I propose that we adjourn at 1 p.m. or when a division is called on the Private Members' business motion, whichever is the earlier. We will reconvene on a date and at a time to be arranged. Is that agreed? Agreed.
I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. We are resuming our consideration of the Bill on section 73. Amendments Nos. 382 to 385, inclusive, 389, 391, 392, 400, 401, 405 are related and may be discussed together.
I move amendment No. 382:
In page 81, subsection (1), line 17, after "State" where it secondly occurs to insert the following:
", and such an application is referred to in this Act as a "protection application" "
What happens to the amendments in the name of one of the great legislators of our time, Deputy Finian McGrath? Do they fall?
I am advised that they remain on the Order Paper and that it is up to members of the select committee to move them, if they so wish.
The amendments in this group are intended to label the interview that takes place at the time of the making of the protection application as a "preliminary interview". This interview allows the protection applicant to provide basic details about him or herself, the means of travel to the State and the nature of the claim. Following the interview, the applicant is given a detailed questionnaire to complete and made aware of the Refugee Legal Service. The completed questionnaire will form the basis of the substantive interview that leads to a determination on whether the protection applicant will be granted protection or residence permission. The preliminary interview is different in character and purpose.
I move amendment No. 383:
In page 81, subsection (2), line 19, to delete "applies for protection" and substitute "makes a protection application".
I move amendment No. 384:
In page 81, subsection (3), line 24, before "shall" to insert the following:
"(the "preliminary interview")".
I move amendment No. 385:
In page 81, subsection (4), line 38, to delete "An interview under subsection (2)" and substitute "A preliminary interview".
I move amendment No. 389:
In page 81, subsection (5), line 40, to delete "an interview under subsection (2)” and substitute “a preliminary interview”.
I move amendment No. 391:
In page 81, subsection (5), line 42, after "the" to insert "preliminary".
I move amendment No. 392:
In page 82, subsection (6), lines 2 and 3, to delete "being interviewed under subsection (2)” and substitute “being the subject of a preliminary interview”.
I move amendment No. 393a:
In page 82, subsection (7), line 12, to delete ", may" and substitute the following:
"or has any reason to suspect that the foreign national may be a separated child and that the adult is not taking responsibility for that child or is failing to discharge that responsibility appropriately, shall".
I am having a Deputy Finian McGrath moment.
This issue was discussed in detail in the context of amendment No. 14. My predecessor gave an undertaking to the committee to bring forward fresh proposals on Report Stage to address the issue of children. I invite Deputy Rabbitte to withdraw the amendment pending consideration of these proposals.
I recall the discussion. Circumstances arise, whereby one does not know whether what is being stated is the case. In that sense, given that we are aware there is abuse of young people coming here I felt it should have been strengthened. If the Minister is coming forward with a separate amendment I am happy to withdraw until I see what he will propose. As it stands it says the Minister "may require the adult to satisfy the officer", which is not a very high test given some of the experiences we have had.
I move amendment No. 400:
In page 82, subsection (12), line 35, to delete "an interview under subsection (2)” and substitute “a preliminary interview”.
I move amendment No. 401:
In page 82, subsection (12), line 36, to delete "concerned".
Amendments Nos. 402 and 403 are related and may be discussed together.
I move amendment No. 402:
In page 82, subsection (13), line 40, to delete "dependants" and substitute "dependent children".
Subsection 13 is intended to transpose Article 6, subsection (3) of the asylum procedures directive. That article allows member states to provide that an application may be made by an applicant on behalf of his or her dependants. This amendment is intended to clarify that a protection application is deemed to incorporate dependent children under 18 years of age. As drafted it could be construed as comprehending dependants who are not the principal applicants' biological children. These dependants will have to be either specifically included in the principal application or be the subject of separate applications.
May I ask the Minister about an issue we touched on before regarding somebody who is an adult dependant with an intellectual disability? What would be the situation there? Would that person have to apply separately?
Yes.
I have another question. There seems to be a serious problem with dependants who are under the age of 18 when their parents apply on their behalf but who reach the age of 18 during the asylum process. What is the procedure for those people under the proposed legislation? The phrase used to describe them is "aged out applicants". When they arrive in the country they are dependent children and their application is made on that basis, but as we know it takes considerable time to process such applications. If they apply while still dependants, is that how the application continues or must they reapply once they reach the age of 18?
If it is an existing application I would not think they would have to reapply. Deputy Finian McGrath's proposed amendment would make it more difficult. There are some circumstances where people would apply, go through the process and eventually apply for some children, which extends the timescale of the entire family's application. I will provide some figures. In the first six months of 2008, 238 asylum applications, 12.8%, were made by children under three years of age. Of those, 172, 72%, have a parent who was refused refugee status prior to the child's application. Some 136, 79%, of these are female parents. The country breakdown shows that Nigeria accounts for the bulk of child applications from parents who have already been refused. There are 86 such applications. This equates to 50% of all those parents already refused who had a child applying in the first six months of 2008. Comparative figures for 2007 show the same situation. An analysis of the 1,853 asylum applications made in the first six months of 2008 shows that 657, 35%, were made by persons falling into one or more of the following four categories: application made from prison; over three months in the State; under three years; or a Eurodac hit, as they call it.
What is a Eurodac hit?
It is the Dublin II application.
On my question, do the applications of those individuals still stand until a decision is made?
Yes, they would stand.
I move amendment No. 405:
In page 83, subsection (16), lines 3 and 4, to delete "an interview under subsection (2)” and substitute “a preliminary interview”.
I move amendment No. 408:
In page 83, subsection (17), between lines 38 and 39, to insert the following:
"(h) the protection application will be processed within a maximum of 6 months from the date of application.”.
This amendment is self-explanatory. It stipulates that a protection application would be processed within a maximum of six months from the date of application. While I accept that this is not practical in all cases and that there has been some streamlining of the process, from the initial date of an application until the final decision is made by the Department of Justice, Equality and Law Reform can take up to eight years. I accept that the legislation before us will streamline the asylum process but the situation where it takes up to eight years and costs well in excess of €1.5 million to process each applicant, even from a social welfare and accommodation perspective, cannot continue. It is not in the best interests of the State, the taxpayer and the applicant that the process should be drawn out to such an extent. I accept that this legislation will streamline that process, but there must be a firm commitment from the Minister that in tandem with this legislation being put in place the resources will also be put in place to ensure applications are dealt with in a timely manner.
We have had this discussion before. The Minister was unable to provide up to date figures but the figures provided by his predecessor 12 months age show there are 25% vacancies in the immigration system. While we are examining cutbacks in the public service, it is a false economy in the immigration service. It is in our interest and that of the taxpayer to deal swiftly and fairly with applications rather than dragging them out over a long period of time. The staffing issue is a problem. Will the Minister furnish us with up to date figures on vacancies within INIS at the moment?
I will make the general point that it is not in the interests of anyone to drag these out and there is no intention on the part of the State to do so. As far as we are concerned, we want to deal with these cases as quickly as possible, which is the reason we are proposing the single procedure in this legislation.
By implication from the Deputy's comments, he accepts a statutory limit could cause difficulties and for that reason, I oppose the amendment. It does not even specify what should happen if the application is not processed within that time. Does he believe, for example, that the person should be granted protection irrespective of whether he or she is entitled to it if the application goes beyond the six-month period? The amendment does not deal with the position where the applicant delays the process so the six-month time limit expires. Including an amendment like this would cause statutory difficulties, although we have the same interest in dealing with this as quickly as possible.
The average processing time for prioritised cases in the Office of Refugee Applications Commissioner, ORAC, is three to four weeks. For non-prioritised cases, the average processing time is 22 to 23 weeks. At the end of August 2008 there were 120 cases on hands for over six months in the ORAC. I am dealing with first instance processing, as that is what the section deals with.
I refer the Deputy to section 79(4), which provides that where a determination of a protection application cannot be made within six months of the date of application then the Minister shall, upon request from the protection applicant, provide the applicant with information on the estimated time within which a determination may be made. This provision transposes Article 23(2) of the asylum procedures directive into domestic law. I suggest that is a sufficient guard to look after the point made in the amendment.
Did the Minister indicate there are only 120 cases in this category waiting longer than six months?
That is correct for first instance processing in ORAC.
It is different from the perception one has from one's clinic work and so on.
This section relates to what we would regard as the first instance processing.
It is at the point of subsequent leave to remain and so on that all the——
That is the problem. Leave to remain is the issue which extends it from everybody's perspective. I answered a parliamentary question from Deputy Naughten on this on 4 March, making the point that the multi-layered approach in individual cases is not resource efficient. That is why we have proposed a single procedure in the Bill. The sheer volume of such applications and the reality that resources are not unlimited and must be prioritised means there will always be a backlog. That relates to cases where leave to remain applies.
Based on the Minister's statements, I am willing to withdraw the amendment. I am interested to know the level of vacancies within the immigration services at the moment. Will the Minister come back to us on that?
It is ORAC which deals with these rather than INIS. I do not know the figures in any case but we can get those for the Deputy.
I wish to flag a matter relating to the section. My reading is probably not correct but I will raise the issue anyway. Section 73(1) states "A foreign national, whether lawfully or unlawfully in the State, may apply to the Minister for protection in the State." Should this read "or at a frontier of the State."?
I remember dealing with that earlier and we had a discussion on it. I am told the whole issue of the frontier is dealt with in Part 3 of the Bill. I recall having the debate on what determines being in the State and at the frontier as it was one of the first I had on becoming Minister.
We have had many of them at this stage. It is covered anyway.
Yes.
Amendment Nos. 409, 410, 413, 414, 417 to 419, inclusive, and 422 are related and will be discussed together.
I move amendment No. 409:
In page 83, subsection (1)(b), line 44, to delete “should” and substitute “will”.
These are drafting amendments.
I move amendment No. 410:
In page 84, subsection (2), line 2, after "interviewed" to insert "at a time and place that the Minister shall fix".
I move amendment No. 411:
In page 84, between lines 2 and 3, to insert the following subsection:
"(3) The protection applicant may be accompanied at an interview by his or her legal representative and may make his or her own audio recording of the interview.".
This is straightforward as it deals with the area of protection applications and the interview system. It seeks to install an additional safeguard which would allow the protection applicant to be accompanied by his or her legal representative. It would also permit an audio recording of the interview to be made. This has been represented to us by some of the organisations at the coal face and it has been indicated this kind of protection is both desirable and, in some cases, necessary. I would like to hear the Minister's reply to the proposed amendment.
I oppose the amendment but I have sympathy with some of the sentiment in it.
To the extent that it authorises the presence of the applicant's legal representative at the substantive protection interview, the amendment is unnecessary. The present practice is that where the applicant has a legal representative, there is no objection to the representative being at the interview with the applicant. As it is an interview of the applicant, and not a hearing, the extent to which the representative may get involved is, as it must be, strictly limited. The representative may not answer for or prompt the interviewee as it is a process of eliciting the interviewee's own story; the representative's role must be strictly passive.
The current arrangements are based on a written record of the interview. This reflects the reality that the interview is of its nature inquisitorial rather than adversarial. The interview forms one part of the comprehensive investigation at first instance of the applicant's claim for protection in the State. The audio recording of the interview at first instance is not understood to be common practice internationally.
The High Court in 2006, in the Hakizimana case — currently under appeal to the Supreme Court — did not find that the absence of an electronic recording of the interview was in breach of the requirements of fair procedures. In the event that an applicant could make his or her own audio recording of the interview it would become, as a matter of common sense and good procedure, necessary for the interviewer also to make a similar recording. This would have significant resource implications for the State and in the absence of a compelling reason I have no proposals to provide for such a system as part of the interview process. I have sympathy on the basis of an applicant being allowed access to his or her legal representative. That is provided for and takes place. We must accept that this is a first instance interview; it is not a substantive one. The purpose is to hear the person's story. Obviously, it has to be from a person's own mouth rather than from a legal representative.
Allowing electronic recording would result in a large cost to the State. If we were to provide in statute the opportunity for people to have their interviews recorded, it would cause difficulty from our point of view, in that we would have to maintain the right of the State to do likewise. That would have significant resource implications for it.
I accept the Minister's point that there would probably be a cost implication. However, it would still be far less than the cost of having cases dragged through the courts or to the steps of the courts, as is often the case. Those involved in this process claim — this is the impression I have — that the line of questioning is aimed at catching the applicant out rather than actually eliciting information. As public representatives, we all have experience of the social welfare appeals process. I know it is a different system, but the appeals officer will question the individual applicant. We, as public representatives, or whoever else attends will often prompt the applicant to help him or her to provide the officer with all relevant information. We are talking about a situation where English is often not the first language of the applicant. My understanding is that the original application form is only presented in the English language. Straightaway, therefore, the applicant is on the back foot with regard to the written application and initial interview. Surely the presence of an advocate who can ensure all the relevant information is presented to the officials would speed up the whole process. The Minister's officials will tell him that during the process additional information is sometimes brought to the attention of officials that was not brought to their attention either in the written application or the initial interview which would have allowed a decision to be made much more quickly.
My officials would find a difficulty with the way in which the Deputy portrays the interview. Applicants are encouraged to have others with them if they want. The Deputy is giving an unfair representation by saying the officials are trying to catch people out. What they are trying to do is to elicit the information to assess whether the applicant is genuine. I did not hear exactly what the Deputy said, but he referred to the application form. The form is available in 35 languages. Therefore, there should not be any problem for the vast majority. Obviously, if there are difficulties, they can be sorted out.
Yesterday I had a meeting with Manuel Jordao, the UNHCR representative in Ireland. He was extremely complimentary of the principle idea behind the Bill, which is to have a single procedure. I do not know whether members have met him, but I encouraged him to meet the Opposition to give his views on where we stood. One of the things he emphasised was training of INIS and ORAC personnel, which is proceeding. On 8 July in Geneva his boss, the Assistant High Commissioner for Protection, Ms Erika Feller, acknowledged the constructive engagement which had taken place between the UNHCR and my Department during the preparation of the Bill, confirmed that she was content with it and particularly welcomed the proposed introduction of the single procedure examination. She expressed the view that it would enhance Ireland's standing as an example for other states to follow in the field of protection.
To be fair, people have a job to do. They must find out who is genuine and who is not. The way in which this is done may sometimes seem adversarial but, given the requirements of their job, they must treat people with fairness and decency. The training they receive, particularly from the UNHCR, is of benefit. I undertook to Mr. Jordao yesterday that this would continue.
My amendment does not state other than that the protection applicant may be accompanied. It does not specifically provide for an advocacy role for the legal representative.
I have no particular problem with that aspect. I can come back with an amendment later. The facility is already available and nobody would ever be refused.
Does the Minister mean it is already available in practice?
Yes.
Is it included in section 74?
No, it is not, but it is already available in practice. There is no way somebody would be refused. To my knowledge, people are encouraged, if they wish, to bring somebody with them.
It is not surprising that the perception of the protection applicant might be different from that of the State. That is perfectly understandable, allowing for truthfulness and veracity on both sides. However, the fact remains that some persons who go through the process have a very different view from that of the Minister. Perhaps it is a little like the controversy that has entered the public domain about the performance of the appeals tribunal. It may well be that the interview process is more adversarial in some cases than in others. To have enshrined in what will be the cornerstone statute the provision that a person may be accompanied by a solicitor would provide some comfort and reassurance. While I see the point the Minister is making about audio recording and the cost implications, I cannot really see the objection to the possibility of a person being accompanied by a solicitor on occasion as distinct from a friend or member of an organisation working with protection applicants. I cannot see the objection to permitting this by statute as distinct from custom and practice.
I said I had sympathy and would undertake to come back on Report Stage with an amendment to the first part of the amendment, but that I had a difficulty with the second part. I suggest Deputies Naughten and Rabbitte familiarise themselves with the procedure, if they wish. They could visit the Office of the Refugee Applications Commissioner to see how cases are dealt with. It might assist matters. We could set up such a visit.
I move amendment No. 413:
In page 84, subsection (8), line 22, to delete "foreign national" and substitute "protection applicant".
I move amendment No. 414:
In page 84, subsection (8), line 24, to delete "applicant".
I move amendment No. 416:
In page 85, subsection (14), lines 13 and 14, to delete "any Minister or such other person" and substitute "any information holder".
I move amendment No. 417:
In page 85, subsection (14), line 15, to delete "to him or her" and substitute "to the Minister".
I move amendment No. 418:
In page 85, subsection (14), line 16, to delete "he or she" and substitute "the Minister".
I move amendment No. 419:
In page 85, subsection (16), line 24, to delete "an" and substitute "a protection".
I move amendment No. 420:
In page 85, subsection (17), line 28, to delete "a person or body" and substitute "an information holder".
I move amendment No. 421:
In page 85, subsection (17), line 29, to delete "person's" and substitute "information holder's".
I move amendment No. 422:
In page 85, subsection (17), line 30, after "the" to insert "protection".
I move amendment No. 426:
In page 86, subsection (3), lines 39 to 42, to delete paragraph (h).
Paragraph (h) provides that the making of a further protection application without reasonable cause is a matter that should be taken into account in assessing the credibility of the applicant. This provision is contained in section 11 of the Refugee Act 1996. I am satisfied the provision is not a relevant factor in determining the credibility of the applicant, since a further protection application cannot be made without the consent of the Minister for Justice, Equality and Law Reform. The applicant will not be allowed to make a further protection application under section 89, unless he or she satisfies the Minister that there is new information available which adds significantly to the likelihood that he or she is entitled to protection.
Why is the amendment being brought forward now?
The proposal is to delete paragraph (h) because, on examination, we found an anomaly.
Amendments Nos. 428 to 430, inclusive, are related and will be discussed together.
I move amendment No. 428:
In page 87, subsection (2), line 19, after "all" to insert "relevant".
This amendment is intended to clarify that the protection applicant is required to provide all relevant information with his or her application. It removes surplus words by inserting "relevant" in line 19. The surplus words are no longer needed. Amendment No. 430 replaces subsection (3) with a new subsection in simpler language.
I move amendment No. 429:
In page 87, subsection (2), lines 20 and 21, to delete all words from and including "in" in line 20 down to and including "application" in line 21.
I move amendment No. 430:
In page 87, lines 22 to 24, to delete subsection (3) and substitute the following:
"(3) Subsection (1) shall apply in respect of all persons on whose behalf a protection application is made.”.
I move amendment No. 431:
In page 88, subsection (1), line 3, before "applicants" to insert "protection".
This is a drafting amendment.
Amendments Nos. 432 to 435, inclusive, are related and will be discussed together.
I move amendment No. 432:
In page 88, subsection (1), line 39, before "application" to insert "protection".
This is purely a drafting amendment, as are the related amendments. Amendment Nos. 433 and 434 provide a cross-reference to section 79(7) which allows the Minister to refuse to grant a protection declaration in certain instances such as where the applicant is a danger to the security of the State. Amendment No. 435 corrects the cross-reference in the existing text.
Is the Minister referring to section 97?
I referred to section 79(7).
There is a cross-reference to section 97(7).
I move amendment No. 433:
In page 88, subsection (2)(a), line 47, after "and" to insert ", subject to section 97(7),”.
I move amendment No. 434:
In page 89, subsection (2)(b), line 3, after “and” to insert ”, subject to section 97(7),”.
I move amendment No. 435:
In page 89, subsection (3), line 11, to delete "subsection (2)(b), (c) or (d)” and substitute “ subsection 2(c) or (d)”.
Amendments Nos. 436 and 437 are related and alternatives and will be discussed together. Amendments Nos. 451 to 453, inclusive, are also related to amendment No. 436 and will be discussed with it. Amendments Nos. 451 and 452 are related and alternatives.
I move amendment No. 436:
In page 90, lines 10 to 25, to delete subsection (3) and substitute the following:
"(3) Where—
(a) in the opinion of the Minister a protection applicant has failed, or is failing, in his or her duty to co-operate under section 77, or
(b) the Minister is of the opinion that the applicant is in breach of section 68 (5)(a), (c) or (d),
then the Minister may send to the applicant written notice of his or her opinion.
(4) Where the Minister sends a notice under subsection (3), he or she shall, in the notice, also—
(a) require the protection applicant to confirm in writing within 10 working days of the date of the notice that he or she wishes to continue with his or her protection applicant,
(b) remind the applicant of his or her duty to co-operate under section 77 and to comply with any requirements that have been or may be imposed on him or her under section 68(5)(a), (c) or (d), and
(c) include a statement of the consequences set out in subsection (5).
(5) The consequences referred to in subsection (4)(c) are that if the protection applicant—
(a) does not furnish the confirmation referred to in subsection (4)(a), or
(b) having furnished such a confirmation, in the opinion of the Minister fails or continues to fail to comply with any of the obligations referred to in subsection (4)(b),
his or her protection application shall-be deemed to be withdrawn.".
The purpose of the amendments is to provide greater clarity for the notice to issue to protection applicants who fail in their duty to co-operate. As it stands, the Bill only requires the notice to request if the applicant wishes to continue with the application. Under the proposed amendments, the applicant will also be reminded of his or her duty to co-operate and informed of the consequences of failing to do so. This information will have already been given to the applicant and translated into the language in which the application was first made. Amendment No. 453 inserts the correct cross-reference into subsection (3)(b) as a result of the changes proposed by amendment No. 452. I note and agree with the principle underlying Deputy Naughten’s amendments. However, I ask him to withdraw the amendments, as I will bring forward appropriately worded provisions on Report Stage.
I move amendment No. 438:
In page 91, subsection (2)(a), lines 1 and 2, to delete all words from and including “a” in line 1 down to and including “and” in line 2 and substitute “a statement of”.
Subsection (1) already contains the requirement to issue the notice of determination to the applicant. The purpose of the amendment is to remove this requirement from subsection (2) and clarify that a statement of the reasons for the determination is one of the items to accompany the notice under subsection (1).
I move amendment No. 439:
In page 91, lines 33 to 44, to delete subsection (7). This amendment seeks to excise the indicated subsection. I am at a loss to understand why we need this in the Bill. I have no objection to the provision of ten working days, but I do not know why the subsection is in the Bill. The Minister's note may help me to understand it.
The practice of determining some appeals by the Refugee Appeals Tribunal without an oral hearing is long-standing, and is a necessary and appropriate option in the case of section 79(3). This repeats, with some additions, section 13(6) of the Refugee Act 1996, and makes provision for appeals to be determined without an oral hearing where the report of the determination in the first instance includes any of the following findings: that the application showed no basis or a minimal basis for the contention that the applicant is in need of the protection of the State; that the application is manifestly unfounded; that the applicant without reasonable cause failed to provide identification documents or provided false identification documents; that the applicant without reasonable cause failed to make an application as soon as reasonably practicable after arrival in the State; that the application was one to which section 89 applies, namely that it is a further protection application; that the applicant had lodged a prior protection application in another member state; that the applicant is a national of or has a right of residence in a safe country of origin; or that the applicant has, without reasonable cause, failed to comply with residence or reporting requirements.
It is not the case that an oral hearing is necessary in all cases. If an applicant wishes to expand on the evidence submitted to any officers in the first stage, it is possible for this to be done in writing. The Supreme Court, in an unreported case, Z v. Minister for Justice, Equality and Law Reform in 2002 confirmed this view is correct and in accordance with the requirements of fairness. Deputy Rabbitte will understand that I must have regard to the effective application of scarce resources in the protection, investigation and determination process to ensure, as far as possible, that persons who may be entitled to protection receive the maximum possible opportunity to present their case, rather than attempt to meet an unrealistic standard in the consideration of all applications with no regard to the grounds upon which the application is based or the behaviour of the applicant.
Is the assumption there that the notice of determination has been received by the applicant? Is the ten day cut-off point after which a determination is made without an oral hearing considered fair and adequate in the circumstances? We regularly have situations where people change addresses, do not receive official communications, or receive them late.
My understanding is there is no problem with the ten working days and it is working well. It seems slightly short, but we are dealing with applications which are not well founded. The practice to date suggests ten working days is reasonable.
I want to reserve my position to take advice for Report Stage, so I will withdraw the amendment here.
I move amendment No.440: In page 92, subsection (2), line 11, to delete “notification” and substitute “notification referred to in section 81(1)”.
Can I explain to the Minister why I oppose the section?
Can we dispose of the amendment and we will then come to the section?
It is the same idea we discussed earlier. The applicant has four working days from the sending of the notification to appeal to the tribunal. That seems more restrictive.
I am told this was put in to cater for circumstances where, in the future, we may have an opportunity to deal with cases quickly on-site. It would only deal with cases which can be dealt with immediately.
I appreciate that and I see how that might be desirable. Why should the cut-off point be so tight?
If one looks at subsection (4), it states subsection (2) shall not apply to such an application unless the applicant concerned or his or her solicitor have been notified in accordance with subsection 3. They must receive notification at the start.
Subsection (3), where an application to be investigated in accordance with the——
The Minister shall notify the applicant in writing and shall send a copy to his or her solicitor if known. It cannot be done without the applicant being notified.
Are they notified that they have four working days in which to appeal?
Yes. They are in a fast track process. This would not be used often. It is to facilitate on-site processing which can happen from time to time.
What does that mean in practice? Will it be at Dublin Airport?
Yes. It is to allow for the eventuality of having expedited cases. It may not be in Dublin Airport, it may be elsewhere.
Could the person be in detention?
On the practicalities of four working days, this point was made earlier on another issue. Finding a solicitor within four working days can be an achievement.
It is to the applicant or his or her solicitor if they are known.
The solicitor is notified, if they are known. The solicitor may not be known to the Department, and applicants may change from one solicitor to another. The Department may only have a record of the initial solicitor, and another solicitor could then act on the applicant's behalf.
My concern is in regard to the four days. It appears to be a very tight timeframe. I cannot see how it is in anyone's interest to have such a tight timeframe in place.
I am told this will apply only in very rare circumstances but it could happen that the application would be dealt with on site and everything would have to be available as per the legislation. It is not driving a coach a four through what is already laid down in the procedures set down in this legislation. They will have the benefit of the protections including notification as provided for in the legislation.
We have heard what the Minister has said and the reasoning for it. It is just something that between now and Report Stage we would like to take some expert advice on.
I move amendment No. 441:
In page 92, subsection (2)(b), line 35, after “to” to insert “the”.
Section 83 provides that the Minister will not make any such determination on an application for residence unless there are compelling reasons for committing the foreign national to reside in the State. In determining whether the compelling reasons exist, the Minister will have regard to whether the presence of the applicant in the State would give the applicant an unfair advantage over a foreign national not present in the State but in a similar position to the applicant and the Minister shall not be obliged to take into account factors not related to the applicant's departure from his or her country of origin or that have arisen since his or her departure. Will the Minister explain what he is talking about here?
This section was included to ensure that people do not purposely bypass the visa process, which would be the normal way of entry into the State. In effect, they are bypassing what the vast majority of people would endeavour to do, that is, to apply for a visa. The purpose is, as the section states, not to give the applicant an unfair advantage compared to a person not present in the State who would be applying for a visa.
I move amendment No. 442:
In page 93, between lines 13 and 14, to insert the following subsection:
"(5) The Minister may by regulations provide for appeals under this Act to the Tribunal and the procedure for and in relation to such appeals.".
I note the amendment to the amendment proposed by Deputy Rabbitte. I agree that the wording of my amendment should be revisited in the light of the Deputy's amendment. I will withdraw my amendment with a view to bringing forward a new proposal on Report Stage that takes care of Deputy Rabbitte's amendment.
Again I raise the issue of the timetable for an appeal within 15 working days. The Law Society has recommended that timetable be extended to 20 working days. Has the Minister given any consideration to the submission by the Law Society on that point? It makes the point that 15 days is a short period in which to find, engage and instruct a legal representative. The Law Society has made this point rather than me. The timeframe allowed for the preparation and the lodgment of the paperwork, translation and so forth, is a very tight.
First of all, I do not accept what the Law Society has said. Three weeks is long enough for somebody to get a legal representative. It must be accepted that the vast majority of these people already have a legal representative paid for by the State under the Legal Aid Board. In my discussion with Manuel Jordao, the UNHCR representative in Ireland, yesterday one of the issues to which he referred was the frontloading of legal advice. It is an issue on which we have been lobbied to ensure people have the benefit of legal advice at the start of their application. Some 79% of applicants already have contact with the legal services. In August 2008, there were 333 RAC applications, 291 of which were refugee legal service registrations. A substantial number, almost 80%, had such contact. Some 73% had legal representation at first stage, 48% at the completion of questionnaire and 25% at pre-interview. To be fair, that is one issue UNHCR has raised with us. I could not accept a greater timeframe than 15 days which is working in practice.
Amendments Nos. 443 to 449, inclusive, are related and may be discussed together.
I move amendment No. 443:
In page 93, subsection (4), line 39, before "applicant" to insert "protection".
The purpose of amendments Nos. 443 and 446 is to separate out from subsection (4) the provisions whereby the tribunal is required to enable the Minister or an officer of the Minister to be present at an appeal and to present his or her case. Amendment No. 447 inserts more appropriate wording in subsection (5). The appeal hearing is not an interview and in the circumstances the amendment refers to the persons participating in the hearing. Amendment No. 448 is purely a drafting amendment. Amendment No. 449 amends subsection (8) to provide that the adult referred to in that subsection does not have to be a protection applicant.
I did not understand or hear properly the Minister's couple of sentences where he said the purpose of the amendment was to strip out the difference between the officer of the Minister present, etc.
The purpose of amendments Nos. 443 to 446 is to separate out from subsection (4) the provisions whereby the tribunal is required to enable the Minister or an officer of the Minister to be present at an appeal and to present his or case.
Is the Minister drawing a distinction between being present and presenting one's case? I am sorry. This is obscure to me.
This is to cater for the RAC particularly, which sometimes requires to have legal representation. This is to allow it to be present itself, some officers on its behalf or somebody nominated by it.
I move amendment No. 444:
In page 93, subsection (4), lines 39 and 40, to delete "and an officer of the Minister".
I move amendment No. 445:
In page 93, subsection (4), line 41, to delete "their" and substitute "his or her".
I move amendment No. 446:
In page 93, between lines 42 and 43, to insert the following subsection:
"(5) The Tribunal shall enable the Minister or an officer of the Minister to be present at and participate in the hearing and present his or her case to the Tribunal in person or through a legal representative or other person.".
I move amendment No. 447:
In page 93, subsection (5), lines 45 and 46, to delete all words from and including "between" in line 45 down to and including "interviewer" in line 46 and substitute "between the persons participating in the hearing".
I move amendment No. 448:
In page 94, subsection (8), line 15, to delete "a foreign national" and substitute "a protection applicant".
I move amendment No. 449:
In page 94, subsection (8), line 16, to delete "applicant".
I move amendment No. 450:
In page 95, subsection (4), line 14, to delete "subject to subsection (2)” and substitute “subject to section 81(4) and (5)”.
The amendment inserts the correct cross-reference in subsection (4).
I move amendment No. 451:
In page 95, lines 25 to 37, to delete subsection (2) and substitute the following:
"(2) Where—
(a) in the opinion of the Tribunal an applicant has failed, or is failing, in his or her duty to co-operate under section 77, or
(b) the Minister notifies the Tribunal that he or she is of the opinion that the applicant is in breach of section 68 (5) (a), (c) or (d),
then the Tribunal shall send to the applicant written notice of that fact.
(3) The Tribunal, in the notice under subsection (3), shall also—
(a) require the applicant to confirm in writing within 10 working days of the date of the notice that he or she wishes to continue with his or her appeal,
(b) remind the applicant of his or her duty to co-operate under section 77 and to comply with any requirements that have been or may be imposed on him or her under section 68 (5) (a), (c) or (d), and
(c) include a statement of the consequences set out in subsection (4).
(4) The consequences referred to in subsection (3)(c) are that if the applicant—
(a) does not furnish the confirmation referred to in subsection (3) (a), or
(b) having furnished such a confirmation, in the opinion of the Tribunal fails or continues to fail to comply with the obligations referred to in subsection (3) (b),
his or her appeal shall be deemed to be withdrawn.".
I move amendment No. 453:
In page 95, subsection (3)(b), line 43, to delete “(2)” and substitute “(4)”.
Amendment No. 454 is in the name of the Minister. Amendments Nos. 455 to 457, inclusive, are related. Therefore, amendments Nos. 454 to 457, inclusive, may be discussed together by agreement.
I move amendment No. 454:
In page 95, subsection (1)(a), line 48, to delete “relevant”.
Amendments Nos. 454 to 456, inclusive, are purely drafting amendments. Amendment No. 457 is intended to provide clarity as to grounds on which the tribunal is required to affirm the determination of the Minister. Paragraph (a) requires the tribunal to affirm a determination of the Minister that a person is entitled to subsidiary protection where it is satisfied that the person is not a refugee. Paragraph (b) requires the tribunal to affirm a determination of the Minister that a person is not entitled to protection in the State, that is, not a refugee and not a person eligible for subsidiary protection where the tribunal is itself satisfied that the person is not so entitled. It is open to the tribunal to set aside a determination of the Minister where it is satisfied that the person is either a refugee or a person eligible for subsidiary protection.
What is the motivation behind that? Why would it be necessary to state that? Is that not self-evident?
It is to give full legal clarity in terms of what will happen. The tribunal will either affirm, or not, or set aside. I understand it is merely to clarify from a legal point of view.
This is to give the tribunal no discretion.
For instance, if the Minister was to decide to give somebody subsidiary protection the tribunal cannot take that away from them. It can only give something in terms of full refugee status.
I move amendment No. 455:
In page 96, subsection (1)(b), line 1, to delete “provided” and substitute “furnished”.
I move amendment No. 456:
In page 96, subsection (2)(a), line 9, after “Minister” to insert “under section 79”.
I move amendment No. 457:
In page 96, lines 14 to 18, to delete subsection (3) and substitute the following:
"(3) (a) The Tribunal shall affirm a determination of the Minister set out in section 79(2)(b) unless it is satisfied, having considered the matters referred to in subsection (1), that the applicant is a person entitled to protection in the State as a refugee.
(b) The Tribunal shall affirm a determination of the Minister that the applicant is not entitled to protection in the State unless it is satisfied, having considered the matters referred to in subsection (1), that the applicant is a person entitled to protection in the State as a refugee or, as the case may be, a person eligible for subsidiary protection.”.
Amendment No. 458 is in the name of the Minister. Amendments Nos. 459 and 460 are related and may be discussed with amendment No. 458 by agreement.
I move amendment No. 458:
In page 96, subsection (1), lines 40 to 42, to delete paragraph (d) and substitute the following:
"(d) the Tribunal has made a decision under section 88 (2), or”.
The amendment introduces a more appropriate replacement for paragraph (d). All that paragraph needs to refer to is the decision of the tribunal under section 88(2) rather than a particular type of decision. Amendments Nos. 459 and 460 and purely drafting amendments.
I move amendment No. 459:
In page 97, subsection (2)(c), line 12, to delete “provide” and substitute “furnish”.
I move amendment No. 460:
In page 97, subsection (4), line 27, to delete "provided" and substitute "furnished".
I move amendment No. 461:
In page 98, subsection (1)(a), line 4, after “as” to insert the following:
"Bínse Cosaint Athbhreithnigh, or in the English language".
I am told by my personal attorney that this is the correct expression.
I agree with the Deputy that the Bill should provide an Irish title to the proposed tribunal. I am told that the more appropriate formulation would be An Bínse Um Athbhreithniú Cinntí Cosainta.
I will enjoy going back with this.
We should leave it to Report Stage. We will fight over it then.
You can get your interpreter working on it as well.
I move amendment No. 465:
In page 98, subsection (4), line 17, to delete "regulation" and substitute "regulations made".
This is merely an editorial amendment.
Amendment No. 468 is in the name of Deputy Rabbitte. Amendments Nos. 520e, 521 and 526 are related. Amendments Nos. 522 and 523 are alternatives to amendment No. 521 and must be grouped with amendment No. 521, otherwise they would not have an opportunity to be discussed. Amendment No. 527 is related and an alternative to amendment No. 526. Therefore, amendments Nos. 468, 520e, 521 to 523, inclusive, 526 and 527 may be discussed together by agreement.
I move amendment No. 468:
In page 98, between lines 29 and 30, to insert the following subsection:
"(8) The Tribunal shall establish and maintain a website on which copies of all decisions of the Tribunal published under section 95(5) shall be available, in such a manner as to enable those decisions to be searchable by country of origin or tribunal member concerned.”.
This amendment would insert a new subsection, which is self-explanatory. I am not certain as to what extent time has overtaken the amendment since it was put down. We might hear from the Minister to what extent what is sought in the amendment is already practice.
Following the Supreme Court decision in the Atanasov case, the Refugee Appeals Tribunal introduced a system in 2006 where general access to a database of all decisions of the tribunal is available in the tribunal offices for practitioners. That system has worked well to date. Further enhancements of the arrangements for access to decisions were introduced in September of this year by the tribunal in the form of a remote, on-line access system for legal representatives to all decisions of the tribunal since 2006 to date, each suitably redacted in order to preserve the applicant's privacy.
These practical developments and the experience of the tribunal and of practitioners in operating the arrangements day to day means that we are able to rethink the approach in section 95. Instead of a detailed and very prescriptive approach set out in the section and that was thought to be necessary, we are now able to have a provision that provides an essential legislative basis but with a lighter touch. That approach in Government amendment No. 520e is intended to provide a statutory basis where the system that the tribunal now has in place will continue to operate under the new legislation.
Regarding the content of the new proposed provision, subsection (1) requires a chairperson to ensure that a protection applicant or his or her legal representative is provided with reasonable access to any previous decision of the tribunal under section 88(2), which is reasonably considered legally relevant to his or her appeal. This meets with the Atanasov requirement and enables the database of applications to be accessible by reference to any criteria that are reasonable and that are reasonably required in particular for practitioners accessing the database to be able to find cases that are legally relevant to a particular applicant's appeal and not confined to the two criteria set out in Deputy Rabbitte's amendment No. 468.
Subsection (2) allows the chairperson to decide on the form in which this access will take and to impose reasonable conditions relating to confidentiality and use of information.
Subsection (3) enables the chairperson at his or her discretion, where he or she considers that a decision of the tribunal is of legal importance, to publish the decision in a manner as he or she considers reasonable. This is a process separate from and over and above the requirement in subsection (1), although any decision which the chairperson decided to publish in this way would be available to practitioners and applicants under subsection (1).
Deputy Rabbitte's amendment No. 523 would require the chairperson to publish such decisions in every case. The intention behind subsection (3) is to allow the person discretion to publish decisions which he or she considers to be so important that they deserve to be highlighted over and above any other decision of the tribunal, which is available on the database under subsection (1). I am satisfied that subsection (3) strikes the right balance when considered against the availability of the database of decisions. Accordingly, I cannot accept amendment No. 523.
Subsection (4) clarifies that the proposed new section is without prejudice to section 78, the section that protects the identity and privacy of protection applicants. Amendment No. 520e takes full account in a careful and balanced way of the concerns underpinning amendments Nos. 468, 521, 522, 526 and 527. I ask the Deputies to withdraw those amendments.
I accept that matters have moved on in terms of my key amendment No. 468. Will the Chairman confirm if I am operating from the up to date grouped list of amendments? Will he again outline the group of amendments being taken together?
The group of amendments being considered are amendments Nos. 468, 520e, which is on the seventh list of amendments, 521 to 523, inclusive, 526 and 527.
I accept what the Minister has said in terms of the practice now and that the database as explained by the Minister, as I understand it, is available to most practitioners and so on. From that point of view I do not want to press amendment No. 468. In terms of section 91——
We will come to that shortly.
I indicate that I would like to reserve my position on that section for Report Stage.
Is the Deputy withdrawing amendment No. 468?
Yes.
Deputy Naughten has opposed the section.
I have opposed a number of sections. I will withdraw opposing the section and deal with it later.
I move amendment No. 470:
In page 98, between lines 38 and 39, to insert the following subsection:
"(2) Not more than one-third of the members of the Tribunal shall be appointed in a whole-time capacity, and not more than one-third of appeals shall be decided by members appointed in a whole-time capacity.
This amendment relates to membership of the tribunal. It would insert a new subsection. The amendment is self-explanatory. It would require that not more than one third of the members of the tribunal should be full-time and not more than one third of the appeals should be decided by members so appointed. There has been a good deal of controversy about the performance of the tribunal, including reportage of considerable internal dissent. I do not wish to trace it here but amendment No. 470 is a reasonable safeguard.
We must be careful here to ensure it is a case of justice not only being done but being seen to be done and that we can repose confidence and trust in the tribunal. I do not want to rake over some of the matters that came into the public domain, but the Minister should take great care on this issue and have regard to the history of the operation so far and take the opportunity of us enacting this legislation to try to get it as right as we can.
Deputy Rabbitte's amendment No. 470 seeks to introduce a limit on the number of whole-time members of the tribunal to one third of the total membership and to require that the whole-time members can only decide on one third of the appeals submitted to the tribunal. To accept such a proposition would be to undermine the provisions of section 92(1)(b), which envisages the appointment of such number of whole-time or part-time members as the Ministers for Justice, Equality and Law Reform and Finance consider necessary for “the expeditious dispatch of the business of the tribunal”. If both Ministers considered, for example, that half of the members of the tribunal were needed on a whole-time basis for the expeditious dispatch of the business of the tribunal, they would be precluded from appointing that number of members if the amendment was accepted.
In addition, I cannot understand the logic behind limiting the work of the proposed whole-time members to one third of the appeals, as envisaged by the amendment. I would expect that the whole-time members being able to devote all of their time to appeals, unlike part-time members, would be able to deal with far more than one third of the appeals as envisaged by the amendment.
A great deal of that depends on the chairman and so on. What I am trying to introduce is some notion of balance because practices can arise that need a different mix and a different balance of membership. I do not see in section 92(1)(b) any acknowledgement by the Minister in the direction of the experiences we have had and about which we have heard complaints.
This is an opportunity to try to strike a balance between full-time and part-time members of the tribunal. I am a little intrigued by the Minister's point about my amendment that because not more than one third of members would be in a whole-time capacity, it is not necessarily logical or mathematical that they would only take one third of the cases. I understand that point but I do not believe it is the best way to proceed that half of the members of the tribunal should be full time. Whereas I accept there is a necessity to develop an expertise and familiarity with different countries or groups of countries, some interchange of personnel on the tribunal is a desirable objective.
I will not repeat the point, but the way the Deputy's amendment is drafted, to a certain extent it would circumscribe the tribunal in the way in which it gives out work, especially the requirement that one third of appeals shall be decided by members in a whole-time capacity. The point of the amendment, as drafted, is to allow reasonable flexibility between whole-time and part-time and what cases are determined.
I fully accept the Deputy's point that people who are appointed need to build up a reservoir of experience and to rely on precedent in regard to previous decisions as to how they determine current decisions. Currently, apart from the chairman, all the people are part time. There is a view that there should be some whole-time members. The tribunal's caseload may very well fluctuate and decrease as time goes on. Therefore, it is probably better that we have some flexibility and not have one third of members serving in a whole-time capacity.
I accept there has been some controversy but I believe it has died down. I hope that as a result of this legislation, that perception may not continue. I ask the Deputy to leave it so there is a little flexibility in the determination of who is, and who is not, whole time and part time and what type of cases they will take.
I am happy to reframe the amendment for Report Stage but there should be a cap on the direction towards people serving in a whole-time capacity.
Is the Deputy saying he is in favour of fewer members serving in a whole-time capacity?
No, I am in favour of the number of whole-time members not exceeding a certain number. Theoretically, under section 92(b), it could go very much in favour of whole-timers. I accept the point the Minister made. Capping the number of whole-time members and relating that to the number of cases processed might not be the best expression.
There are 35 part-time members. I will not be Minister forever but my view is that it would be better to have part-time rather than whole-time people. The Deputy wants to come back and table an amendment on Report Stage but our view is it should be left as it is. The key phrase is "considers necessary for the expeditious dispatch of the business of the Tribunal". In due course, we may not need 38 people to determine these cases. Obviously, they have had to deal with a fairly substantial cohort of cases which may very well dissipate in the not too distant future.
Are we dealing with amendment No. 470 only?
Yes.
Later in the section, for example, there is a definition of "relevant experience". It seems that for the first time the Minister has in mind that members of the tribunal could come from outside the legal profession. Much and all as it would decorate the notepaper, we do not want a tribunal heavily laden with former Members of the House or, indeed, former members of the illustrious profession around the Minister. We need to take care. Some of the people around the Minister would no doubt have a great deal to bring to bear, as would some Members of the House but we need to strike a balance.
I see from where Deputy Rabbitte is coming. It is to try to strike a balance in the system. Even former colleagues in the House have been reported as being very critical of the way the tribunal is doing its work. We need to seriously examine the whole management and operation of the appeals system. It is a damning indictment of the system that there has been an 89% increase in the number of judicial reviews which have been taken by asylum seekers. There is something deeply flawed with a system that allows such a situation to arise. Some of those cases were settled even without a hearing in the courts.
The Minister spoke about the need for part-time members. The issue is not so much part-time members but members appointed on a contractual or temporary basis and on a whole-time basis. Members need to build up an expertise in this area. That is the case not only in Ireland. There is a similar problem in the UK. People determining cases do not have the expertise and are not consistent in regard to decisions, and that is needed if one is to ensure there is not a queue of people going to the courts seeking judicial reviews.
As the Minister said, there are 35 part-time members. It does not benefit anyone to appoint people solely on a part-time basis. People need to be appointed on a whole-time basis so that they can build up skills. As to whether they need to be appointed on a permanent basis, as the numbers fluctuate, flexibility needs to be built into the system to provide for that.
We must ensure the people making these decisions and evaluating what is put before them have the competence, skills and ability to make fair and balanced decisions. Cases have gone before the courts where it is very difficult to argue that decisions made by particular individuals were fair when they seemed to be skewed one way more than another and there seemed to be considerable inconsistency.
We all want to ensure there is a process to provide for a level of consistency and that the members of the tribunal and the Department are able to stand over the system, but that is not feasible. As a result, it is costing taxpayers a significant amount of money every year. There is a figure of €11 million in legal fees alone being paid on an annual basis. The entire appeals and refugee systems cost approximately €180 million, in court actions, accommodation, processing and deportation costs. It is a system which does not seem to be transparent and about which there are questions of fairness.
It is difficult because the Minister has tabled additional amendments on the appointment of the registrar and the advisory committee. I understand the registrar will have a role in allocating files or cases to individual members given the way the amendments are tabled, the issue does not arise at this point. It involves the insertion of a new section. However, it would help if the Minister elaborated on the thinking behind it in dealing with the membership of the tribunal because there are a number of amendments tabled to the section.
Later we will deal with the functions of the registrar and the advisory committee, as well as their qualifications. The reality is that they must undergo training before they touch a case. The idea behind the registrar, as the Deputy stated, has to do with case management. I accept that it is important that there be a building of information; it is a matter of striking a balance. Section 92 tries to leave some discretion with the Minister based on the fact that the number of such cases will reduce in the foreseeable future.
What is the Minister's view on the system being put in place in Australia where refugee review tribunal members are being appointed by way of a merit-based selection process? The United Nations has been critical of the way individuals are appointed to the tribunal here. There are significant question marks against some of the appointments made under the current system. What is before us does not involve a significant change. This is a massive weakness within the legislation. In Australia they have moved away from a ministerial appointment process to a merit-based selection process.
I am not aware of the position in Australia but consider the time-honoured way of appointment by Minister is the way to do it. As I stated, the people concerned will receive significant training before they hit cases.
Will they receive significant training before they hit cases?
They will undergo an initial training course for new members organised by the chairperson——
It is for new members——
Yes.
——not the existing 35.
Additional training courses will be offered to members of the tribunal during their period in office on current issues and best practice to enable high quality decisions to be made.
As offered, it is discretionary.
I do not suppose one can force anyone to do anything.
We are paying them good money.
It will be mandatory for new members, perhaps not for existing members.
In my meeting with Mr. Manuel Jordao yesterday he expressed satisfaction with the way in which this had been operated, although, obviously, he was aware of the misgivings of members of the public because owing to some publicity. He encouraged us to make a number of whole-time appointments to build a reservoir of knowledge. I did not make any commitments in that regard because I do not want to tie the hands of a future Minister who may consider that making part-time appointments is better than having whole-time or whole-time and part-time appointments.
Is he happy with the system as it stands?
I will not speak for him. He did not raise any questions. It would be no harm if the Deputy spoke to him. He emphasised that he would prefer if we made some whole-time appointments.
Has the Minister spoken to any of the existing part-time appointees, some of whom served with us in the House in the past, on reported concerns they have expressed about the operation of the system?
I have not. I would not interfere with them, to be honest.
There has been much debate. Does Deputy Rabbitte want to make a final comment?
The Chairman does not seem to have any appreciation of the extraordinary pace at which we have proceeded today. This is important. It is difficult to discuss it in isolation in one line. It is the totality. We either change the culture of the tribunal or we do not. It is a total discussion.
I have a list of the training programme and seminars for members of the tribunal in 2007. It is substantial. I can give the committee a copy. It lists the following: determining credibility, use of country of origin information, problems posed for the use of documentation, evidence and witnesses, refugee status determination, a country of origin information conference in London, the English experience in applying subsidiary protection pursuant to qualification directive, interagency training on separated children and working party round table on country of origin information. I will give the committee a copy to show that the existing appointees undergo significant training.
I am not getting the impression from what the Minister is saying or the amendments tabled that there will be a fair and transparent system in place when this legislation is enacted. There are massive question marks against the operation of the system. This legislation virtually transposes what is in place into the new legislation. It is deeply flawed. There are members of the tribunal who have been reported publicly as having raised serious questions in this regard. The Minister has made the point that he has not spoken to any of these individuals to ascertain the background or basis for their concerns. We are talking about retaining in this legislation a system against which there are significant question marks about its operation and how decisions have been and are being made by individual members. The Minister's comments do not give me the impression that we will see the flaws or weaknesses ironed out.
None of the people concerned has brought to my attention his or her disquiet.
Does the Minister read the newspapers?
I know what I saw in publicity prior to my appointment but nobody has raised anything like that.
Would that not raise concerns or doubts with the Minister regarding the media coverage? Even ORAC highlighted an 89% increase in the number of judicial reviews in its most recent report. That should set off warning bells as it involves a significant cost. We will deal with the courts issue at a later date but having these cases before the courts in the first instance is a significant cost to the Exchequer and the taxpayer. If a system was implemented that was seen to be fair and transparent, fewer judicial reviews would be sought and everyone would benefit as a result.
The Minister should take the opportunity to correct the record. He did not mean to say he has no knowledge of or that no representations have been made to him about this issue. I deliberately played it down in proposing my amendment. Concern about this issue was widespread and people I did not know previously talked to me about it, and while I do not want to put people in the frame, there was serious concern. There were three different camps down there. There was serious displeasure on the part of a number of senior people about how some decisions were taken. There were even allegations about the allocation of files and about the fact that one could impute to some members how they would be likely to view a particular file. In one notorious case, there was a 100% rejection rate. If that does not amount to a cause for disquiet and if it has not been brought to the Minister's attention, I find that——
I said none of these people has contacted me. Since I became Minister, I was made aware of disquiet among some people — I do not know who they are — regarding the designation of files and, for that reason, my officials proposed that I bring forward amendments to appoint a registrar to ensure that the designation of cases to different people is seen to be open and transparent. Press reports were published before I took office, but my officials believe that to deal with allegations and perceptions, a registrar should be appointed, and I agree with that. Since I became Minister, I have not heard disquiet in this regard and everything has settled down. People may be looking forward to the passage of the legislation so that the registrar can be appointed and his or her functions undertaken.
Has the Minister the most recent figures for protection applications?
No, but I will try to get them for the Deputy.
Do I take it the attitude of the Minister is that he is happy with members of the tribunal serving in a part-time capacity but he is anxious that they keep themselves up to speed regarding practices in different countries from which protection applicants originate, that he has no objection to a move towards a number of them serving in a whole-time capacity and that the only issue between us is whether there should be a cap on the proportion of members who should serve in a whole-time capacity? Is that a fair summary of the deliberations?
I have a number of figures. New applications so far this year are as follows: January, 329; February, 296; March, 299; and April, 299. The numbers are relatively consistent. The Deputy is asking about the determination of cases and the proportion of cases rejected by the tribunal. I do not have those figures but I will get them for him. He wants to establish whether any person decides 100% a certain way.
I do not have a vindictive mission in this regard but the Minister of the day ought to have called a halt to what was going on before it had to be exposed in the court. Sometimes Ministers refer to such publicity as if it can be brushed aside and there is no substance behind it. Often, there may not be a great deal of substance but, on occasion, especially if the matter is adjudicated on in the High Court, one must have regard to the fact that there are facts behind it. This is the final opportunity we have to put in place a tribunal system which we can be confident will operate fairly and without prejudice to the best of its ability. Balance is important in that situation.
We are debating the membership and how the tribunal will be set up. I listened to Mr. Jordao yesterday, who stated the UNHCR's preference is there should be some whole-time officials. I understand that is to ensure they are not flitting in and out of the system and they learn from their experience. Substantial training is ongoing. Unless it is brought to my attention that the system is not working — I do not see how the provisions in this legislation will cause more difficulty — I will be happy with it. We are trying to respond to the allegations and the perceptions that the tribunal is not open and transparent and that cases are being dealt with by particular people in a way that others are not within the tribunal. There must be consistency in what they all do. I can make available the training and so on but I can do no more than that. I do not know many of the people on the list of appointees but those I know are all reputable people.
I do not wish to make an imputation against anybody on the list but, with regard to their performance in the past, this is the only opportunity we have to review that and to take what steps we think will improve the system.
I can supply figures. A total of 32,385 appeals were made to the tribunal and only 6% of those have progressed to judicial review. We could overstate this but it seems to be working reasonably well.
There has been a jump in the numbers going to judicial review, based on the ORAC, Office of the Refugee Applications Commissioner, report. My concern is the only way we can judge what is happening is with reference to the scale of judicial reviews or wait for the courts to make a decision or else settlements that take place in advance of cases. If there is a significant increase in the number of judicial reviews it would be of concern to me that the weaknesses and flaws which have been reported in the past still remain within the system. I am concerned that the legislation as proposed will not address what is regarded as the fundamental weaknesses within the current system. Leaving aside the issue of fairness, this is costing the taxpayer a very large amount of money annually. We have a responsibility to ensure we get it right both in the interests of the applicant and of the taxpayer. I have genuine concerns that what is being proposed will not address that issue.
The current appointment system has been criticised by the UN human rights committee and by other representative organisations within the State. They want to see an independent system put in place in which persons are of a certain threshold of competency before they are appointed.
I can put it no further than my meeting with Mr. Jordao yesterday. This was a prearranged meeting and he did not know we would be dealing with Committee Stage today. He did not in any way find fault with the nominees and he did not suggest in any overt way that he had difficulty with the way in which people were appointed. I know the Deputy is not suggesting this but looking down the list of the people, they cannot all be accused of being card-carrying members of Fianna Fáil. In my view——
Who slipped up there? That is very untypical nowadays.
——they are long-standing members of the Bar and there are some solicitors. My understanding is that currently the system is working reasonably well and that some of the controversies were in the past. It may be just down to individual personalities. Having the registrar will cure a lot of this.
I am aware that some of these people on that list have significant legal experience. However, to have a knowledge and understanding of the type of cases coming before them is very difficult. It is very complex information. For example, I refer to issues relating to blood feuds and safe countries and so forth. Even at EU level the 27 member states cannot agree on a list of safe countries and this is still being discussed. It is difficult to be able to stand over the individuals there at the moment and be confident they have the skills and understanding needed for the type of cases which may include life or death situations. I accept the Minister's point that in the future, individuals will be required to undergo a certain level of training before appointment.
This is already the case. It is in their contracts and is mandatory.
However, the Minister said that 35 are being appointed on a part-time basis. That in itself can lead to a certain level of inconsistency. The point made yesterday regarding the making of whole-time appointments needs to be considered in order to have a level of consistency. Is the Minister satisfied with the current level of consistency within the tribunal?
Yes, I am, in that nothing has been brought to my attention to say otherwise.
I hear what the Minister is saying. However, I am sure that before the Minister came in here and having discussed this matter with his officials, he would have thrashed out some of these issues that had been raised in the media and regarding submissions made on the Bill. Based on his discussions, is the Minister satisfied?
I am, yes, in that what we are putting into the legislation, both by subsequent amendment here and what is already in the legislation, will allow for a much more consistent and overtly consistent way in which cases are dealt with by the tribunal. No matter what is contained in legislation, it still will not cure human nature and the way in which individual people — appointed independently or otherwise — will have their own views on individual cases and on the type of issue they are dealing with.
We must remember that this legislation is in the context of the introduction of a bar on taking cases to the courts. We will be discussing that issue later and I do not wish——
That is not the position. I can give the Deputy instances where it is quite clear that cases are being dragged out by judicial review. It may be that some of those cases are genuine and there may be a good proportion of them that are genuine but most of the cases that go to judicial review are reversed. What we are trying to do is——
Most of the cases are reversed?
They do not win. In view of what seems to have been alleged previously or perceived previously that what we are putting into the legislatio, in my view — and from what I have heard from my officials as to the reason we are bringing forward a registrar and why we are giving him or her new functions — this will make the situation, at least the perception of the situation, more consistent and ultimately more beneficial to the end users.
I refer to the functions of the chairperson as described in section 93(8). Where it appears to the chairperson that a decision made by a member but not yet issued, called a draft decision, might contain an error of law or of fact, he may request the member to review the draft decision. The member so requested shall review the draft decision. There is an opportunity for the chairperson to order a review. That is his prerogative.
Is that provision in place in the current legislation?
It is a new provision.
Who can take action if the chairperson does not convene the members of the tribunal occasionally to examine whether things are proceeding in a consistent manner? How will we respond if, for example, serving members of the tribunal ask to be heard by the chairperson, or to make a submission to him on matters that are causing them concern, but they are not so heard? The Minister is purporting to appoint the chairperson for five years, which is a long time. It would be somewhat extraordinary if senior members and senior lawyers had to complain that they were not being heard on matters of importance. It would not happen in any other area.
Under current legislation, the chairperson has to call two statutory meetings of the entire tribunal each year. At those meetings, the members of the tribunal discuss issues like consistency. The chairperson's role in running the tribunal is set out in the proposed legislation. I do not see what more we can do.
Does the Minister wish to explain, without reference to his later amendment, how he thinks the registrar might be able to change our attitude to this entire chapter?
The amendment in question will be discussed later. I will propose all of that.
What will he or she do, in a nutshell, to have an impact on what we are talking about?
The registrar will assist the chairperson in facilitating the efficient running of the tribunal. He or she will also work on such matters as case management and case division. He or she will have to challenge any perception that cases are given to specific people because of their track record or for some other reason. The system will be reasonably transparent.
Who would be responsible for the allocation of files — the chairperson or the registrar?
The registrar. I ask the Deputy to wait until we get to the amendments relating to the registrar.
This is an example of an issue that is hard to discuss on a segmented basis.
I accept that.
One might change one's attitude to some of the stuff we are discussing if one were happy that the registrar might change the culture in the organisation.
Does the Deputy intend to pursue amendment No. 470?
I will seek to reframe my proposal on Report Stage. The Minister said that my earlier summary of the matter was fair. He accepted that I accurately recorded his view. I will take that into account when I reframe this amendment for Report Stage.
I move amendment No. 475:
In page 99, subsection (3), lines 4 to 6, to delete all words from and including "or" in line 4 down to and including "prescribed" in line 6.
This amendment proposes to delete the words in section 92(3) of the Bill after "practising solicitor". We need to decide what level of experience we believe members of the tribunal should have. Section 92(2)(b) states that members of the tribunal other than the chairperson should have “not less than 5 years’ relevant experience”. Section 92(3) defines “relevant experience” not only as “experience as a practising barrister or practising solicitor” but also as “such experience of protection matters as may ..... be prescribed”. In other words, the Minister will be able to prescribe that people other than practising barristers or solicitors have the necessary expertise. In tabling this amendment, I do not mean to imply that I have a closed mind in this regard. I do not necessarily have a closed mind on it. I would like to hear what the Minister has in mind. I have nothing against retired politicians, retired members of the Garda or retired civil servants. In fact, if we gave them a medical card, they could make a great contribution to society and I am all in favour of that. However, we have to be careful about balance. I would like to hear what the Minister might intend. How might he prescribe “relevant experience”? He is proposing — for the first time in the operation of the tribunal, as I understand it — that “relevant experience” will not necessarily equate to a legal qualification.
In amendment No. 475, Deputy Rabbitte seeks deletion of the words "or such experience of protection matters as may for the purpose be prescribed, or a combination of these" from section 92(3) of the Bill. The effect of that change would be to define "relevant experience" as five years of "experience as a practising barrister or practising solicitor". Such an amendment would preclude from membership of the tribunal a person who may have worked with the United Nations High Commissioner for Refugees for many years in the field of refugee protection. The UNHCR is actively involved in refugee status determination in places where refugees find themselves in intractable situations. It is also actively involved in identifying refugees for the purposes of resettlement, in co-operation with states. Ireland actively engages with the UNHCR in the context of its refugee resettlement programme, which I also discussed with Mr. Jordao yesterday. A person who has worked with the UNHCR would have valuable skill sets to bring to the tribunal. I suggest that such a person should not be precluded from being appointed to the tribunal, if the Minister of the day so decides.
On appointment to the Refugee Appeals Tribunal, each member of the tribunal is required to undergo basic intensive training. I will outline the format of that training. An introduction to refugee law is provided by the UNHCR office in Dublin. An introduction to e-library training is provided by the Refugee Documentation Centre. An introduction to domestic case law, relevant to refugee status determination, is also provided. All newly appointed members of the tribunal are required to participate in a three-month mentoring programme, under the guidance of selected experienced mentors. The programme involves the provision of one-to-one practical assistance and advice by a senior member of the tribunal on all aspects of the decision-making process, including the conduct of hearings. Feedback on the progress being made by each new tribunal member under the mentoring programme is given to the chairperson of the tribunal. The training needs and refresher training needs of each member of the tribunal are reviewed on an ongoing basis, as a priority. All courses, when required, are delivered in accordance with an analysis of each member's training needs.
The Refugee Appeals Tribunal also operates a training and education programme, which comprises in-house organised courses and addresses delivered by expert guest speakers on topics such as subsidiary protection, unaccompanied minors, countries of origin and the assessment of claims concerning torture and trauma. It is planned to provide additional training to members of the tribunal arising from the implications for the tribunal of the forthcoming legislative changes, as provided for in this Bill. I refer in particular to the planned introduction of a single procedure. The tribunal will liaise with the UNHCR regarding the staff-specific training that is to be provided. A sub-committee of the members of the tribunal, led by the chairperson, has met representatives of the UNHCR on this issue. The sub-committee will meet the representatives in question again in the coming days to agree a specific training programme.
How so "prescribed"? In what format will it be prescribed?
It is just to take into account if there is someone other than a practising barrister or solicitor.
Will it be prescribed in a statutory instrument?
Yes, by regulation.
With regard to the issue of relevant experience, the person, other than a barrister or solicitor, will have a certain level of experience to meet those criteria. As set out in the legislation, the criteria for someone from the legal profession seem to be very minimal, whereas the chairperson must have five years' experience practising as a barrister or solicitor. As the member does not have to have that experience, they could be someone who started practising the day before. That is not the case with the current 35 tribunal members.
The terms of office and members of the tribunal shall be as follows——
No, I am not talking about the terms of office. I am referring to relevant experience. The chairperson must have five years' experience practising as a barrister or solicitor. Individual members of the tribunal, however, could only have one day's experience.
It is five years' relevant experience. The most recently qualified barrister on the current list from 2007 has seven years' experience, having qualified in 2000. Most other members have qualified in the 1980s and the 1990s.
If the Bill were enacted, when would the Minister intend to publish the regulation concerning the new review tribunal?
The practice has been to appoint barristers and solicitors. I would not expect to see that change too dramatically.
This provision is not in the Bill for nothing. There must be some intention to go outside of that.
It is just to provide some flexibility. There may be people who have experience of dealing with UNHCR cases or experience from abroad that we might want to appoint and who are not necessarily barristers or solicitors.
Will the regulation be published contemporaneously?
It would have to be. The provision is to ensure our hands are not tied with just barristers and solicitors on the tribunal.
I move amendment No. 478:
In page 99, subsection (5), line 9, to delete "subsection (15) and section 93(15),” and substitute the following:
"subsection (15), section 93(15) and section 137(5),”.
This amendment inserts in section 92(5) a cross-reference to the transitional provision in section 137(5) that deems the chairperson of the Refugee Appeals Tribunal to have been appointed as chairperson of the protection review tribunal for the unexpired period of his or her office as chairperson of the Refugee Appeals Tribunal.
Would the unexpired term be rolled over for all members of the tribunal?
No, just the tribunal's chairperson.
Has the current chairperson long left the position in question?
Yes, some two years.
I move amendment No. 481:
In page 99, subsection (7), lines 22 and 23, to delete "allowances and" and substitute "allowances,".
I move amendment No. 483:
In page 99, subsection (7), line 24, to delete "from time to time".
This is a drafting amendment to remove an unnecessary phrase.
Amendments Nos. 484 to 487, inclusive, and 489 are related and may be taken together.
I move amendment No. 484:
In page 99, subsection (8)(b), lines 31 to 33, to delete all words from and including “or” in line 31 down to and including “prescribed” in line 33.
These amendments seek to address again the question of the operation of the tribunal, its consistency and so forth. It would appear from section 92(8)(b) that an ordinary member of the tribunal could serve for ten years. In circumstances where there is difficulty in promoting consistency and where members’ decision making is radically out of line, as has been experienced, five years could be too long a term.
Similarly, I seek to extrapolate this with my other amendments so that a tighter arrangement would be desirable or even an arrangement whereby, if the term were short, the Minister could appoint the person for a third term. I would not take any exception to the latter provision. The current term of five years can be too long, especially if difficulties are identified.
These amendments will make whole-time appointments to the tribunal valid for three years and part-time appointments valid for two years with both periods eligible for renewal. This contrasts with the more flexible provision in section 92(8) which allows for the appointment of whole-time members for between three and five years. The longer period would apply if regulations were made to that effect. Both periods are renewable. The reason this flexibility is required is that for whole-time members, there may be a need to offer a contract for five years if there is a limited interest in the three-year contract envisaged in the section.
I cannot accept the proposed reduction to two years for part-time members as experience to date has shown that three years is a workable period that ensures some continuity for membership of the tribunal, yet still allows for a reasonable turnover of that membership. When account is taken of the time invested in training with bodies such as the UNHCR, the European Legal Network on Asylum and various other training programmes attended by members of the current tribunal, I want to ensure that the new tribunal will be able to get maximum value for such investment by having trained members available for a reasonable time thereafter. In that context, the contract periods proposed in the amendments are too short.
How are members of the tribunal remunerated?
They are remunerated on a per case basis, at €575 for a substantive hearing.
How does the Minister view that in terms of the argument on whole-time positions and part-time positions?
For substantive cases, the cost is €575 while the cost is €300 for an oral hearing, determined on the basis of a file. Accelerated cases on paper determined on the basis of a file also cost €300. Dublin Convention cases cost €200, determined on the basis of a file. Where a case is withdrawn or the applicant fails to show up, the cost is €165. They are all part-time situations.
We do not have whole-time situations, but if there was a movement towards this, is it the intention of the Minister to continue the per case remuneration system?
The whole-time position would be salaried. It is probably better value doing it on a case-by-case basis.
A whole-time position would be salaried.
It would have to be salaried. The person would be asked to give up other work.
Would that person be precluded from practising?
If the person was in a whole-time position, he or she would have to do so.
Does Deputy Rabbitte wish to deal with these amendments or will he come back to them? A vote has just been called in the Dáil.
I think we are almost there, but it might be wiser to come back to it later. It is an important section and we are almost at the end of it. If we leave it now and revert to it, we will finish it very quickly.
We will resume on the Deputy's amendment. I thank the Minister and his officials for attending and I thank my colleagues on the committee for their co-operation.
