The purpose of the meeting is to resume consideration of the Immigration, Residence and Protection Bill 2008. Hopefully, we might complete it today. If we are not finished in time, does the committee agree that we adjourn for the Order of Business? I know the Minister has a particular interest, in the Order of Business today. Is that agreed? Agreed. If we can finish by then, all the better.
We were considering section 124, amendment No. 645 in the name of Deputy Naughten.
The last day I came in before we started on substantive amendments. I was going to give an overview. Perhaps I should give an overview again, in preparation for this debate. It helped the last day and we decided we might do it. It is somewhat long, but——
We are all ears.
——it might short-circuit the proceedings and facilitate a better understanding among members.
I have carefully listened to the Deputies and I appreciate the concerns raised. We all share the same overall objective. We want to ensure that Ireland shows appropriate firmness in dealing with the perpetrator and the necessary compassion for the victim. Accordingly, I want to address some of the specific concerns raised at our last meeting.
The approach being followed is a systematic one. There are two clear gaps in Irish legislation that had to be addressed. Most pressingly we did not have a criminal offence of trafficking. Second, our existing law lacked a provision that would safeguard the immigration status of those victims who were neither Irish nationals nor persons entitled to free movement.
The Criminal Law (Human Trafficking) Act 2008 has been fully operational since 7 June last. The Act provides for a number of offences pertaining to trafficking and provides for penalties of up to life imprisonment in respect of these offences. The Bill before us provides for certain immigration-related protections, dealing with the recovery and reflection period and temporary residence. To deal with this matter while we await the passage of the Bill, an administrative framework that broadly reflects the provisions of the Bill was put in place. It was introduced on 7 June, the day the Act was passed. That information is on the INIS website and I have copies with me for the information of the committee.
Legislation is only part of what is a multi-stranded solution. Many other things need to be done and we are working on the blueprint. In that regard an interdepartmental high level group has been established to recommend the appropriate and effective response. It comprises representatives from the main Departments and public sector bodies involved in this issue. Round-table discussions between governmental and non-government organisations are held every four months. In addition, five interdisciplinary working groups were established to progress matters and in turn report to the high level groups. The groups deal with the development of a national referral mechanism, awareness raising and training, child trafficking, labour exploitation and sexual exploitation issues. In addition, the anti-trafficking unit was established in February 2008.
As I said the last day, the unit is working with more than 50 stakeholders, nationally and internationally, to ensure that the State's response to trafficking in human beings is co-ordinated, comprehensive and holistic. A key element of the strategy is the development of a national action plan to prevent and tackle trafficking in human beings. The plan focuses on prevention and awareness raising, prosecution of traffickers, protection of victims and child trafficking. When finalised, the plan will record progress on measures taken to date and set out what needs to be done over the coming years. The aim of all this work is to ensure Ireland's response is appropriate to the nature and scale of the problem and in line with best international practice.
I am concerned there may be a misapprehension as to the genuine efforts that are being made to ensure that every available assistance is given to victims of trafficking. The measures I have outlined indicate otherwise. They may not be all legislatively based, but to my mind they are being done in the most appropriate manner. This is a suitable mix of legislative and administrative arrangements — with the administrative content capable of being adapted and added to from the experience we have gained in meeting the actual needs of victims.
Deputies raised concerns about linking a temporary residence permit to assistance given by a victim of trafficking in any investigation or prosecution. From a legislative perspective, I do not believe the provision is flawed by linking residence to assistance. This approach mirrors that in the EU directive. If a person wishes to assist the Garda authorities with regard to any investigation or prosecution, this permit will facilitate them in doing just that. Assistance in this regard has its plain meaning. It will be clear if a person is assisting or is not assisting. If a prosecution in the case is instigated, the victim will be, in general, in the same position as other victims when engaging with the criminal process. I use the phrase "in general" as I am aware that certain additional protections have been afforded victims of trafficking during that process, such as the anonymity provision contained in the Act. We must acknowledge the potentially vital role that assistance from the victim can play in bringing the perpetrator to justice, and the way in which such assistance may save others from a similar fate.
If a person has made an allegation of trafficking, which may include an accusation against a particular individual, and they decide they do not want to assist the authorities, then I do not believe the State should grant residence automatically within the framework of this provision. I do not intend to provide for a system whereby residence in the State is to be granted on the sole basis that a person makes a claim of trafficking and is then free to go down a path designed to help victims, without any further thought on whether there has been any validity to the claims made. It is an unfortunate fact of life that when we create a mechanism for dealing with genuine victims, there will be unscrupulous people seeking to exploit it, and we have to ensure our efforts in this area are not undermined.
This requirement does not stop me intervening where necessary in particular cases of possible hardship. If a person is incapable of providing assistance and there are compelling reasons for the grant of another form of permission, I can deal with that situation, and the Bill generally caters for that flexibility. It is simply the case that such a person will have been dealt with outside the framework of this section.
Particular concern was expressed regarding the application of our measures to EU nationals. I accept that an EU victim of trafficking should have no less protection than someone from outside the European economic area. My point is that they already have this protection and more. EU free movement rights are extensive with very strong safeguards. The holder is not in Ireland by virtue of a permission granted by the Minister but rather in exercise of a right as an EU citizen. The residence permissions set out in this Bill are appropriate only to those who would otherwise have no right to be here.
Deputies raised the issue of child trafficking. In earlier debates it was indicated to the committee that I would look again at the issue generally of the best interests of the child. I am doing that, in close consultation with the Attorney General, and I obviously will take account of child victims of trafficking in this context.
Deputies have also spoken about the 45-day recovery period set out in the Bill and have sought to have this increased. I have looked at this again. While Ireland's measure already exceeds not only the requirements of the convention but also what is provided by many other states, I am prepared to increase the period to 60 days, or double the period in the convention. This is a comprehensive, logical and systematic response to the issue of human trafficking. I think that Deputies would have to acknowledge that this is not the response of a Government seeking to avoid the issue, but rather that of a Government committed to doing what it can to stamp out the crime of people trafficking and to alleviate the consequences for victims.
I thank the Minister for his statement which provides some clarity to his position. We are all coming from the same perspective on these issues. It is a matter of how we feel they should and can be addressed. I welcome his comments about extending the recovery period to 60 days and I look forward to seeing it in an amendment on Report Stage.
I have a concern that I made clear on Committee Stage and Report Stage of the trafficking Bill. If residency is legally dependent upon assisting the Garda, does that not leave the evidence given by a victim of trafficking open to challenge? It would be in the victim's interest to give evidence against an individual because residency was dependent upon it. We do not want to see a situation arising where a victim of trafficking is prepared to give evidence that could convict an individual. It will be difficult to convict an individual for trafficking anyway, but such evidence could be challenged by the defence and we could lose the conviction on the basis that the person had a beneficial interest in giving evidence to the court. Can the Minister clarify that for me?
There is a separate issue when we consider a civil action taken by an individual against a trafficker. Article 6(6) of the UN trafficking protocol states: "Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered." There is no mechanism for compensation within the trafficking legislation. There does not seem to be legal provision within this Bill for a person to have even temporary residency pending the taking of a civil action against an individual. All of this is in the context of yesterday's launch by Ruhama of its advertising campaign which highlights the fact that there has been a significant increase in the number of women being trafficked. We also have concerns relating to children, and I know the Minister will deal with that on Report Stage. His predecessor was very clear on Committee Stage of the trafficking Bill on the matter of providing the time needed. The question of assisting the Garda was flagged at that stage.
There are restrictions on the freedom of movement of EU citizens. It would be the case that a person who was convicted of prostitution could be given a suspended sentence if he or she left the country for five years or whatever. As a result, the person would end up in his or her country of origin, where his or her family facilitated the trafficking in the first instance. I still have concerns that there are not adequate provisions within the free movement regulations to ensure a person in those circumstances would automatically be guaranteed residency in this country.
The issue of assistance is outlined in section 124(7) of the Bill, which states:
(7) 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, and
(b) it is necessary for the purposes of allowing the suspected victim to continue to assist the Garda Síochána or other relevant authorities in relation to any investigation or prosecution arising in relation to the trafficking,
then the Minister shall, either during the recovery and reflection period or following its expiry as the Minister considers appropriate, grant permission to remain in the State for a period of six months (in this section referred to as a "temporary residence permission") to the suspected victim.
This is not done to reward somebody or act as an inducement to give evidence. It is there to facilitate the ongoing investigation. We are trying to ensure that if a person has significant information that could lead to a prosecution, such information is available to the Garda. I cannot see how that could be construed by the defence lawyer for the perpetrator as in some way tainting the evidence or assistance of that person. It is merely to allow them. Let us suppose there are specific instances, even apart from this section. The Minister would have wide powers to grant temporary residence permission in other circumstances.
With regard to the civil action, people would be entitled to take the civil action from afar and they do not have to be present here all the time to take it. If there is a necessity for them to come back to Ireland, permission would be given under the existing legislation, which would not create a difficulty.
On that specific issue, the difficulty is, and the evidence we are hearing in regard to individuals who are trafficked is that in a sizeable percentage of the cases the family themselves are complicit in the trafficking taking place. If one has a situation where someone is taking a civil action and is returned to his or her country of origin, the family may not let the person leave the home jurisdiction to come back here to take the case. While the State would allow such people back in, they may not be able to leave their own country in order to take that case.
That is nothing to do with us. They could still take a civil action without even being present, although it would be preferable if they were present. However, that is a matter for them and their families, or whoever is preventing them from coming back. If they are only coming back for a court case, I do not see how anyone in their home country could prevent them. Perhaps I am misunderstanding the Deputy's point. It would be in their own interests if they were taking a civil action to come and give evidence.
The difficulty is that it is mainly women who are being trafficked and they have no more rights than stock in some parts of the world — that is the factual situation. They would need the permission of, for example, a family elder or husband in order to leave their community to come back to Ireland to take the case. The point I am making is that it may not be physically possible for them to return here to take the civil case, if they are sent home in the first instance, because the family itself may have been involved in the trafficking at the outset. If one talks to the non-governmental organisations involved in the whole area of trafficking, whether in regard to children or women but particularly children, with a sizeable percentage money has changed hands with family members.
If there are particular circumstances, there is legislative cover for the Minister to give permission in those circumstances so the person could come back, although I suggest this would only be an exception rather than the rule. It is not conceivable, given the length of time it sometimes takes for civil actions to go through the courts, to give a residence permission. To a certain extent, this might very well lead to an increase in the number of allegations of human trafficking.
I suggest this be left the way it is. It is clearly explicit in the law, not as an inducement but in order to allow them to assist, that they can have a period of six months, which is renewable. If there is any particular circumstance of hardship in any case, the Minister would be able to deal with that.
In regard to the free movement provisions for EU citizens, is the Minister satisfied there would not be a situation where someone could be forcibly removed or instructed to leave this jurisdiction? The reality at present is that Ireland, with a number of other EU countries, is trying to make provisions within the free movement regulations so that if someone is convicted of a serious offence that person can basically be shown the door.
In a case in my constituency last week where an EU national was convicted of a particular offence, the judge said he would suspend the final element of the sentence if that person returned home for a minimum period of five years. In current circumstances, without any changes in the free movement regulations, if, for example, a woman was convicted of soliciting, the judge could suspend the sentence on the basis of the woman returning home.
That is a judge using his or her own discretion, which a judge can do. It is to a certain extent an inducement for the person to go home. If the EU person said he or she would not go back to his or her home state, there is nothing the judge could do about it. There are very strict criteria in regard to the transfer of EU nationals back to their home states.
That is the case at present. However, we envisage or seek a situation where there would be more flexibility regarding the possibility of forcibly sending someone home to an EU member state.
In the EU directive, Article 27.2 states:
Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
In our own implementation of that, SI 656, European Communities (Free Movement of Persons) Regulations 2006, section 20, on removal from the State, states "Subject to paragraph (6), the Minister may by order require a person to whom these Regulations apply to leave the State within the time specified". It also lists conditions which are fairly onerous.
I know no one has been removed from the State in those circumstances to date. However, the Irish Government and a number of other governments at EU level are looking to have additional powers to send people home from Ireland, the UK or elsewhere to other member states. Whether they get those powers, we will have to wait and see, but——
If I understand him correctly, the Deputy is referring to a stated initiative of the French Presidency. That is something with which the French have a particular problem in that they have many EU nationals from other states in their prisons. The British would have the same view. It is not as relevant to our circumstances because we do not have as many but there are large numbers of persons of other member state nationalities in some of the bigger countries, particularly those that have mainland Europe borders. There is nothing concrete, however. It is only a stated aim of President Sarkozy.
Yes, but while the free movement regulations as they stand are pretty strong and it is very difficult to deport someone at present, circumstances could change. Should we not make provision within the legislation for EU citizens as well as non-EU citizens? That is my point.
Whatever about sending criminals home, we are subject to very stringent conditions. Forcing victims of trafficking back to their home territory would be a total non-runner.
Would it also not be a non-runner to see them imprisoned? They are being imprisoned at present. I cited the case that happened——
There may have been a misunderstanding in that case. I am not familiar with the case, although I have read about it.
No, I am referring to the case in Kilkenny about which I spoke at a previous meeting of the committee, in which it was believed by both the Garda and the judge that the woman in question was a minor and a victim of trafficking. Although both the Garda and the judge suspected this, she was sent back to the Dóchas centre at Mountjoy Prison. As this took place after the enactment of the trafficking legislation, it gives rise to fears that a similiar situation could arise even after the enactment of this legislation. At that time, the Minister introduced a scheme for such victims which is in line with what is being provided for in section 124 of this Bill.
While I do not disagree with the Deputy, this can be done in circumstances which are brought to the Minister's attention. The Minister has fairly broad discretion regarding the type of permissions he or she may give. As for the case in question, although I am aware of it from newspaper reports, to the best of my knowledge it has not come to my formal attention that any action was required. It may be that because the legislation only has been in place for a short time, people may not have been aware of its implications. However, I do not see what more can be done in respect of this item of——
This case has come to the Minister's attention since then.
It has not come before me personally. It may have been dealt with in the Department.
I hope it has been dealt with within the Department by now. If not, it would be extremely worrying.
In the aforementioned case, if, as the Deputy states, the person was genuinely wronged, there would have been an appeal. I do not know whether that has happened.
Before Deputy Rabbitte comes in, I remind members the select committee is discussing many amendments together. It is discussing amendments Nos. 646 to 666, inclusive, 668 to 673, inclusive, and 675 to 680, inclusive, together.
In respect of the area on which members are focusing at present, I welcome the Minister's decision to enhance the recovery period from 45 days to 60 days, which is a positive step. There are those who argue it is inadequate, given the nature of the phenomenon under discussion, but I accept this is a welcome step forward. Moreover, at the last meeting of the select committee, I welcomed the establishment of the anti-trafficking unit and the work it is doing. That said, it will be necessary to study the Minister's remarks before Report Stage because at a glance, other than this improvement, his statement appears to be more about outlining his philosophical approach to this criminal activity than necessarily conceding any of the amendments under discussion.
The Minister sets out his philosophy that he considers it entirely reasonable to link——
The fire alarm is sounding.
As I was saying before being rudely interrupted, the Minister set out in his statement that he considers it entirely reasonable that the provision should link residence to assistance. He goes on to state:
I do not intend to provide for a system whereby residence in the State is to be granted on the sole basis that a person makes a claim of trafficking and the person is then free to progress down a path designed to help victims without any further thought as to whether there has been any validity to the claims made.
What is the Minister's assessment of the degree of balance in this provision, given it seems almost tantamount to being contingent on the person co-operating with and assisting the Garda? For some of the reasons to which Deputy Naughten referred, this can be highly problematic. This business is murky and although one may hold the view that pimping is the lowest form of life, trafficking human beings, young women in particular, certainly is the lowest form of life.
How far does the presumption of assistance and co-operation operate? It would not be unusual that the young woman or girl concerned would be terrified out of her mind having reflected on the situation and having been able to enjoy the period of recovery provided by the Minister in the Bill. She would not deem it to be in the interests of her personal safety to continue to assist the Garda.
Any matter of this kind would be adjudicated in the courts but the Minister stated that residence in the State should not be granted on the sole basis of a claim of trafficking. While no one takes exception to this intention, judging a claim's validity could be difficult in certain circumstances. In terms of human nature, it would be perfectly understandable that a person rescued from these circumstances and given time to get her act together might decide not to co-operate with the Garda for fear of the consequences. That person would inevitably and inexorably be heading for the exit.
If a claim is successfully prosecuted without the woman's assistance, what would her standing be? Does the State believe that her rights will have been vindicated, the crime will have been established, the perpetrator will have been convicted and she will have returned to her country of origin?
What is the point in granting temporary permission to a trafficked person if it is not done on the grounds outlined in the legislation, namely, to assist the Garda in bringing the perpetrators of a crime to justice?
It is the only decent, humane intervention that the State could make.
I am discussing this section in particular. The legislation is replete with circumstances in which the Minister has the discretion to give residency permission. Subsection (2) states:
This section applies to a foreign national in respect of whom a member of the Garda Síochána not below the rank of Superintendent—
(a) considers that there are reasonable grounds for believing that he or she is a victim of trafficking...
Is the Minister referring to section 124?
Yes. When a garda not below the rank of superintendent is of the opinion that the person was subject to trafficking, temporary permission will be granted to allow the Garda to assist. It is in the interests of the State and not just the victim to bring the perpetrators to justice because they may still be in the country or another nation, including an EU member state, may wish to extradite them. It is not unreasonable that the section links temporary residence with co-operation with the Garda if the superintendent is of the opinion cited.
No one objects to co-operation with the Garda being facilitated in the Bill. In an ideal world, everyone in the circumstances in question would assist the Garda in bringing cases to trial. In other circumstances and on mature reflection, a person may believe that she is putting her life or safety at risk of retribution by co-operating with the Garda. She may decide not to proceed. I am raising the question of balance of judgment in that situation.
I understand that. For that reason the legislation provides me with a broad discretion to grant temporary permission in particular circumstances. Instead of section 124, this discretion could be used in the situation cited.
I accept that there is provision elsewhere in the legislation, but the provisions that will be considered in respect of victims of trafficking will be section 124 and the trafficking legislation. If someone does not meet the criteria laid out in the section, there is no guarantee that the case will be brought to the Minister's attention. One would hope that it would be brought to his attention in all circumstances, but the Minister stated that the Kilkenny case was not brought to his attention. The legislation was newly in force, but there is nothing to say that another victim will not slip through the system.
It is important to remember that those facilitating the abuse are our citizens. For example, one citizen creates the demand for human trafficking, particularly for sexual exploitation. There is an onus on the State to ensure that victims are given ample opportunity for full recoveries and to weigh up whether returning them to their homes, within or without the EU, is in their best interests.
Where there is no clear statutory provision, people will slip through the cracks. Unless statutory provision is made via this amendment or otherwise, free legal aid and other basic entitlements will not be made available in all cases.
We are losing sight of the fact that under the primary legislation, the interdepartmental group and other work, all of the services in question will kick in if a superintendent expresses the opinion that a person has been affected by human trafficking. The case can be dealt with under the provision on a period of reflection and recovery and, if necessary, the renewable temporary residence permission. The latter is conditional on co-operation with the Garda, although not necessarily in a prosecution. For example, it could involve the giving of a statement to the Garda at the start of proceedings. However, the person may not be the main focus of the prosecution's evidence, as the DPP could decide that one victim is more important than another.
Deputy Naughten stated that everything should be black and white. This section tries to be reasonably clear while the rest of the Bill allows for broad ministerial discretion to cater for circumstances not addressed in this provision. I cannot see what more I can do. I cannot remove from the legislation some requirement of the victim to assist the Garda Síochána. Ultimately, we have the same goal of stopping trafficking. If we were to allow situations where there is no incentive for victims to co-operate, it would be difficult for the Garda Síochána to bring prosecutions.
Section 124(10)(b) refers to a sanction for a person not co-operating with the Garda Síochána, which is revocation of the temporary resident permission and states: “the suspected victim no longer wishes to assist the Garda Síochána or other relevant authorities in relation to any investigation or prosecution arising in relation to the trafficking of the suspected victim,”. That is tantamount to the sword of Damocles hanging over that person, suggesting the person should co-operate or else.
It is only in reference to this section and it is a standard provision for any permission granted, that it may be revoked in certain circumstances. One cannot legislate for every circumstance but there is broad provision elsewhere in the legislation to take care of a situation where the person is not able to assist for some reason, such as fear. The Minister can use discretion to allow the person to remain. It is not absolute.
Where is that stated in the Bill?
It is in the trafficking directive, a Council Directive 2004/81/EC of 29 April 2004, which states:
The residence permit may be withdrawn at any time if the conditions for the issue are no longer satisfied. In particular, the residence permit may be withdrawn in the following cases:
(a) if the holder has actively, voluntarily and in his-her own initiative renewed contacts with those suspected of committing the offences referred to in Article 2(b) and (c); or
(b) if the competent authority believes that the victim’s cooperation is fraudulent or that his/her complaint is fraudulent or wrongful; or
(c) for reasons relating to public policy and to the protection of national security; or
(d) when the victim ceases to cooperate; or
(e) when the competent authorities decide to discontinue the proceedings.
There is provision for revocation under the Council directive, under which most of our legislation is based.
I appreciate that is the paternity of the section but the Minister referred to his discretion to permit the person to remain. Where is that in the Bill?
The Bill is replete with ministerial discretion to grant permission. That is still the case and was the case before this Bill.
Does that apply outside the section now under discussion?
Yes. The Supreme Court decision in Bode v. The Minister for Justice, Equality and Law Reform and Others stated that the Minister had discretion and that residence and naturalisation was in the gift of the State.
My concern is that it is not accepted by the Department that there could be, and probably will be, circumstances where a person rescued from oppression such as trafficking would decide that she is exposing herself to mortal harm by assisting the Garda Síochána once she had time to reflect and recover.
I am thinking off the top of my head and the following is subject to what the Chief Parliamentary Counsel will say. The decision in the Bode case more or less gives the Minister complete discretion in the granting of permission. This is designed specifically in response to one circumstance, trafficking, to try to deal with the victim and follow the trafficker. Perhaps we could insert an additional clause, saying that if there are exceptional circumstances in the opinion of the Minister, his discretion under this legislation can be used. I am not certain it is possible to draft that but we can examine it.
That would be helpful if it can be done.
It is suggested to me that we could insert a clause stating that this section is without prejudice to any other power of the Minister to permit a permission to enter or remain in the State. We could include something along those lines.
Suppose we look at the case the other way around. If a person gives every co-operation to the Garda Síochána and the case fails for some other reason or the perpetrators are convicted and imprisoned. The victim may have exposed herself to terrible retribution that may be visited on her, notwithstanding the fact that the person with closest proximity is in Mountjoy Prison, because of the evil nature of the networks we are dealing with. She is still exposed to retribution.
That is why I say one cannot look at this in isolation. When the superintendent gives the opinion that this person is a victim of trafficking, one must understand that if we implement the human trafficking legislation properly, all services available to the victim will throw up the circumstances articulated by Deputy Rabbitte. Even before this Bill, legislation was replete with the ministerial discretion in granting permission. If a superintendent says that we cannot enforce section 124(7) because of the particular circumstances, the Minister would use discretion. We will ask the Chief Parliamentary Counsel to insert a provision that will cater for the circumstances outside this, such as the legitimate concerns that Deputy Rabbitte raises.
Can we move on? We have spent two hours on this section.
I thank the Minister for his movement on that matter. Regarding amendment No. 659, the Minister says that the amendment seeks non-removal while a determination is made on whether the reflection recovery period will be granted. I cannot see why we could not ensure someone would not be removed while that decision or determination is being made. I presume a relatively quick decision would be made by the Garda superintendent.
Amendment No. 660 proposes to delete section 123(7)(a), requiring the Minister to grant six month temporary residence even where the victim retains connections with the trafficker. Last week I flagged a situation where the victim is a child and the perpetrators may be the child’s parents. It is virtually impossible for that child to sever all connections with the family members. Amendments Nos. 679 and 680 are self-explanatory. To return to the point I made earlier, there should be an outline of the benefits and entitlements to which a trafficked person should be entitled. We should have statutory provision for this.
The Minister made the point that amendment No. 677 appears to disregard the fact that the best interests of the victim may well be to return to his or her family. I make the argument that in many cases the worst thing that could happen is that the person is returned to his or her family.
The Minister has made the point that he believes amendment No. 678 is unnecessary. This amendment is important because it lays out a defence against an offence under section 4(3) of the Bill. It sends out a clear message to victims of trafficking that if they come forward and tell their story to the Garda they should not live in fear that they will be deported under section 4(3).
It is difficult for members of the Garda Síochána to investigate various offences which involve undocumented migrants whether they legally or illegally entered the State. Those who are undocumented are not prepared to come to the attention of gardaí because they are afraid they have committed an offence under existing immigration legislation which is far less onerous than committing an offence under section 4(3).
Accepting amendment No. 678 would send out a clear message to a victim of trafficking that a garda's first action will not be to examine a breach of immigration status and that the claims he or she makes are serious and need to be fully considered by the Garda Síochána.
I cannot go any further. I put on the record my views on each of these amendments. Amendment No. 659 seeks to provide that a suspected victim shall not be removed from the State while a determination is made as to whether the period of recovery and reflection is granted and I cannot accept it.
Why can the Minister not accept it?
Section 124(6) states:
A suspected victim shall not be removed from the State for so long as his or her recovery and reflection period remains in force.
One can put it no further than this.
We are discussing what happens before the determination is made.
I do not see what more the Bill can state.
Last week, the Minister stated the amendment seeks that a person not be removed while a determination is made as to whether a recovery and reflection period will be granted.
Yes.
I accept that when it is in force the person cannot be removed from the State. However, this amendment is with regard to the recovery and reflection period. I cannot understand why——
This is all predicated on section 124(2) which states:
This section applies to a foreign national in respect of whom a member of the Garda Síochána not below the rank of Superintendent--
(a) considers that there are reasonable grounds for believing that he or she is a victim of trafficking (in this section referred to as a “suspected victim”), and
(b) has provided a statement in writing to the Minister to that effect.
Section 124(6) applies to a foreign national covered by section 124(2).
Amendment No. 660 relates to Article 8 of the EU directive. Section 124(7) is designed to mirror Article 8 which states:
Issue and renewal of the residence permit
1. After the expiry of the reflection period, or earlier if the competent authorities are of the view that the third-country national concerned has already fulfilled the criterion set out in subparagraph (b), Member States shall consider:
(a) the opportunity presented by prolonging his/her stay on its territory for the investigations or the judicial proceedings, and
(b) whether he/she has shown a clear intention to cooperate and
(c) whether he/she has severed all relations with those suspected of acts that might be included among the offences referred to in Article 2(b) and (c).
2. For the issue of the residence permit and without prejudice to the reasons relating to public policy and to the protection of national security, the fulfilment of the conditions referred to in paragraph 1 shall be required.
3. Without prejudice to the provisions on withdrawal referred to in Article 14, the residence permit shall be valid for at least six months. It shall be renewed if the conditions set out in paragraph 2 of this Article continue to be satisfied.
What happens if a child is in these circumstances?
The child would be under the care of the HSE no doubt.
We will definitely not open up that can of worms again. I presume the child would still have some rights with regard to contact with the parents if he or she so wished. However, such contact would be in breach of the conditions set out in the Bill. If the parents were the perpetrators, the child would not have severed all links with the perpetrators and may not be entitled to the period as set out in the Bill.
The Deputy must look back to the primary legislation which is the Criminal Law (Human Trafficking) Act 2008. Under this Act the interests of the child must be taken as paramount. In all circumstances a suspected victim severing all connections is a purposeful act. A child would not sever connections with his or her parents and no court could exclude a child from the provisions of this if he or she did not comply with it. I do not see how it could.
Can we move on?
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 should exist. At this stage, the person is not lawfully in the State.
I know he or she is not lawfully in the State but the difficulty is that we have had several cases where people have been imprisoned who would, if the legislation were in place, fall into the protection category. However, they have been imprisoned for being unlawfully present in the State. We do not want to see a victim of trafficking ending up in prison because he or she breaches section 4(3) of the legislation.
This applies to a person who is a former victim of trafficking. In most cases, the people involved will go home. If the amendment were accepted it would mean the person would be able to remain in the State ad infinitum.
We will move on.
I move amendment No. 650:
In page 131, subsection (2)(a), lines 10 and 11, to delete all words from and including “(in” in line 10 down to and including “victim”)” in line 11.
I move amendment No. 653:
In page 131, subsection (3), line 15, to delete "suspected victim" and substitute "foreign national".
I move amendment No. 657:
In page 131, subsection (5), lines 33 and 34, to delete "suspected victim to any right" and substitute "foreign national".
I move amendment No. 658:
In page 131, subsection (6), line 36, to delete "suspected victim" and substitute "foreign national".
I move amendment No. 661:
In page 131, subsection (7)(a), line 39, to delete “suspected victim” and substitute “foreign national”.
I move amendment No. 663:
In page 131, subsection (7)(b), lines 42 and 43, to delete “suspected victim” and substitute “foreign national”.
I move amendment No. 665:
In page 132, subsection (7), line 3, to delete "suspected victim" and substitute "foreign national".
I move amendment No. 666:
In page 132, subsection (9), line 8, to delete "suspected victim to any right" and substitute "foreign national".
Amendment No. 667, in the name of Deputy Naughten, is out of order.
I move amendment No. 669:
In page 132, subsection (10)(a), line 12, to delete “suspected victim” and substitute “foreign national”.
I move amendment No. 670:
In page 132, subsection (10)(b), line 15, to delete “suspected victim” and substitute “foreign national”.
I move amendment No. 671:
In page 132, subsection (10)(b), line 18, to delete “suspected victim” and substitute “foreign national”.
I move amendment No. 674:
In page 132, subsection (10)(e), lines 23 and 24, to delete all words from and including “public” in line 23 down to and including “public”)” in line 24 and substitute the following:
"national security, public security or public order, or necessary for reasons of public policy ("ordre public”),”.
Amendments Nos. 681 and 682, in the name of Deputy Finian McGrath, are out of order.
Amendment No. 685 has already been discussed with amendment No. 319.
I move amendment No. 685:
In page 132, between lines 44 and 45, to insert the following subsections:
"(5) Before the Minister makes regulations or orders under subsection (4), he or she shall:
(a) publish in such manner as he or she sees fit draft regulations for public consultation;
(b) allow a period of at least two months in which responses to the consultation may be submitted; and
(c) have regard to responses submitted during the period referred to in paragraph (b).
(6) Subsection (5) shall not apply where there are compelling reasons of public security, public policy or public order why this would not be appropriate.”.
This amendment is concerned with the making of regulations and orders. With what was amendment No. 319 concerned?
This amendment is about the publication of regulations in draft.
I know what my own amendment is about. I am trying to understand its connection with amendment No. 319. I did not realise we disposed of it when discussing amendment No. 319.
Amendment No. 319 reads as follows:
In page 63, between lines 40 and 41, to insert the following subsection:
"(4) Every regulation made under subsection (3) shall be laid before and approved by each House of the Oireachtas, prior to its enactment.”.
That amendment was tabled by Deputy Naughten. I am not sure what we did with it.
The point of my amendment is to seek to have some measure of consultation and to have a deadline period by which the order would be returned. Given that there is such wide scope for regulation and order throughout the Bill but no policy guideline in it, the idea is that the Minister should publish the order or regulation in draft form, allow a brief period for consultation and then lay his order before the House. My amendment expressly provides under subsection (6) that if there is a matter of public security involved, the Minister would be exempt from that requirement.
We discussed this at length previously. While we have no problem with the issue of consultation, we do not want to be held to it on a mandatory basis. I have agreed to consult widely before preparing regulations.
It may be of assistance to Deputy Rabbitte to know that Deputy Naughten withdrew his amendment at the time.
Force majeure, Chairman. I may withdraw the amendment but would like to revisit it on Report Stage because there is an issue to be resolved. The Minister commits himself in policy terms to consulting but one is fearful that the very draft that would be critical would not be the subject of consultation and would be in the House in the normal way and could be enacted without anybody in the House being aware of it.
Is the amendment being withdrawn?
Regulations will always be laid before the Houses of the Oireachtas. That is a requirement in every instance.
I appreciate that but what would happen if we were not in session, for example? In my time in the House I have rarely seen an order being the subject of an actual vote in the House to reject it, which is the facility that exists.
There is a positive assumption.
Yes, and the time limit is 21 days.
One would not do that in every instance, it must be said. It would only be done for major regulations or orders. At least, that has been the normal practice. I was told recently that there are something like 200,000 regulations to be translated into Irish. Of that total, only a tiny proportion have been approved by positive motion.
The chances of it being picked up are slim. The role of regulation is so important in this Bill and so many matters are left to regulation or order that they should be put out for response for a short period. My amendment only commits the Minister to have regard for the feedback. He will not be required to accept whatever is submitted by way of consultation.
I move amendment No. 687:
In page 133, subsection (1), line 13, to delete "may" and substitute "shall".
This amendment provides clarity to the legislation and I hope the Minister can accept it.
The strong advice I have received is that I should not accept the amendment on the basis that the original wording is permissive rather than mandatory. It is accepted that the Minister would make regulations but the mandatory aspect causes difficulties.
The mandatory aspect is important. Even though we have spent 13 days on Committee Stage discussing the Bill line by line, Opposition members are not yet any wiser about the type of immigration system we will have at the end of this process. It is important that clear regulations are set out for these objectives.
I move amendment No. 692:
In page 135, before section 128, to insert the following new section:
"128. — Where travel documents are presented to the Minister, to an official acting on behalf of the Minister or to an immigration officer and where there is no restriction on the person entering or leaving the State, the documents—
(a)shall be returned to the person within 48 hours,
(b)may be copied in any practicable form for the purpose of fulfilling any provision in this Act.”.
I hope the Minister can accept this new section. Where applications have been submitted and people are awaiting the return of documentation, the technology is available to make copies, either digitally or electronically, so that the originals can be returned. Once the decision has been made, the officials could invite the individual concerned to Burgh Quay to affix the necessary visa to his or her travel document. I have encountered cases in which the Department retained passports for several years, which is not in anyone's interest. This is an important provision which needs to form part of the legislation. In many cases, the documentation is submitted to the immigration officer in the local Garda station or at district level, where facilities are in place to scan documents. The original documentation should be returned pending a determination on an application. Perhaps the Minister can outline the number of cases in which passports and other documents are held for lengthy periods of time.
I am not sure whether we have the statistics the Deputy has requested. Travel documents are normally presented on arrival and when permissions are being renewed. In the vast majority of cases, they are processed on the spot and returned promptly.
In regard to protection applicants, travel documents are retained on an applicant's file pending the determination of a protection claim. Most protection applicants do not produce travel documents and in some cases false documents have been used to gain entry to the State. It is, of course, proper that false documents should be retained. Travel documents which are presented by protection applicants are at present held with the applicant's file by ORAC because such documentation forms part of the assessment of the applicant's case for protection. It is always open to the protection applicant to request the return of a document.
While it should be noted that under section 68(5) of the Bill a protection applicant cannot leave the State without the consent of the Minister, in the appropriate circumstances the document could be returned to the applicant or a copy provided to him or her.
Why should a valid travel document not be returned to the applicant? I can understand why a false document should be retained but cases have arisen whereby travel documents were held for a period of time. I do not see the reason for this in respect of genuine travel documents. The technology is now available to scan individual pages to file without the need to retain documentation.
I refer the Deputy to section 68(5), which states that a protection applicant shall not attempt to leave the State without the Minister's consent. A protection applicant comes to Ireland to claim protection, so if he or she arrives with genuine documents, they will be held. This is rare, however, because most people who arrive to claim protection are carrying false documents.
I accept that the documentation provided by protection applicants may not be genuine in the majority of cases but I do not see the purpose of retaining genuine documents. Surely, they could be returned to the individual concerned. This issue does not arise solely in respect of protection applicants because documentation can be held in other circumstances. Documents are often withheld due to processing delays and I ask why they cannot be returned more quickly. I understand that a passport would have to be submitted for a visa to be affixed to it but why not provide for copies to be made in other circumstances?
If a person submits documents based on the application he or she is making, it is only reasonable that they be retained on file while the determination is being made. The passport can be and is returned to the applicant if requested, for example if required to travel before the application is decided on, but must be resubmitted later in the procedure. Applicants for visas must also submit their passports with their applications so that their authenticity can be verified and so that visa stickers can be placed in the passport of successful applicants. All these travel documents are required to verify the validity of the person's application.
While I accept that must be done, surely it can be done in a period of 48 hours.
The vast majority of cases are processed on a turn-around but there are exceptions and that is why, while the application is being decided upon, for protection they must retain the travel documents on file.
Somebody could apply for a visa where the travel document is taken and is not returned within 48 hours, and that person may need the document for business.
There is a distinction between protection applicants and ordinary migrants into the country.
Yes, but not regarding this amendment.
Yes, and that is why in protection applications there is a greater onus on us to verify the validity and hence the requirement to have the travel documents on file. If they are no longer required they are returned to the person.
No, they are not. That is not what the Minister said earlier. He said they are held on file until the applicants request them.
That is while the application is being made, but once the application is determined they would be returned, in the normal course.
Yes, once the application is determined——
There are practical difficulties. The fact that there is no deadline leaves the person exposed. We have had more blatant cases. The Immigrant Council of Ireland has recently written to the Minister about the case on RTE last week about an Irish citizen arrested by the Garda on a road traffic matter. Despite his protestations and production of documents he was detained in Kevin Street. The Garda press office told "Liveline" he was being detained under section 12 of the Immigration Act. An Irish citizen cannot be detained under section 12 of the Immigration Act, but he was. Only when his wife was located and arrived with his passport was he released without charge. Strange things happen out there. In that case the person was an Irish citizen with all the confidence that brings. Notwithstanding that, he found himself in the circumstances described to the Minister in the letter from the Immigrant Council of Ireland.
That is not germane to this issue. The idea of somebody claiming protection here in Ireland is for that good and valid reason. That is why under section 68 in our legislation they are not permitted to leave the State without the consent of the Minister.
Let us park the issue of protection and deal with other applications.
In other applications the documents are returned.
Not necessarily within a 48 hour period.
It depends on how long the application takes.
Exactly.
Putting in a time limit will cause a bureaucratic nightmare in that cases will have to be decided within 48 hours.
No, they will not. That is what I am saying in this amendment. The decision does not have to be made in 48 hours but the original documentation has to be returned within 48 hours.
If it happens over a weekend they may have to call in the Garda to verify the authenticity of the passport, but would have given the original document back and would only have a photocopy on file.
That can be addressed by saying two or three working days. The principle of what I am talking about is——
I would be always very reluctant to put in time limits in such instances because with the best will in the world people try to make decisions quickly, but there may be very valid reasons they cannot. They may need to make an inquiry abroad on where this person came from. Putting it into law is being a little too bureaucratic.
I accept that, and that is not the point I am making. I am talking about the documents. The decision can take several days, weeks or years, but the original documentation should not be held by the Department pending that decision. Earlier I mentioned cases where travel documentation with visas to other countries, for example the United States, went missing while in the possession of the Department. People lost their visas to the UK or the US. If a visa must be affixed to it, there are issues. However, I am talking about the principle. The Minister might be able to come up with better wording and make provision for the checks and balances. I am not talking about the decision being made within 48 hours but the original documentation being returned to the individual. The Minister may want to say documentation can be returned to the individual after being verified as genuine.
That might seem very well in general, but in specific cases this could throw up unforeseen circumstances such as a judicial review of a decision. Our people would not have on file the documents upon which they made the decision. They must have the ability to retain documents until decisions are made and not challenged.
Is it not adequate to return the original documents after a reasonable period and retain copies while the decision is being made?
Generally, yes, but if there is a court challenge the original document would be needed. If it was suggested or it was part of our case that there was fraud involved, they would have to have proof. Otherwise, they would give away an opportunity to drive a coach and four through the procedure.
The Minister is basing that on the assumption that the document is flawed.
Yes, we have to think of the worst case scenario. If we put the return of documents within 48 hours, three working days or whatever into legislation, it will negate the State's opportunity to plead its case eventually if it is queried later. I am guarded about putting it into legislation. There is an understanding that once applications are decided, documents should be handed back as quickly as possible, provided no fraud is involved.
Yes. That is a given with what I am talking about here. I will re-examine it and redraft it for Report Stage.
Amendments Nos. 693 and 694 are related and will be discussed together.
I move amendment No. 693:
In page 136, lines 9 to 23, to delete subsections (3) and (4).
Millions of foreign nationals enter and leave the State with the minimum of fuss each year. They pass through the immigration controls as they would in any other country and are not in the least put out by having to present to immigration officers or being examined for immigration purposes. That is the nature of immigration worldwide. A relatively small number of foreign nationals are, by their actions and associations, of concern from a security perspective and their movements need to be monitored. I refer Deputies to the recent Supreme Court decision of Mrs. Justice Susan Denham in the Bode case, which restated the responsibility of the State for the executive functions vested in the Government to operate immigration controls in the interests of the common good. It is undoubtedly in the interests of the common good that the persons who constitute a threat to national and public security or public order or policy should be refused entry or, if granted entry, be subject to strict conditions.
Decisions under section 129 will normally be based on intelligence and it will not be desirable in all cases to provide that intelligence to the person affected by the decision. Similarly, it will not be desirable to have the detail of matters of national security aired in the courts. Section 129 is intended to provide the necessary safeguards in this respect.
These provisions are necessary in the context of protection of the common good and the amendments would remove that protection. In the circumstances, I cannot accept the amendments.
Amendment No. 698 is cognate to amendment No. 697 and the amendments may be discussed together.
I move amendment No. 697:
In page 136, subsection (1), line 24, to delete "1997 to 2003" and substitute "1997 and 2003".
These are purely drafting amendments.
I move amendment No. 698:
In page 136, subsection (2), line 28, to delete "1997 to 2003" and substitute "1997 and 2003".
We have been going out of our way recently to exclude the Freedom of Information Act from application in certain circumstances where I believe public policy would benefit. The philosophy here is to do this precisely. No decision on a protection applicant, even where the name is blanked out, can be made available under the Freedom of Information Act. I do not know why this should be the case.
In the main, my proposal with regard to the non-application of the Freedom of Information Act in the asylum area simply maintains the status quo. The reason is that the Office of the Refugee Applications Commission, ORAC, or the Refugee Appeals Tribunal, RAT, are already outside the scope of the Act.
The question of the application of the Freedom of Information Act to ORAC and RAT and the reasons for not doing it to date have been the subject of examination and re-examination at various times in the past. The issue of keeping what we are now calling the area of protection outside the FOI Act was considered again by the Government prior to the publication of the Bill. In the Government's and my view, there are strong reasons for not bringing this area within the scope of the FOI Act. I will draw the Deputy's attention to some of them.
The information in a person's file is, in the main, personal information regarding the applicant. Under the existing system, this information is made available as a matter of course or routinely to applicants at both ORAC and RAT stages and with regard to judicial review proceedings. As this practice will continue under the new single procedure and the PRT processes, the public interest in knowing that a fair asylum process is in place will continue to be served. It will also ensure transparency and accountability, so one of the principal objectives of the FOI Act are being addressed.
The necessity to devote resources to dealing with the FOI requests where an overwhelming majority of the information held is personal would detract significantly from the core function of the Minister and the PRT under the Bill of fair and speedy decision making and, therefore, the efficiency of the asylum process.
The principle of confidentiality is one of the key elements which must be respected in regard to asylum and protection applications. As such, any possibility that information provided by protection applicants would not remain confidential could have very significant detrimental effects on the integrity of the determination system.
There are practical difficulties associated with applying FOI Acts and the single procedure in the PRT areas. For example, there is processing of FOI requests of personal information which centre on the need to potentially consult with persons who are no longer resident or present in the State by virtue of having been removed from the jurisdiction on foot of a deportation order or an EU Dublin II regulation transfer order, or having evaded such orders.
As a part of a quasi-judicial body in the same way as the RAT, there is no basis for bringing it within the FOI. The single procedure process to be introduced under the Bill includes the "leave to remain" element, which is currently within the scope of the FOI Acts, and this is why I am seeking to extend the scope of the non-application of the FOI Acts under the Bill. The integrated nature of the single procedure framework would not allow the non-application sought to work otherwise.
I appreciate the concerns which have been expressed that these proposals will keep a major area of Department activity outside the FOI, but the reasons for so doing are very strong. There are other issues regarding access to information through the use of the FOI Acts, as it could be used in circumstances which would make it difficult for decision makers. This type of information could be used in an unscrupulous manner. There are difficulties in that it is personal information, which is not normally let out under the FOI Act.
It is not required to let out personal information, as the name of the applicant can be blanked out. There are plenty of precedents for this. The import of this restriction in Freedom of Information Acts is undesirable and is more reflective of a particular philosophy. I will study the Minister's reasons but none of them is especially weighty. I do not know how, given access under the FOI Acts, efficiency would necessarily be hindered. I do not take the arguments about confidentiality and personal information too seriously as there are ways around that.
We agreed earlier that we would break for the Order of Business in the Dáil and the Minister would like to be there for Leaders' Questions because of what has happened lately in his area of responsibility. I suggest we suspend until after the Order of Business. I hope we will be in a position to complete consideration of the Bill then.
I have a parliamentary party meeting immediately afterwards.
We do also.
Mine will be much less exciting.
We could return at 6.30 p.m. or 7 p.m.
We can return after the Order of Business if people are in agreement.
Perhaps we can come back then.
I hope this is the last time we will reconvene on this legislation. Deputy Rabbitte was in full flow when I stopped him. I am sorry.
The only point I had to make on the section was that I did not think there were compelling arguments for these restrictions on the application of the Freedom of Information Acts. It would be important, healthy and positive for public policy if these determinations were subject to the Freedom of Information Acts 1997 to 2003, or however we have now amended them. I did not find the arguments advanced by the Minister weighty. We are putting into law an impediment in the way of any future Minister who wishes to extend any part of the Freedom of Information Acts to certain types of application. It is a permanent barrier. It is an over-the-top reaction and I do not think it is necessary.
I can explain it no further. I may have surprised Deputy Rabbitte previously in the Dáil Chamber when I intimated that I was definitely the only Minister who had ever been served with 20 days' notice under the Data Protection Act for giving too much information under FOI. When I was Minister for Communications, Marine and Natural Resources, I put what the Data Protection Commissioner regarded as too much information on the Department website and the commissioner threatened to take me to the Circuit Court. I must say I faced him down and eventually the issue was settled to my satisfaction. Far be it from me to be against FOI; I have always believed that we should operate with maximum transparency.
However, in any Department in which I have ever been — I accept I am in a different Department now, so the Deputy need not raise that with me — the issue of making personal files available under FOI to people other than the person to which they pertain has been a serious one. None of the personnel files is allowed out across Departments and for the life of me I cannot think of an instance in which a file on a particular applicant can be obtained under FOI by the wider public. I can see a valid reason for this. Under this legislation every applicant is entitled to see his or her own file, but that it as far as it goes.
That is with regard to both protection and immigration.
I would certainly never accuse the Minister of having an illiberal disposition. That would be very serious. We will move on.
I move amendment No. 699:
In page 136, subsection (1)(f), line 35, to delete “5” and substitute “5, 9 and 10”.
By this I mean that not only section 5 should be deleted but also sections 9 and 10. All three are redundant and should be included for the purpose of completeness.
It is a technical issue. Sections 9 and 10 of the Act, as amended, are spent and do not require to be repealed by section 131. I intend to bring forward provisions on Report Stage to give effect to the terms of Article 27 of the Schengen Agreement, the EU directive on the framework decision on facilitation of illegal entry, transit and residence, and the protocols to the UN convention on transnational organised crime which deal with the smuggling of migrants. These provisions will result in the total repeal and replacement of the provisions of the Illegal Immigrants (Trafficking) Act 2000.
That broadly meets the case.
I move amendment No. 700:
In page 137, subsection (7), line 43, after "State" to insert the following:
"(save where he or she is a suspected victim of trafficking or a suspected separated child within the meaning of this Act)".
Does the Deputy wish to speak to this?
I wish to hear what the Minister has to say.
The purpose of section 132(7) is to provide a transitional provision whereby a person who is at the date of the commencement of the Act unlawfully present in the State under the existing immigration laws will continue to be unlawfully present in the State. There is no need to make provision for victims of trafficking or separated children in this context. The Bill contains adequate provisions, at sections 24 and 124, and the protection provisions in Part 7 for dealing with these categories of persons. In the circumstances, the amendment proposed is unnecessary.
Is the Minister satisfied that there is adequate provision with regard to those categories? While we are discussing this issue, perhaps the Minister might give the committee an update with regard to the bridging visa. A number of people are very anxious about this.
Work is still going on and will probably be completed in the next few weeks.
Will the Minister inform the committee when it is available and what the criteria are in respect of this visa?
Yes.
How stands the amendment?
Amendments Nos. 701, 702 and 704 are related and may be discussed together by agreement.
I move amendment No. 701:
In page 141, lines 51 to 53, to delete subsection (2).
I do not see why we must write into the legislation that the chairperson of the former tribunal shall be the chairperson of the new tribunal. I do not wish to be drawn into rehearsing arguments that were made at an earlier stage about the composition and performance of the tribunal and about controversies that surrounded, if I may use the past tense, the tribunal. Why it is necessary to seek to enshrine in the law that the outgoing chairperson of the formerly named tribunal should be the incoming chairperson of the new tribunal is beyond me. It is wrong that this should be inserted into the Act and entirely wrong that any chairperson should be given this stature. If the Minister comes to the conclusion that the person who chairs the outgoing tribunal is so eminently equipped that he ought to be appointed as the chairperson of the new tribunal, he can make the appointment if that is his honest best judgment. However, I believe that to seek to incorporate it in the law is unnecessary and undesirable.
I can look at the issue again. It would be our view that the present chairman should continue because we want a smooth transition from the old body to the new body. There is a wealth of knowledge there already. If we were to start over it would cause some difficulties. What we were trying to do is to confirm the position, more or less. It would be my position that the present chairmanship be renewed once the legislation is passed.
Section 137(5) states:
The chairperson of the Former Tribunal shall, from the date of coming into operation of this subsection, be deemed to have been appointed chairperson of the New Tribunal in accordance with section 92(5) and shall hold office as such for the unexpired period of his or her office as chairperson of the Former Tribunal.
Therefore, it is somewhat circumscribed. The chairperson would continue in the position for the rest of the five-year period.
I believe the term is for three years and the chairperson has served two.
It is a five-year term.
It is a new five-year term.
The chairperson will continue for the unexpired period of his five years.
Is that for three years? The Minister told the committee earlier that three years were left.
I meant the period that is unexpired of a five-year term.
Two of those five years are not counted.
That is a bit like a political donation for personal purposes. What does that mean?
It depends on when the Bill will pass. We do not know.
How long has the chairperson served on the old tribunal?
He has served approximately three years.
In that case there are potentially two further years left.
Two different things are involved here. If it is the case that the Minister thinks that in order to facilitate what he calls a smooth transition the person concerned ought to be given this statutory continuity, that is one thing. One may or may not agree but that is separate from enshrining it in the law by taking this very novel approach and putting it into the Act. If the Minister wishes to reappoint the chairman, he is entitled to do so, being the elected Minister. Why must it go into the legislation?
I am not persuaded that the house of cards would come down if the same personality were not to stay in the chair. There is no evidence of that. We are not starting de novo. There are many people around for a long time who have garnered a good deal of experience. I do not believe that a smooth transition requires the same personality. However, I accept that the Minister may have the view that it does.
There are many people who have worked in this area for some time and have garnered a good deal of experience. I do not believe the same personality is required for a smooth transition. However, I accept the Minister may have a view to the contrary. Given the amount of time we have laboured in the vineyard with the legislation and the extensive work of the Minister's officials, it would only be a fillip to the system if we could restore confidence in the fairness, transparency and visibility of the conduct of the tribunal. Nothing would do more to achieve this than a new chairperson. I am not the Minister and it is a matter for Deputy Ahern to decide. However, I believe there are many people, including non-governmental organisations, other relevant organisations and many in this Parliament who wish to believe that when the law is enacted it could be left to operate, and who wish to be confident that it could fairly discharge people's rights and entitlements without having to be monitored from here every day. It would be a great baptism for the new legislation if there were a new chairperson. I do not wish to reflect on the existing chairperson or anything like that. I do not doubt that he works according to his lights, but a change is desirable. However, if the Minister does not believe as much he must still provide a cogent reason to put this measure in the Act, since the Minister has the power to appoint the chairperson.
I echo what Deputy Rabbitte said. It is important that an impression is given that we start from the beginning with a fresh, new tribunal. One way to send this message is through the appointment of a new chairperson. This is the reason I tabled an amendment to delete subsection (5), similar to Deputy Rabbitte's amendment. What is the Minister's view of these points?
As a matter of clarity the tribunal chairperson will be appointed by the Public Appointments Service following a competition. Strictly speaking the Minister does not make the appointment.
Does this apply to the next chairperson?
Yes. I understand there are precedents whereby there would be turnover and it is specifically provided for in the legislation.
I can only recall one such instance and in that case many people took the view it would have been better if it had not happened, but I am sure the Minister's worthy servants know of others.
I may be wrong but my understanding is that subsection (1) refers to the chairperson of the new tribunal, whoever it may be, and that the term "chairperson" is used in the generic sense. I do not believe it refers to a specific person. That is my reading.
No, it states: "The chairperson of the Former Tribunal shall, from the date of coming into operation of this subsection, be deemed to have been appointed chairperson of the New Tribunal."
It refers to the chairperson of the new tribunal, whoever that may be.
The Chairman should examine subsection (5).
This is merely my interpretation.
The reality is that the new tribunal will take on an existing caseload from the old tribunal, so there must be some consistency.
The Minister may not believe it, but if there were a casualty in the morning, God forbid, and the Minister were elevated to higher office, the Department of Justice, Equality and Law Reform would manage without him. If the Department could survive the Minister's departure, then surely the tribunal can survive with a new chairperson.
I have always been strongly of the view that everyone is dispensable.
That is my view too. That is my argument.
I am but a bird of passage. The officials sitting beside me represent permanent Government.
Ordinary members of the tribunal start afresh with new contracts, but existing members of the current tribunal will form part of the new tribunal, so there will be continuity.
There may or may not be continuity. For part-time staff, it depends on the Minister of the day, but the full-time staff and the chairperson are appointed by the Public Appointments Service, PAS.
The PAS will be used from now on, but not for the appointment under subsection (5)?
The chairman was appointed by the PAS.
I am confident even if the Minister moved on and was replaced by the Minister, Deputy Hanafin, for example, that the same decision could be made.
How stands the amendment?
We will not die in the ditch over this one. I will withdraw amendment No. 702.
We will come to that presently.
What is the Minister's view on amendment No. 701?
The effect of amendment No. 701 would be to delete subsection (2). The purpose of this subsection is to provide legal certainty to those applicants who will, upon commencement of the Immigration, Residence and Protection Act, continue to be dealt with under the Refugee Act 1996. Where the Refugee Act 1996 continues to apply, an appeal must be dealt with under that Act. Furthermore, applications for subsidiary protection and for leave to remain must be dealt with under the Eligibility for Protection Regulations 2006 and under section 3 of the Immigration Act 1999 respectively. It is inevitable that there will be a small number of applicants who will find themselves in this process. Subsection (2) is a necessary transitional provision which will allow the chairperson of the Protection Review Tribunal to carry out the work of the chairperson of the Refugee Appeals Tribunal under the Refugee Act 1996. The alternative would be to have the Refugee Appeals Tribunal and the Protection Review Tribunal coexist until these applications have been finalised. This would be grossly inefficient and cannot be justified given the current budgetary parameters.
Perhaps I misheard the Minister, did he refer to leave to remain applications?
I said that applications for subsidiary protection and for leave to remain must be dealt with under the Eligibility for Protection Regulations 2006 and under section 3 of the Immigration Act 1999.
The Minister gave the impression there would only be a small number of applications. I may stand corrected but my understanding is that there are a substantial number of applications for leave to remain.
There will be a hangover.
I realise that, a substantial hangover.
It is intended to clear as many cases as possible before the new legislation kicks in.
There are a substantial number of cases at the moment.
Yes. That is why we require transitional arrangements.
The Minister gave the impression only a small number of cases were involved. While there may only be a small number in the initial process, there are substantial numbers in the leave to remain scheme.
Amendment No. 703 in the name of Deputy Naughten is out of order.
I move amendment No. 704:
In page 142, lines 12 to 16, to delete subsection (5).
On the section itself, good order requires that the Minister look at the section. He must return to it for amendment No. 702 and I do not want to be prescriptive on amendment No. 704 as to what may or may not happen, but it is not proper, given the nature and character of this Bill, that we should enshrine this in the legislation. I will leave it at that.
Regarding transitional arrangements, which concerns section 4(8), there is a general principle laid out that any period of time where a person was illegally resident in the State cannot be used as a basis to apply for immigration status here. What implications does that have for a period of time until the enactment of this legislation? For example, people illegally resident here in the past have gained residency based on having an Irish-born child, and I presume the legal basis of that is covered by the previous legislation. What is the situation when we go from the old legislation to the new legislation?
There seem to be some potentially dangerous interpretations of section 4(8), and I intend to come back with an amendment to that on Report Stage.
Does the Minister wish to make a brief comment on that?
On page 137 it states: Subject to section 133(2) a foreign national who before the coming into operation of this subsection, was unlawfully present in the State shall, for the purposes of this Act, be deemed to be unlawfully present in the State.
We are moving on. We discussed section 4 a long time ago. We are on section 138.
I want to make a closing statement. Now that we are drawing to the close of this exhaustive consideration of the Bill, I would like, with the indulgence of the Chair, to highlight some aspects which will be considered further on Report Stage. There are, of course, quite a number of other aspects in respect of which a commitment was given either to bring forward Report Stage amendments or at least to look at some aspects again. I would like to touch on some of the more important areas.
One area is that of children. Following a lengthy debate very early on, my predecessor indicated an acceptance of the principle underpinning Deputy Rabbitte's amendments Nos. 31 and 33 on the welfare of children in the context of taking immigration decisions. This matter is currently being considered in conjunction with the Office of the Attorney General, with due regard being had to the extensive array of child care legislation currently in force. I will be guided by the advice of the Attorney General in determining the nature of any potential amendment to the text as published. I am aware that Minister of State at the Department of Justice, Equality and Law Reform, Deputy Barry Andrews, also gave a commitment that the position of vulnerable adults would also be considered.
Regarding notice of removal, I am examining the Bill with a view to determining the extent to which we could include a system of notice provisions required for persons who may be liable to be removed, and the opportunities for such persons — or at least some categories of them — to be informed of the possibility to leave voluntarily.
Another area is non-entitlement to services. My predecessor indicated that section 6 needs to be amended to provide more clarity as to the type of benefits that will not be available to persons unlawfully present in the State. On the issue of long-term residence, I indicated that I was examining section 36 of the Bill dealing with long-term residence and, in this context, I accepted the principles underlying a number of amendments, including some tabled by Deputy Naughten.
As discussed today, I intend to bring forward Report Stage amendments to deal with safe countries, information exchange, judicial review, marriage and people smuggling, and to look again at some aspects of the Protection Review Tribunal. As the main body of the Bill evolves, we need to keep an eye on how the changes will impact on the transitional provisions in the final Part of the Bill.
May I ask one brief question on the Minister's comments? Section 36, as the committee will recall, dealt with the issue of language. I made the point that if someone attended a language course that should be considered in the context of being granted long-term residence. At the time the Minister was not sympathetic to this, but his Minister of State seems to have taken a contrary view in the media recently. Is that being contemplated now as part of his comments on long-term residency?
There is a language requirement in section 36(4)(c)(ii), which states it is necessary that a person can demonstrate, in such a manner as may be prescribed, a reasonable competence for communicating in the Irish or English language.
I will just make a point on the Minister's statement. The point was made that the Minister has the inherent sovereign power to grant residence. Is the Minister clear that the judgment of Mrs. Justice Denham is that there is an inherent discretionary executive power resting with him in a matter such as this? As I understand her judgment, she states that once we legislate that inherent sovereign power is lost, and we must make do with the statutory power. That is why I raised this point earlier.
The Minister adverted to the judgment in the Bode case as the basis of his belief that he retains that power. I received a submission from a practising barrister who is very concerned about the extent of the powers in section 4(8), where the same power comes into question. He says the power is potentially very extensive and mandatory, and makes elaborate arguments that one does not get any credit for any period of unlawful residence in the State, irrespective of what might have transpired during that period. One might have acquired a wife or an Irish child, but cannot rely on any period of unlawful residence in the State for the purposes referred to here. Is the Minister relying on the sovereign power? Has he examined the Denham judgment which seems to say the sovereign power is indeed there but once we legislate we are reliant on the statutory power and the inherent sovereign power is no longer there.
I do not think that is a correct interpretation of what Ms Justice Denham said in the case. She said:
In this case one of the fundamental powers of the State arises for consideration. In every state of whatever model the state has the power the control the entry and residency and the exit of foreign nationals. This power is an aspect of the Executive power to protect the integrity of the State. It has long been recognised in Ireland that this Executive power is exercised by the Minister on behalf of the State.
If we are to legislate in certain circumstances, that does not take away the inherent right, as is laid down in the Supreme Court judgment, for us to use discretion in other circumstances. If that was the case, our legislation would not be able to cover every instance that might arise. In the interests of public policy on national security, there are all sorts of issues which we would not have to enumerate in legislation but on which, obviously, the Government, as the Executive, would have to make its own decisions. Ms Justice Denham referred to the granting of permission to remain in the State as a gift. This constitutes the analysis of the Supreme Court in this regard. It is not particularly prescribed by legislation alone. The power to make policy in the immigration area is one that is inherent in Government. Because of the whole issue of public policy on national security, it cannot be totally circumscribed in legislation.
My correspondent said that whatever about there being an inherent Executive power to deport aliens, what is at issue here is a power to grantresidence permits, which are themselves statutory creations. It is stretching Executive claims to breaking point to argue that, just because the issue is an immigration one, the Minister has an inherent discretion to decide any matter, even a matter relating to a purely statutory entitlement.
That is his opinion. The strong opinion from the Attorney General is as I enunciated but I can come back on Report Stage and indicate my views on it.
I do not wish to——
If Deputy Rabbitte is adamant he may wish to give me a copy of the opinion. On the other side I cannot give him a copy of the Attorney General's opinion.
I will give the Minister a copy of the argument because it is an important point that I would like to be clear about in my head. Was it in the Passports Act that——
In the Bode case.
She pointed out that if there had been no legislation the situation would have a parallel to that of the issue of passports, prior to the passing last year of the Passports Act. She said that also is a classic example of an exercise of the Executive power of a sovereign nation. There has been no legislation on this matter in Ireland. The scheme is run by a Minister of the Executive. It must be run in a constitutional and fair manner. However, there is no issue of the constitutional ambit of delegated legislation as the Oireachtas has not sought to give the powers to the Minister.
If, in legislation, we give somebody a right, that right cannot be taken away from him or her. It is not up to me to decide. By giving people rights we are being more positive in what we are doing but that does not take away our overall right, as the Executive. As she said we have a right and a duty to safeguard the external boundaries of the State and the Government has responsibilities in this regard deriving from the Constitution. Putting specific issues into legislation does not necessarily take away our overall power.
We will move on because we are rehashing something from earlier which I am sure will come up on Report Stage. We are dealing specifically with section 139.
I move amendment No. 705:
In page 142, after line 45, to insert the following new section:
"140.—(1) The Minister shall establish a register of all persons embarking an aircraft, boat or other carrier at any port within the State.
(2) A carrier under subsection (1) shall furnish to the Minister a list of all persons embarking from a port, including details of a passport or other recognised identity document, including any temporary identity document issued by the Minister, for the purposes of completing the register referred to in subsection (1).
(3) Failure to present to the Minister a list under subsection (2) shall result in an offence under this Act.”.
The objective of this amendment is that there would be a record of people entering and leaving the State that would be compiled by the various carriers so that if a person who is in receipt of, say, a social welfare payment decides to leave the State, the Department of Social and Family Affairs would be aware of it, in order that the person does not continue to receive rent allowance or another social welfare payment. The purpose of the amendment is to deal with issues of fraud. I hope the Minister will support the principle of the amendment.
I will come back on Report Stage. I am developing section 111 with a view to being more specific in regard to the nature of the information being provided and the uses to which it can be put. Section 111(6) provides that regulations may specify the manner in which this data may be stored and retained or otherwise utilised. Section 111 requires carriers to provide specific data in relation to persons embarking from the State. I am informed that the Deputy's proposed section is not necessary.
It is not necessary.
Yes. Section 111 caters for what the Deputy is seeking to achieve.
And the Minister is considering amending it.
Yes, with a view to being more specific in regard to the nature of the information provided.
Amendment No. 706 has already been discussed with amendment No. 5, which was a long time ago. For the convenience of the Deputy Rabbitte, he withdrew amendment No. 5.
I was having a bad day and I certainly did not appreciate that——
Will the Deputy move the amendment?
I move amendment No. 706:
In page 142, after line 44, to insert the following new Schedule:
"Section 2.
SCHEDULE
CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON 28 JULY 1951
PREAMBLE
THE HIGH CONTRACTING PARTIES
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,
Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,
Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,
Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation,
Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,
Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of Refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner,
Have agreed as follows.
CHAPTER I
GENERAL PROVISIONS
Article 1
Definition of the term "Refugee"
A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
B. (1) For the purposes of this Convention, the words "events occurring before 1 January 1951" in Article 1, Section A, shall be understood to mean either:
(a) “events occurring in Europe before 1 January 1951” or
(b) “events occurring in Europe or elsewhere before 1 January 1951”
and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.
(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations.
C. This Convention shall cease to apply to any person falling under the terms of Section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee failing under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Article 2
General obligations
Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.
Article 3
Non-discrimination
The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.
Article 4
Religion
The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children.
Article 5
Rights granted apart from this Convention
Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.
Article 6
The term "in the same circumstances"
For the purpose of this Convention, the term "in the same circumstances" implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling.
Article 7
Exemption from reciprocity
1. Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.
2. After a period of three years' residence, all refugees shall enjoy exemption from legislative reciprocity in the territory of the Contracting States.
3. Each Contracting State shall continue to accord to refugees the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State.
4. The Contracting States shall consider favourably the possibility of according to refugees, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to paragraphs 2 and 3, and to extending exemption from reciprocity to refugees who do not fulfil the conditions provided for in paragraphs 2 and 3.
5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this Convention does not provide.
Article 8
Exemption from exceptional measures
With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality. Contracting States which, under their legislation, are prevented from applying the general principle expressed in this article, shall, in appropriate cases, grant exemptions in favour of such refugees.
Article 9
Provisional measures
Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.
Article 10
Continuity of residence
1. Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory.
2. Where a refugee has been forcibly displaced during the Second World War from the territory of a Contracting State and has, prior to the date of entry into force of this Convention, returned there for the purpose of taking up residence, the period of residence before and after such enforced displacement shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence is required.
Article 11
Refugee seamen
In the case of refugees regularly serving as crew members on board a ship flying the flag of a Contracting State, that State shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them on their temporary admission to its territory particularly with a view to facilitating their establishment in another country.
CHAPTER II
JURIDICAL STATUS
Article 12
Personal status
1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.
2. Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognised by the law of that State had he not become a refugee.
Article 13
Movable and immovable property
The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.
Article 14
Artistic rights and industrial property
In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has habitual residence.
Article 15
Right of association
As regards non-political and non-profit-making associations and trade unions the Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.
Article 16
Access to courts
1. A refugee shall have free access to the courts of law on the territory of all Contracting States.
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.
3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.
CHAPTER III
GAINFUL EMPLOYMENT
Article 17
Wage-earning employment
1. The Contracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.
2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting States concerned, or who fulfils one of the following conditions:
(a) He has completed three years’ residence in the country;
(b) He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefits of this provision if he has abandoned his spouse;
(c) He has one or more children possessing the nationality of the country of residence.
3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes.
Article 18
Self-employment
The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.
Article 19
Liberal professions
1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognised by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.
2. The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories, other than the metropolitan territory, for whose international relations they are responsible.
CHAPTER IV
WELFARE
Article 20
Rationing
Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.
Article 21
Housing
As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.
Article 22
Public education
1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.
2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.
Article 23
Public relief
The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.
Article 24
Labour legislation and social security
1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters:
(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women’s work and the work of young persons, and the enjoyment of the benefit of collective bargaining;
(b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:
(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;
(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.
2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.
3. The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question.
4. The Contracting States will give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non-contracting States.
CHAPTER V
ADMINISTRATIVE MEASURES
Article 25
Administrative assistance
1. When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities or by an international authority.
2. The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under their supervision to refugees such documents or certifications as would normally be delivered to aliens by or through their national authorities.
3. Documents or certifications so delivered shall stand in the stead of the official instruments delivered to aliens by or through their national authorities, and shall be given credence in the absence of proof to the contrary.
4. Subject to such exceptional treatment as may be granted to indigent persons, fees may be charged for the services mentioned herein, but such fees shall be moderate and commensurate with those charged to nationals for similar services.
5. The provisions of this article shall be without prejudice to articles 27 and 28.
Article 26
Freedom of movement
Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.
Article 27
Identity papers
The Contracting States shall issue identity Papers to any refugee in their territory who does not possess a valid travel document.
Article 28
Travel documents
1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.
2. Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article.
Article 29
Fiscal charges
1. The Contracting States shall not impose upon refugees duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations.
2. Nothing in the above paragraph shall prevent the application to refugees of the laws and regulations concerning charges in respect of the issue to aliens of administrative documents including identity papers.
Article 30
Transfer of assets
1. A Contracting State shall, in conformity with its laws and regulations permit refugees to transfer assets which they have brought into its territory, to another country where they have been admitted for the purposes of resettlement.
2. A Contracting State shall give sympathetic consideration to the application of refugees for permission to transfer assets wherever they may be and which are necessary for their resettlement in another country to which they have been admitted.
Article 31
Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 33
Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Article 34
Naturalization
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
CHAPTER VI
EXECUTORY AND TRANSITORY PROVISIONS
Article 35
Co-operation of the national authorities with the United Nations
1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:
(a) the condition of refugees,
(b) the implementation of this Convention, and
(c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.
Article 36
Information on national legislation
The Contracting States shall communicate to the Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.
Article 37
Relation to previous Conventions
Without prejudice to article 28, paragraph 2, of this Convention, this Convention replaces, as between parties to it, the Arrangements of 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July 1935, the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 and the Agreement of 15 October 1946.
CHAPTER VII
FINAL CLAUSES
Article 38
Settlement of disputes
Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.
Article 39
Signature, ratification and accession
1. This Convention shall be opened for signature at Geneva on 28 July 1951 and shall thereafter be deposited with the Secretary-General of the United Nations. It shall be open for signature at the European Office of the United Nations from 28 July to 31 August 1951 and shall be reopened for signature at the Headquarters of the United Nations from 17 September 1951 to 31 December 1952.
2. This Convention shall be open for signature on behalf of all States Members of the United Nations, and also on behalf of any other State invited to attend the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons or to which an invitation to sign will have been addressed by the General Assembly. It shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.
3. This Convention shall be open from 28 July 1951 for accession by the States referred to in paragraph 2 of this Article. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article 40
Territorial application clause
1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the States concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject where necessary for constitutional reasons, to the consent of the governments of such territories.
Article 41
Federal clause
In the case of a Federal or non-unitary State, the following provisions shall apply:
(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of Parties which are not Federal States.
(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation, to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment.
(c) A Federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention showing the extent to which effect has been given to that provision by legislative or other action.
Article 42
Reservations
1. At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16 (1), 33, 36 to 46 inclusive.
2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations.
Article 43
Entry into force
1. This Convention shall come into force on the ninetieth day following the day of deposit of the sixth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day following the day of deposit by such State of its instrument of ratification or accession.
Article 44
Denunciation
1. Any Contracting State may denounce this Convention at any time by a notification addressed to the Secretary-General of the United Nations.
2. Such denunciation shall take effect for the Contracting State concerned one year from the date upon which it is received by the Secretary-General of the United Nations.
3. Any State which has made a declaration or notification under article 40 may, at any time thereafter, by a notification to the Secretary-General of the United Nations, declare that the Convention shall cease to extend to such territory one year after the date of receipt of the notification by the Secretary-General.
Article 45
Revision
1. Any Contracting State may request revision of this Convention at any time by a notification addressed to the Secretary-General of the United Nations.
2. The General Assembly of the United Nations shall recommend the steps, if any, to be taken in respect of such request.
Article 46
Notifications by the Secretary-General of the United Nations
The Secretary-General of the United Nations shall inform all Members of the United Nations and non-member States referred to in article 39:
(a) of declarations and notifications in accordance with Section B of article 1;
(b) of signatures, ratifications and accessions in accordance with article 39;
(c) of declarations and notifications in accordance with article 40;
(d) of reservations and withdrawals in accordance with article 42;
(e) of the date on which this Convention will come into force in accordance with article 43;
(f) of denunciations and notifications in accordance with article 44;
(g) of requests for revision in accordance with article 45.
In faith whereof the undersigned, duly authorised, have signed this Convention on behalf of their respective Governments,
Done at Geneva, this twenty-eighth day of July, one thousand nine hundred and fifty-one, in a single copy, of which the English and French texts are equally authentic and which shall remain deposited in the archives of the United Nations, and certified true copies of which shall be delivered to all Members of the United Nations and to the non-member States referred to in article 39.
SCHEDULE
Paragraph 1
1. The travel document referred to in article 28 of this Convention shall be similar to the specimen annexed hereto.
2. The document shall be made out in at least two languages, one of which shall be in English or French.
Paragraph 2
Subject to the regulations obtaining in the country of issue, children may be included in the travel document of a parent or, in exceptional circumstances, of another adult refugee.
Paragraph 3
The fees charged for issue of the document shall not exceed the lowest scale of charges for national passports.
Paragraph 4
Save in special or exceptional cases, the document shall be made valid for the largest possible number of countries.
Paragraph 5
The document shall have a validity of either one or two years, at the discretion of the issuing authority.
Paragraph 6
1. The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is, under the same conditions, a matter for the authority which issued the former document.
2. Diplomatic or consular authorities, specially authorized for the purpose, shall be empowered to extend, for a period not exceeding six months, the validity of travel documents issued by their Governments.
3. The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees no longer lawfully resident in their territory who are unable to obtain a travel document from the country of their lawful residence.
Paragraph 7
The Contracting States shall recognize the validity of the documents issued in accordance with the provisions of article 28 of this Convention.
Paragraph 8
The competent authorities of the country to which the refugee desires to proceed shall, if they are prepared to admit him and if a visa is required, affix a visa on the document of which he is the holder.
Paragraph 9
1. The Contracting States undertake to issue transit visas to refugees who have obtained visas for a territory of final destination.
2. The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.
Paragraph 10
The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports.
Paragraph 11
When a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply.
Paragraph 12
The authority issuing a new document shall withdraw the old document and shall return it to the country of issue, if it is stated in the document that it should be so returned; otherwise it shall withdraw and cancel the document.
Paragraph 13
1. Each Contracting State undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity.
2. Subject to the provisions of the preceding sub-paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory.
3. The Contracting States reserve the right, in exceptional cases, or in cases where the refugee's stay is authorised for a specific period, when issuing the document, to limit the period during which the refugee may return to a period of not less than three months.
Paragraph 14
Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the laws and regulations governing the conditions of admission to, transit through, residence and establishment in, and departure from, the territories of the Contracting States.
Paragraph 15
Neither the issue of the document nor the entries made thereon determine or affect the status of the holder, particularly as regards nationality.
Paragraph 16
The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right of protection.
ANNEX
Specimen Travel Document
The document will be in booklet form (approximately 15 x 10 centimetres).
It is recommended that it be so printed that any erasure or alteration by chemical or other means can be readily detected, and that the words "Convention of 28 July 1951" be printed in continuous repetition on each page, in the language of the issuing country.
(Cover of booklet)
TRAVEL DOCUMENT
(Convention of 28 July 1951)
No.
(1)
TRAVEL DOCUMENT
(Convention of 28 July 1951)
This document expires on
unless its validity is extended or renewed.
Namechild (children)
Forename(s)
Accompanied by
1. This document is issued solely with a view to providing the holder with a travel document which can serve in lieu of a national passport. It is without prejudice to and in no way affects the holder's nationality.
2. The holder is authorised to return to
[state here the country whose authorities are issuing the document]
on or beforeunless some later
date is hereafter specified.
[The period during which the holder is allowed to return
must not be less than three months]
3. Should the holder take up residence in a country other than that which issued the present document, he must, if he wishes to travel again, apply to the competent authorities of his country of residence for a new document. [The old travel document shall be withdrawn by the authority issuing the new document and returned to the authority which issued it.]11
(This document contains pages, exclusive of cover.)
(2)
Place and date of birth
Occupation
Present residence
* 2 Maiden name and forename(s) of wife
* 3 Name and forename(s) of husband
Description
Height
Hair
Colour of eyes
Nose
Shape of face
Complexion
Special peculiarities
Children accompanying holder
Name Forename(s) Place and Sex
date of birth
(This document contains pages, exclusive of cover).
(3)
Photograph of holder and stamp of issuing authority
Finger-prints of holder (if required)
Signature of holder
(This document contains pages, exclusive of cover).
(4)
1. This document is valid for the following countries:
2. Document or documents on the basis of which the present document is issued:
Issued at
Date
Signature and stamp of authority
issuing the document:
Fee paid
(This document contains pages, exclusive of cover.)
(5)
Extension or renewal of validity
Fee paid: From
To
Done at Date
Signature and stamp of authority
extending or renewing the validity
of the document:
Extension or renewal of validity
Fee paid: From
To
Done at Date
Signature and stamp of authority
extending or renewing the validity
of the document:
(This document contains pages, exclusive of cover.)
(6)
Extension or renewal of validity
Fee paid: From
To
Done at Date
Signature and stamp of authority
extending or renewing the validity
of the document:
Extension or renewal of validity
Fee paid: From
To
Done at Date
Signature and stamp of authority
extending or renewing the validity
of the document:
Extension or renewal of validity
Fee paid: From
To
Done at Date
Signature and stamp of authority
extending or renewing the validity
of the document:
(This document contains pages, exclusive of cover.)
(7-32)
Visas
The name of the holder of the document must be repeated
in each visa.
(This document contains pages, exclusive of cover.)
1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES
The States Parties to the present Protocol,
Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have become refugees as a result of events occurring before 1 January 1951,
Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,
Considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951,
Have agreed as follows:
Article I
General provision
1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.
2. For the purpose of the present Protocol, the term "refugee" shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article 1 of the Convention as if the words "As a result of events occurring before 1 January 1951 and . . ." and the words ". . . as a result of such events", in article 1 A (2) were omitted.
3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.
Article II
Co-operation of the national authorities with the United Nations
1. The States Parties to the present Protocol undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol.
2. In order to enable the Office of the High Commissioner, or any other agency of the United Nations which may succeed it to make reports to the competent organs of the United Nations, the States Parties to the present Protocol undertake to provide them with the information and statistical data requested, in the appropriate form, concerning:
(a) The condition of refugees;
(b) The implementation of the present Protocol;
(c) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.
Article III
Information on national legislation
The States Parties to the present Protocol shall communicate to the Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application of the present Protocol.
Article IV
Settlement of disputes
Any dispute between States Parties to the present Protocol which relates to its interpretation or application and which cannot be settled by other means shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.
Article V
Accession
The present Protocol shall be open for accession on behalf of all States Parties to the Convention and of any other State Member of the United Nations or member of any of the specialised agencies or to which an invitation to accede may have been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article VI
Federal clause
In the case of a Federal or non-unitary State, the following provisions shall apply:
(a) With respect to those articles of the Convention to be applied in accordance with article I, paragraph 1, of the present Protocol that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of States Parties which are not Federal States;
(b) With respect to those articles of the Convention to be applied in accordance with article I, paragraph 1, of the present Protocol that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;
(c) A Federal State Party to the present Protocol shall, at the request of any other State Party hereto transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention to be applied in accordance with article I, paragraph 1, of the present Protocol, showing the extent to which effect has been given to that provision by legislative or other action.
Article VII
Reservations and Declarations
1. At the time of accession, any State may make reservations in respect of article IV of the present Protocol and in respect of the application in accordance with article I of the present Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16 (1) and 33 thereof, provided that in the case of a State Party to the Convention reservations made under this article shall not extend to refugees in respect of whom the Convention applies.
2. Reservations made by States Parties to the Convention in accordance with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present Protocol.
3. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw such reservation by a communication to that effect addressed to the Secretary-General of the United Nations.
4. Declarations made under article 40, paragraphs 1 and 2, of the Convention by a State Party thereto which accedes to the present Protocol shall be deemed to apply in respect of the present Protocol, unless upon accession a notification to the contrary is addressed by the State Party concerned to the Secretary-General of the United Nations. The provisions of article 40, paragraphs 2 and 3, and of article 44, paragraph 3, of the Convention shall be deemed to apply mutatis mutandis to the present Protocol.
Article VIII
Entry into force
1. The present Protocol shall come into force on the day of deposit of the sixth instrument of accession.
2. For each State acceding to the Protocol after the deposit of the sixth instrument of accession, the Protocol shall come into force on the date of deposit by such State of its instrument of accession.
Article IX
Denunciation
1. Any State Party hereto may denounce this Protocol at any time by a notification addressed to the Secretary-General of the United Nations.
2. Such denunciation shall take effect for the State Party concerned one year from the date on which it is received by the Secretary-General of the United Nations.
Article X
Notifications by the Secretary-General of the United Nations
The Secretary-General of the United Nations shall inform the States referred to in article V above of the date of entry into force, accessions, reservations and withdrawals of reservations to and denunciations of the present Protocol, and of declarations and notifications relating hereto.
Article XI
Deposit in the Archives of the Secretariat of the United Nations
A copy of the present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, signed by the President of the General Assembly and by the Secretary-General of the United Nations, shall be deposited in the archives of the Secretariat of the United Nations. The Secretary-General will transmit certified copies thereof to all States Members of the United Nations and to the other States referred to in article V above.".
I did not think of withdrawing the amendment. Amendment No. 5 is connected to it. The Geneva Convention is attached to the Refugee Act and that Act is being appealed. Part 7 of the Act here is about the Geneva Convention and yet it is being dropped. If it was only for the ease of reference of lawyers, why in heaven's name would not the convention——
We will look at it.
I thank the Minister.
How stands the amendment?
The Deputy is getting soft.
I will withdraw it on the generous undertaking of the Minister that he will look at it positively.
I move amendment No. 707:
In page 9, line 5, after "ACT" to insert the following:
"TO GIVE EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH DAY OF JULY, 1951 AND TO THE PROTOCOL RELATING TO THE STATUS OF REFUGEES DONE AT NEW YORK ON THE 31ST DAY OF JANUARY, 1967,".
This is the amendment we were waiting for.
This is a creative and imaginative piece of drafting, which I borrowed from somewhere. Its inherent sagacity will not escape the Minister.
We accept the principle of it and will return to it.
Is the Deputy withdrawing his amendment?
On that basis, I am happy to withdraw it.
I never thought I would get to the stage of reading out the Title.
I thank the Minister, Deputy Dermot Ahern, and his officials. This Bill must rank as one of the most complex ever considered. I would also like to thank the Minister of State, Deputy Barry Andrews, and the Minister of State, Deputy Moloney, who also assisted the Minister and the committee.
It is a measure of how thorough consideration of the Committee Stage amendments has been when we reflect that we have met for some 32 hours and 32 minutes over 13 days to deal with the Bill. I am given to understand this may well be one of the longest durations for a Bill to have been considered in Committee.
I wish to record my thanks to all the members who participated in a full, in-depth and comprehensive debate, particularly to Deputies Naughten and Rabbitte who have been here for the duration of the consideration. I thank them for their co-operation. I have no doubt the Bill will be better for the work we have done. I also thank the staff who worked with the committee, the secretariat, the staff in the Bills Office and the staff in the Superintendent's section.
Members may recall that the first meeting of the Bill started at 3 p.m. on Tuesday, 29 April 2008, a date that is almost in the dim and distant past. The then Chairman, Deputy Peter Power, is now a Minister of State and the then Minister for Justice, Equality and Law Reform was Deputy Brian Lenihan who has since moved to become Minister for Finance. In my thanks I wish to include both the Minister, Deputy Brian Lenihan and the Minister of State, Deputy Power.
I thank the Chairman and his officials and to say to the two Deputies opposite that I very much appreciate the effort put in by themselves and others who have been here but are not here now. While the media were only here once or twice when I was here, the time spent considering this Bill shows that we work hard to make sure that the legislation we put through is correct.
I thank the NGOs who have been persistent in their lobbying and in their attendance here to make sure that we do not do anything untoward. I thank them for the efforts that they have made in this respect.
I thank all of the members opposite. I cannot give an indication as to when Report Stage will be taken. There is significant work to be done in the meantime. I would like to think it would happen before the end of the year but I am told that it probably will not. I would welcome if as soon as possible in the new year we could return to this issue in the Dáil Chamber and deal with it as quickly as possible. I thank the Chairman and his officials.
I, too, compliment the staff of the Houses, the committee staff and the Minister's officials. I and Deputy Rabbitte have dealt with four Ministers and two Chairmen over the period of the consideration of this Bill. It is important to remember that we dealt with oral and written submissions prior to that. Well in excess of 100 written submissions were made. It was not only the non-governmental organisations that made submissions on the Bill, members of the public also made submissions, for which I thank them.
While we have put a lot of Ministers through our hands during the past number of months, the officials were here all that time. I compliment and thank them for their time, patience and assistance in providing clarity on many of the issues. We look forward to seeing the back of the Bill once we get through Report Stage. I hope many of the suggestions we put forward here can be taken into consideration for Report Stage. There is no fundamental difference between the members here and the officials in regard to the Bill. We want legislation that is workable and that is in the interests of all of the residents in this country.
I concur with what has been said. I thank the Chairman and the staff of the secretariat for their courtesy and helpfulness and the Minister's officials for their patience and assistance. I hope the process here has not been wasted and that due consideration will be given to Report Stage.
I thank the Minister for his courtesy. I acknowledge that the committee seems to have been a launching pad for higher office for pretty much everyone except myself and poor Deputy Naughten, but it is not for us to ask why.
My official on my left put me off by asking me to mention poor Deputy Finian McGrath. I omitted to thank my own officials who have slaved in their work on this legislation and I want to thank them particularly. Naturally, I would not be able to function without them and I am lucky I have officials of the calibre of people I have on my side. I accept that members of the Opposition do not have the same resources that we do and I am conscious that this is complex legislation. I thank all the officials on the Opposition side and on our side.
It is important to recognise Deputy Finian McGrath, who is the fastest Deputy in the House.
It is important to recognise that if he was still here we would be still here dealing with the Bill.
I thank everybody.
