Immigration, Residence and Protection Bill 2008: Committee Stage (Resumed).

Debate resumed on 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.
— (Deputy Pat Rabbitte).

I propose that we suspend at 1 p.m. and reconvene at 5 p.m. to complete our consideration of the Immigration, Residence and Protection Bill 2008. Is that agreed? Agreed.

I welcome the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and his officials. I also welcome Deputy Michael Mulcahy, who has joined the committee as a new member. We resume our consideration of the Bill on amendment No. 484 in the name of Deputy Pat Rabbitte.

With the consent of the select committee, I will give an overview of the Department's position on the issue under discussion. This matter dominated last week's proceedings before our discussion was curtailed.

Is that agreed? Agreed.

Last week, I indicated that I was aware of expressions of disquiet about the present tribunal. While it is clear that certain perceptions had built up around some aspects of the work of the tribunal, I do not propose to discuss these perceptions in detail, nor will I accept that they are borne out by the facts. Nevertheless, the matter must be addressed and we need to show how the operational and management efficiencies that will be introduced under the Bill will help to dispel some of these perceptions.

I will outline the important features of the Bill and the amendments I propose as regards the new tribunal to be established under the legislation. The Bill includes provisions that will increase the power of the chairperson to ensure greater consistency in the area of asylum as between individual members in their decision making. There are also certain structural and functional changes to enhance the transparency of the process whereby cases are assigned to individual members.

I will deal with each of these aspects but as a general point I remind Deputies that the overall aim of the Bill is to ensure a fair, transparent and efficient system for ensuring that anyone who needs or deserves the protection of the State from persecution or other forms of serious harm will secure such protection. None of us wants circumstances to arise in which such persons are not afforded our protection. I also want to ensure that, to the greatest possible extent, we do not afford protection to people who should not have such protection. The proposals in the Bill and the changes proposed in my amendments are designed to achieve these objectives.

On the provisions to improve the consistency of decision making, the statutory provisions under the present Refugee Act have served us well and require further development. The chairperson has in some instances seen decisions of members in particular cases which appear to be in error, whether because the decision appears to refuse refugee status where it may more properly be given or because the decision is to recommend refugee status where the law or facts indicate it should not be granted. The chairperson has no power under the present law to ask the member in any such case to reconsider his or her decision. This gap is remedied in the Bill by section 93(8), which gives this authority to the chairperson and requires the member to reconsider. Members should note that it does not force a change in the decision, nor does it give the chairperson power to substitute the member's decision with the chairperson's. Where a member persists with a decision that the chairperson thinks is erroneous, the chairperson can refer the decision to the High Court under section 93(9). In that way, proper independence of each member exercising the functions conferred under the legislation is preserved, while giving the chair the opportunity to promote consistency — quality control, in a manner of speaking.

The chairperson also has important functions at section 93(6) and 93(7), of meeting with members "to avoid undue divergences" — as section 93(6) puts it, and to arrange training programmes. Once again, these measures help to promote consistency of decision-making. In addition to the explicit statutory provisions regarding training, the possibility exists of stitching into the contracts for engagement of members clear conditions regarding their undertaking of initial and ongoing training. Those conditions already exist in contracts with members of the current tribunal. The conditions include provisions for participating in training courses run by the UNHCR and a structured initial period of mentoring by an experienced member of the tribunal.

To supplement the provisions in the Bill designed to ensure better consistency of decision-making across the range of membership, Government amendment No. 520d , which is on the seventh supplementary list of amendments, establishes an advisory committee to be made up of selected members of the new tribunal. These will have an important role, not least in advising the chairperson in regard to achieving and maintaining quality and consistency of decision-making.

I wish to touch upon the business of distributing cases among the membership and to outline the make-up of the membership of the new tribunal, at least in its initial stages. Government amendments in the same supplementary list provide for the setting up of a new post of registrar, a member of the staff of the tribunal, whose job it will be to assign cases between the different members of the tribunal. That is an onerous responsibility, which currently rests with the chairperson of the tribunal. My proposal for a registrar is designed to lessen the burden on the chairperson in this area, particularly in view of the new responsibilities imposed on him under the Bill, such as those concerned with improving consistency in decision-making.

My proposal has the added benefit of addressing a perception that members of the committee have in regard to this function not being transparent and perceived difficulties arising out of it. I do not accept that this perception is well-founded but I recognise that the perception exists and must be dealt with. My proposal will deal with the perception by creating this new responsibility for a member of the staff of the new tribunal, of assigning cases to individual members of the new tribunal. We will discuss this in more detail when we get to the appropriate group of amendments.

I wish to say something about how I see the set-up of the new tribunal as it takes on the tasks at present performed by the existing tribunal as well as the important new responsibility of determining appeals in subsidiary protection matters. For the moment, based on the current level of protection claims being made in the State, I take the view that the interests of fairness and of value for taxpayer's money will best be served by continuing to have a full-time, salaried chairperson on a time-limited contract, acting as the primus inter pares, together with a number of part-time members drawn from the legal professions, each with a suitable period of practising experience before appointment, and each paid on a case-by-case basis.

At this stage, given the nature of the workload that exists and the need in many cases to conduct oral hearings, which must have a certain degree of formality about them, I am happy that members should be lawyers, but I do not want to deprive the State of the opportunity, should it arise in the future, to be able to draw on the refugee expertise of suitable people who are not lawyers or who may not yet meet the strict qualification period as a practising lawyer set out in the Bill. Accordingly, we have included section 92(2) and section 92(3), to permit this possibility in the future rather than necessarily to make use of such provisions straight away.

I believe that at the current volume of work of the tribunal and the expected volume for the new tribunal, the most cost-effective way of fulfilling its functions consistent with fairness is to have — as we have at present — a cohort of part-time members whose services can be drawn on as the demand fluctuates and as each individual member can make time available, and that we continue to pay on a per case basis. It may be that in the future, we find that suitable people are unwilling to take on the role of member of the tribunal unless they are appointed on a full-time basis. Should that be the case, we will have the power in the Bill to put those arrangements in place.

By providing for a mix of whole-time members and part-time members, we allow for the flexibility to respond to changing levels of demand for the services of the new tribunal. We cannot predict what, if any, those changes might be, but by providing the capacity in the legislation to respond to any such changes in any of a variety of ways, we give future administrations the tools with which to be able to deal promptly with such changes without having to worry about limitations that we might impose now in the legislation that may seem in the future to make matters too rigid.

To sum up, what is needed is a tribunal that will be able to deal fairly, promptly, consistently and in a value-for-money way with protection appeals, and that will be seen to deal with them in that way. I believe that the proposals in the Bill, along with the amendments I propose, will deliver on fairness, transparency and consistency, and on sensible use of resources to deliver the service promptly and efficiently. I am pleased to have had the opportunity to provide an overview of where we are.

I welcome the Minister's statement. It was such clarifications and explanations on the nuances of change that he is introducing that we were trying to leverage out of him on the previous day. I welcome the fact that he has now put on record his comprehensive view in terms of this critical chapter.

The amendments before the committee seek to struggle with what is the best balance in terms of whole-time staff or part-time staff, and what is the best arrangement in terms of the duration of the period of office. According to section 92(8)(b), in theory, a member could serve indefinitely. We have discussed many times the phrase “as soon as may be prescribed”. Although we have heard the Minister speak, we do not know exactly what the prescription will be. In circumstances where a member shall serve three years or such longer duration not exceeding five years, as may be prescribed, such a member may be re-appointed for a second and subsequent term. It could be for a second and perhaps a subsequent appointment. Theoretically, we are heading into an era of lifers in this regard. I merely inquire what is the best balance to strike. It seems to me that the shorter term facilitates intervention if that is necessary. It is all very well for the Minister to say he acknowledges that there are perceptions, and that although he does not necessarily agree with these perceptions he conceded that a lot of people do agree with them and are very concerned about them. The shorter term of office of a serving member would seem to me to facilitate earlier intervention if the view was that a member was acting in a particular fashion that would not be deemed to be fair. I seek to achieve no more than that, nor do I have a closed mind on the matter. I am open to persuasion on what is best.

I was examining the recommendations of the Law Society of Ireland — the Minister's own trade union, although he does not refer to it thus — which stipulate that members of the tribunal be appointed through the Public Appointments Service. The approach in Australia, for example, was changed recently to allow for a similar merit-based selection system. Australia has a great deal of experience of immigration and asylum applications. The Labour Party has not tabled a specific amendment to support the Law Society's recommendation. The issue to which I draw attention stems from the perceptions the Minister says are apparent. I accept the statement he read is progressive. It may be that the appointment of the registrar will help in this regard.

I do not really have an ideological position on the question of whether everybody should be legally qualified. It seems desirable but perhaps it is more desirable that the persons involved build a body of knowledge about different parts of the world from where most of our applicants come. I do not want to be prescriptive in the sense of excluding those who might otherwise be competent but we must get it right this time. This is our chance to have regard to the practice and performance to date and try and put it right in terms of all these considerations.

I welcome the Minister's statement which clarifies his position on this issue. It was very important that he make it this morning. All three of us have the same objective, although we may be approaching the matter from slightly different angles. On the principle of what we are talking about, I am prepared to examine the Minister's amendments to determine how they address the issue. We will deal with them specifically later but perhaps we can revisit the issue on Report Stage.

We all want a fair and transparent system that is seen to be such. The perceptions that obtain have not developed out of thin air. Members of the tribunal have been quoted as making comments to the effect that they are extremely concerned about what is occurring within the tribunal. It is important that we deal with this issue and ensure the perceptions are addressed.

On the amendments, leaving aside the problems with the existing tribunal, it is important that there be a team of people within the tribunal with a body of expertise compiled over time who are competent in regard to protection issues and human rights law. The issue does not just arise in this jurisdiction because concerns have been expressed in the United Kingdom that officials dealing with appeals may not be up to speed on what is happening on the ground in the countries of origin of the appellants. We will address this further when we address the issue of safe countries and, in particular, the Democratic Republic of Congo.

We have 35 part-time tribunal members. It is important that there be full-time members who can devote much more time to research and compiling all the relevant information.

I have concerns about the mechanism being used for the appointment of tribunal members. We should consider a mechanism similar to the Judicial Appointments Commission in the United Kingdom, under which a shortlist would be presented to the Minister who would then select——

It is not a shortlist that the Minister receives.

It is not a shortlist.

From my experience to date, it is a long list.

Recommendations are made by the Judicial Appointments Commission. This at least should be considered if the Minister does not want to proceed with the suggestion made by Deputy Rabbitte in respect of the Public Appointments Service.

It is important that the chairman be appointed from the ranks of the Judiciary or someone who has retired therefrom. It is important to have consistency. It is not only non-governmental organisations which have raised the issue of the independence of appointments; the UN Human Rights Committee has also raised it. Its views have been brought to the attention of the Minister.

I hope the Minister will reconsider our points with a view to accepting further amendments on Report Stage to deal with the concerns and perceptions in the public domain.

On the same point, the perception issue, of which we are all aware, is very important. It is also important that expertise be built in the tribunal. The decisions of the protection review tribunal would be the subject of applications for judicial review in the event of imperfections in the procedure. I presume this is what we want to avoid because the reality is that the judicial review lists on immigration matters in the Four Courts have been getting longer and longer, as the Minister will be aware.

It is very important that the protection review tribunal be a weighty, well respected body such that people appearing before it will believe they will receive a very good, professional decision that will be respected in the courts and not, in the main, be overturned therein. If this is not the case, a three-tier system will evolve.

I am not inclined to agree with the amendment, although I know from where Deputy Rabbitte is coming. One must distinguish between part-time and full-time members. The proposal made in the Bill is that the term of part-time members be three years. Deputy Rabbitte's amendment would reduce this to two years. We will debate this in due course. Where somebody is appointed on a full-time basis, he or she is making a career decision and may be leaving another post. For example, they may have been working for a non-governmental organisation, the United Nations, an aid agency or practising as a solicitor or barrister. The terms request a person to leave a full-time position to join the tribunal with the prospect that they might not be re-appointed after five years. They may take that risk for five years. Would they take that chance for three years? It makes the period a little too short

An appointment should also be subject to the normal rules of probation. The Unfair Dismissals Act does not apply to people who have less than one year of service. Would it apply to a person appointed as whole-time member of this tribunal? If an appointee became mentally unstable could they be dismissed in a year? I do not hold hard and fast views about this but I am inclined to disagree with the amendment.

For all the reasons given and particularly because of the discussions we had last week, I decided if I were to give an overview statement it would indicate from where we are coming. I see merit in what was said the last time. However, I want to provide flexibility in the Bill and not to tie our hands in the future. My mind is not closed to changing the existing set-up of part-time members, apart from the chairperson.

It has been suggested the tribunal needs whole-time members. If they were to be appointed, it would be through the Public Appointments Commission. As Deputy Mulcahy has said, candidates would have to make a career choice.

Section 92(8)(b) outlines the term of office for a tribunal member which Deputy Rabbitte called a “lifer”. In my political career I have never much been in favour of giving contracts for life. I have some sympathy for Deputy Rabbitte’s point but equally I have sympathy with Deputy Mulcahy’s. That is what we are trying to achieve with this amendment.

I was going to suggest we delete from section 92(8)(b) “or subsequent term” on Report Stage which would mean a member would have ten years whole-time. Perhaps that might be a better way to proceed, or even the insertion of another subsection altogether such as “no one whole-time member can have a period of contract of successive five years for a period of ten years or 15 years”.

It must be accepted that consistency and a wealth of knowledge has to be built up in the tribunal, meaning appointments cannot be for a short period. I am inclined to come back on Report Stage with an amendment.

There are members of other tribunals who have been on them for many years. In my experience, some members take it on a part-time basis while others get fully involved and become experts in the area. It would be a shame if the Bill did not have the flexibility to allow people to be on the tribunal for a considerable period, particularly if they do build up a special expertise.

Do we start de novo with the new tribunal?

Yes, once the Bill is passed.

I take it then that somebody who served so many years would be considered to be starting anew.

The Minister has explained his approach and we can reflect on it for Report Stage.

Regarding a matter raised earlier by Deputy Naughten, approximately 60% of all judicial reviews taken to the High Court in the past two years were asylum or immigration related cases. Some of these cases may be justified on a point of law. It could also be argued that the judicial review process is being used by some people to extend the opportunity to remain on in the State.

How many are purely exercises to remain in the country?

It is hard to say.

Yes, but that is the nub of the point we are making. We want to reduce the number of potential genuine cases going to judicial review.

Amendment, by leave, withdrawn.
Amendments Nos. 485 to 488, inclusive, not moved.

I move amendment No. 489:

In page 99, subsection (9), line 41, to delete "membership" and substitute "office".

This is a technical change to section 92(9) that has been deemed necessary by the Office of the Parliamentary Counsel. It substitutes the word "office" for "membership".

Amendment agreed to.
Amendments Nos. 490 to 495, inclusive, not moved.
Section 92, as amended, agreed to.

Amendment No. 496 is in the name of Deputy Rabbitte. Amendments Nos. 497, 502a, 502b, 503, 506, 510a, 512, 520a, 520b and 520c are related. Amendment No. 511 is related and alternative to amendment No. 510a. Amendments Nos. 496, 497, 502a, 502b, 503, 506, 510a, 511, 512, 520a, 520b and 520c will be discussed together.

One needs to be a mathematician as well as a legislator on this committee.

I move amendment No. 496:

In page 100, after line 42, to insert the following subsection:

"(2) The chairperson shall endeavour to assign an appeal to a member of the Tribunal within one month of the lodging of the appeal, and the member concerned shall endeavour to hear and determine the appeal, or to inform the chairperson of his inability to do so, within 3 months of the assignment of the appeal to that member; and where the chairperson or member is unable to comply with this section, the applicant shall be informed of the reasons for such inability.".

The net issue here is the length of the waiting period. As we know, at the moment there can be inordinate delay. I know of cases where litigation was threatened to actually bring a case to appeal. That has happened on a number of occasions where the delay has been for longer than one year. There is no need to elaborate on the anxiety, inefficiency and so on that surround that.

Amendment No. 496 seeks to require the chairperson to assign an appeal within one month of him or her receiving it and would require the member to make a determination within three months of its being assigned to him or her. By and large, in the new regime, it seems to me that this is reasonable. In respect of amendment No. 497, which I shall move when we come to it, the point goes back to what the Minister euphemistically refers to as "perceptions". This amendment is prompted by the same perceptions and requires the chairperson to assign appeals on a random basis and that the stated criteria and so on to be published. Essentially, the net point of my amendments is in the first instance, speed, and in the second, randomness.

I know the Minister will make a claim for his latest amendment, No. 520c, to the effect that it overrides the considerations. However, it does not really do anything to address the question of speed or of randomness. The Minister may say we now have a new architecture and that the registrar will have a role. However, the background to my amendments as framed is the performance to date.

I endorse what Deputy Rabbitte has said as regards amendments Nos. 496 and 497. While I welcome the Minister's amendments and believe they are a positive step towards dealing with the issues, they do not deal with the two principles Deputy Rabbitte has raised, namely, the delays that have occurred in dealing with appeals and the issue of randomness. The Minister's amendment, No. 502a, says, “The Chairperson may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of the Tribunal, issue guidelines to the Registrar”. It is imperative that those guidelines so issued to the registrar are published and are in the public domain.

As regards amendment No. 520b, while the perception is that the registrar is independent of the chairperson in the allocation of files and cases to individual members, subsection (3) of amendment No. 520b says, “The Registrar shall be responsible to the chairperson for the performance of his or her functions.” There seems to be a very close tie between them and I am concerned that the level of distance required to deal with the concerns that exist is not being provided within the amendments as set out by the Minister. It is imperative that the two aspects discussed by Deputy Rabbitte, speed and randomness, need to be addressed in the context of the amendments before us.

We are talking about two very different topics in amendments Nos. 496 and 497. The first topic is the question of whether there should be time limits. In general, there should be some form of time limit. If not, the situation can arise where a member, or indeed the chairperson, takes possession of a file and for one reason or another sits on it and does not dispose of it within a reasonable period. This is not unique to the happenings of a tribunal. It is well recorded that in the superior courts, judges have heard cases and not delivered judgments for several years. We all know the phrase "Justice delayed is justice denied", and this is absolutely true. I do not know what the time limit should be. The Minister, with his officials, will have a better grasp on this than I have, but I would advise the Minister that there is a case for time limits, both for the assignment of the case from when it is lodged with the tribunal and then for a determination.

There might have to be some type of let-out clause or procedure whereby the chairperson or a member of the tribunal could inform the registrar or chairperson that the deadline had to be extended for a particular reason. For example, if witnesses or expertise from overseas are being dealt with and people go sick or missing and events change, then the envelope of time might have to be pushed out. However, I ask the Minister to consider that without any form of time limit — in the Bill as it is, there are no time limits or time constraints — the possibility for open-ended deliberations is left open, which is in nobody's interest.

In relation to amendment No. 497, I agree with the first part but fundamentally disagree with the second. While I agree with the first part, I doubt we actually need to say: "The chairperson shall assign appeals to members of the Tribunal either on a random basis". I prefer the Minister's phrasing of it. None the less, that is the only basis for moving forward in this type of tribunal. Once one begins to use stated criteria or grounds, the question might arise as to why an individual member of the tribunal might have been given a particular file. The spotlight was put on that particular member, which was wrong. In a tribunal people are sitting as equals and their integrity should be untouched. They should be able to hear any appeal at this level of subject matter. Once we begin to categorise, we are in trouble. At all other tribunals the workload is distributed on a random basis. For example, some members of the Employment Appeals Tribunal might know a little more than others about redundancy, maternity or unfair dismissals cases. However, they should be able to deal with all cases under the legislation. That should be the case in this instance also. Therefore, I would be opposed to anything other than a distribution of the workload on a random basis.

Delays to appeals have occurred. There is a large number of appeals outstanding for more than six months at the Refugee Appeals Tribunal due to the delay in processing appeals, pending the granting of access to tribunal decisions, following the Supreme Court judgment in the Atanasovcase, to which I referred last week. As a result of that decision, the tribunal had to set up a comprehensive databank of its previous decisions, suitably redacted. This is now readily available for access by legal representatives. It will help to clear the backlog, as there will be on-line access to decisions.

We recently advertised for persons to be recruited to represent ORAC at Refugee Appeals Tribunal hearings of appeals. The aim is to clear the substantial backlog at the tribunal due to the decision in the Atanasov case. This will allow for a quicker processing of appeals.

It is better that I read the note on this group of amendments because it deals with my amendments, as well as the suggested amendments. It picks up on the issue of how we can deal with cases on a speedy and random basis. There may well be tension in picking cases randomly and trying to deal with them speedily. A case assigned randomly might be given to a tribunal member who might have experienced one aspect of immigration issues but who may not have experienced the type of case assigned. Such a lack of experience can cause a delay in dealing with the issue. We must provide for flexibility in the legislation to allow this to happen efficiently and effectively and to achieve value for money for the taxpayer.

This group of amendments is primarily about the process of assigning cases to the various members of the Refugee Appeals Tribunal, a function of the chairperson under the Bill as it stands. Many of the amendments in the group tabled by Opposition Deputies reflect publicly expressed concerns about this aspect of the work of the tribunal. While I am aware that there has been such a perception, I do not accept it but we have to try to deal with it. By dealing with it in my amendments, we can ensure the perception that has developed will be dispelled.

The amendments I have brought forward will give the job of distributing cases to a specially designated member of the tribunal staff, to be called the registrar. Amendment No. 520b will establish the post of registrar, while amendment No. 520c is intended to set out the role and functions of the registrar. Chief among these is that set out at subsection (2) of amendment No. 520c which deals with the assignment of cases to members, a matter that has hitherto been the responsibility of the chairperson.

The registrar will also have the job of keeping an eye on how well members of the tribunal are getting on with the cases assigned to them. In this way, they can ensure early identification of any slippage in the requirement to ensure the tribunal's business is disposed of expeditiously. However, it would not be appropriate for a registrar to call to account a member whose caseload was perceived to be problematic, something which must remain properly a function of the chairperson. The registrar's role is to draw the attention of the chairperson to any evidence of such a slippage.

In that context, section 93(1) sets out a fundamental duty of the chairperson, namely, to "ensure that the business of the Tribunal is managed efficiently and that the business assigned to each member is disposed of as expeditiously as may be consistent with fairness and natural justice". The registrar will assist the chairperson in fulfilling this function. Section 94(3)(a) requires a member of the tribunal, among other matters, to “ensure that the business assigned to him or her is managed efficiently and is disposed of as expeditiously as may be consistent with fairness and natural justice”. Each actor has to take responsibility for proper performance. The effect of these provisions is to require that any appeal be heard as soon as possible and in a manner that ensures fair procedures are applied. Amendments Nos. 502b and 520a make consequential adjustments to sections 93(5) and 94(1).

An important provision in aid of the chairperson's overall responsibility to ensure the fair and efficient dispatch of tribunal business concerns his or her ability to insist that a member report to him or her on any aspect of the business assigned to that member. As Deputy McGrath's amendment No. 506 would remove that power from the Bill, I cannot accept it.

I am not in favour of the proposed time limits and notice requirements contained in Deputy Rabbitte's amendment No. 496. Such a proposal would have the potential to introduce a new layer of bureaucracy into the appeals process, which would increase the potential for inefficiencies. This would be an unnecessary provision with no effective consequences for the applicant, except the possibility of judicial review of a perceived failure to adhere to the letter of the amendment. While I share the Deputy’s desire to ensure appeals are disposed of with reasonable dispatch, I do not think the proposals made in his amendment would actually achieve it.

In respect of Deputy Rabbitte's amendment No. 497, prioritising cases by reference to specific criteria is a function of the Minister and will continue to be so under section 96. It is not the job of the Minister to micromanage the workload of the tribunal. The chairperson is ultimately responsible for the management of the tribunal's work. The chairperson can give guidelines to the registrar under these new proposals, specifically under the Government's amendment No. 502a, on how the work is to be distributed by the registrar in the interests of the fair and efficient discharge of the tribunal’s business, but any such guidelines would have to be consistent with directions given by the Minister. This arrangement provides a sensible and workable framework for the efficient and fair dispatch of the important work the tribunal will carry out.

In keeping with the proposal to give this work assignment to the registrar, it is necessary to provide that the chairperson will no longer be responsible for assigning such appeals. Amendment No. 510a achieves this by the deletion of subsection 93(5)(a). As the amendment achieves the intention of amendment No. 511 in the name of Deputy McGrath, there is now no need to move that amendment. Since the business of assignment is now a function of the registrar, Deputy McGrath’s amendment No. 512 would no longer be relevant and I likewise suggest it should not be moved.

The question of reassigning is dealt with in the proposed Government amendments and the approach in the amendments is straightforward. By subsection (3) in amendment No. 520c, where a member tells the registrar that he or she is unable to proceed with the case, which might be through illness or for some other reason, or is unwilling to proceed with a case, which may be for a variety of reasons such as having acted as prosecuting counsel in a previous case where the applicant was a defendant or a witness, the registrar can go ahead and reassign that case. Where the question of reassignment arises for some other reason not involving the consent of the originally assigned member, however, it will be for the chairperson to do the reassigning. This is to preserve the proper relationship between members and registrar.

Incidentally, the question of reassignment can arise at any stage after a member has started to hear it; for example, if the member falls ill during or after a hearing or is unable to complete the case. Deputy McGrath's amendment No. 502 would prevent that possibility and, accordingly, I could not accept that amendment.

To sum up, I commend Government amendments Nos. 502a, 502b, 510a, 520a, 520b and 520c to the committee. I cannot accept amendments Nos. 496, 497, 503 and 506. I ask that amendments Nos. 511 and 512 in the name of Deputy McGrath not be moved.

While obviously there will be new guidelines building on the existing ones when the new legislation comes through, under the existing guidelines members of the tribunal have to deliver to the administrative staff of the tribunal an e-mail version and assigned hard copy of the decision fit for issue within the time limits set out, namely, 15 days from the conclusion of the substantive hearing and five days after the papers have been furnished to a member in an accelerated or Dublin Convention case. There are some exceptional circumstances but they are the normal time limits as set down under the guidelines.

I am conscious of the fact that this is the one opportunity we get to refurbish the law with regard to the composition, conduct, procedures and all the rest relating to the tribunal, and that we have to try to get it right. I do not want to go over all of the matter that has come into the public domain and representations one has heard about what has gone on up to now.

The Minister seemed very vague about this the last day and very satisfied that everything was hunky-dory and so on. His utterances today give some concession to the fact that we have to attempt to address the issues that arose. The fact of the matter is that serving members of the existing tribunal were and are divided in their views about what has gone on. That much is a fact. The Minister may or may not think much of the dissenting members' opinion but it seems that a number of things have happened that are a cause for concern. Therefore, notwithstanding the Supreme Court judgment decision to which the Minister referred, we are still leaving it too vague in terms of the time span for the assignment of the appeal in the first instance and its being determined in the second instance.

Deputy Mulcahy very fairly gave his view of his own experience of other tribunals and why it is desirable that we should provide against, in so far as we can, a situation where a member is not derelict in his or her duty but perhaps lazy — I would not want to point the finger in any direction — for example, where a file is sat on. I know lawyers who were obliged to threaten litigation in order to bring on a case, to have a case assigned, or, once assigned, to have it determined.

I am influenced by what Deputy Mulcahy said about his opposition to the second part of my amendment No. 497, namely, that it may not be prudent to require the stated criteria to be set out, although I am certain that if such is to happen, such criteria, grounds or categories ought to be available, made public and published. While I hear what has been said, the random basis of assignment is still not dealt with in the Minister's approach. It seems that even where we now have guidelines, the registrar has to have regard to the guidelines but is not bound by them and, of course, the guidelines are not public. I do not know to what extent all of this may be taken as a signal that the controversy that happened down there is behind us, that we have weathered the storm, mollified the senior members who are disquieted and gestured sufficiently in the right direction. However, some of these questions will remain.

Deputy Mulcahy's point was that if one is a member of the Employment Appeals Tribunal, theoretically one ought to be equipped to deal with whatever kind of an appeal comes before that tribunal. The Minister's concern here is that random assignment may cut across the repository of experience that it is necessary to build up to be able to deal with cases that come, say, from a particular part of the African continent or whatever. Does Deputy Mulcahy's principle not apply? So many years later now, having had the opportunity to garner experience and so forth, does the principle of random assignment not override any other consideration of whether one has to do a bit of extra homework to bring oneself up to speed in a particular area, cultural or otherwise?

To come back to the my original question, amendment No. 502a states the chairperson may issue guidelines to the registrar, and amendment No. 520c states that in assigning or reassigning an appeal to a member, the registrar shall have regard to these guidelines. It is imperative that statutory provision is made in order that these guidelines would be published and available in the public domain. That ties in with the point made by Deputy Mulcahy. It is a crucial issue.

Amendment No. 520c provides that the registrar can reassign a file where a member requests that this be done because, for example, he or she does not have the time to deal with it. However, section 93(5)(b) provides the chairperson with the authority to take a case from a member and reassign it. Therefore, even though the registrar has allocated a case on the basis of the criteria laid out in the guidelines, which are in the public domain, the chairperson can take that file from the individual in question and reassign it to somebody else for whatever reason. The conditions set out in subsection (5)(b) could be interpreted in many different ways by a chairperson.

There has been concern in the past that cases were allocated to particular members on the basis that they had a strong record — as high as 100% — of rejecting applications. I do not wish to mention names but these matters have been raised in the courts. Serious concerns were expressed to the chairperson in this regard and it is not clear why they were not acted upon at that time. This Bill proposes that the chairperson be given the power to override the decision of the registrar. While the establishment of the position of registrar addresses to some extent the concerns that have been expressed, the retention of subsection (5)(b) turns the matter entirely on its head.

I ask the Minister to review the wording of this subsection. I propose that the registrar be assigned the function of proactively reassigning cases, given that it is he or she who must allocate the file in the first instance and that the registrar must do so in a manner that complies with the guidelines laid down by the chairperson. It is of fundamental importance that there is a statutory provision for those guidelines to be put into the public domain.

I am persuaded by what the Minister said on the time issue, with particular reference to section 93(1). However, there may still be room for an add-on to this subsection to provide for some type of default mechanism. In the case of An Bord Pleanála, for example, the relevant legislation provides that any appeal not disposed of within two years shall be granted. Something similar may be required here. To leave it entirely open may result in some cases, for whatever reason, dragging on for prolonged periods. In general, however, I am persuaded by the Minister's comments on the time issue.

I do not mean to be awkward on the issue of guidelines and specialisation. However, I anticipate that section 93(4) will be manna from heaven for litigators in the Four Courts, who will use these guidelines repeatedly for the purpose of judicial review applications. For example, the registrar might form the view that member X has an expertise on a particular country in Africa. Over a period of time, this member declines a large number of appeals by applicants from this country which are assigned to him on the basis of his specialisation. A situation may arise where the allocation of a case concerning a person from this country to member X is challenged by the applicant in the High Court, seeking to establish the existence of bias on the basis that this member has heard 20 cases from applicants from this country and has declined 19 of them. The member in question may have a particular expertise but he or she may also have formed a particular view of these types of cases.

That is why I strongly believe that a random basis is the most compelling way to deal with this issue. Such a system will obviate all the potential litigation that may arise. I agree with Deputies Naughten and Rabbitte that the guidelines must be published, because the process must be totally transparent. However, I am concerned that the use of such guidelines may be a recipe for disaster. In the case of applications for refugee status we are dealing primarily with the Geneva Convention and the corpus of law arising from that. Those principles should be applicable to any cases dealing with asylum seekers. Expertise in a particular area should be available to all members of the tribunal. It should not be impossible, for example, for one member to ask another member for the benefit of his or her expertise on a particular country or a particular issue or to seek direction towards certain precedents or cases which can help in his or her determination. However, the principles themselves should be universal principles. That is the strength of the random basis of allocation.

I propose that the Minister's amendment No. 520c should include the provision: “The Registrar shall assign to each member the appeals to be determined by him or her on a random basis.” I anticipate that the introduction of guidelines may lead to increased litigation. The Minister knows how much this costs the State, given the number of judicial review applications that have gone to the High Court and the large number of which have been successful. I anticipate that these guidelines will considerably add to the number of judicial review applications.

I am not sure it is correct to say that a large number of judicial review applications are successful. I do not have the figures to hand but our information is that this statement is incorrect. My officials have reminded me that my predecessor answered a parliamentary question on this issue last April. Of the 375 applications for leave to apply for judicial review that were made between April 2007 and March 2008, 35 were granted. Thirteen of the total number of applications were substantive cases decided in favour and 175 were settled.

The figure of 175 raises its own questions. That is the issue we are trying to address.

Many of these cases were probably made on the basis of going in another direction. They were more than likely an attempt to expedite the handling of a particular case.

From the taxpayers' perspective, no one can accuse the Government of trying to deal with this issue as expeditiously or as efficiently as possible, given the level of costs the taxpayer is obliged to pay to defend the judicial reviews that are taken in this instance. This legislation has been brought forward in order that the cost to the taxpayer can be minimised, while allowing for fair procedure. I again refer to my meeting with a representative from the UNHCR, who exhorted me to proceed with this Bill as quickly as possible. As his point pertained to its implementation, the sooner this legislation can be passed the better. He had no major issues in respect of the legislation.

On the point raised by Deputy Naughten in respect of reassignment, this issue can be re-examined. The entire premise of reassignment is to prevent logjams arising due to illness or other reasons that might preclude a particular member from dealing with a case and there is no ulterior motive. This is an attempt to provide flexibility to the chairperson to allow a case to be fast-tracked, were a difficulty to arise because of illness etc.

Section 93(5)(b)(ii) states that the chairperson can reassign business “in the interest of the fair and efficient discharge of the business of the Tribunal,”. In theory, a scenario might arise in which one member of the tribunal would deal with files far more quickly than the other members and consequently, the chairperson would withdraw files from the latter and allocate them to the former. That may not necessarily be fair. My point is that while all members are trying to reach the same endpoint, this issue must be looked at in context.

I repeat I am prepared to look at it again. However, Deputy Naughten is taking a somewhat jaundiced view of what the chairperson might do. Under this provision, the chairperson still is obliged to act in the interest of fair and efficient discharge. He or she cannot simply pluck cases away from members or allocate them to particular members, as he or she would be found out quickly and legal representatives would take a judicial review procedure.

The Minister cannot state that as it was not found out. It is one of the great mysteries that although complaints were made to the Department and to others by lawyers and political colleagues, this was not found out. The point is this was allowed to continue and it had to go all the way through the courts system.

Again, this legislation is trying to deal with such perceptions, which is the reason for the inclusion of the registrar. He or she ultimately will be subject to the chairperson, who will be obliged to run the tribunal in an efficient and fair manner. The registrar is being included to try to deal with this perception, which I accept existed. However, I do not accept that perception.

As for random assignment, in theory, every member should be able to deal with each case. However, I refer to the practice of the Judiciary in the courts, with which Deputy Mulcahy will be familiar. Whenever a case comes up, the President of the High Court assigns it to a particular judge on the basis that he or she has particular expertise in that area. I am trying to ensure there is a balance in this regard, in order that a person with particular expertise in dealing with a specific part of the world, from where an immigration problem emanates, can deal with it. Were one to assign such a case randomly, it is possible it would be given to someone with absolutely no knowledge of it. In effect, this would run counter to the need to deal with such cases effectively, efficiently and quickly. Ultimately, the intention is to leave the discretion to the registrar and to allow him or her to assign cases as they arise.

If one turns this on its head, it could happen that members would only handle cases from Africa or South America or pertaining to children and so on. Consequently, rounded expertise would not be developed by the other members.

While the possibility that might happen can be considered, any chairperson would wish to share such experience across all members of the tribunal in so far as possible. However, circumstances might arise in which he or she would consider it necessary to give particular cases to particular people.

As for time limits, it should be noted the Oireachtas has tried to set time limits in respect of all sorts of matters. Deputy Mulcahy referred to An Bord Pleanála and although the Government tried to get it to make decisions within four months, this has not happened. Were one to include time limits, what would happen on their expiration? What point would it make? The State wishes to deal with such cases as quickly and in as fair a manner as possible. However, the inclusion of a time limit would necessitate something happening, were the case not decided. I question what that might be.

Nothing prevents members from making such provision in the Bill. They could facilitate a second bite of the cherry or alternatively, the appeal could stand. Different things can be done in this regard, as the alternative is to have inordinately long delays such as those that have arisen in some cases. However, I am more concerned about the principle of random assignment and do not find the Minister's argument convincing. While all members of the tribunal were obliged to start from a basis of knowledge that might not have been wider than east Galway at the outset, they were obliged to learn.

Equally, the committee discussed the possibility of members not being lawyers. As noted earlier, people who have worked for the UNHCR or even for NGOs and who have expertise in a particular field might be tribunal members. Surely it would be better that those with expertise in a particular country, in which they operated, would deal with such a case, as opposed to someone else with no experience?

The answer to that question is not straightforward. It undeniably is desirable that expertise ought to be built up in the panel of serving members. However, I would not favour a scenario in which it becomes known that former Deputy Mulcahy is an expert on the Congo and therefore, all files on that country will go to him in future.

I am not saying that either.

That would not be desirable.

My point is the chairperson and the registrar should have such an opportunity, rather than operating on a random first come, first served basis or as the cases come in. This would follow the practice in the courts, in which cases are assigned to people who have expertise in particular areas. I am trying to strike a balance in this regard and to allow some discretion to the chairperson and to the registrar.

At present, when the president of the High Court assigns cases, he normally has three or four judges available who are expert in particular fields, such as commercial or criminal law. Consequently, there never is a single judge who is the expert on a particular subject.

The tribunal could have, for example, three or four experts on Nigeria and the Congo.

Yes. Primarily, it should be random with a discretion for the chairperson, via the registrar, in particular cases.

That is the balance we are seeking in the legislation, but the Deputy is asking us to leave the provision exclusively random.

I apologise. Others are asking.

I agree with the Minister. There should be a facility whereby particular cases could go to experts as long as the trap of pigeon holing people in certain areas is avoided. We also want to avoid the predictability of having the case of someone from the Congo heard by resident expert Mr. or Mrs. X. There could be a form of words to the effect that the distribution should be random except in particular cases where they may be assigned by the chairperson via the registrar and taking into account various expertise.

Deputy Mulcahy has made my point. It is desirable that, if people offer their services to the tribunal and given the fact that we have ten years experience under our belts, people be encouraged to learn about areas on which they are not primarily focused. The random principle protects us from the kind of judicial review that could otherwise be invited.

It is prescriptive. I accept Deputy Mulcahy's point in that I would not want a situation wherein cases are tailored to one expert or another. Equally, I would not want the legislation to prevent the chairperson from sending an upcoming case involving, for example, unaccompanied minors to the person on the tribunal with the relevant expertise, be he or she from the UNHCR or another NGO. It is of concern that, under a random lottery, the case might go to someone with no experience and an unfair decision might be made.

The courts analogy only goes so far. Under the Constitution, justice must be done in public in the courts. In this regard, however, that is not the case for the great preponderance of society. Generally, cases are not covered in the media. We have made changes and the publication of redacted judgments will help, but it will remain a specialist area compared to the president of the High Court making questionably arbitrary judgments on the allocation of criminal files in the courts. The media, lawyers and experts cover that matter and people will soon begin to reflect it in the available channels. Given our experience, however, I am unsure as to whether that system obtains in this situation.

Deputy Mulcahy has proposed an amendment to amendment No. 520c to the effect that the new subsection 96(2) would read “The Registrar shall assign to each member the appeals to be determined by him or her on a random basis”. It is all right if the Minister does not want to shut out the facility to maximise available expertise, but the principle of random assignment would protect us against many worse situations.

I agree with the Minister because I want the facility. Were the Bill to read "The Registrar shall assign to each member the appeals to be determined by him or her on a random basis, subject to the provisions of subsection 93(4)", the power to distribute in special cases would be instilled.

I will ask the Parliamentary Counsel to indicate whether that can be done. However, I have a difficulty with it, as people might not have the best and fairest decisions made in their cases. The proposal is for prescriptive legislation and installing a layer of bureaucracy, which would dictate to whom the registrar could assign cases on the basis of who got the last case. I do not know of any type of appeals tribunal in which a random method is used.

Is it in any other Act?

When I asked some of my people, they could not recall any such Act. To a certain extent, the Deputy is trying to tie the hands of the tribunal chairperson behind his or her back.

The tribunal under discussion is different than any other. Some of the cases might entail life or death situations. The Minister highlighted the number of judicial reviews that have been settled or granted, thereby reflecting the weakness in the system.

I made the point that there is also a strong perception that the judicial review process is being used to extend the length of the applicant's stay in the country.

We can debate that matter to a greater extent when we reach it later. We require a system in which all files of a certain type are not being sent to particular individuals. While the Minister is correct in that expertise must be built up within the tribunal, the individual in question need not be the one to decide in all of the cases. The tribunal could use the expertise by bringing its other members up to speed.

As public representatives, we regularly deal with these issues. For example, when we are approached regarding planning issues or immigration issues, we can seek advice from particular Members of the Oireachtas who have expertise in those areas. Once expertise is built up in a pool, it should be available to every decision maker instead of being pigeon holed to a small number. Will the Minister consider Deputy Mulcahy's proposed amendment?

Yes. If the tribunal has a body of expertise on a particular issue rather than on a country, the Parliamentary Counsel might say that a provision on the randomisation of cases will effectively work against the existing provisions' significant insistence that the tribunal operate on a basis of fairness and natural justice. In a subsequent judicial review, someone might claim that the randomness of the way in which cases were assigned meant that he or she did not get the best possible hearing. This might be because there was someone on the tribunal who knew much about these issues and would have known more than the person randomly assigned, who did not have a notion. Perhaps the latter was just a new member with no experience other than a few training modules, under the mentoring procedure, and side by side there may be someone with much better knowledge of the issues involved. I guard against being too prescriptive in legislation in this respect.

If the Minister is going to consult the Chief Parliamentary Counsel, we cannot take it much further. We must look at it in the light of what is on the record and see what the Chief Parliamentary Counsel offers. I have developed some expertise on Kenya during the night. Since Indiana declared very late, I would appreciate a brief break to get some sustenance. We will have an Offaly summit. If we want to go ahead and finish this group of amendments, I suggest we take a brief break.

We will break until 11.50 a.m.

I want to ask one question because I may have misheard the Minister. I asked about the publication of the guidelines.

They have not published any guidelines to date. I sound a word of caution about guidelines for the reason Deputy Mulcahy raised. It could become a lawyer's playground and these are only guidelines.

The difficulty is that it has become a lawyer's playground because this has not been available.

I do not accept that. I would not put it past the wit of hedge lawyers to find fault in some of the procedures because they did not follow basic guidelines that would be set down by a chairperson.

I withdraw this amendment for the reasons outlined. We will examine it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 497:

In page 100, after line 42, to insert the following subsection:

"(2) The chairperson shall assign appeals to members of the Tribunal either on a random basis or on the basis of stated criteria, grounds or categories; and where the chairperson assigns cases to members on the basis of criteria, grounds or categories he or she shall publish such criteria, grounds or categories and the tribunal members to which they relate.".

I will await the outcome of the Minister's consultation with the Chief Parliamentary Counsel.

Amendment, by leave, withdrawn.

Before we move onto the next amendment, which requires discussion of another topic, Deputy Rabbitte is requiring a brief coffee break. Would ten minutes be sufficient? We can reconvene at 11.50 a.m.

Sitting suspended at 11.45 a.m. and resumed at 12.10 p.m.

We are discussing section 93. Amendments Nos. 497a, 498 and 499 are related and alternative. Amendments Nos. 500, 501, 502 and 505 are related. Amendment No. 504 is alternative to amendment No. 505 and must be grouped with it; otherwise, there would be no opportunity to discuss it. Therefore, amendment No. 497a and amendments Nos. 498 to 505, inclusive, may be discussed together.

I move amendment No. 497a:

In page 101, lines 1 to 5, to delete subsection (2) and substitute the following:

"(2) The chairperson may, having regard to the need to observe fair procedures, establish rules and procedures for the conduct of oral appeals under this Part and shall publish any such rules and procedures so established.".

The intention of the amendment is to require the chairperson to publish any rules and procedures that he or she may establish for the conduct of oral appeal hearings. This requirement to publish meets the intent of amendment No. 498 in the name of Deputy McGrath and I suggest this amendment need not now be moved.

Amendment No. 500 is a technical amendment and makes clear that the guidelines in question in section 93(3) are to be issued to tribunal members and to staff of the tribunal. The scope of such guidelines and guidance notes is widely drawn so as to give the chairperson wide flexibility in the matters that can be covered in this way.

Amendment No. 505 is a technical amendment to ensure that guidance notes can also require the preparation of a report by a member in appropriate circumstances.

Amendment agreed to.
Chairman: Amendment Nos. 498 and 499 in the name of Deputy McGrath cannot be moved as a result of amendment No. 497a being agreed to.
Amendments Nos. 498 and 499 not moved.

I move amendment No. 500:

In page 101, subsection (3), line 6, after "issue" to insert "to the members and staff of the Tribunal".

Amendment agreed to.
Amendments Nos. 501 and 502 not moved.

I move amendment No. 502a:

In page 101, lines 10 to 21, to delete subsection (4) and substitute the following:

"(4) (a) The Chairperson may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of the Tribunal, issue guidelines to the Registrar for the purpose of the performance of his or her functions of assigning or re-assigning appeals under section 96(2) or (3).

(b) In issuing the guidelines referred to in paragraph (a) the chairperson shall have regard to the following matters:

(i) the grounds of the appeals set out in the notices of appeal;

(ii) the country of origin of applicants;

(iii) any family relationship between applicants;

(iv) the ages of the applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made;

(v) the provisions of this Act pursuant to which the appeals are made;

(vi) any direction given to the Tribunal under section 96.”.

Amendment agreed to.

I move amendment 502b:

In page 101, subsection (5), lines 23 and 24, to delete paragraph (a).

Amendment agreed to.
Amendments Nos. 503 and 504 not moved.

I move amendment No. 505:

In page 101, subsection (5)(c), line 35, after “guidelines” to insert “and guidance notes”.

Amendment agreed to.
Amendments Nos. 506 to 510, inclusive, not moved.

I move amendment No. 510a:

In page 102, subsection (11), lines 18 to 21, to delete all words from and including "of—" in line 18, down to and including "members." in line 21 and substitute the following:

"of receiving reports under section 94(3)(d) from members.”.

Amendment agreed to.
Amendments Nos. 511 to 519, inclusive, not moved.

I move amendment No. 520:

In page 102, lines 44 to 46, to delete subsection (17).

The effect of this amendment is to delete subsection (17) of section 93, which applies the provisions of Part 7 to the chairperson of the tribunal when he or she is determining appeals under that Part. I have been advised by the Parliamentary Counsel that this provision is unnecessary and accordingly should be deleted.

Amendment agreed to.
Section 93, as amended, agreed to.

I move amendment No. 520a:

In page 103, subsection (1), lines 2 and 3, to delete "by the chairperson" and substitute "under this Act""

Amendment agreed to.
Question proposed: "That section 94, as amended, stand part of the Bill."

Deputy Naughten is opposing this section.

I will withdraw my opposition until I see what comes back on Report Stage.

Question put and agreed to.

I move amendment No. 520b:

In page 103, before section 95, to insert the following new section:

95.—(1) The Minister shall designate a person who is for the time being a member of the staff of the Tribunal to be the Registrar of the Tribunal (the "Registrar").

(2) A person designated under subsection (1) shall perform the functions assigned to him or her by or under this Act.

(3) The Registrar shall be responsible to the chairperson for the performance of his or her functions.

(4) Where the Registrar is for any reason temporarily unable to perform his or her function of assigning and re-assigning appeals under section 96(2) or (3) or the position of Registrar is vacant, that function of the Registrar may be performed, for the duration of the inability or until a designation is made under subsection (1), by such member of the staff of the Tribunal as may, from time to time, be designated for that purpose by the Registrar, or (in the absence of such designation) by the Minister, and references in this Part to the Registrar shall be read as including references to a person designated under this subsection.”.

Amendment agreed to.

I move amendment No. 520c:

In page 103, before section 95, to insert the following new section:

96.-(1) The Registrar shall, in consultation with the chairperson—

(a) manage and control generally the staff and administration of the Tribunal, and

(b) perform such other functions as may be conferred on him or her by the chairperson.

(2) The Registrar shall assign to each member the appeals to be determined by him or her.

(3) Where a member to whom an appeal has been assigned under subsection (2) informs the Registrar that he or she is unable or unwilling to determine that appeal, the Registrar shall re-assign that appeal to another member.

(4) In assigning or re-assigning an appeal to a member the Registrar shall have regard to guidelines issued by the chairperson under section 93(4)(a).

(5) The Registrar shall bring to the attention of the chairperson any matter relevant to the chairperson's functions under s ection 93(1) or (5)(b) or (c).

(6) (a) The Registrar shall, whenever requested by the chairperson, assign to the chairperson—

(i) appeals, or

(ii) a particular appeal, to be determined by the chairperson under this Part.

(b) In assigning an appeal under paragraph (a), the Registrar shall comply with any direction of the chairperson.”.

Amendment agreed to.

I move amendment No. 520d:

In page 103, before section 95, to insert the following new section:

97.-(1) There shall be an advisory committee (the "Advisory Committee") comprising-

(a) the chairperson, and

(b) not fewer than 3 and not more than 5 members of the Tribunal,

the function of which shall be to advise the chairperson in relation to any of his or her functions under this Act.

(2) The Minister shall appoint, and may terminate for stated reasons the appointment of, the members of the Advisory Committee.

(3) (a) Subject to paragraph (b)—

(i) an appointment under subsection (2) shall be for such period, not exceeding 2 years, as may be specified by the Minister when making the appointment, and

(ii) a member of the Advisory Committee may be reappointed for a second or subsequent term not exceeding 2 years.

(b) Where a member of the Advisory Committee ceases to be a member of the Tribunal, he or she shall thereupon cease to be a member of the Advisory Committee.

(4) The chairperson shall—

(a) determine the rules and procedures of the Advisory Committee,

(b) convene a meeting of the Advisory Committee at least twice a year, and

(c) chair the meetings of the Advisory Committee.

(5) A member of the Advisory Committee shall attend any meetings convened by the chairperson under subsection (4)(b), unless it is impracticable to do so.

(6) The Advisory Committee—

(a) may give such advice and make such recommendations to the chairperson on any matter relating to the functions of the chairperson as it thinks fit, and

(b) shall give advice and make recommendations to the chairperson on any such matter as the chairperson may request.

(7) Nothing in this section—

(a) affects any obligation of a member of the Advisory Committee, as a member of the Tribunal, under section 94, or

(b) prevents the chairperson from establishing committees of members to deal with specific aspects of the business of the Tribunal.”.

The purpose of this amendment is to allow for the establishment of an advisory committee within the tribunal comprising between three and five members, to be appointed to the committee by the Minister. The function of that committee is to provide advice to the chairperson in relation to any of his or her functions under the Act. The thinking behind this proposal is that the present arrangements for the chair of the Refugee Appeals Tribunal, arrangements that are reflected in the Bill as it currently stands, place a large amount of responsibility directly on the shoulders of the chair. We have already dealt with the amendments to relieve the chair of responsibility for allocating cases to other members but that still leaves a considerable weight of responsibility directly on the person of the chair.

At present, the current Chairperson of the Refugee Appeals Tribunal has established a small number of committees of members of the tribunal to advise him on some aspects of the running of the tribunal and of the discharge of his responsibility as chair. These committees are, of course, established purely on an informal basis. On reviewing the relationship to be created by this Bill between the chairperson of the new tribunal and the work of that body, a review that has already given us the establishment of the post of registrar in earlier amendments, I took the view that there would also be merit in formalising in the Statute the concept of an advisory committee of members. Thus I have brought forward amendment No. 520d , that builds on the practical experience of present informal arrangements and that will advise the chair in relation to any of his or her functions under the Act.

Under subsection (3), the period of appointment of the member of the advisory committee will be no more than two years, a period that can be renewed. Under subsection (4), the chairperson of the tribunal will be the chairperson of the committee and he or she will be obliged to convene a meeting of the committee at least twice a year. Subsection (6) allows the committee to give advice and make recommendations in relation to any matter relating to the functions of the chairperson as it thinks fit and requires the committee to give advice and make recommendations to the chairperson on any such matter as the chairperson may request. In this manner, the chairperson will have available to him or her a wealth of experience and a breadth of opinion to assist him or her in the performance of his or her functions.

Subsection (7) is a technical provision to ensure that the establishment of the advisory committee does not impinge in any way on the duties of the members under section 94 or indeed, prevent the establishment by the chairperson of any other committee within the tribunal to deal with specific aspects of the business of the tribunal. An example of such a committee would be a committee to oversee the training needs of the tribunal. I commend the amendment to the committee.

While I believe this is a positive step forward, I have two queries on the amendment. Subsection (1) (b), holds that there shall be an advisory committee comprising not fewer than three and not more than five members of the tribunal. I suggest that the committee should comprise five members of the tribunal rather than three because if there are only three members of the tribunal on the committee, the chairman would only have to swing one of those three members in order to have control of the committee. I presume, if an issue ever came to a vote, the chairman would have the deciding vote, although I am sure the purpose of the committee is to ensure that matters do not end up being put to a vote. However, it is important that the committee is made up of five members rather than just three. I ask the Minister to consider that point before Report Stage.

Subsection (4) provides that the chairperson shall convene a meeting of the advisory committee at least twice a year. I believe that the committee should meet at least four times a year. Quarterly meetings should be the basic requirement because there have been reports in the past that members of the tribunal have sought meetings with the chairman to discuss some issues of concern to them but have not succeeded in having such meetings. The committee should meet at least quarterly rather than just twice a year. I hope that on Report Stage, the Minister will accept these two suggestions.

I am not overly concerned as to whether the committee comprises three or five members but I suggest that there should be a mixture of full-time and part-time members, as well as the chairperson.

At present all members, apart from the Chairman, are part-time. We can examine that matter.

In the legislation, provision is made for whole-time members of the tribunal.

There is and there may be whole-time members in the future. At present, all members are part-time, except for the chairperson. We can look at this issue for Report Stage.

Amendment agreed to.

I move amendment No. 520e:

In page 103, before section 95, to insert the following new section:

98.--(1) The chairperson shall 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.

(2) The access provided under subsection (1) may be——

(a) in such form, and

(b) subject to such conditions relating to confidentiality and use,

as the chairperson considers reasonable.

(3) The chairperson may at his or her discretion, where he or she considers that a decision of the Tribunal is of legal importance, publish the decision in such manner as he or she considers reasonable.

(4) This section is without prejudice to section 78.”.

Amendment agreed to.
Amendment No. 521 not moved.

I move amendment No. 522:

In page 103, lines 36 to 44 and in page 104, lines 1 and 2, to delete subsection (3).

This is encompassed in amendment No. 520e.

Amendment, by leave, withdrawn.

I move amendment No. 523:

In page 104, subsection (5), line 5, to delete "may at his or her discretion" and substitute "shall".

I did not hear the Minister's reply on this amendment.

We already discussed this amendment in the context of amendment No. 468. If the Deputy wishes to raise another issue, he will get an opportunity when we discuss the section.

Amendment, by leave, withdrawn.
Amendment No. 524 not moved.

I move amendment No. 525:

In page 104, subsection (7)(a), lines 15 and 16, to delete “may tend not to support” and substitute “are in point against”.

We have accepted amendment No. 520e, which provides for a simple requirement on a chairperson to ensure that the protection applicant, or his or her legal representative, is provided with reasonable access to tribunal decisions. The new provision no longer contains the previous text of subsection (7). I ask Deputy Rabbitte to withdraw his amendment because the issue to which it refers will no longer arise.

I accept that amendment No. 525 is no longer relevant in light of amendment No. 520e.

Amendment, by leave, withdrawn.
Amendment No. 526 not moved.

I move amendment No. 527:

In page 104, subsection (8)(b)(i), line 32, to delete “the applicant’s” and substitute “any”.

I will come back to this under the section.

Amendment, by leave, withdrawn.
Question proposed: "That section 95 be deleted."

I want to raise an issue in regard to amendment No. 520e and access to tribunal decisions. The new subsection (3) states: “The chairperson may at his or her discretion, where he or she considers that a decision of the Tribunal is of legal importance, publish the decision in such manner as he or she considers reasonable.” What would happen if the advisory committee was of the opinion that a decision was important and should be published?

In regard to the publication of decisions, applicants or their legal representatives will now have access to decisions in an edited form because specific information which would identify individuals cannot be published. Am I correct that there is no statutory provision for anyone else to access these decisions? For example, a researcher could not review the decisions taken over a particular period of time to ascertain trends regarding applications from a particular country. It is important to make that facility available because the system has to be seen to be fair and transparent. The public who fund this process should be aware of the criteria under which people are granted or refused asylum. Especially in the current context of limited budgets, it is imperative this type of access is made available.

It would be a matter for the advisory committee to recommend to the chairperson that a decision should be published. It should not have to be prescribed in legislation. It is an advisory committee and no more. Ultimately, the tribunal will make the decisions.

Ultimately, the chairperson makes the decision.

Yes. However, he or she takes advice from members of the tribunal. In regard to publication, practitioners in this area will have global access. The current system can be accessed by the privately engaged legal representatives of an appellant, the Refugee Legal Service offices in Dublin, Cork and Galway, the decisions search unit of the refugee documentation centre, the office of the UNHCR and, naturally, members of the tribunal, ORAC presenting officers and tribunal staff. Under the new legislation, the equivalents of these parties will also have access. Individuals are entitled to peruse their own files. The legislation makes provision for the tribunal to issue annual reports which could also outline trends on the source countries of applicants.

Does a mechanism exist which would facilitate someone who requests access to that information in order to research trends on, for example, separated children or applications from particular countries? It would be important in the long term to understand how trends progress. That information could, as a result of the research, be put into the public domain.

There is nothing in the Bill to prevent that from happening in respect of an academic or an organisation which is not specifically involved in the area at present. I will consider whether we can further facilitate such access but I do not think it will be necessary.

I ask that such a provision be introduced in the Bill given that a considerable sum of taxpayer's money is being invested.

We would not want to prevent an academic from having access to information in order to produce independent research.

My amendment No. 523 sought to insert an imposition on the chairperson that he or she shall publish decisions. What is the motivation behind allowing him or her discretion on whether to publish? Is it a matter of cost?

I bring members' attention to the fact that a vote has been called in the Dáil.

There is a difference between providing access for legal representatives in the way permitted by the new system and requiring that cases be published. Under the current law, at section 19 of the Refugee Act 1996, the Refugee Appeals Tribunal has an obligation "to take all practicable steps to ensure the identity of applicants is kept confidential". This will continue to be the position in the case of the protection review tribunal under the provisions of the Bill. Unlike some other countries, with which comparisons have been drawn in the publication of decisions, Ireland is a much smaller place, with considerably lower numbers of asylum applications, which can lead to applicants being more easily identified. The need to ensure confidentiality in the identity of applicants is critical if confidence in our protection system is to be guaranteed. That is why the chairman of the tribunal must be able to impose confidentiality obligations on persons to whom on-line access to decisions archives is granted. In addition, it is essential that the integrity of our system is protected from abuse by those who seek to use generally published information to gain knowledge on the lines of reasoning taken by the tribunal for the purpose of constructing spurious asylum applications in circumstances where approximately 90% of all asylum applications turn out, on investigation, to be unfounded. The publication of all tribunal decisions could have this unintended outcome.

The approach taken in the Bill which provides for publication of decisions of legal importance, allied with on-line access to the tribunal's decisions for legal representatives, is a balanced one. Amendment No. 523 would require the chairman to publish in every case. The intention of subsection (3) is to allow the chairman to publish decisions he or she may consider important.

The Deputy may mull over what the Minister said during the suspension for the vote in the Dáil.

Sitting suspended at 12.30 p.m. and resumed at 12.50 p.m.

We are back in public session.

I heard the Minister's comments on the subject matter of amendment No. 523. Regarding section 95, will the Minister explain the following as I am not sure I understand it? Section 95(8) states: "(8) The Minister may by regulations provide as to any matters relating to the making available or publication of decisions under this section that he or she considers appropriate, including..." The provisions which follow contain:

(b) the provision by the applicant or his or her legal representative or researcher of an undertaking to the effect that any decision made available under this section—

(i) will be used only for bona fide legal advice,...

It continues from this but I am puzzled. Does that impose on or require the lawyer to undertake that once he or she reads a particular tribunal decision, he or she will not use that knowledge in any other case and undertake only to be aware of the decision for the purposes of the specific case at hand? I am trying to understand that point.

I am told we must oppose section 95 because we must put in amendments. The provision will no longer apply.

I will not delay the process.

Amendment No. 520e effectively put in a new section. We can proceed on section 95.

I am opposing the section.

If only Deputy McGrath was still with us.

It is an unusual experience for me to oppose my own section.

Question put and agreed to.
Section 95 deleted.
Amendment No. 528 not moved.

I move amendment No. 529:

In page 105, subsection (1), lines 21 and 22, to delete all words from and including "such" in line 21 down to and including "are" in line 22 and substitute the following:

"such application, applications or class of applications as are".

This is a drafting amendment recommended by the Parliamentary Counsel.

Amendment agreed to.

Amendment No. 530 has already been discussed with amendment No. 80.

I move amendment No. 530:

In page 105, subsection (2)(f), lines 33 and 34, to delete all words from and including ”public“, where it firstly occurs, in line 33 down to and including “public”)” in line 34 and substitute the following:

"national security, public security, public order and public policy ("ordre public”)”.

Amendment agreed to.
Question proposed: "That section 96, as amended, stand part of the Bill."

I no longer oppose the section.

Question put and agreed to.

As it is 12.55 p.m. and we will be moving to a completely new chapter with section 97, it would be prudent to suspend and reconvene at 5 p.m.

We will reconvene on amendment No. 531.

Yes. It relates to section 97.

Sitting suspended at 12.55 p.m. and resumed at 5 p.m.

The purpose of this session is, we hope, to conclude our consideration of the Immigration, Residence and Protection Bill 2008. We are in public session and I request that all mobile phones be switched off.


Amendment No. 531 not moved.

Amendments Nos. 537, 540, 541 and 545 are related to No. 532. Amendments Nos. 538 and 539 are related and are an alternative to amendment No. 537. Thus, amendments Nos. 532, 537 to 541, inclusive, and 545 will be discussed together.

I move amendment No. 532:

In page 107, subsection (3)(a)(iii), line 4, to delete “or former habitual residence”.

This amendment arises because of the definition of country of origin in section 2 already includes "country of former habitual residence". This does not need to be said here again. The other Government amendments in this group are drafting amendments.

Amendment agreed to.
Amendments No. 533 to 537, inclusive, not moved.

I move amendment No. 538:

In page 107, subsection (7)(a), line 31, after “the” to insert “protection”.

Amendment agreed to.

I move amendment No. 539:

In page 107, subsection (7)(b), line 33, before “applicant,” to insert


Amendment agreed to.

I move amendment No. 540:

In page 107, subsection (8)(a), line 38, after “the” to insert “protection”.

Amendment agreed to.

I move amendment No. 541:

In page 107, subsection (8)(b), line 42, before “application” to insert “protection”.

Amendment agreed to.

Amendments Nos. 542 and 543, in the name of Deputy Finian McGrath, are out of order.

Amendments Nos. 542 and 543 not moved.
Section 97, as amended, agreed to.
Section 98 agreed to.
Amendments Nos. 544 and 545 not moved.
Section 99 agreed to.

Amendment No. 546, in the name of Deputy Finian McGrath, is out of order.

Amendment No. 546 not moved.

Amendment Nos. 547 is in the name of the Minister. Amendment No. 548, in the name of Deputy Finian McGrath, is related and alternative. Amendments Nos. 549 and 550 are related. Amendments Nos. 547 to 550, inclusive, will be discussed together.

I move amendment No. 547:

In page 110, lines 13 to 24, to delete subsection (7) and substitute the following:

"(7) In determining whether to revoke a protection declaration under this section

the Minister shall have regard to all representations duly made to him or her.".

The purpose of this amendment is to remove paragraph (b) from subsection (7). In determining whether to revoke a protection declaration the only matters relevant are the representations made. The considerations required by paragraph (b) are not relevant to whether a protection declaration should be revoked. Instead they are relevant to whether the person should be granted permission to reside in the State under subsection (9). Accordingly, I propose to bring forward an amendment on Report Stage to include the provisions of paragraph (b) at subsection (9). Amendments Nos. 549 and 550 are consequential drafting changes necessitated by amendment No. 547.

Amendment agreed to.
Amendment No. 548 not moved.

I move amendment No. 549:

In page 111, subsection (9)(a)(x), line 5, to delete “(including any criminal convictions),” and substitute “(including any criminal convictions), and”.

Amendment agreed to.

I move amendment No. 550:

In page 111, subsection (9), lines 6 and 7, to delete all words from and including “(7)(a)” in line 6, down to and including “(7)(b).” in line 7 and substitute “(7).”.

Amendment agreed to.

Amendments Nos. 551, 553 and 555 are related and will be discussed together.

I move amendment No. 551:

In page 111, subsection (10), lines 13 to 16, to delete paragraphs (b) and (c) and substitute the following:

"(b) if the declaration is to be revoked”

(i) of the reasons for that decision, and

(ii) of the Minister's decision as to whether the person concerned will be

granted permission to reside in the State.".

These are drafting amendments designed to bring clarity and consistency to the text.

Amendment agreed to.
Amendment No. 552 not moved.

I move amendment No. 553:

In page 111, subsection (11), line 19, to delete "of the decision" and substitute "under subsection (10)”.

Amendment agreed to.
Amendment No. 554 not moved.

I move amendment No. 555:

In page 111, subsection (12)(a), line 23, to delete “confirm” and substitute “affirm”.

Amendment agreed to.
Amendments Nos. 556 to 558, inclusive, not moved.
Section 100, as amended, agreed to.

Amendments Nos. 559 and 562 are related and will be discussed together.

I move amendment No. 559:

In page 112, subsection (1), line 6, to delete "under section 97(3)(d)”.

These amendments remove the reference to section 97 from the text. I have been advised by the Parliamentary Counsel that these words are unnecessary.

Amendment agreed to.
Amendments Nos. 560 and 561 not moved.

I move amendment No. 562:

In page 112, subsection (3), lines 25 and 26, to delete all words from and including "to" in line 25 down to and including “97” in line 26.

Amendment agreed to.
Amendments Nos. 563 and 564 not moved.
Question proposed: "That section 101, as amended, stand part of the Bill."

When a protection permission is granted for how long is it granted and when is it subsequently renewed?

Under the Bill it is renewed for three years.

Is it then renewable on a rolling basis or could that person subsequently, after two terms, apply for residency or citizenship?

Obviously, subject to the conditions.

Does the Minister envisage a situation where, realistically, over time, there would not be need for a third or fourth renewal?

I would think so. It is part of the opportunity for a person to be here legally, under a protection order or some other facility. The person can then build up time to apply for the other categories.

I wish to raise one issue with the Minister. It is not specifically related to this but I wish to highlight it for a reason. It relates to an application for citizenship that a person submitted. A Garda investigation took place and everything was cleared in respect of the individual but citizenship was subsequently refused to him on the basis that he came to the attention of the Garda.

Even though the charge was wiped?

The Garda carried out an investigation but no charges were made against the individual in question. Other individuals were charged subsequently in respect of the issue but this man was refused citizenship because he had come to the attention of the Garda. The case against him was withdrawn because he was innocent but those who were convicted subsequently received citizenship.

I do not wish to go into the case. However, if someone was a protection applicant and the application was up for renewal, if he had come to the attention of the Garda and the case was withdrawn is there a mechanism to clear the record if there is not a basis for it? In this case it appears that the individual coming to the attention of the Garda, even though the case was withdrawn, was a black mark against him applying for citizenship. I do not want——

The criteria for protection are very different from those for citizenship. Citizenship is, in effect, the gift of the State. Since I became Minister there have been instances when I was asked to make a judgment regarding applications from people who have come to the notice of the Garda. When one digs down deep one finds in some instances that while the person may even have been charged, the cases were not concluded. There are circumstances in which people might have been suspected and investigated in respect of serious offences and not charged. I do not know about the Deputy's case, but normally, in those instances where there is nothing on a person's record there is a recommendation. Perhaps that was the case in the instance Deputy Naughten raised?

I would make a recommendation unless I received a Garda report for instance relating to a technicality. Generally speaking, for serious recent offences, such as fairly serious motoring offences, and upwards, I would err on the side of caution with regard to granting citizenship. In some instances one could postpone the decision for a year to see if people come to the attention of the Garda. There have been a significant number of cases where refusals occurred because the people concerned were involved in serious assaults, domestic violence and such issues.

Question put and agreed to.

Amendments Nos. 565 to 569, inclusive, are related and will be discussed together.

I move amendment No. 565:

In page 113, subsection (3)(c), line 7, after “with” to insert “its”.

These are purely drafting amendments.

Amendment agreed to.

I move amendment No. 566:

In page 113, subsection (4), line 17, to delete "Council" and substitute "the Council".

Amendment agreed to.

I move amendment No. 567:

In page 113, subsection (6), line 21, to delete "the" where it firstly occurs.

Amendment agreed to.

I move amendment No. 568:

In page 113, subsection (6), line 25, to delete "the" where it firstly occurs.

Amendment agreed to.

I move amendment No. 569:

In page 113, subsection (6), line 28, to delete "the".

Amendment agreed to.
Question proposed: "That section 102, as amended, stand part of the Bill."

Is the Minister satisfied with the test for designation of a safe country of origin? I intended to check whether it was similar to the Refugee Act. On re-examination, sections 64 and 65 are high hurdles to cross in terms of what constitutes acts of persecution. Section 102(2) states, "there is generally and consistently no persecution, construed in accordance with sections 64 and 65”. It may be technically true that there is no persecution construed in accordance with sections 64 and 65, but it is still possible that there is a very uncongenial environment for a person to return to for a variety of reasons. Is the Minister satisfied that it is in line with best practice in other countries?

The wording in section 102(2) is taken more or less verbatim from the Annex II of the directive dealing with designation of safe countries of origin for the purposes of Articles 29 and 30.1 of that directive. This is the procedures directive and it states that, "A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment; and no threat by reason of indiscriminate violence in situations of international or internal armed conflict."

I realise Deputy Finian McGrath is not here to move amendment No. 570. We agree somewhat with the intention of that amendment and I will examine the text dealing with the safe countries and bring amendments on Report Stage. The Bill requires any arrangements for operating a safe third country system to be addressed in the case of any such country by means of an international agreement with the safe third country concerned. Such an agreement would, I am advised, have to be approved by the Oireachtas under Article 29.5.2° of Bunreacht na hÉireann. However, I am prepared to consider the principles set out in Deputy McGrath's amendment No. 570 and will bring forward a proposal on Report Stage.

Perhaps the Minister could bring us up to speed on the position at EU level with regard to a common list of safe countries. I trust the Minister has read the submission by the Irish Human Rights Commission which has expressed concerns regarding the definitions contained in section 102. It is especially concerned with the idea that part of a country may be deemed safe. I am aware the Committee received a submission, dated 17 April, on the Democratic Republic of Congo, which is in the headlines today more than last April. The Congo was declared a safe country by the Department of Justice, Equality and Law Reform on the basis of democratic elections held there the previous year. However, Human Rights Watch published an article in Brussels on 21 July 2008——

I am told we did not designate the Congo as a safe country. There are only two such countries designated by ministerial order, namely, Croatia and South Africa.

There are only two safe countries designated?

Yes, Croatia and South Africa.

The Minister does not mean that is the full extent of the designation?

No, but they are the countries specifically designated at the moment.

I accept the Minister's point. Obviously the submission we received is incorrect in that regard. However, the principle and core issue is to ensure the designation of safe countries is evaluated in such a way that we can be certain that both the country and the regions within that country to which a person might be returned are safe. Since the Minister intends to re-examine section 103, will he also re-examine the Irish Human Rights Commission submission on section 102? We all seek to put the proper protections in place to ensure no one sent from this jurisdiction ends up worse off on being sent home.

We have obligations under international law concerning refoulement. This caters for the concerns referred to and it is catered for earlier in the Bill. We will revisit the matter on Report Stage and, when the Bill is passed, it is likely we will have to review the designation of Croatia and South Africa as safe countries. In general terms, these issues do not obscure the need to deal with applicants on a case-by-case basis. There is no blanket refusal where a particular country is involved or designated. We will revert to this issue on Report Stage.

Is the Minister saying that he intends to address on Report Stage Deputy Finian McGrath's amendment No. 570 which appears to be based on the Irish Human Rights Commission submission?

Yes, we agree with the principles and we will revert to the matter on Report Stage.

Will the Minister address my question about a common list at EU level?

There is no common list, and no such list has emerged from the European Commission.

And we are unlikely to see a list in the foreseeable future?

It is very difficult to get agreement.

Question put and agreed to.
Amendment No. 570 not moved.
Question proposed: "That section 103 stand part of the Bill."

Does the Minister believe he should have regard to the views of the Human Rights Commission in designating a safe third country?

That is what is reflected in amendment No. 570.

Question put and agreed to.
Amendment No. 571 not moved.
Section 104 agreed to.

Amendments Nos. 572 to 578, inclusive, are out of order.

Are we highlighting why Deputy Naughten is such a disordered person?

The amendments involve a potential charge on Revenue.

Amendments Nos. 572 to 579, inclusive, not moved.
Question proposed: "That section 105 stand part of the Bill."

I flag my disappointment that all my amendments to put an independent appeals mechanism in place to deal with all aspects of immigration and protection have not been given consideration. We have the tribunal to which we have made improvements, but I ask the Minister to flesh out the administrative proposals being considered for immigration appeals prior to commencement of Report Stage. It is something we will have to revisit.

I can look at this issue again but cannot promise anything.

Question put and agreed to.
Amendments Nos. 580 and 581 not moved.

I move amendment No. 582: In page 117, subsection (5), line 5, to delete "person" and substitute "information holder" The amendment is required for consistency of terminology in the Bill. I am reviewing the information exchange provision to provide for greater specificity and transparency in information sharing and also to facilitate a system of sharing advance passenger information on the basis that social welfare legislation contains adequate provisions for the sharing of information for the purposes of the Social Welfare Act. I am prepared to accept the principle of amendment No. 584 in the name of Deputy McGrath but will bring forward my own proposals on Report Stage.

Amendment agreed to.
Amendment No. 583 not moved.

I move amendment No. 584: In page 117, lines 12 to 18, to delete subsections (7) and (8).

Concerns have been raised about medical professionals who become aware of someone who is illegally resident in the country being obliged to report this fact to the Department or an immigration officer, if it involves non-essential medical services. As a result, illegal immigrants may not present for essential medical services.

That is not intended. We are looking at the issue again.

That is the basis of the consideration.

Amendment, by leave, withdrawn.
Amendment No. 585 not moved.
Question proposed: "That section 106, as amended, stand part of the Bill."

Regarding subsection (7), is it the case that the Minister for Social and Family Affairs would seek such information? What type of information would be provided? One example involves information on entry and exit from the country, which information could be useful, given the comments of the Minister on fraudulent claims being made, when people exit the country but continue to receive social welfare payments, the paying of which is dependent on them residing in the country.

There is co-operation between the Department of Social and Family Affairs and the GNIB on relevant information pertaining to individual applications.

Is it information on entry and exit? What information does the Department request? Is it mainly information on residency status?

Does the Minister envisage that the technology will be in place to enable the Department of Social and Family Affairs to be informed when someone leaves and returns to the country?

As a former Minister for Social Welfare, it is important that we do not continue to pay people who have left the State.

I know that provision will be made in this legislation to collect that information, with one exception.

Is it the intention that we will have something like that in place and that information will be provided for the Department in a relatively short period of time, rather than having powers available but not enforced for years?

It is already available and it is intended that it will continue to be available.

Question put and agreed to.
Amendment Nos. 586 to 589, inclusive, not moved.

I move amendment No. 590:

In page 117, subsection (2)(b), line 40, to delete “which—” and substitute “which would—”.

This is purely a drafting amendment.

Amendment agreed to.

I move amendment No. 591:

In page 117, subsection (2)(b)(i), line 41, to delete “would”.

Amendment agreed to.
Amendment No. 592 not moved.
Section 107, as amended, agreed to.

I move amendment No. 593:

In page 119, subsection (7), line 8, to delete paragraph (a) and substitute the following:

"(a) any requirement imposed under this Act, and”.

The purpose of this amendment is to clarify that the database will include biometric information collected under any requirement under the Act. This amendment is required to ensure that, for example, biometric information provided in a consular office of the Department of Foreign Affairs by a visa applicant abroad, for the purpose of making an application, can be stored in the database. This will allow the immigration officer, at the point of entry, to verify both the identity of the foreign national presenting and the validity of the visa by requiring the provision of biometric information and checking that information against the biometric information stored in the database.

Amendment agreed to.
Question proposed: "That section 108, as amended, stand part of the Bill."

The section is opposed by Deputy McGrath.

On the section that has disappeared like the Scarlet Pimpernel, there are a number of issues about which I am concerned. As it stands, it is only if a child is under the age of 14 that a parent, or whoever is taking responsibility for the child, is required to be present when biometric data is being taken. My understanding is that under the current Eurodac system, it does not apply to children under the age of 14. Perhaps the Minister would clarify that issue. Surely, the same protection should be provided here as for any other minor. How was the age of 14 arrived at, given that it is well below the age of consent and well below the age of 18 years in respect of the other provisions in this legislation?

During the Minister's previous role, the personal information of 380,000 pensioners disappeared on a stolen laptop. We need to look at how information is encrypted, especially on mobile devices, such as laptops. As a result of this and the other provisions, an identity card system is being introduced for all non-Irish citizens, yet the basic protections are not in place to ensure that information is not left on the back seat of a car for anyone to pick up and utilise. I would have serious concerns in regard to such information being collated and held by any Department given what has happened in various Departments regarding information.

I know at first hand what people are going through in regard to the information they receive. Many elderly people were very concerned when they received letters in the post from the Department of Social and Family Affairs regarding the information that went missing. Unfortunately, I was involved in the Irish Blood Transfusion Service data that disappeared in New York, where my details, along with those of thousands of others, disappeared. The Irish Human Rights Commission has raised concerns regarding the use and retention of biometric data. I ask the Minister to respond to the concerns raised and the difficulty there seems to be within Government agencies in securing such data, especially on mobile devices or compact discs, which is being sent halfway around the world without all the implications being considered.

The Deputy is raising a wider issue. The use of biometrics in the immigration sector is not new. It is not that we are introducing a card; the card already exists.

In regard to the data that is captured under the system, it is stored in a database which is physically located in Garda headquarters and, from a technology perspective, is hosted on Garda networks. Access to the system is very tightly controlled by way of access protocols applicable to its users. Users can only see or access data which is necessary for them to do their job. For example, users who capture fingerprints cannot access the core system other than to submit fingerprints.

On the whole issue of the storing of information generally and it being lost, I have recently announced the setting up of a group, headed up by Mr. Eddie Sullivan, former Secretary General of the Department of Finance, to deal generally with the issue of data going missing and perhaps providing a legislative measure whereby disclosure of the fact that it has gone missing should take place quickly. These are issues we have to take very seriously but the use of biometrics has been very useful in dealing with Eurodac. It facilitates us being part of Eurodac and will allow for greater accuracy and transparency. It will ensure that genuine people are treated properly and that those who are trying to get around the system are found out. I would be surprised if the Deputy was against the principle of using biometrics in this area.

If the Minister had been listening to my comments throughout the 119 pages of the Bill we have dealt with so far, he would know that I believe we need to strengthen the whole area of border control. I welcome the provisions in the Bill in that area, but there are genuine concerns in regard to how this information is being treated by various Departments. There has not been any leak from the Garda Síochána that we are aware of and I would hope that such information is not carried around on laptops. However, within Government agencies in general there seems to be a very laissez-faire type attitude to the holding of data on mobile devices or digital storage equipment. It is an issue that needs to be flagged because there is not much point in collating this information unless the Minister can assure us that this will not, under any circumstances, get into the wrong hands. I am aware there are difficulties in regard to border control with which the biometric information will assist. Perhaps the Minister would respond to the specific issue of the 14 year olds.

We picked 14 year olds because that is the commonly used age across Europe for the provision of biometric information. It is included to ensure young children coming into the country are genuinely entitled to apply, that they are not being trafficked, etc. The Deputy may believe this is being used to exclude individuals or perhaps to use their information somewhere else but it is also a strong protection for children.

Why is the age of 14 years being used rather than 18? The age of 18 years is the threshold throughout the Bill in respect of Health Service Executive care and so forth.

The European Union common approach to capturing fingerprints is that they should be taken from children aged six years and upwards. We believe 14 years is a reasonable age. I understand it may have been mentioned in previous legislation.

The age limit appears to be contrary to other aspects of the Bill and, in regard to the age of consent, even lower. I will consider the matter which we can revisit on Report Stage.

Question put and agreed to.

Amendment No. 594 is in the name of the Minister. Amendment No. 595 is related and may be discussed with amendment No. 594.

I move amendment No. 594:

In page 119, subsection (1), lines 21 to 23, to delete paragraph (a) and substitute the following:

"(a) a valid travel document relating to him or her, or”.

The purpose of the amendment is to provide for consistency of text in the Bill. Section 2 contains a definition of "travel document" which refers to the issuing authority. I have been advised by the Office of the Parliamentary Counsel to the Government that there is no need to repeat this text in paragraph (a) of subsection (1).

Amendment No. 595 seeks to insert "the Minister" in the list of persons who can require the provision of biometric information from foreign nationals. The amendment is required to allow officials of the Minister, for example, those dealing with protection applicants under the single procedure, to require the provision of biometric information for the purposes of their functions under the Bill.

Amendment agreed to.

I move amendment No. 595:

In page 119, subsection (3), line 30, after "by" to insert "the Minister,".

Amendment agreed to.
Question proposed: "That section 109, as amended, stand part of the Bill."

I want to flag an article in the Irish Examiner today about a convicted rapist who, according to the headline, travelled on a murderer’s passport to and from this jurisdiction. He was convicted in the United Kingdom. It is unbelievable that someone could use the passport of a person incarcerated in a British prison to enter and exit the common travel area. I realise this highlights weaknesses in the British as well as the Irish system but I had understood there was much more co-operation and data collected between the two jurisdictions. I hope the Minister will have the matter investigated and come back to us on the steps being taken to ensure we will not see a repeat. This brings us back to the issue raised when we dealt with section 108.

The purpose in seeking biometric information is to guarantee greater accuracy regarding the type of information the authorities have. I am not saying every situation can be catered for but since I became Minister I have had significant discussions with UK Ministers and officials to try to ensure as much as possible, within the context of the common travel area, that people do not evade justice. As the Deputy is aware, the British brought forward proposals on the issue of e-borders, on which we are working with them to ensure we marry our arrangements from an immigration and security point of view to try to fit their circumstances, given that we do not want to tamper with the common travel system which has been of benefit to our citizens. While we will never be able to guard against every circumstance, there is close co-operation with the British on these issues. I was in Enniskillen yesterday with the Minister of State at the Northern Ireland Office, Mr. Paul Goggins, to discuss the issues of cross-Border immigration crime and sex offenders evading justice. These are emerging issues. The issue of human trafficking is manifesting itself on the island as a whole. Therefore, we must work together in dealing with these issues.

Question put and agreed to.
Amendment No. 596 not moved.
Section 110 agreed to.
Sections 111 and 112 agreed to.

Amendment No. 597 is in the name of the Minister. Amendments Nos. 598 to 606, inclusive, are related. Amendment No. 607 is related and an alternative to amendment No. 606. Amendments Nos. 597 to 607, inclusive, will be discussed together.

I move amendment No. 597:

In page 121, subsection (1), line 20, after "applies" to insert "(the "keeper")".

Amendments Nos. 597 to 602 propose drafting changes and I have been advised by the Parliamentary Counsel that they are appropriate. The Parliamentary Counsel has also advised that amendment No. 603 provides a more appropriate wording for the offence created in subsection (8). Amendment No. 607 extends the definition of "keeper" to include a proprietor of a premises described in subsection (10)(a).

The Minister might respond to amendments Nos. 604 and 605.

Amendments Nos. 604 and 606 would remove the requirement to maintain a register of foreign guests at hotels and other places where lodging or sleeping accommodation is provided on a commercial basis. Keeping registers is a long-standing requirement of Irish immigration law and I do not propose to accept the radical change to which the amendments would give rise.

Amendment No. 605 seeks to exclude educational establishments referred to in section 6(2)(a)(iii), primary and secondary schools, from the requirement to keep registers. Subsection (1) sets out the requirement to keep registers of foreign nationals enrolled in, attending or staying in the premises. Subsection (10)(b) provides a power to prescribe the premises required to keep registers for the purposes of section 113. Deputies will no doubt be aware of the immigration problems arising, particularly in respect of private language schools.

Amendment agreed to.

I move amendment No. 598:

In page 121, subsection (2), line 23, to delete "of premises to which this section applies".

Amendment agreed to.

I move amendment No. 599:

In page 121, subsection (3), line 27, to delete "of premises to which this section applies".

Amendment agreed to.

I move amendment No. 600:

In page 121, subsection (4) lines 31 and 32, to delete "of premises to which this section applies" and substitute "with".

Amendment agreed to.

I move amendment No. 601:

In page 122, subsection (6), line 1, to delete "of premises to which this section applies".

Amendment agreed to.

I move amendment No. 602:

In page 122, subsection (7), line 4, to delete "of premises to which this section applies".

Amendment agreed to.

I move amendment No. 603:

In page 122, subsection (8), lines 6 and 7, to delete all words from and including "to" in line 6 down to and including "subsection" in line 7 and substitute "who contravenes subsection (4)”.

Amendment agreed to.
Amendments Nos. 604 to 606, inclusive, not moved.

I move amendment No. 607:

In page 122, subsection (11,(a), line 21, after “manager” to insert “or proprietor”.

Amendment agreed to.
Question proposed: "That section 113, as amended, stand part of the Bill."

Subsection (4) provides that "A foreign national shall provide the keeper of premises to which this section applies such information as is required to enable the keeper to fulfil his or her duty". I have concerns about this provision, although not in regard to hotels or guesthouses. I presume it will also apply to other facilities where foreign nationals reside. The Minister and many Opposition members would have received complaints that the keepers of premises may victimise particular individuals. In that context, should the wording of the subsection be "such information as is required within reason" as opposed to the current wording, which could be used as a mechanism to threaten people on the basis of information obtained that may not necessarily be required to fulfil the requirements as set out in the Bill?

It will only apply to a hotel or other place of lodging and sleeping accommodation provided on a commercial basis.

Other types of accommodation are provided on a commercial basis to the Department of Justice, Equality and Law Reform. Maybe they come under a separate aspect of the Bill.

Is the Deputy referring to the ones under contract?

Leased premises.

Anyone who is there would have to give such information.

The point I am making is that such complaints have been made. I do not know if there is a basis for them, but complaints have been made to our offices and, I am sure, to the Department by migrants, asylum or protection applicants.

They are not about the information they are being asked to give. They are, perhaps, about the type of food they get.

No. I know there is an issue about food but I am not referring to that. I am referring to how the information is collated and the claim that the keepers of these premises, be it a caretaker or whoever, have threatened residents that if they do not keep quiet about the issue of food or other conditions, they will be reported to the Department of Justice, Equality and Law Reform on the basis of information on points A, B, and C that has been collated by the caretaker. I cannot verify that is the case. The Department would probably be more conscious of what reports, if any, have been submitted by such caretakers. Complaints have been made to us and, I am sure, to the Minster's office about that type of behaviour. While legislation can only do so much, we should ensure that whatever is required to be collated is within reason and that, under the statute, we do not give to people additional powers that could be used to threaten residents.

The information that will be required will be governed by regulations we will bring in. I cannot go any further in this regard. I do not believe tampering with this provision would address issues that might arise on the ground, irrespective of what legislative measures we put in place. We cannot be responsible for comments people might make. If matters are brought to the attention of the Department that people are in some way being taken advantage of, the contract would be terminated. I have no doubt that would be part of the contract conditions.

Question put and agreed to.

I move amendment No. 607a:

In page 122, between lines 41 and 42, to insert the following subsection:

"(5) The Minister may by order designate——

(a) an area to be an immigration area within which an immigration officer may perform the functions conferred on immigration officers under this Act,

(b) a place to be an immigration area office for an immigration area.”.

Amendment agreed to.
Question proposed: "That section 114, as amended, stand part of the Bill."

I have a brief question related to the Law Society's submission. It made the point that officials charged with the task of making decisions, including immigration officers, should be adequately trained. I presume that is happening, but clear guidelines should be provided to people with non-medical training on issues that may be relevant regarding a foreign national's treatment on presentation at a port or airport or when they come to the attention of an immigration officer. I simply want to flag that issue.

Gardaí obtain such training in Templemore, particularly those who are specifically assigned to the GNIB

Question put and agreed to.

Amendment No. 608 is in the name of the Minister, amendment No. 609 is related and an alternative, amendments Nos. 610 to 617, inclusive, and amendments Nos. 619 to 621, inclusive, are related. Amendments Nos. 608 to 617, inclusive, and amendments Nos. 619 to 621, inclusive, may be discussed together.

I move amendment No. 608:

In page 123, subsection (1)(c), line 7, to delete “detain” and substitute “stop”.

This relates to the intention to address concerns that have been raised about the use of the word "detain" in subsection (1)(c). It has been construed as giving immigration officers indiscriminate power to arrest and detain a foreign national. This was never the intention of the provision. The word “detain” in the context of subsection (1)(c) should be interpreted as stopping or asking the foreign national to wait for a short while so that the necessary examination can be carried out. I am happy to provide this clarity in this amendment. A similar amendment is required to section 116(4)(b), and I will bring forward a suitably worded amendment on Report Stage in that respect.

Amendments Nos. 610 and 612 to 617, inclusive, are drafting amendments.

I have some sympathy for the proposal in Deputy Finian McGrath's amendment No. 620. I suggest that I will come back to this matter on Report Stage and that perhaps I will put in something in that respect.

That is in regard to the medical officer.

Amendment agreed to.

As a result of that, amendment No. 609 cannot be moved.

Amendment No. 609 not moved.

I move amendment No. 610:

In page 123, subsection (1)(c), line 8, to delete “at” and substitute “into”.

Amendment agreed to.

I move amendment No. 611:

In page 123, subsection (3), line 38, to delete "an immigration officer who is".

Amendment agreed to.

I move amendment No. 612:

In page 124, subsection (5), line 17, to delete "search warrant under this section" and substitute "warrant referred to in subsection (4)”.

Amendment agreed to.

I move amendment No. 613:

In page 124, subsection (5)(b)(i), line 22, to delete “or attempts to obstruct” and substitute “or hinders or attempts to obstruct or hinder”.

Amendment agreed to.

I move amendment No. 614:

In page 124, subsection (5)(b)(iii), line 29, to delete “a requirement under paragraph (a)” and substitute “such a requirement”.

Amendment agreed to.

I move amendment No. 615:

In page 124, subsection (6)(a), line 33, after “hinders” to insert “or attempts to obstruct or hinder”.

Amendment agreed to.

I move amendment No. 616:

In page 124, subsection (6)(a), line 34, to delete “of the” and substitute “of a”.

Amendment agreed to.

I move amendment No. 617:

In page 124, subsection (6), line 36, to delete paragraph (b).

Amendment agreed to.
Section 115, as amended, agreed to.

Amendment No. 618 is in the name of Deputy Naughten, amendment No. 622 is related and an alternative and amendment No. 623 is related. Amendments Nos. 618, 622 and 623 may be discussed together.

I move amendment No. 618:

In page 124, before section 116, to insert the following new section:

"116. —(1) In the Garda Síochána Act 2005 after section 74 insert—

74A. —(1) An agreement for the establishment in relation to immigration officers (not being members of the Garda Síochána) appointed under section 114 of the Immigration, Residence and Protection Act 2008 of procedures corresponding or similar to any of those established by virtue of this Part and Part 4 may be made between the Minister and the Ombudsman Commission.

(2) Where no such procedures are in force, the Minister may by regulations made under this Act establish such procedures.

(3) An agreement under this section may at any time be varied or terminated.

(4) Before making regulations under this section the Minister shall consult—

(a) the Ombudsman Commission, and

(b) the Human Rights Commission.

(5) Nothing in any other statutory provision shall prevent the Ombudsman Commission from carrying into effect procedures established by virtue of this section.".

This introduces a new section which would ensure that immigration officers would come under the remit of the Garda Ombudsman Commission. Naturally, gardaí are under its remit but immigration officers who are not members of the Garda do not come under the jurisdiction of the Garda Ombudsman Commission and this amendment provides for that.

I wish to inform the committee, with regard to section 115, that I am considering where it is appropriate for the Bill to provide medical inspectors with powers. I intend to deal with some of the issues relating to medical officers on Report Stage.

Amendment No. 618 seeks to place civilian officials within the scope of the Garda Ombudsman Commission. This would represent a totally inappropriate extension of the powers of that commission, whose processes are inextricably bound with the Garda Síochána management structures and other aspects unique to the fact that it is the Garda in relation to which the commission has its function of overseeing and complaint investigation. It would be unworkable and has the potential to create serious industrial relations difficulties.

Some of the inspiration behind these amendments might arise from a misconception as to the situation regarding immigration officers who are not members of the Garda Síochána. The vast majority of immigration officers are members of the Garda Síochána and, as such, are trained like all gardaí in how to deal with people in a variety of situations, including how to question them to elicit information, how to conduct an arrest and detention and how to deal with people who might not wish to co-operate. These skills are useful to gardaí who are immigration officers just as they are to other members of the Garda. With regard to a garda who is an immigration officer and is exercising functions of an immigration nature, the Garda Ombudsman Commission has the same powers it has over any other member. Gardaí in the GNIB are referrable to the Garda Ombudsman Commission.

A small number of officials from my Department have been appointed as immigration officers. The purpose of this is to enable these officials to exercise certain powers of the immigration office in the course of their work on immigration matters. By contrast with Garda immigration officers, the officials do not have training in the type of subjects that are taught in Templemore and do not, for example, exercise the power of arrest and detention that immigration officers have under existing immigration law and will have under this Bill. I have no expectation that this situation will change.

By virtue of section 5(1)(e)(i) of the Ombudsman Act 1980, the Ombudsman cannot investigate any action taken by or on behalf of a person if the action is taken in the administration of law relating to aliens or naturalisation. I have no proposal to change this situation. I need only refer the Deputies to the Supreme Court decision of Mrs. Justice Susan Denham in the Bode case, which restates the responsibilities of the State as executive functions vested in Government to operate immigration controls in the interests of the common good. The very nature of immigration demands the putting in place of dynamic and flexible processes which are capable of responding at short notice to changing immigration needs and trends. It is an inescapable fact that many foreign nationals will receive favourable immigration decisions but many will also receive unfavourable decisions. The Bill envisages this prospect and puts in place review and appeal mechanisms where necessary. I am satisfied that these provisions are sufficient to ensure fair procedure.

My thinking on this was in regard to medical officers. I take it from the Minister's remarks that non-Garda and non-medical immigration officers are not at the coal face in dealing——

No, just as some of my officials who are here with me do not wish to be subject to the Garda Ombudsman Commission.

Maybe the Minister should send them down to Templemore for a few weeks holidays. I accept the Minister's point. Given that he is proposing to table amendments dealing with medical officers for consideration on Report Stage, I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 619 not moved.

I move amendment No. 620:

In page 125, subsection (4)(b), lines 19 and 20, to delete all words from and including “who” in line 19 down to and including “national” in line 20 and substitute the following:

"where this is reasonably believed to be necessary on public health grounds".

I gather the Minister will come back to this on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 621 not moved.
Section 116 agreed to.
Amendments Nos. 622 and 623 not moved.

I move amendment No. 624:

In page 125, subsection (1), line 27, to delete "necessary" and substitute "necessary,".

Amendment agreed to.

I move amendment No. 625:

In page 125, subsection (1), lines 28 and 29, to delete all words from and including "public" where it firstly occurs in line 28 down to and including "public“)” in line 29 and substitute the following:

"national security, public security or public order or for reasons of public policy ("ordre public”)”

Amendment agreed to.
Amendment No. 626 not moved.
Question proposed: "That section 117, as amended, stand part of the Bill."

Will the Minister remind me why foreign national is defined differently in this section? Foreign national is defined as everybody other than an Irish citizen.

This is designed to allow us to exclude people who are EU nationals. Elsewhere in the Bill the definition takes into account people who are EU nationals and non-EU nationals.

It is purely a security provision.

Question put and agreed to.

Amendments Nos. 628, 631, 632, 633, 634 and 635 are related to amendment No. 627 and amendment No. 629 is an alternative to amendment No. 628. Amendments Nos. 627 to 629, inclusive, and amendments Nos. 631 to 635, inclusive, may be discussed together.

I move amendment No. 627:

In page 126, subsection (2)(a), line 10, to delete “14” and substitute “28”.

Subsection (2) provides for a 14 day time limit for bringing judicial review proceedings about an immigration matter. That should be extended to 28 days. Fourteen days is a tight window for somebody to bring such proceedings and in other areas of law judicial review proceedings can have a time limit of three months and, in some cases, up to six months. Under the Illegal Immigrants (Trafficking) Act 2000, discretion was given to the courts regarding an extension beyond the time limit. This is reflected in amendment No. 628.

The amendment seeks to insert in this legislation what is contained in the 2000 Act. A number of submissions have been received by members of the committee from the Irish Refugee Council, the Law Society and the Human Rights Commission. The Law Society contends in its submission that the limit should be at least 20 working days to allow its members to make a case to the courts. In the context of the proposed penalties, with which we will deal later, it is important that time is provided to the legal professionals.

I support Deputy Naughten's amendment for the reasons he has outlined. I also wish to speak to amendment No. 629, if I may.

The Deputy has also tabled amendment No. 631.

Yes. Amendment No. 629 refers to section 118(3). It sets out where the court may not extend the period for appeal unless it is satisfied on certain matters. Subsection (3)(b) states: “that there are other exceptional circumstances relating to the applicant and under which, through no fault of the applicant, his or her application could not have been made within that period.”

That imposes an immensely severe limitation on the power of court to extend time to challenge a decision under this Bill. The most obvious example one could give is a decision taken in the holiday period. The applicant, or certainly the applicant's lawyers, may well be on holidays. When they come back, a late challenge is entered and because of the decision that it could not have been made within the period, they are ruled out. Instead of that term "could not have been", I am seeking to insert the words "was not". One could posit any other number of examples, including straightforward inefficiency whereby papers are sent to counsel a day or two before the deadline expires. The counsel may take a couple of days to get back due to pressure of work. It seems extraordinary to say that the applicant should be shut out in these circumstances, even if the applicant is not personally at fault. It is an extremely harsh limitation and lawyers would say it is an entirely impracticable one in terms of the way business is normally done in respect of this kind of judicial review.

The Chairman asked me to speak to amendment No. 631 also. I sincerely hope the Minister is not persisting with subsection (8) which would enshrine a new concept. It states that: "Where the Court forms an opinion of the kind referred to in subsection (7), [that is, frivolity or vexatious action] it may direct that the costs, or a part of the costs, of the proceedings shall be borne by the legal representative of the applicant."

Softening the cough of litigious lawyers may not be a bad idea on occasion, but this is preposterous. Why does it not recognise the existing jurisdiction to require solicitors to pay costs, for example, if they are in default, and the court can use its existing discretion? The section as worded would also allow costs to be made against barristers, not just solicitors, who filed the pleadings in question. Within the existing rules of the superior courts, there is the judicial power to make lawyers pay the costs or part of the costs in circumstances where the judge considers that the action has been taken for frivolous or vexatious reasons. Why should we go outside of that and insert this express provision to penalise lawyers who sponsor cases in these circumstances? I do not know what the track record is, but I cannot imagine this is an area where lawyers peddle frivolous claims for the hell of it. I do not know of any existing power in Irish law to make a cost order against barristers. This section seems to be an excessive response to the issue of frivolous grounds.

As regards the Deputy's first amendment, I have a long note and it is probably no harm if I read it into the record. The Deputy referred to the wording "could not have been aware". Perhaps we should insert "the applicant, although having exercised reasonable diligence, was not aware". At the end of the day, it is a question of what is the best grammar. If we say "although having exercised reasonable diligence, was not aware", we could accommodate that.

I would be happy enough with that. However, I cannot agree with the Minister that there is not a distinction in law between "could not have been aware" and "was not aware".

It is preceded by "with reasonable diligence", which qualifies "could not have been". I think we could live with "although having exercised reasonable diligence, was not aware".

I will come back to the Deputy on Report Stage concerning that matter.

I will now refer to the other issue. To the best of my knowledge I have never come across judges making orders against barristers for costs because of vexatious claims. However, I can deal with the question as to why this is in the section. There is that power obviously and we are putting it in basically to specify it as one of the powers of the court. I will now read out my note, which is quite detailed. Before dealing with the amendments proposed by the Deputies, I would inform the committee that subsection (1), as currently drafted, is too broad. There is need to list the decisions to which the section will apply. I expect to bring forward an amendment on Report Stage that will provide for greater specificity in relation to the decisions under the Bill to which the 14-day period will apply. Broadly speaking, the aim of this proposal, as that of its predecessor in current law, is to ensure that the courts cannot be used to delay, simply as a delaying factor, the departure of a person from the State, who should not have been here and who has exhausted all of the administrative recourses available.

I want to put the provisions in section 118 into context so that the committee can appreciate the scale of judicial reviews arising in relation to immigration matters. Approximately 60% of all judicial reviews taken to the High Court in each of the last two years were asylum or immigration related.

The estimated cost to the State of judicial reviews in 2007 was in region of €11 million to €12 million. The total cost of judicial reviews in the repatriation area of INIS alone has increased by over 1,300% since 2001.

In the first six months of 2008, approximately 520 new judicial review applications were received across ORAC, RAT and INIS sections.

Did the Minister state that 60% of all judicial reviews going to the court are asylum or immigration related?

Yes. To continue, this compares to approximately 1,100 new judicial reviews received in 2007 across the range of immigration and asylum matters.

There has been an escalation in legal challenges over the last number of years despite the fact that asylum application numbers are falling. There were 252 judicial reviews applied for in 2002 when asylum numbers were at their highest, at 11,634, compared to 1,100 new judicial reviews last year when asylum number were at their lowest point, at 3,985, for the first time in ten years. The number of judicial reviews finalised in the first six months of 2008 was approximately 450 and the number of cases on hand at the end of June 2008 was approximately 1,550, including 538 in RAT, 497 in ORAC and 441 in the INIS repatriation division.

These statistics provide a backdrop against which this new legislation must operate. Our experience is that applications for extensions of time are freely obtained in the courts. Increasingly, the courts are being perceived as a standard means of recourse, in particular, in asylum cases where the substance of the asylum claim has failed or is likely to fail because the facts of the person's case mean that he or she does not come within the protection parameters of either the refugee convention or the EU qualification directive.

Judicial review, as a legal remedy, is obviously an important pillar of any legal system including the Irish legal system. For those who have dealings with administrative or quasi-judicial decision-making processes, it is a valuable safeguard against procedural error. However, it is not, and cannot be viewed as, a standard appeal process to try to second-guess every decision of an official, or of a specialist tribunal, in an effort to delay proceedings. The provision in this section of the Bill is based on section 5 of the Illegal Immigrants (Trafficking) Act 2000, a provision which, as Deputies will remember, was greeted with intense criticism at the time, but which the Supreme Court upheld as constitutional on a referral to it under Article 26 of the Constitution. I regard this provision as protecting the public interest in two ways: it upholds the integrity of the judicial review process and seeks to ensure that those who are being required to leave the State cannot use that process to protract their stay in the State.

During the course of this Committee Stage debate, Deputies have sought to conclude that because there has been an increase in the number of judicial reviews, it must somehow be the case that the processes sought to be reviewed in this way are, therefore, increasingly flawed. This is an unsustainable argument. It is likewise unsustainable to argue that because some judicial review cases are settled before the substantive hearing, this is in some way also a symptom of malaise in the system. Many judicial reviews are lodged simply because the applicant does not like the decision he or she has received. Cases are settled for a variety of reasons and it can be the applicant who proposes a settlement. In the case of my Department, my officials operate a system of examining all new judicial reviews as soon as they arrive to consider if they should be opposed or settled. The underlying aim in any settlement is to save costs and time, which benefits the applicant, the legal teams, the courts, my officials and, not least of all, the taxpayer.

Let me make clear that the increase in the number of judicial review applications being made, particularly against the backdrop of falling numbers of asylum cases, is because there is an active and creative body of lawyers who recognise that their clients are anxious to remain in the State notwithstanding that they are faced with negative decisions, and so the lawyers seek on behalf of their clients to explore every possible area where a potential weakness might be found, either in the law or in the law's application in a particular case. That said, many judicial review applications show characteristics of a pro forma approach, with few or no arguments being made that are specific to the facts of a particular case. In this regard, I understand that many of the grounds raised in judicial reviews are not related to points of law but refer to irrelevant matters which are often dismissed by the courts at the leave application stage. It is no doubt a consideration that even if a particular line of argument does not succeed, there is a good prospect that the State will be ordered to carry the legal costs.

Amendment No. 627 is opposed. The limitation, in section 118, on the time period within which a foreign national may initiate judicial review proceedings is based on similar provisions in section 5 of the Illegal Immigrants (Trafficking) Act 2000 and which, as I stated earlier, was considered by the Supreme Court in re the Illegal Immigrants (Trafficking) Bill 1999. The court held that, given the judicial discretion contained in section 5 of what was then the 1999 Bill to extend the 14 day period "where there is 'good and sufficient' reason for doing so", the time limit did protect the policy interests of the State while not causing injustice to the applicant, and stated:

The Court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable persons who, having regard to all the circumstances of the case ... have shown reasonable diligence, to have sufficient access to the courts for the purpose of seeking judicial review in accordance with their constitutional rights. The Court does not therefore consider the limitation period to be unreasonable as such and its repugnancy to the Constitution has not been established.

Amendment No. 628 is also opposed. The intention of subsection (3) is to provide that the onus of satisfying the court of the matters following essentially rests with the applicant — this approach is in line with a recommendation of the Law Reform Commission report on judicial review procedure that "it is important to stress that the onus lies on the applicant to establish good reason to extend time and in order to ensure consistency the courts must not lose sight of this in determining applications of this nature". It also reflects the proposition of the Supreme Court in the Article 26 referral that an applicant who has shown reasonable diligence will not be adversely affected by the 14 day time limit.

Notwithstanding the above, however, I refer Deputies to paragraph (b) of subsection (3) which affords the court discretion to extend the time period where there are exceptional circumstances relating to the applicant which, through no fault of the applicant, his or her application could not have been brought within the 14 day time limit.

I note that amendment No. 629 seeks to amend this paragraph. I have already referred to it. I can come back on Report Stage to that entire issue of having exercised reasonable diligence. The term reasonable diligence obviously has come from the Supreme Court decision.

On amendment No. 631, the intention of subsections (7) and (8) is to prevent the misuse of the judicial process by a foreign national, or his or her legal representative, solely for the purposes of frustrating removal from the State of the foreign national. There is a similarity between the provision and Order 99 Rule 7 of the Rules of the Superior Courts. At present, many asylum applicants avail of legal representation provided free of charge by the State-funded Refugee Legal Service, RLS, in the context of their initial protection applications and also in the making of representations under section 3 of the Immigration Act 1999.

The question whether judicial review proceedings should be initiated in any given case is the subject of a merits test by the RLS.

A merits test by whom?

By the Refugee Legal Service, the service set up to look after it which is under the Legal Aid Board.

Many, though not all, of the judicial review applications against immigration decisions are taken by private practitioners on behalf of applicants who have not satisfied the merits test applied by the RLS. In these circumstances, having provided legal representation free of charge to the foreign national for the purposes of a protection application, the State then faces the prospect of incurring further costs in defending a judicial review application initiated by the foreign national's new legal representative.

The experience to date is that, where the State is successful, there is little or no prospect of recovering these costs from the foreign national. However, it is decidedly strange that the State is likely to find itself facing expenditure on legal costs in a case where there has already been a merits test, the outcome of which was a decision not to proceed. In those circumstances, there is an increased likelihood that the case will turn out to be either frivolous or vexatious or both.

It should not be the case that the State, having been obliged to defend a frivolous or vexatious application in court, does not have a mark from which to recover its costs; this is particularly so where — as in most cases involving protection applicants — a protection applicant is unable to meet such costs. In circumstances of misconduct or default on the part of a solicitor, Order 99 Rule 7 of the Rules of the Superior Courts allows the court discretion to require him or her to repay to his or her client any costs which the client may have been ordered to pay to any other person.

The intention of section 118(8) is to give the same discretion to the court, where it is satisfied that an application is frivolous or vexatious, to require a foreign national's legal representative to pay costs.

I can reconsider the matter. However, the courts must be given some discretion. A clear marker must be set down, particularly in circumstances where the Refugee Legal Service has deliberated as to whether there is a legitimate case to be taken in the first instance. When a person fails to convince one solicitor that he or she has a genuine case, he or she will then approach another solicitor who may be more inclined to take the case.

I am disappointed with the Minister's reply in respect of section 118(8). The effect of what is proposed will be to encourage solicitors willing to take such cases — irrespective of their merits — on behalf of applicants not to do so in certain circumstances where they perceive the risk to be too great. As a result, cases that have merit will not be capable of being sponsored.

The Minister indicated that his Department goes through judicial review decisions with a fine-tooth comb.

I said it goes through applications.

I ask that the Minister make some attempt to indicate how many of these have been rejected on the grounds of being either frivolous or vexatious. Many are rejected on the grounds that they are wrong but they are not rejected as being frivolous or vexatious under the provisions of subsection (7), to which subsection (8) refers.

Is the proposition that the court does not have discretion to deal with this issue actually true? What is there to prevent the High Court from establishing its own jurisprudence if it believes that very infirm cases are being brought before it purely in the interests of keeping people in this jurisdiction? Why does the court not comment upon that issue? It would be extremely odd if immigration legislation is the only area of law in respect of which we are going to enshrine a punitive measure relating to lawyers. We are setting a precedent in favour of which it is extremely difficult to put forward a rational argument.

I am not stating that solicitors or legal teams are without fault. One need only consider some recent high-profile cases to realise that they can err and bring the entire profession into disrepute. The Rules of the Superior Courts were put in place by judges in order to allow courts to exercise discretion in instances where there is misconduct or default on the part of solicitors. In the Bill, as drafted, we were trying to put down a marker that this mechanism is available to the courts.

Since entering the Department, I have become aware that my officials are extremely hard pressed regarding the judgment calls they are obliged to make in respect of judicial review proceedings. As the Deputy is aware, they must do a huge amount of work and on a daily basis they must respond to many judicial review cases that are taken. My officials do not decide whether such cases are frivolous or vexatious, the responsibility in that regard lies with the courts. Obviously, however, they are obliged to make judgment calls in respect of how the State should respond to applications for judicial review. There is a view that the judicial review process is used in a substantial number of cases in order to allow people to extend the period for which they can remain in the State. One of the reasons there are so many settlements is because people, on the advice of their solicitors or barristers, accept that they do not have a case with which to proceed.

I can reconsider this matter. I do not wish to be disrespectful but it cannot be said that the fault lies only with the State for not responding quickly or not dealing expeditiously with applications on every occasion. The idea behind the Bill is to put in place a single process which, ultimately, and if necessary, will be the subject of judicial review. I have been presented with files in respect of which it is clear that the people involved should not, from the outset, have had a legitimate expectation of remaining in the State. However, because they had the ability to jump through all sorts of hoops, make appeals and then submit applications for judicial review proceedings — in some cases on two occasions — their stays have been extended. All that happens is that the evil day when a deportation order must be issued is put off.

I will reconsider the matter. I do not want to be seen as being too draconian by including this in the legislation. However, when people undergo the free legal aid process and when the merits of their cases fail the test, they approach other solicitors to act on their behalf. It must be stated that the names of significant firms of solicitors — I accept they may be experts in this area — continually arise in respect of such cases.

One could say the same in respect of the family law courts.

Or hearing impairment claims made by former members of the Army.

I know the Minister's profession is beyond reproach.

The Deputy should look closer to home. When the Bill was drafted, this provision was put down as a marker to indicate that this power already exists under the Rules of the Superior Courts. From now on it will be in place under legislation as a specific power.

I will reconsider the matter before Report Stage. However, I am of the view that it is not similar to court proceedings where the merits test has already been undergone in respect of the Refugee Legal Service. The Free Legal Aid Board has a good track record in dealing with the merits or otherwise of cases it brings forward.

In light of the Minister's comments and his acceptance of the principle underpinning Deputy Rabbitte's amendment, I will not press my amendments. However, amendment No. 631 deals with an issue that has caused concern. The Minister stated people are using judicial review as a mechanism to postpone the inevitable but the Bill states a court challenge will not delay deportation. On the one hand, we are saying the deportation can proceed even when the judicial review is under way while, on the other, the applicants will be penalised because the majority of reviews are frivolous. Many statistics have been supplied. Between April 2007 and March 2008, a total of 375 judicial reviews were sought relating to the Refugee Appeals Tribunal, of which 35 were granted and 175 were settled, which is 56% of the total lodged with the courts. I accept the Minister's statement that a number were settled on the basis people felt there was not much point proceeding with them. A substantial number go before the courts with a sound basis but a substantial number also do not and, therefore, the costs involved are not the same. That does not support the Minister's assertion that the vast majority of cases before the courts are frivolous or vexatious.

I do not say they are frivolous or vexatious. Ultimately, the courts decide and they rarely find an application frivolous or vexatious because courts by their nature are not prone to criticise their own profession. However, the judicial review procedures have been used to extend the lifetime of people's stay and the vast majority of settled cases involve applicants putting up their hands. The State is willing to accept that and probably pay costs to deal with and resolve the case one way or the other. While the State secures orders for costs in unsuccessful cases, it does not obtain the costs. The State is stung for costs in virtually every case.

The State deserves to be stung for costs in a number of cases but we do not know the scale.

I do not accept that. If the State was liable, for example, in the 175 cases settled in the period highlighted, and had to pay the costs, that still left 44% of cases that were not successful. The State will be awarded costs——

Not necessarily in all those cases.

The costs will always follow the winner. The State ultimately must pay the costs. It should not be stung for them but that is the reality. That is why the section has been included. A judge would rarely say a case was frivolous because, ultimately, the court is dealing with human beings and it errs on the side of dealing with cases on the understanding the State will ultimately carry the costs.

We are also dealing with human beings. I refer back to the perception of bias we dealt with earlier and the fact that over two and a half years, not one positive decision resulted from the files referred to one member of the tribunal. That invites judicial review and we are restricting judicial oversight of the asylum process by penalising solicitors and making it extremely restrictive in terms of the deadline for application on appeal to be made to the court. Rather than dealing with the substantive problem, we are proceeding to limit the court's discretion to extend a 14-day limit for the issue of proceedings under section 118(8) and, at the same time, exposing lawyers to the prospect of being penalised by the court. We are dealing with new legislation and we have spent a great deal of time on this issue. Presumably, the Minister has spent even more on it with his officials. Taking extraordinary measures in immigration law only that were not included in legislation dealing with Army deafness claims or redress victims is hard to defend.

The 14-day limit was decided substantially by the Supreme Court with the case involved having been referred specifically on that issue. We can go no further than the Supreme Court.

I empathise with the Deputy's point. When I practised, I assure the Deputy a judicial review was used once in a blue moon but such reviews have crept into life and there is substantial anecdotal evidence that when people approach the end of the process, the last port of call is the judicial review. Solicitors pro forma throw in a judicial review. The evidence based on our assessment working with the State’s legal service is that many cases are taken to put off the evil day and, ultimately, my officials and those working with the State’s legal service must make a judgment call. Do they fight all these reviews to the nth degree or do they settle them in such a way that we will achieve the end result while taking a little pain on the costs? It is an expensive and time consuming process. That is why the feeling in the Department was to include this provision in the legislation as a reminder to the legal profession

This power, already provided for in the Rules of the Superior Courts, can be used by the court if it is consider there is a try-on and no legitimate point at law. This is what judicial reviews are all about. Their purpose is to test a legal or procedural point. Far be it from me to denigrate my profession, but the figure speaks for itself — 60% of all judicial applications. We do not see figures like this in the planning process or many other processes for which there are appeal boards. This cannot just be put down to the supposed inefficiency of the system at the Refugee Appeals Tribunal or anywhere else.

I have a general unease with fixing legal representative costs where the court makes a declaration that the issue raised is frivolous and vexatious. If this is contained in the rules of the superior courts, why is it necessary to include it in this legislation? Does it not interfere with the liberty of a person to litigate an issue before the courts, because the provision may put solicitors, barristers or legal advisers in fear of proceeding with such a case on the grounds that an order for costs may be made against them? The Minister is aware that there is a procedure, whereby at any time during proceedings a motion can be brought by a defendant to have the case struck out on the basis that it is frivolous or vexatious. A judge can probably make this order without any motion being brought. Whatever about the fear that may be caused to a solicitor or barrister, this provision may have the result that some genuine cases will not be brought forward owing to the fact that solicitors or barristers are fearful they will be faced by a declaration fixing costs. It often happens that although people come to barristers with what someone might consider a frivolous or vexatious claim, they go on to win. That has happened in many cases. I am uneasy with these two parts of the section.

We have been over this ground before.

We have. I have some sympathy with the position, but it is important to ventilate the frustration my officials and people involved in this area experience — there is empirical evidence, despite what Deputy Mulcahy said — with the use of judicial proceedings as a way of dragging matters out. I will come back to this issue on Report Stage.

Is the Minister happy that there are no constitutional implications? Before Deputy Mulcahy arrived, I asked why, if this power was already available in the Rules of the Superior Courts, we needed to take this further step. A barrister writing about this says:

Clause 118(8) seems to reflect a view that the current provisions in relation to the striking out of proceedings and the penalisation of solicitors for costs improperly incurred are thought to be insufficient and there is no doubt that this additional provision appears to create a disincentive for lawyers to represent immigrants. If that is so, the constitutionality of the provision may come into question, having regard to the fact that the Supreme Court has already established that foreign nationals enjoy a right of access to the courts and a right to equality, save in so far as differences are mandated by their status as foreign nationals. Legislation which was designed to curb personal injury litigation explicitly recognised the right to legal advice, and [presumably, in order to comply with constitutional rights] it is not clear why immigration litigation should be singled out or how it can be legitimately distinguished.

That is one opinion. We obtained the Attorney General's opinion and his advice was that this was constitutional and only reflected what was included in the rules of the superior courts. I will reflect on the provision again and come back to it on Report Stage. It may happen that I will not proceed with it. The reason we are trying to reform the process for dealing with applicants is to enable us to do it in a fair and efficient way that is cost efficient for taxpayers. Obviously, we want to restrict the number of judicial reviews. We would welcome a process where there was no necessity for anyone to seek a judicial review. I would hate to think we would go through all of this and produce new legislation only to find that we had not in some way reduced the gravy train. It is a gravy train and even for unsuccessful applicaants, the poor old taxpayer is a mark. If people believe we should not use a stick or should not specifically mention it, that is fair enough, but I have a duty to the taxpayer to at least lay down a marker.

I accept what the Minister says. We all want to ensure the taxpayer is not bled dry and that we have a fair balance within the system. Having listened to what the Minister had to say, it is difficult to comprehend how we had the case before the courts during the summer of the Somalian mother who had been granted a visa — a fact disclosed under the Freedom of Information Act — but still ended up in court. That was not a frivolous or vexatious case from the point of view of her legal representative. However, I cannot see the point of the law in question from the view of the Department in view of the fact she had been granted her visa in August 2005.

What we want is to strike a balance in order that when there are genuine cases and points of law that need to be teased out by the courts, they can be considered. We do not want to discourage people who have a valid case from bringing it forward, but at the same time have to deal with the issue of frivolous cases. There is provision for this in existing court procedures. The Bill also states clearly that a court challenge will not delay someone's deportation from the jurisdiction. There are checks and balances. Therefore, I ask the Minister to reconsider the issue before Report Stage.

I said I would do so.

The Minister has already indicated that he will.

What does the Minister have to say about the point made by Deputy Mulcahy that the facility is available for a defendant to seek to have a case struck out because of the infirmity of the grounds on which it has been mounted? Has the Department ever resorted to using this provision?

I do not know. The Department would always be loath to do so, particularly when dealing with cases of persons at the edge of society. It would need to have a high standard of proof that the case was vexatious and frivolous. Leaving aside the immigration area, it is rarely used by defendants in ordinary court because it is something that is very difficult to ultimately prove, whereas we might have a very strong suspicion that it was frivolous and vexatious and was used for the purpose of extending a useless application.

In a number of settlements — and if the Deputy accepts my word that a significant number of those settlements are settled at the request of the applicant — there is an element of people just submitting it and then perhaps considering it in a little more detail once it has been included or when it goes to the barrister. The solicitor puts in the application initially and then the barrister takes a closer look at it when they are on the steps of the court, as sometimes happens, and advises there is no case to put. The barrister approaches the barrister representing the State who will take instructions and our people will agree to pony up on the costs in order to close the case.

Amendment, by leave, withdrawn.
Amendment No. 628 not moved.

I move amendment No. 629:

In page 126, subsection (3)(b), line 43, to delete “could not have been” and substitute

"was not".

How stands the amendment in light of the Minister's comments?

I understand the Minister will return to this on Report Stage. I am happy to see what the Minister will produce.

Amendment, by leave, withdrawn.
Amendment No. 630 not moved.

I move amendment No. 631:

In page 127, subsection (8), lines 26 and 27, to delete "by the legal representative of the applicant" and substitute the following:

"in accordance with Order 99 rule 7 of the Rules of the Superior Courts 1986".

How stands this amendment?

It is in the Minister's court now. He has signalled that he is in the gap on behalf of the Irish taxpayer——

It is great to see a representative of the proletariat defending the legal profession.

——while at the same time signalling to his own profession that he will have a look at it so ——

I might never get another practising certificate after tonight.

The Minister will not need one; we have every confidence in him. We are arriving at a situation where we will have to apply to him if we want to get married in future. There is a whole series of tasks that will require his full-time occupation. I will withdraw the amendment until I see what the Minister comes back with on Report Stage.

Amendment, by leave, withdrawn.
Amendments Nos. 632 to 635, inclusive, not moved.
Question proposed: "That section 118 stand part of the Bill."

Joviality aside, there is a distinction between the human rights dimension here and defending the legal profession. There is a human rights dimension to this, that persons have a right of access to the courts. It is a decision of equality and there is an important issue here for the Minister to consider.

Question put and agreed to.

Amendments Nos. 636 to 640, inclusive, are related and may be discussed together by agreement.

I move amendment No. 636:

In page 128, subsection (1)(a), line 3, to delete “€5,000” and substitute “€1,000”.

It seems unusual that the maximum penalty on summary conviction under the Bill is a fine of €5,000, up to 12 months' imprisonment or both, whereas the maximum penalty for the failure of a sex offender to comply with his notification requirements under the Sex Offenders Act 2001 is less than €2,000 or 12 months' imprisonment or both. Immigration offences seem to be disproportionate compared to other offences. I await the Minister's response to these amendments.

What Deputy Naughten said highlights the need for amendment in the sex offenders area which we are looking at in general with regard to the penalties and sex offenders notifying their presence in particular areas.

Did we not deal with that with the trafficking Bill? Was there not a miscellaneous section dealing with that matter?

Not with regard to sex offenders.

I thought there was something about the register. I cannot recall.

The sum of €5,000 and 12 months' imprisonment are the maximum as advised by the Attorney General that would be appropriate in the District Court.

Amendment, by leave, withdrawn.
Amendments Nos. 637 to 640, inclusive, not moved.
Section 119 agreed to.
Section 120 agreed to.

Amendments Nos. 641 and 643 are related and amendment No. 642 is cognate, therefore, these amendments may be discussed together by agreement.

I move amendment No. 641:

In page 128, subsection (1)(b)(ii), line 44, to delete “legal representative” and substitute “solicitor”.

These are drafting amendments.

Amendment agreed to.

I move amendment No. 642:

In page 128, subsection (1)(b)(ii), lines 44 and 45, to delete “legal representative” and substitute “solicitor”.

Amendment agreed to.

I move amendment No. 643:

In page 128, subsection (1)(b)(iii), line 46, to delete “in a case in which” and substitute “where”.

Amendment agreed to.
Section 121, as amended, agreed to.
Question proposed: "That section 122 stand part of the Bill."

Subsection (1) provides that a foreign national aged 18 years or over who changes the name under which he or she was granted residence permission under this Act is guilty of an offence. Why would this happen? I have come across a couple of cases where someone has been granted residency and is then coming back to the Department looking for a change of the name. Why does someone apply under one name and then look for residency under a separate name? The procedure is that once they apply under a name they must follow through on that name until a decision is made. Perhaps the departmental officials might have some nuggets of information.

Every file I deal with shows that people use different aliases. It is very difficult. Sometimes I have to deal with files where there are five and six different names. People use different names for whatever reason. Under the 1935 Act all foreign nationals must apply for a licence if they want to change their name before executing a deed poll. In 2005, there were 70 applications. In 2006, there were 105. In 2007, there were 89 and in 2008, to date, there have been 108. Approximately 50% of individuals who initiate the application fail to complete the process and those applications are subsequently deemed abandoned. In the year to date 36 applications out of 108 have been deemed abandoned. Some 21 are still pending. Normally it takes approximately four to six months to furnish all the necessary documentation. They give different reasons they are changing their name. The provision is included to cater for that situation.

If someone applies to change his or her name after the enactment of this legislation and he or she abandons it halfway through, is he or she committing an offence under section 121(1)?

If a person applies and subsequently abandons his or her application, obviously he or she will not legally change his or her name.

Question put and agreed to.

I move amendment No. 644:

In page 129, lines 36 to 41 and in page 130, lines 1 to 45, to delete subsections (2) to (7).

My predecessor indicated on Second Stage that the question of marriage of foreign nationals and the law governing it is an area of the Bill he was prepared to revisit. I am developing proposals and hope to bring them forward on Report Stage. The issue of marriages of convenience is a very serious matter for our immigration system and is a matter of concern to our EU partners. A recent decision in the Metock case necessitated a change to the freedom of movement regulations and was discussed by my EU counterparts in September. I am happy to circulate my proposed amendments to committee members as soon as they are finalised so that Deputies have as much time as possible to consider the proposals. I therefore ask the Deputy to withdraw his amendment. It is a very difficult area and we are in discussions with the office of the Attorney General. There will be a significantly different approach.

Will the Minister examine section 58 of the Civil Registration Act in this context? It might be a mechanism to get around it. Notification is already given and powers exist. It might be a way to resolve the issue and deal with the problem he has without making provision for it in this Bill.

Amendment, by leave, withdrawn.
Question proposed: "That section 123 stand part of the Bill."

Earlier I indicated that I opposed the section but I will not persist given what the Minister has said and if he comes back with something different I can only presume it will make a step towards the view held on this side of the table while not at all downplaying the significance he attaches to marriages of convenience. We will wait and see what the Minister comes back with.

It was my understanding that this is the only section that deals with members of the clergy. The Minister will correct me if I am wrong. I have been made aware that there is an issue with clergy coming here and ministering here. They can only stay for a maximum of three years. It is happening with non-Catholic denominations here. Based on comments from the Catholic church, I am sure there will be more Catholic priests coming on the missions to Ireland in the future. While my information may be completely wrong, I ask the Minister for clarity.

There was a three-year rule of thumb relating to the clergy. At the moment we deal with it on a case-by-case basis. Once the legislation passes we will introduce regulations to put the policy in place.

I agree with what Deputy Naughten said and I acknowledge the Minister's reply. I have also received representations on the matter, which I have not read in detail. I mention this for the purposes of being on side for Report Stage.

The Metock case has caused a significant difficulty for us regarding marriages of convenience. We have carried out a statistical analysis of 4,600 cases.

Is the Minister saying there were 4,600 marriages of convenience?

No, they were applications for first residence cards received since May 2006 when the directive came into effect in Ireland. Of the 4,600 applications 2,000 did not satisfy the prior legal residence requirement. On review of these cases now complete almost 1,300 have been approved and 550 either refused or ruled to be outside the terms of the review. Regarding the immigration status in these 4,600 applications, 15% of all applicants were people who entered the state as asylum seekers. Some 15% of applications came from students or persons who had originally come as students and are now illegal. More than 600 of the 4,600 applications were from Nigerian nationals, which is statistically disproportionate. In the main they were failed asylum seekers. Almost 600 applications were by Pakistani nationals, which is again extremely unlikely statistically. Regarding unusual marriage patterns among the 4,600, some 10% of all EU spouses were Latvian and 33% of the Latvians were married to Pakistanis. Some 50% of the Latvians were married to Pakistanis, Bangladeshis or Indians as compared with 39% of the Latvians who married non-EU nationals closer to home, including Latvian aliens, Ukrainians, Belarusian or Russian. I believe some 400 Latvians resident in Ireland are married to Pakistanis.

To hell with the granny rule for Trapattoni.

The Deputies can see what we are dealing with.

Are those figures for third country nationals married to EU nationals?

Yes. That is the premise of the Metock case, which more or less drove a coach and four through the directive. Those cases happened before the ruling in the Metock case.

Is there much concern about marriages of convenience involving Irish citizens?

People do not have an automatic right of residence based on their residence. It is not as stark as some of these figures are.

Is it quite small statistically?

We are not totally sure about it.

Did the Minister confirm that he would review the clergy issue?

Yes. We said we would introduce regulations in the new year when the Bill is passed.

Question put and agreed to.

Amendments Nos. 645 to 666, inclusive, 668 to 673, inclusive, and 675 to 680, inclusive, are related. Within this grouping amendments Nos. 646 and 647 are alternates to amendment No. 645. Amendments Nos. 649 and 650 are alternates to amendment No. 648. Amendment No. 653 is an alternate to amendment No. 652. Amendment No. 661 is an alternate to amendment No. 660. Amendments Nos. 663 and 664 are alternates to amendment No. 662. Amendment No. 669 is an alternate to amendment No. 668. Amendment No. 675 is an alternate to amendment No. 673. Amendments Nos. 645 to 666, inclusive, 668 to 673, inclusive, and 675 to 680, inclusive, will be discussed together.

I move amendment No. 645:

In page 131, lines 1 to 5, to delete subsection (1) and substitute the following:

"(1) The Minister shall, by notice in writing, grant a person to whom this section applies permission to be present in the State for a period of not less than 90 days for the purposes set out in subsection (3) (which period is, in this section, referred to as a ”recovery and reflection period“).”.

Before I discuss these amendments, I would like to propose that we take a break. It is likely that there will be a vote later this evening. We are all anxious to complete Committee Stage tonight.

The vote will not be called until 8.30 p.m.

I know. Some of us will need to eat at some stage tonight. A substantial number of amendments remain to be dealt with.

Perhaps the Minister has seen the light since the legislation was drafted but fundamental issues of huge concern arise under section 124. Many of the non-governmental organisations which deal with the victims of trafficking are disappointed with the provisions being made in the section. I remind the committee of the comments made by the Minister during the debate on the Criminal Law (Human Trafficking) Act 2008. We were assured that many of the protections for which we were calling at the time would be set out in the Bill before the committee.

I recently came across a newspaper article from 2 July 2008, after the enactment of the Criminal Law (Human Trafficking) Bill 2008. It referred to a young woman who had been arrested in a brothel in Kilkenny and subsequently charged with failing to produce a valid passport or other form of identification. She was remanded in custody to Mountjoy Prison. The garda who spoke at the court hearing emphasised that she was a minor and a victim of trafficking. The judge in the case agreed that she was a minor and vulnerable but decided to send her back to Mountjoy Prison where she was remanded in custody. I cannot understand this. Even though certain protections are supposed to be provided for the victims of trafficking under the Act I mentioned, the woman in question was not referred to the HSE. She ended up in the Dóchas Centre in Mountjoy Prison. Her name was published in the newspaper, even though it was suspected that she was a minor.

I have tabled a number of amendments to correct the various significant flaws in section 124. I propose that the period of recovery provided for in the Bill should be in excess of 90 days. We should deal with all victims of trafficking, not just non-EU, or non-EEA, victims of trafficking. Provision has to be made for all victims. Many of the victims of trafficking who have come to the attention of the non-governmental organisations in this jurisdiction are from member states of the European Union. In many cases, it is not safe for them to return to such countries. No absolute right of residence is set out in the European Communities regulations dealing with the free movement of people. The Minister alluded to this when we were discussing a previous amendment. It is possible that some of the victims of trafficking are Irish citizens — we do not know. There are definitely victims of trafficking from other EU member states.

The Bill provides that an extension of one's residency entitlement can be afforded if one assists the Garda with its inquiries. I remind the committee that most of those to whom I refer are women. I do not believe that is fair or reasonable. Victims of trafficking should be protected and facilitated as much as possible. It should be possible to extend, on a case by case basis, the period of recovery and reflection needed in such circumstances. Amendment No. 648 would provide that decisions in this regard could be made by "a member of the Garda Síochána not below the rank of Superintendent". The necessary checks and balances would be put in place too. Amendment No. 659 would prohibit the making of a deportation order when "an application for suspected victim status remains to be determined". Amendment No. 667 which has been ruled out of order because it would impose a cost on the State sets out the rights that should be afforded to victims. We can come back to this issue when we are dealing with the section as a whole.

There are significant weaknesses in this section of the Bill which aims to protect the victims of trafficking. I hope the Minister will accept the amendments tabled to it.

I will not be available after 8.30 p.m. I understood we would be spending all day dealing with the Bill. I received a message yesterday to tell me we would not be starting until the afternoon.

We will plough on and see if we can get through it.

Yes. Government amendments Nos. 650, 653, 657, 658, 661, 663, 665, 666 and 669 to 671, inclusive, are drafting amendments which are necessary for the purposes of consistency. It is appropriate to mention that the Government is developing a strategy on human trafficking as part of its comprehensive response to the problem. The strategy will, inter alia, allow Ireland to meet its obligations under relevant international instruments. In addition to the legislative measures contained in the Criminal Law (Human Trafficking) Act 2008 and this Bill, non-legislative measures are being introduced to address trafficking in human beings. The measures in question will be implemented administratively. In this regard, an interdepartmental high level group has been established to recommend the most appropriate and effective responses to trafficking in human beings. This significant operation involves non-governmental organisations, the Garda and various State agencies.

An anti-human trafficking unit was recently established in the Department of Justice, Equality and Law Reform. A key element of the unit's work will be the development of a national action plan to prevent and tackle trafficking in human beings. The plan will be approved by the high level group for submission to the Minister for Justice, Equality and Law Reform. It will be developed under the four headings of prevention and awareness raising, prosecution of traffickers, protection of victims and child trafficking. Measures of assistance such as housing, access to emergency medical treatment, translation and interpretation and counselling will be examined in the context of the work of the high level group and the development of the national action plan.

Section 124 of the Bill provides for protections to be afforded to those who may be victims of human trafficking. It provides for a period of recovery and reflection of 45 days. Under the legislation, a temporary residence permission valid for six months may be issued in certain circumstances. The sanctioning of a period of temporary residence in the State is linked to the desire of a victim to assist the authorities in any investigation or prosecution. Trafficking is not necessarily an immigration matter. The definitions in the Criminal Law (Human Trafficking) Act 2008 make it clear that an Irish person can be trafficked within Ireland. The Government's strategy is designed to deal with all victims of trafficking, of whatever nationality. The Bill deals with the immigration aspects of trafficking. It does not attempt to deal with all the victims of trafficking. It relates solely to people whose immigration status is, or needs to be, affected by the fact that they have been trafficked.

Some have criticised the Bill on the basis that it links the issuing of a residence permission with the willingness of the victim of trafficking to co-operate with the Garda in prosecuting traffickers. The Council of Europe Convention on Action against Trafficking in Human Beings allows the parties to the convention to grant residence to a person in one or both of two sets of circumstances. First, a residence permit may be granted if the personal circumstances of the person necessitate it. Second, a permit may be granted to enable the person to co-operate with the competent authorities in investigation or criminal proceedings. The European Council directive that deals with the issuing of residence permits to victims of trafficking provides for the issue and renewal of a residence permit as long as the victim co-operates with the competent authorities. The duration of the recovery and reflection period — 45 days — and the possibility of a renewable temporary permission of six months compare favourably to the requirements of the Council of Europe convention, which requires a recovery and reflection period of at least 30 days. While the convention is silent on the period for which a residence permit should be valid, in the accompanying explanatory memorandum it points to the EU directive on the subject which sets a minimum period of six months. A number of states have in place periods of recovery and reflection which, in the main, range from 30 to 90 days, with only a small number granting six months. It should be noted that the grant of a recovery and reflection period of 45 days is not conditional on the suspected victim providing assistance to the authorities.

I will now address the individual amendments. Amendments Nos. 645 and 646 seek to provide for a recovery and reflection period of 90 days and six months, respectively. As I have already pointed out, the convention only requires a period of 30 days, whereas we propose a period of 45 days. I do not propose to increase this period.

Amendment No. 656 seeks to provide for an extension to the recovery and reflection period on application to the Minister in this regard. I am not convinced of the need to put this on a statutory basis and, by doing so, insert a further additional process into these provisions. I assure Deputies that I am equally committed to ensuring appropriate measures are in place to address trafficking in Ireland. I want to ensure these measures are focused on and tailored to trafficking in this State and not otherwise. As our trafficking strategy comes into effect, it will be closely monitored and any difficulties in its operation or any refinements that are necessary will be addressed. In the meantime, I am satisfied that should cases arise, the nature of which require a further period of residence in the State, I can allow a further period, having regard to the inherent powers I have in this area. Deputies will be aware that it is these powers that facilitate the putting in place of administrative arrangements to operate in the period between the bringing in to operation of the Criminal Law (Human Trafficking) Act 2008 and the commencement of this Bill, when enacted.

Amendments Nos. 647, 649, 654, 655, 672 and 676 seek to apply the provisions of the section to EU nationals. Section 124 deals with immigration protections to be afforded to those whose immigration status in the State may, on the face of it, have been compromised on foot of actions associated with human trafficking. EU citizens whose right to free movement is expressed through the framework of the regulations on free movement within the European Union have extensive entitlements to exercise free movement rights and would not, in the main, require the immigration protections set out in this section. The Deputies will be aware that EU citizens are not subject to the same registration and permit requirements as third country nationals. If we were to propose such a possibility within section 124, we could place EU citizens in a less advantageous position as regards their immigration status. This is not to say that a victim of human trafficking who is an EU national will be treated any less favourably than any other victim. While certain administrative arrangements may be required to achieve this aim, these will be put in place and will be without prejudice to the individual's right to free movement.

Amendment No. 648 seeks to add another method by which a foreign national can be comprehended by section 124, namely, the Minister forming an opinion that this is the case, whether following an application by the person concerned. The process in subsection (2) is the most appropriate method by which the section can be invoked, as it is the Garda, rather than my Department, which has the necessary expertise in determining whether the crime of trafficking has been or may have been committed in any particular case. Invariably, in the event of an instance of trafficking being drawn to the attention of my Department independently of the Garda Síochána, the matter is referred to the Garda for investigation.

Amendment No. 651 seeks to insert a new provision that would create a statutory obligation to co-operate with unnamed individuals or organisations who may be assisting the suspected victim. Such a provision is vague and could create uncertainty. I do not want circumstances to arise whereby, rather than focusing on the needs of the suspected victim, the focus becomes which individual or organisation is providing assistance. In this litigation-happy climate, a provision on these lines could result in my Department being faced with judicial reviews from rival non-governmental organisations, each clamouring to be included in the list of those to be consulted. I have already outlined that as part of the overall strategy the high level group will decide on the most appropriate way to engage constructively with NGOs and other interested parties to ensure the most effective response to this crime.

Amendment No. 652 seeks to expand on the purposes for which a recovery and reflection period will be granted. Subsection (3) is based on Article 13 of the Council of Europe Convention on Action against Trafficking in Human Beings and Article 6(1) of the EU directive and gives ample clarity in this regard. I cannot accept the proposed expansion of the provision sought by the amendment.

Amendment No. 659 seeks to amend subsection (6) in a manner that is unworkable. Subsection (6), as it stands, provides that a foreign national will not be removed from the State for as long as the recovery and reflection period remains in force. The amendment seeks non-removal while a determination is made as to whether a recovery and reflection period will be granted.

Amendment No. 660 seeks to delete paragraph (a) of subsection (7). The effect of this deletion would be to require the Minister to grant a six-month temporary residence permission even where the victim continues to retain connections with the trafficker. The provision, as it stands, is based on Article 8 of the EU directive and, accordingly, the amendment is opposed.

Amendments Nos. 662 and 664 seek to replace paragraph (b) of subsection (7) with a text that, to some extent, restates the prohibition on refoulement. I reiterate that no person will be removed from the State if to do so would be a refoulement. As this prohibition is set out in section 53 in an unambiguous and universal manner, it is not necessary to include it again. Moreover, paragraph (b) is in line with Article 8 of the EU directive and, accordingly, the amendments are opposed.

Amendments No. 679 and 680 seek to introduce into the Bill provisions that set out a process for dealing with applications to be treated as a victim of trafficking and also lists the benefits and entitlements that are to be afforded to a victim of trafficking. I have already explained that these aspects will be addressed in the context of the work of the high level group and anti-human trafficking unit and the development of the national action plan to prevent and tackle trafficking in human beings. Non-governmental organisations and other external bodies are involved in this process, which is the proper context in which to deal with these matters.

Amendments Nos. 668, 673 and 675 seek the deletion of paragraphs (a) and (e) of subsection (10). As these paragraphs are based on Article 8 of the EU directive, it is preferable to retain them.

Amendment No. 677 seeks to circumvent the long-term residence provisions and allow a victim of trafficking to apply for a long-term residence permission solely on the basis that he or she has been granted a temporary residence permission under subsection (7). This amendment appears to ignore the provisions of subsection (9), which provides that the granting of a temporary residence permission does not entitle the holder to any right to remain after the expiry of that permission. The amendment also appears to disregard the fact that the best interests of the victim may well be in returning to his or her family in his or her country of origin and away from this State, which is where the exploitation that forms an intrinsic part of trafficking may have taken place.

Amendment No. 678 proposes that being a victim of trafficking will constitute a defence against an offence under section 4(3). The amendment is unnecessary to the extent that a victim of trafficking has been granted a recovery and reflection period or a temporary residence permission. Where the relevant periods have expired but the person persists in staying illegally, it is inappropriate that the proposed protection against prosecution and conviction should exist.

I welcome the establishment of the departmental group to examine this issue and the anti-trafficking unit in the Department. I also welcome some other aspects of the Minister's contribution. However, I am fearful that we will fall between two stools on this matter. Trafficking is a crime but when we sought, during the debate on the Criminal Law (Human Trafficking) Act, to address issues relating to the protection of the victim, the period of recovery and reflection and the series of other issues to which the Minister referred, we were told we could not do so in the context of that Bill and must do so in the Immigration, Residence and Protection Bill. Now the Minister is saying certain matters are not appropriate to the Bill and that they should be dealt with elsewhere. I am bound to say there is a certain disbelief that this is a real problem in our society. That was evident during the passage of the Criminal Law (Human Trafficking) Act. In order to comply with our international obligations we have done what we have done, but there is a reluctance to accept there is a trafficking phenomenon in our midst. From anecdotal experience, it is very likely that most of the victims are coming from the new accession states of the European Union. An absolutely horrific case was exposed on radio recently of a young African child.

There is no point in crying over spilt milk but the Criminal Law (Human Trafficking) Act was the place in which to deal with many of the issues we are picking up. For example, it is all very well for the Minister to say the international norm is X number of days, that he is providing for a figure of 45 days, while Deputy Naughten in his amendment is providing for a figure 90 days. As we hear more about this phenomenon, now a huge worldwide business largely controlled by international trafficking crime networks, we are only learning how best to combat it. I do not accept that a 45-day period is anything like sufficient for a young girl or woman in these circumstances of captivity and degradation, given the enormous amount of work that has to be done to bring such a person to a point where she is likely to assist a criminal investigation. I do not think we know enough about the matter, which is why I welcome the establishment of the anti-trafficking unit in the Department. I suspect we will all be more informed about the matter as time passes.

We enacted the Criminal Law (Human Trafficking) Bill and are now discussing this Bill — both critical pieces of legislation — but I do not think we are adequately seeking to address the issues that arise. Deputy Naughten is seeking to pick up on some of them in his amendments. There is a lads culture about this issue that lap dancing clubs and such places are great fun and companies now book them to entertain people in an unthinking manner for Christmas parties or other events. In some cases trafficked young women are involved. The story on Seán O'Rourke's programme recently about the young African girl who was under age is an horrific one and, notwithstanding the fact that it was exposed on the programme, she is unable to gain access to justice because of the circumstances she described. Deputy Naughten has described what happened in the Kilkenny case in which the victim ended up in the women's prison at Mountjoy. I am not satisfied that we have done our best, in so far as we can in an immigration Bill, to deal with this issue. Some of the eastern European states are the easiest source of young women to be trafficked by gangsters to this country because it is a lot less expensive than going to the Congo or Nigeria. We are not equipped to deal with this phenomenon.

I would not want it to go out from the committee that the Government or the agencies involved are not taking the issue of human trafficking seriously. We passed the Criminal Law (Human Trafficking) Act and a significant amount of work is being done on its implementation. In fact, newspaper reports yesterday and today debunk Deputy Rabbitte's suggestion that the Government is not taking the matter seriously. I launched a substantial public awareness campaign with the Garda Commissioner. The fact that the Garda Commissioner was present and we jointly launched the campaign shows the seriousness of the issue.

I am sorry to interrupt the Minister but I did not say the Government was not taking the matter seriously. That is not what I mean. We do not know enough about the problem and the remedies we are proposing to tackle it are not sufficiently well informed about the nature and character of the malaise.

I suggest the Joint Committee on Justice, Equality, Defence and Women's Rights invite some of the officials involved in the anti-trafficking unit to find out what work is being done in that respect and how they are engaging with all of the State agencies and NGOs involved. The unit is working very closely with NGOs. I attended one of the regular meetings held with them to try to address the issues involved. At Garda Síochána level, there is a clear understanding of the significant possibilities in the State. The Garda Commissioner was asked whether there was a significant number of cases and he replied that 17 had been brought to the attention of the Garda since the Criminal Law (Human Trafficking) Act was passed.

We want to ensure no human trafficking takes place. I accept, however, that there have been high profile cases but in this instance we are trying to deal with the immigration aspects of human trafficking. We are not saying we are dealing fully with the issue in the Bill. We are building on the human trafficking legislation in place. Other legislation is also applicable in these instances. In the Bill we are trying to deal with the aspects of human trafficking that relate to the immigration process. There may be cases that have nothing to do with that process which is why we have separate legislation.

My strong advice is that the periods suggested are reasonable, that they are above the norm in other member states. I was hugely impressed by the amount of work being done by the new trafficking unit. We are producing an action plan, in conjunction with the public awareness campaign, on which notices first appeared in newspapers yesterday, linking with the experience in the United Kingdom.

Yesterday I attended a cross-Border meeting at which all the relevant agencies from the North and South were present, including the Revenue Commissioners, the Garda Síochána and the Police Service of Northern Ireland. Human trafficking was one of the core issues discussed. The provision under discussion deals solely with the aspect of human trafficking that has reference to immigration. We are not purporting that this is the sum total of our legislation.

From a procedural point of view, it is crazy that we are dealing with 34 amendments in this grouping. Many of them concern very different aspects of human trafficking victimhood. The Minister has referred to the 34 separate amendments but it is very hard to digest the responses he has made in respect of each and it is unfair to ask members of the committee to take them all in.

On victims of trafficking who are not from third countries, be they from Ireland or other EU member states, there is a void in the protection and assistance mechanisms. Protection will be provided in regard to third country nationals but victims from Ireland or other EU member states all require safe accommodation and legal assistance. There is, therefore, no provision in this legislation nor was there provision in the preceding legislation.

I acknowledge, as has the Minister and Deputy Rabbitte, the work and role of the anti-trafficking unit. Over time, it will build up considerable expertise in this area. I am sure it will be able to provide much better advice in the future on the provisions that need to be made in legislation. Ruhama, which has worked with the victims of trafficking for over eight years, is firmly of the belief that the reflection period needs to be three months. This is why I have tabled an amendment stipulating a period of 90 days.

Victims of trafficking, who are mainly women, are traumatised, afraid they may be deported and may not speak the language, yet they are supposed to explain their circumstances. It was clear from the media reports on the Kilkenny case that the information provided was not provided by the applicant but by both the judge and the garda. Everyone seemed to believe the person in question was a minor and a victim of trafficking, yet none of the provisions that should have applied in this case was applied. This highlights the weaknesses that exist at present regarding the statutory provision for such individuals.

The Minister's predecessor was adamant that we should not provide for victim protection in a criminal law Bill. Although the Opposition Members tried to make provision for it in the trafficking legislation, he was adamant it was not the legislation in which to do so. Rather, he argued the legislation in which to include such provision was the then forthcoming immigration legislation. We now have this legislation before us but the current Minister is stating provision should only be made therein in respect of third country nationals, and only then on very limited grounds.

An issue arises regarding EU nationals as there is no automatic right accorded to them to reside here or in any other member state. The stipulation that residency be dependent on assistance will be open to challenge. I argued while considering the last trafficking Bill that residency should not be dependent on assistance because it will put in doubt any prosecution taken on the basis of evidence provided by a third country national whose residency is dependent on the provision of assistance to the Garda Síochána. The evidence would be thrown out of the court. I may be wrong but this is my fear.

Will the Minister clarify what he regards as assistance to the Garda Síochána? Does it imply women must go through the court process by making statements and testifying? Can the process be limited to women talking to a member of the Garda Síochána for intelligence purposes, or talking to the relevant non-governmental organisations and giving permission that their information be passed on to the Garda Síochána?

Some women may not be in an appropriate psychological condition to provide assistance to the Garda Síochána. They may be too vulnerable or afraid that the trafficker might get his hands on them again, or that their families might be affected. In many cases of human trafficking, especially of minors, it is the victims' families who facilitated their being trafficked. The children may have been sold to a middleman or trafficker who facilitated their being moved from one part of the European Union to another, or to the European Union from beyond.

There were many cases in which the asylum process was abused for the purpose of trafficking, especially of minors. There was a case in Sweden in which 50 Chinese minors disappeared. When the trafficking ring was broken in that country, no Chinese minor disappeared from state-provided accommodation. With regard to the legislation before us, we spoke about the number of minors who have gone missing and have not been tracked. The Experts Group on Trafficking in Human Beings, established by the European Commission in 2003, advised in that year that those trafficked persons who do not wish to testify as witnesses or are not required as witnesses because they possess no relevant information or because the perpetrators cannot be taken into custody in the destination country, require equally adequate protection and assistance as victim witnesses.

There is no provision in the legislation for a victim of trafficking to be given temporary residence on the basis of pursuing a civil case against the trafficker or someone who is involved in exploiting that individual. It may be in regard to the issue of labour exploitation that the victim of trafficking may wish to take a civil case, but there is no provision for it. The only provision is in regard to the facilitation of the Garda Síochána. If someone has profited through labour exploitation, surely there should be a mechanism whereby the victim can pursue civil remedies. According to the draft legislation, a temporary residency permit may only be issued in the circumstances of facilitating the Garda Síochána. This falls far short of Ireland's obligations under the UN Covenant on Civil and Political Rights.

An issue also arises concerning children. Section 124(7) states:

Where the Minister is satisfied that—

(a) a suspected victim has severed all of his or her relevant connections with the alleged perpetrators of the trafficking, ...

In many cases of child trafficking, it is the parents who may be the perpetrators. Is that valid in determining whether their residency should be extended or renewed?

We all want to ensure that adequate provision is made for all victims of trafficking. As the Minister stated, this legislation is dealing with immigration but it should not solely deal with third country nationals. It must also deal with second country nationals. We must make statutory provision for all victims of trafficking and provide them with at least access to accommodation and legal advice which was not provided for in the recent trafficking legislation. We were led to believe we were going to have this all-encompassing provision made in this legislation. We now find it falls short of what we all thought would be included.

Will the Minister consider the submissions made by those working at the coalface of human trafficking? We do not want the repeat scenario of victims of trafficking being detained in the prison system because adequate provision is not being made for them elsewhere. In the Kilkenny case, the judge said the safest place for the minor to be held was prison, pending a decision. That is not adequate or acceptable, particularly following the enactment of the trafficking legislation.

I do not want anyone to think we were not taking this issue seriously. An interdepartmental high level group has been established to recommend the most appropriate and effective responses to trafficking in human beings. The Deputy calls for services for dealing with trafficking and its victims to be put into legislation. This is the idea behind the establishment of the interdepartmental group and the anti-trafficking unit. It aims to get an holistic response across the system, including State and non-governmental organisations.

The non-governmental organisations would be the first port of call for someone who was trafficked, and then the State. Human trafficking for labour exploitation would be examined by FÁS, the Department of Enterprise, Trade and Employment and other such agencies. Sexual exploitation would fall under the remit of the Garda and the HSE.

The high level group comprises representatives from all main Departments and public sector bodies. Roundtable discussions between governmental and non-governmental organisations are held every four months. In addition, five interdisciplinary working groups were established to progress matters and in return report to the high level group. They deal with the development of a national referral mechanism, awareness raising and training, child trafficking, labour exploitation and sexual exploitation.

The anti-trafficking unit was established in February. It is working with 50 stakeholders, nationally and internationally, to ensure the State responds to trafficking of human beings in a co-ordinated, comprehensive and holistic way. It is putting together a national action plan. It has had 110 meetings with stakeholders since February which shows how active it is. The national action plan hopes to focus on prevention and awareness raising, prosecution of traffickers, protection of victims and combating child trafficking.

I have no hard and fast views on the period for recovery and reflection. To be fair, when the Bill was drafted, the Department was trying to be reasonable in the circumstances. We do not want this provision to possibly become another spurious avenue. I am saying this as gently as I can. It may encourage people to allege they are a victim of human trafficking when they are not, giving them a greater opportunity to spend time in the State.

This is a difficult issue and I do not want the message to go out that we are going to extend the period. The 45-day provision was trying to take cognisance of what was in the Council of Europe convention. In other countries the periods are different. The Czech Republic, Moldova, Switzerland, Sweden, Latvia and Denmark allow for 30 days; Germany and Hungary allow for one month; Portugal and Estonia, 30 to 60 days; Finland, 30 days to six months; Poland, two months; Slovenia, 90 days; the Netherlands, three months; and Norway and Italy, six months.

I will consider this again on Report Stage. I would be amenable to raise the period from 45 days. I do not want to be seen to be cruel or difficult. The advice was that the 45-day period would be reasonable in the circumstances. If the six months were to be granted, it would only be reasonable that the individuals concerned would co-operate to bring the perpetrators of the crime to justice. It would also be renewable.

When it occurs in Ireland, the first thing many victims of human trafficking want to do is go home and get away from exploitation by or contact with the traffickers who are resident here.

That is not true for the cases in Ireland.

The exploitation could have started at home.

I accept it could have started at home but I think many of the victims would want to go back to their families.

The families may be the ones who sent them here in the first place.

I am not disagreeing with the Deputy. These are difficult circumstances. I am amenable to examining the 45-day provision again. The Deputy is correct but these sections were not of my doing.

Before I close the meeting, I extend my condolences and those of committee members to the Minister of State, Deputy Peter Power, on the recent death of his father.

Progress reported; Committee to sit again.
The select committee adjourned at 8.20 p.m. until 2.30 p.m. on Tuesday, 11 November 2008.