Select Committee on Legislation and Security debate -
Wednesday, 5 Oct 1994

SECTION 9.

Mr. Rabbitte

I move amendment No. 13 a.:

In page 7, subsection (1) (a), to delete lines 5 to 7 and substitute the following:

"(i) shall be interviewed by an immigration officer, as soon as practicable after such arrival, in order to establish the identity of the person and the fact that the person is seeking asylum, with the proviso that no information obtained during such an interview shall come under the provisions of subsections (4) (d), (e) and (f) of section 12,

(ii) may apply for a declaration to the Minister, and".

I did not see the amendment until now, but I am sure it makes perfect sense, like all Deputy Gilmore's amendments. While I recollect my thoughts, I look forward to the Minister's reply.

Mrs. Geoghegan-Quinn

Earlier the Deputy mentioned political asylum for certain Deputies. We could arrange for that when Deputy Gilmore finds out what happened today. This amendment proposes to interchange two subparagraphs of subsection (1) (a) and to ensure that information originating from interviews with immigration officers at the initial stage cannot be used for the purposes of designating applications as manifestly unfounded. Deputy Gilmore raised this issue during the original discussion a week ago and I appreciate he may wish to make some points in support of the amendment. I appreciate it is the intention that an applicant should not be penalised by having his or her application declared to be manifestly unfounded solely because he or she may have made exaggerated, false or misleading statements during the course of an interview with an immigration officer.

I would like the opportunity to consider these aspects of Deputy Gilmore's amendment between now and Report Stage in consultation with the parliamentary draftsman. If it is decided that the Deputy's wording is acceptable or necessary, then I can deal with it, but the draftsman may feel it is unnecessary to have this wording.

Mr. Browne (Carlow-Kilkenny)

I agree with the sentiments expressed because a person may say something misleading. I highlighted the case of a person from the Philippines who was turned back at a London airport on her way to Carlow to visit her sister. She said she was going to work there, but I suggest she said this because she was in a panic to prove that she would not be a drag on the State. However, officials at a London airport turned her back. This proves that refugees need to be met by people from Amnesty International who are more on their side, rather than being taken into a strange room where they do not understand the language. Perhaps the Minister could clarify if we still depend on London to turn back people on their way to Ireland. Are we allowing these officials, which is worse, to do this?

Mrs. Geoghegan-Quinn

A number of countries — I do not have the list of countries with me — have visa requirements for entry to this country. As regards someone who presents himself at an airport or a seaport here, before this legislation comes into effect, he will be treated by the authorities here without regard to what the authorities in the UK may or may not have said. Once this Bill is passed, these people will be granted an interview with an immigration officer and will be dealt with in accordance with the criteria laid down in this legislation by the Refugee Applications Board. That decision will be made independently of the Department of Justice by the Refugee Applications Board.

Mr. Browne (Carlow-Kilkenny)

That is the problem. This girl was coming to Carlow, but she was stopped in London and Ireland had no say in the matter. She did not get as far as Ireland.

Mrs. Geoghegan-Quinn

A provision in our law states that if someone is coming into this country to gain access to another country such as the UK, our authorities may deal with that individual, although their final destination is not this country, but the UK. By way of a good neighbourly policy with the UK authorities, the same situation operates in reverse. This is what the Deputy referred to when he spoke about someone presenting herself to the immigration authorities in London on her way to this country. A visa requirement was in operation which meant she needed travel documents to come into this country. She did not have the proper travel documents and, as a result, was refused access to the plane by the immigration authorities in the UK. So the UK immigration officers are not doing anything different to what we do here in the event of somebody coming here first with the intention of going on to the UK.

Mr. Browne (Carlow-Kilkenny)

Yes, but would we not like to think that our country would decide who would come into it, rather than have another country deciding for us?

Mrs. Geoghegan-Quinn

It is our country deciding, with respect Deputy, because we lay down a visa requirement for nationals coming from a particular country. If they do not fulfil those visa requirements when they present themselves at whatever airport they set out from to get here, then the immigration in that country stops them from coming here. The immigration authorities are not acting on their own behalf. They are acting because they know the regulations and requirements here in relation to that person's country of origin and therefore if people do not have the proper travel documents the authorities are entitled to stop them from gaining access to an aircraft or ship that would bring them here.

Mr. Browne (Carlow-Kilkenny)

I still think it is wrong. If they have a ticket from the Philippines or anywhere to Dublin airport they should be stopped at Dublin airport and sent back if they are not in order. It is wrong that some official at London airport just sends them back without any mercy after flying from the Philippines. They have not reached Ireland although they have paid for a ticket to get here. They should be turned back in Ireland if necessary but not from London.

Mrs. Geoghegan-Quinn

That immigration officer dealing with them at London airport, or indeed at any other airport at which they might present themselves, would contact immigration officers here as to whether the visa requirements are in operation as of that moment. If they are, then they would send them back to wherever they came from.

Mr. Rabbitte

I have just established where the amendment actually relates to section 12 and the significance of it under the "manifestly unfounded application" provisions. I can see the significance of Deputy Gilmore expanding on the subsection that he seeks to excise under section 9. For example, if ones takes section 12 (4) (d) it will automatically be found to be a manifestly unfounded application if it is one

"in relation to which the applicant did not reveal immediately following the making of an application under section 9 that he or she was travelling under a false identity and was in possession of false or forged identity documents,"

It would not be too difficult to see where someone could fall foul of that in the sense of the immediate requirement to make that clear. That would be sufficient to have it regarded as what is called a "manifestly unfounded application". I can see that Deputy Gilmore is seeking to provide against that by entering a proviso so that one would not be automatically disbarred under section 12 (4) (d) or (f). There is much wisdom in that. I heard what the Minister said about being willing to look at it between now and Report Stage but, if she does not, I would like to keep Deputy Gilmore's options open. He is currently a refugee in Blackpool and when he returns I am sure that he will attend to this. On that basis I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Carey

I move amendment No. A13 (b):

In section 9, page 7, subsection 1 (a), line 7, after "arrival" to insert "and where application has been notified to the local branch of Amnesty International or a similar organisation."

The reason for this amendment is that, arising from my meetings with refugees, applicants for refugee status and the NGOs dealing with these applications, much concern has been expressed about people arriving at ports or airports who may be interviewed by immigration officers for a numbers of days without any NGO or other third party knowing their whereabouts.

Such organisations want to be notified of arrivals. In the Shannon airport area there is a good rapport between immigration officers and the Irish Red Cross which, for the most part, takes up the case of applicants fairly quickly. However, the Red Cross is mainly concerned with the health of refugees whereas Amnesty International or the Refugee Council would have greater access to international information which might, in the long term, be of benefit to the applicant refugee.

In some cases when people are being interviewed they tell all sorts of stories to immigration officers because they are afraid of them. It is only when a third party comes along and identifies himself through an interpreter, that these applicants tell the whole story. The Minister would be wise to protect herself by including that provision for Amnesty International or the Refugee Council to be notified of an application immediately it arises.

Mrs. Geoghegan-Quinn

Obviously, my difficulty with to the amendment is that I have only just seen it and I am sure the three Deputies opposite appreciate that. I would like an opportunity to talk both to my officials and the parliamentary draftsman about it. At this stage, I do not see that there would be a particular difficulty with it. However, Deputy Carey put his finger on it when he said that a number of NGOs are involved on a regular basis with refugees, whether one is talking about the Irish Red Cross or Amnesty International. While we have consulted these organisations in the course of preparing the Bill — and they have been vocal and active in making suggestions before and since its publication — we have tended to go with the UNHCR as the body that knows more about refugees and asylum seekers throughout the world than any other organisation.

I will talk to the officials in the Department and to the parliamentary draftsman between now and Report Stage, and if it is felt necessary and would add to the legislation and strengthen it we will look at the possibility of including a reference so that as soon as refugees present themselves to an immigration officer we will refer that matter to some group like the UNHCR. If Deputies Mitchell, Carey and Browne are prepared to accept that, then I will be prepared to have a look at that between now and report stage.

Mr. Browne (Carlow-Kilkenny)

I accept that. However, more than strengthening the legislation it is important that refugees, who invariably will be under severe stress, can feel they are talking to somebody who will not trip them up or get official information that would rule them out. They should feel they are talking to friendly people who, like Amnesty International, are known to be independent in helping refugees. Such an environment would help them to relax and feel they would get a fair crack of the whip. They could then give their proper evidence afterwards.

Mr. G. Mitchell

I realise we have given very short notice of this amendment and I am grateful for the Minister's reply. It is as much as we could have hoped for. Perhaps the Clerk could resubmit this on Report Stage when we can consider it further when the Minister has had a chance to read the text.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 13 (b.), 13 (c.), 13 (d.) and 14 (a.) are related and can be discussed together by agreement.

Mr. G. Mitchell

I move amendment No. 13b

In page 7, subsection 1 (b), line 9, to delete "where practicable".

The amendments in my name seek to delete the phrase "where practicable" where it occurs in section 9 (1) (b), section 9 (2) and section 9 (3). This phrase allows officialdom — in this case an immigration officer — not to proceed as required by the legislation and not to conduct the interviews in a way the legislators would wish. At any given time, for whatever reason, a person could be sick or delayed, and the phrase "where practicable" is far too broad. We should delete it.

Section 9 (1) (b) states:

The immigration officer concerned shall inform the person referred to in paragraph (a), where practicable, in a language the person understands——

The phrase should not be used there. If the person is not able to understand, or speaks an obscure language and a translator is not available, that is all the more reason some form of communication, perhaps even sign language, should be used so the person does know the position. Why should the words "where practicable" be used there?

Immigration officers at the major ports and airports are usually gardaí, as the Minister informed me at the last meeting. We could not expect them to know a range of languages. It is unreasonable and a member of the Garda Síochána is not required to know foreign languages. There should be an obligation — not merely where practicable, but in all circumstances — to communicate the information to a person who does not speak the same language as the immigration officer in a way the person can understand. The operation should be delayed until it is possible and practicable to do so.

Similarly, subsection (2) states:

An interview under subsection (1) shall, where necessary and practicable, be conducted with the assistance of an interpreter——

There are two qualifications there — this shall only be done where it is necessary and practicable. Surely an interpreter should be provided where necessary and the further qualification should not arise. There should be no discussion when an interpreter cannot be provided and the person should be treated properly and looked after until such time as it is possible to have interpreter assistance available.

Subsection (3) states:

Where a person is being interviewed pursuant to subsection (1), the immigration officer concerned shall inform the person or cause him or her to be informed, without delay and, where practicable in a language that he or she understands that——

(a) he or she is entitled to consult a solicitor, and

(b) he or she is entitled to consult the Commissioner.

The phrase "where practicable" should not apply here. A person should be told in a language he can understand that he is entitled to consult a solicitor and to consult the Commissioner. This is fundamental.

My amendment No. 16 proposed to insert a new subsection (7) to section 9 but I understand it has been ruled out of order.

Chairman

That is the case, Deputy.

Mr. G. Mitchell

That amendment proposed that the Minister, in consultation with the Minister for Finance, should annually provide funding for Amnesty International or a similar organisation, to be used by them for obtaining legal advice and interpreter services for an applicant or applicants where that was deemed necessary by the board, the appeals tribunal or the Minister. If the amendment cannot be taken because it has financial implications, I hope the Minister can take the thrust of it on board and make some provision in that area.

The suggestion goes hand in glove with my objection to the words "where practicable". I do not expect the Minister, the board or the tribunal will supply an interpreter in every language in the world at every port and airport. However, if she supplied finance annually to an organisation such as Amnesty International or The Irish Refugee Council, those bodies could provide people to make translations for even those refugees who only know the most obscure languages.

I am concerned about the words "where practicable". Notwithstanding that my amendment No. 16 is out of order, I ask the Minister to bring forward an amendment allowing for funding for an organisation who could provide solicitors and interpreters for refugees who need them.

Chairman

Before I call Deputy Browne, I wish to inform the committee it is proposed to conclude today at 5.30 p.m.

Mr. Browne (Carlow-Kilkenny)

This section is the weakest part of the Bill. If the act of communication means anything it means we must understand one another. The concept of a refugee being told something in a language he or she does not understand is not acceptable. It should be mandatory that there be an interpreter to explain what is happening — it should not just happen where practicable. A refugee should not have to listen to someone speaking in a language he or she does not understand. If no-one is available to interpret the interview should not go ahead.

If an Irish person was a refugee and had to listen to someone speaking in Chinese or another language while trying to convince those authorities that he or she was genuine, it would not be a laughing matter. It should be mandatory to have an interpreter present. We should not be relying on a local person with a smattering of the applicant's language, nor should we decide that it did not matter if no-one was available because we could explain an applicant's rights in English even if he or she did not speak it. I hope the Minister will accept these amendments to remove this phrase, even if she accepts nothing else. Otherwise it makes a nonsense of the practice of explaining someone's rights.

Mr. Rabbitte

I do not wish to repeat what has been said but is this provision simply an excess of caution on the part of the Minister? If an interview cannot be conducted with the assistance of an interpreter, in some cases this completely deprives the refugee of his or her rights. Similarly, section 9 (3) provides that the communication with the refugee will be made "where practicable" in a language he or she understands. I had this difficulty for many years with former Deputy Cox — since then I have overcome it, with the majority of my remaining colleagues.

However, from the point of view of an unfortunate prospective refugee trying to gain admission to this jurisdiction, there is little point in asking that he or she be communicated with if the person cannot understand the language in which that communication is taking place, as Deputy Browne said. Perhaps it is simply a drafting convention to use this phrase because of completely unforeseen circumstances in which such interpretation facilities would not be available. Deputy Carey advises me that in his region, where this is an extensive and regular problem, they seldom have difficulties in finding someone who can act as the necessary interpreter because of the proximity of the University of Limerick.

Otherwise the phrase seems to undermine an important cornerstone of the Bill, namely transparency, fairness and the conferring of rights. I cannot envisage how one can be expected to communicate with someone if they do not understand the language and, secondly, how the provisions of the other sections referred to by Deputy Mitchell will apply.

Mr. Carey

I agree with my colleagues. The immigration officers are, by and large, able to get an interpreter on a voluntary basis and fairly quickly. There have not been many notable incidents regarding a lack of interpreter facilities in our area. Nevertheless, the section seems to be over cautious. I do not really understand why the Department sought this wording of the section.

Ms O'Donnell

Generally speaking, this section is somewhat loose. It has a capacity for slippage which has, in turn, the capacity to undermine all of the procedures we are putting in place. The first interview with an immigration officer is the first point of contact with the State authorities. This section needs to be tightened up because the success or failure of an asylum seeker's application can hinge on this interview.

I have tabled two amendments. One seeks to remove the words "where practicable". Those words are totally inappropriate where we are trying to introduce due process with regard to asylum seekers. The words "where practicable" have no setting and are not appropriate in this context.

My amendment on the interpreter places the onus on the immigration officer to procure an interpreter. At the moment, the Bill does not impose this responsibility on anybody in particular. The amendment also introduces an element of quality control. The inclusion of the words "an interview... shall, where necessary and practicable, be conducted with the assistance of an interpreter" is much too loose and contains every propensity for slippage. These events might happen in the middle of the night and there might be only one or two immigration officers present.

If it is not stitched and copperfastened into this section that, first, one has a right to be informed, that one has a right to legal advice and an interpreter and, secondly, that there is an onus on the immigration officer to organise an interpreter, the whole thing could slip into a loose procedure. I agree with what was said, that the use of the words "where practicable" is not appropriate in this process.

Mr. E. Ryan

I presume that other Deputies have spoken to Amnesty International, as I have. There is a difficulty where somebody speaks a very unusual language and, perhaps, an even more unusual dialect. One of the suggestions which Amnesty International made is to have cards with, for example, 40 different languages and dialects explaining the person's rights, as a start. If an even more unusual language was involved then somebody who speaks that language would have to be found. Obviously, some of these people may not be able to read. However, it would be a start to trying to sort out this problem.

Most groups, including Amnesty International, realise that it is not a simple problem. If somebody speaks a very unusual language it may not be easy for the immigration officer to find an interpreter. In some cases interpreters are brought from London. We have to try to do this but to say that we must do it could be extremely difficult in certain circumstances.

Mrs. Geoghegan-Quinn

I was thinking of something Deputy Mitchell said a few minutes ago, that very often people from one end of this country have a difficulty understanding some of the dialects in other parts of the country so, perhaps, we should have interpreters for them.

The main purpose of this section is to ensure that anybody applying for asylum is informed of their rights and is given every help possible to ensure that they understand in their own language, or one as close to their own as is possible or practical, exactly what is available to them when they arrive here.

Deputy Ryan put his finger on the difficulty involved in changing the wording. I accept that the words "where practicable" is probably the wrong form of wording and I will talk to the parliamentary draftsman about changing that. However, I do not think we can go as far as Deputy Browne suggested, which is to have a mandatory clause in the Bill which ensures that no matter what dialect a person speaks and regardless of how few people in the world speak that dialect, there has to be somebody who speaks that dialect present at the airport or seaport where somebody presents themselves as an asylum seeker.

For example, the Department has gone to the expense of flying in interpreters from London on a regular basis to various airports and seaports to interpret for people the various legal requirements of this State. We would like to see that practice continuing. We would equally see a role for the UNHCR in being able to provide interpreters from time to time as has been done in the past and, perhaps, for groups such as Amnesty International. We have also paid interpreters from the University of Limerick and elsewhere who have gone to Shannon Airport to provide interpretation for people who have presented themselves as asylum seekers. We want to ensure that that facility is continued.

However, to follow the line of Deputy Ryan's very good argument, if, for example, somebody arrives in Shannon on an Aeroflot flight from Lithuania and is not too ill to get off the aircraft——

Mr. Browne (Carlow-Kilkenny)

But they would not get off.

Mr. G. Mitchell

That is very mischievous.

Mrs. Geoghegan-Quinn

If a Lithuanian who speaks Russian — as most Lithuanians would — arrives in front of an immigration officer but insists on doing his business through Lithuanian——

Mr. G. Mitchell

The first thing he would have to interpret would be a rather cross message from the Taoiseach.

Mrs. Geoghegan-Quinn

It is probably going a bit far to expect that we would be able to provide an appropriate interpreter in those circumstances. We have to find a formula of words which does not make it mandatory on us to provide interpretation of obscure dialects while, at the same time, not putting people at a disadvantage because interpretation cannot be provided in a language which they understand. We also have to take into account that there are people, as Deputy Carey would know, who present themselves from time to time — not very many — and refuse to talk to anybody, even when an interpreter is provided. They adopt a policy of silence.

I appreciate the points raised by various Deputies and I am in sympathy with them. We will try to find a formula of words which takes that into account but, at the same time — I hope Deputies accept this — will not tie us down to providing the kind of facility about which Deputy Ryan spoke.

Mr. Browne (Carlow-Kilkenny)

The word "mandatory" might tie the Minister down somewhat but the word "practicable" leaves it open to any kind of an excuse. Neither word is the one which we want.

Mr. G. Mitchell

In this day and age, it should be possible at the major airports and seaports to have, for example, telephone conference facilities where recognised UN interpreters could interpret over the telephone. I have strong reservations about "where practicable".

Ms O'Donnell

On the point that an asylum seeker should be informed of his right to be legally represented, could the Minister assure the committee that the person will not be interviewed before he or she has a solicitor or interpreter with them? Does the interview with the immigration officer go ahead without a solicitor? This is quite a dangerous activity if the person cannot be understood and is not aware of his rights regarding the advice of a solicitor. The timing is important. The person should first be told that he is entitled to consult a solicitor but surely the interview should not go ahead before a solicitor or some form of independent advice is available.

Mr. E. Ryan

Could the Minister do what Amnesty International has requested in providing a card in 40 different languages, which would explain a person's rights? It would be a start and although it would not work in certain cases, it would work in many others where a person's English is poor or non-existent.

Mrs. Geoghegan-Quinn

I could not give the guarantee sought by Deputy O'Donnell. The immigration officer has to find out first whether the person is seeking or applying for refugee status. At that stage he would be told by the immigration officer that he is entitled to legal representation. He is quite entitled to say, when responding to the immigration officer, that he is not prepared to go any further in the interview until such time as a legal person is available.

On Deputy Ryan's point it would be unreasonable to ask that we have a card available in 40 different languages as of now. We are preparing a short resumé of a person's entitlements once he applies for refugee status here. We will have that translated into the different languages. It is important to state clearly that we will not have it in 40 languages in the first three or four months. However, we will have it and it will be translated by degrees into the different languages as quickly as possible.

Mr. Browne (Carlow-Kilkenny)

The Minister mentioned that the person being interviewed could say that he is not prepared to go on until a solicitor is present. However, we are dealing with refugees and asylum seekers, most of whom will not know anything about rights. It is vital, before they say anything, that they are told they are entitled to a solicitor and an interpreter before the interview starts.

Mrs. Geoghegan-Quinn

Perhaps I am not making the position clear. Once they have indicated to the immigration officer who meets them that they are an applicant for refugee status, they are automatically told they are entitled to legal representation and interpretation facilities.

Ms O'Donnell

Then the interview stops?

Mrs. Geoghegan-Quinn

Not necessarily. If they say they do not want any interview to proceed until such time as they have legal representation with them, the interview will not go ahead.

Ms O'Donnell

Criminals are warned that they have a right to remain silent and a right to contact their solicitor. Even common criminals receive that privilege.

Chairman

Is amendment No. 13b. being pressed?

Mr. G. Mitchell

No, I am happy to withdraw it for reconsideration on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 13c. not moved.

Mr. G. Mitchell

Amendments Nos. 13d. and 14a. are also in my name and I am happy to withdraw them also for Report Stage.

Amendment No. 13d. not moved.

Mrs. Geoghegan-Quinn

I move amendment No. 14:

In page 7, subsection (2), line 23, after "concerned" to insert ", the Commissioner".

Section 9 (2) provides that a copy of the record of an interview with an applicant for refugee status, kept by an immigration officer, shall be furnished to the applicant and to the board. This amendment requires a copy of the immigration officer's report to be sent to the United Nations High Commissioner for Refugees, who has a particular interest in the welfare of refugees. It will enable the commissioner to be kept informed of developments from the very early stage of the interview.

Mr. Browne (Carlow-Kilkenny)

When I read that I thought it was the Garda Commissioner.

Amendment agreed to.

Amendment No. 14a not moved.

Mrs. Geoghegan-Quinn

I move amendment No. 14b:

In page 7, subsection (4), line 30, to delete "section 10 and section 19" and substitute "sections 10 and 19".

This is a minor drafting amendment, suggested by the parliamentary draftsman.

Amendment agreed to.

Mr. G. Mitchell

I move amendment No. 15:

In page 7, subsection (6), line 35, after "by" to insert "land,".

I suggest we add the word "land". I do not know if there is some reason in Articles 2 and 3 that the word "land" is not included, rather "a person who travels by sea or air from outside the State". The amendment is self explanatory and unless there is a good reason, I presume the Minister will accept it. I do not understand why the word "land" is omitted.

Mrs. Geoghegan-Quinn

Section 9 (6) provides that for definition purposes a person who travels by sea or air from outside the State shall be deemed to have arrived at the frontiers of the State. The reason this provision was included in the Bill is that a person who lands at an airport or disembarks from a ship at a port is not actually at the frontiers of the State. There is no need to make similar provision as the Deputy's amendment proposes in respect of a person who travels to the State by land because such a person can actually arrive at our frontier. If the amendment were made to the Bill the relevant subsection would not make sense.

Chairman

Is the amendment being pressed?

Mr. G. Mitchell

No, I see the point.

Amendment, by leave, withdrawn.

Chairman

Amendment No. 16 is out of order.

Question proposed: "That section 9, as amended, stand part of the Bill."

Mr. G. Mitchell

I referred briefly to amendment No. 16 and I hope the Minister will make some reference to it on Report Stage.

Question put and agreed to.

The Select Committee adjourned at 5.30 p.m.