that the phrase "without reasonable cause" applies to both scenarios envisaged in subparagraphs (i) and (ii).
It is generally recognised that persons genuinely fleeing persecution or the threat of serious harm often have to either destroy documents or use false documents in order to leave their country of origin and seek protection elsewhere. However, the fact of having destroyed documents or of using false documents is a matter that the protection applicant should bring to the attention of an immigration officer at the earliest possible moment upon making a protection application. Failure to do so can lead to difficulties in identification of the person before the officer, and must also give rise to questions as to the bona fides of the applicant.
Amendment No. 374 ties in with the original legislation and what is being proposed by the Minister of State. Amendment No. 373 states, "is or has been in possession of a forged, altered or substituted identity document". How can one prove someone has been in possession of a document if he or she has destroyed it or mislaid it deliberately prior to entering the State? I am concerned about the establishment of proof in respect of the phrase "or has been" and that is why I tabled my amendment.
One must have documentation to be transported to the State in the first place, be it by plane or otherwise.
By way of plane——
Yes.
——but not necessarily by other means.
Or maybe also by way of ferry from the Continent.
No. We raised that issue before in respect of travel documents.
One must have a passport.
No. A case was taken in court in Athlone concerning a Polish national who was involved in a road traffic accident. He was offered bail on the basis that he surrendered his passport. The Pole made the point that he did not have a passport and did not have one entering the State. I presume he came through Rosslare Europort. Such issues arise when one is entering the country legitimately; I am not referring to cases in which one enters illegally.
How can we provide proof with regard to the phrase "or has been"? Where one enters by plane, one must present travel documents at the airport of departure. Naturally, if one arrives in Ireland at an airport without travel documents, something has happened in-between. I presume this would be the case in the vast majority of cases. However, how can one prove someone has been in possession of a document when one does not have access to it and when the person may not have needed the document to enter the country? An official, for corrupt reasons, could turn a blind eye to the lack of documentation in a smaller airport, either in Europe or beyond. It does not require a great stretch of the imagination to recognise this is possible, bearing in mind that an issue arises with regard to the policing of civil airports in Ireland.
I would have believed the Pole in the Athlone case would have had a national identity card, but this was obviously not the case.
That is not a travel document.
We would consider it to be in the absence of a passport.
We dealt with the issue earlier.
I take the point. The effect of removing these words would be that in order to escape the consequences of having had a false document, the person would merely need to divest him or herself of it to be immune from the detention consequences in this provision. Consider the situation where a protection applicant has false documents and has no good reason for having them. This makes it appropriate that the person should be detained under the section. However, it is also appropriate, indeed normal procedure, that the immigration officer should take possession of the offending documents. With the Deputy's amendment, this would immediately prevent the application of this section to the applicant because he or she would no longer be in possession of the documentation. That is not an outcome that I could accept.
What is a "place of detention" for the purposes of this section?
I understand a "place of detention" will be specified in the regulations. It is envisaged that the "place of detention" will be an immigration detention centre as part of the Thornton Hall facilities. Detainees will not be housed with prisoners, either convicted or remanded.
Will we be talking about Thornton Hall and the location of the Central Mental Hospital this day week?
I expect so. We are trying to be consistent with A Vision for Change by ensuring a new mental hospital is built as quickly as possible. The Thornton Hall site is the only one on offer as no other has been identified.
It will not slip up on a banana skin next Tuesday.
We are not going to discuss that issue. We must stick to the amendment.
If it is not dealt with, we will be moving away from the target set in A Vision for Change. I will be promoting the acceptance of this choice.
In the first six months of 2008, 1,120, approximately 60%, of the 1,853 asylum applicants claimed to have arrived in Ireland with no travel documents. Approximately 500 of these applicants claimed to have arrived by air transport. In 2007, approximately 2,500, 63%, of the 3,985 asylum applicants claimed to have arrived in Ireland with no travel documents. Again, approximately 1,000 of them claimed to have travelled by air.
Amendment agreed to.
Amendments Nos. 374 to 377, inclusive, not moved.
Amendment No. 379 is cognate to amendment No. 378 and amendment No. 381 is related. They will be discussed together.
I move amendment No. 378:
In page 79, subsection (7), line 18, to delete "Subsection (1)” and substitute “Subsections (1) to (6)”.
These are technical amendments correcting cross-references in lines 18 and 23 of page 79 and inserting a comma in line 12 on page 80.
Amendment agreed to.
I move amendment No. 379:
In page 79, subsection (8), line 23, to delete "subsection (1)” and substitute “subsections (1) to (6)”.
Amendment agreed to.
I move amendment No. 380:
In page 80, subsection (14), line 7, after "person" to insert the following:
"having consulted with a solicitor and obtained independent legal advice".
I hope the Minister will accept this amendment because it builds in an extra protection within the legislation. Section 71(14) states:
If, at any time during the detention of a person under this section, the person indicates a desire to leave the State, he or she shall, as soon as practicable, be brought before a judge of the District 5 Court assigned to the District Court district in which the person is being detained and the judge shall, if satisfied that the person does not wish to proceed with his or her protection application and wishes to leave the State, order the Minister to arrange for the removal of the person from the State—
This amendment proposes to insert the "having consulted with a solicitor and obtained independent legal advice". For one reason or another, someone may not be happy to stay where they are detained. For example, next Tuesday if the Minister for Finance were to abandon plans for Thornton Hall, in such circumstances, a person under this section could be held in a prison. With overcrowding being experienced in prisons, an applicant may not be segregated from the general prison population. The individual, depending on his or her skin colour, could be victimised in the prison. The applicant may feel better off risking the gauntlet of going home rather than being threatened in the Irish prison system by some of society's undesirables. In such circumstances, the judge should only take a person's word that he or she wants to withdraw the application and leave the country following independent legal advice. The amendment strengthens the legislation. In the majority of cases, this probably happens anyway. It is better to build in this protection in the legislation to ensure an applicant does not make a decision on the spur of the moment without having considered the full implications.
I presume the Deputy's concern is based on a case where there was no suitable detention centre.
I only used that scenario as an example.
I do not want to oppose the amendment for the sake of it. I will examine it again on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 381:
In page 80, subsection (14), line 12, to delete "order" and substitute "order,".
Amendment agreed to.
Question proposed: "That section 71, as amended, stand part of the Bill."
The Minister of State, Deputy Moloney, has responsibility for equality and disability issues but I have also raised this issue with his colleagues, the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and the Minister of State, Deputy Conor Lenihan. Subsection (9) states: "Where an unmarried person under the age of 18 years is in the custody of another person ... the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Health Service Executive". We had a lengthy debate with regard to the inadequate provisions within the HSE for unaccompanied children arriving in the State. I have also raised with the Minister and the Minister of State a further issue that needs to be addressed within the legislation, namely, that of a person over the age of 18 years who may not be of sound mind. There is a weakness in the legislation, as it stands. The Minister and his officials intend to consider the issue, but as the Minister of State, Deputy Moloney, is present, it is important to flag this. The Minister should be satisfied sufficient protections are in place to ensure provision can be made for persons who are not of sound mind, or who have an intellectual disability, when they present in the State. He should also ensure that whatever provision is put in place, it will operate better than the treatment of under age children in the State in the HSE system. The number of children going missing from State-provided accommodation is a disgrace. While I have gone into this issue at length and will not go back over it, I wish to flag the issue of disability with the Minister of State.
It is a responsibility I will accept. I take the advice the Deputy is giving on the section and I am pleased the Minister has accepted his advice on the issue. It is clear there is not enough legislation or protection in the area of disability or mental health. We will reconsider this matter.
Question put and agreed to.
Section 72 agreed to.
As it is almost 1 p.m. and there are a number of amendments to section 73, with the agreement of members, I consider it prudent to adjourn. Is that agreed? Agreed. I thank the Minister of State and his officials for attending.
Progress reported; Committee to sit again.
The select committee adjourned at 12.55 p.m. sine die.