Amendments Nos. 5, 5a and 6 are related and may be discussed together by agreement.
SECTION 2.
I move amendment No. 5:
In page 4, line 37, after "religion," to insert "sexual orientation, conscientious objection to military service,".
These amendments are self-explanatory insomuch as they seek merely to express more clearly that the categories referred to in my amendment are included in section 2. To a reasonable extent the section spells out the categories of race, religion, nationality and so on. However, I seek to give expression explicitly to the question of sexual orientation and conscientious objection to military service.
I am not sure what the term "particular social group" encompasses. I understand that it is taken from the UNHCR definition but I am not sure exactly what it means in law and whether it could be taken to encompass the categories I am arguing should be included.
My amendment No. 5a seeks to insert the words "gender, sexual orientation, conscientious objection to military service," into section 2. This is an attempt to update the definition of "refugee" in the Geneva convention which is now 43 years old. It is recognised by human rights lawyers internationally that the definition is quite restrictive and does not take into account our changed world.
The Council of Europe, of which Ireland is a member, recommended that recognition be given to the needs of de facto refugees in its member states. The European Parliament stated in 1987 that the definition of refugee needs to be altered. Elsewhere in the Act we have a facility whereby de facto refugees, or programme refugees as they are called, will be allowed temporary residence, so there is a certain amount of flexibility. People who do not fall into the clear definition of refugee under the Geneva convention have a residual status awarded to them.
It would be useful to look at how various countries have redefined refugees, as opposed to using the strict definition under the convention. In response to large refugee movements over the last 20 to 30 years, the Organisation of African Unity and Latin American countries has drawn up new and considerably wider definitions of refugees.
Since we are now enshrining the Geneva convention into our domestic law after a long period of neglect for the human rights area, this is a good opportunity to consider a wider definition, perhaps expanding what has been used in the Bill to consider members of social groups such as gays, lesbians and women fleeing gender-related persecution. Perhaps we might specifically include these groups under the definition of refugee. A difficulty with the Geneva convention concept of refugee is that it excludes from its scope persons in flight due to a fear of individualised persecution not related to the person's race, religion, nationality, membership of a particular social group or political opinion.
This comes into sharp focus where women, gays and lesbians are fleeing from persecution in their home countries. Several asylum applications have been made by persons fleeing persecution based on gender or sexual orientation. Practice has shown that the success or failure of the application will depend on the interpretation given to the expression "social group". I ask the Minister to address this, consult with her officials and give her opinion as to whether "social group" would include women fleeing gender-related persecution, men and women fleeing oppressive regimes where homosexual activity is a criminal offence, or conscientious objectors to military service.
It is recognised worldwide that women refugees face particular difficulty in establishing a claim to asylum because they may be fleeing from gender based persecution, which is not specifically recognised under the Geneva convention, or because their applications may come before all-male boards which may have an imperfect understanding of the subjective difficulties and sexual persecution the women may have faced. In a recent case the Canadian immigration board interpreted the definition of refugee as including persons who have a well-founded fear of being persecuted by reason of gender. This is of great practical importance to women who have a reason, which could not be applied to men, for fleeing their country.
In many Islamic countries for instance the evidence of a woman is not regarded as having a high enough probative value to outweigh the evidence of a man. Women who may have been the victims of rape may find themselves imprisoned for adultery because they do not have the required number of witnesses to make their probative value outweigh that of a man.
In other countries women may be subjected by the state to forced abortion, as is well documented in China, or to forced sterilisation. In some countries the state may provide no protection against rape by Government officials — it may not be an offence for Government officials to commit rape — or there may be no protection against forced marriage or bride burning, which occur in some jurisdictions. Other countries may provide no effective help or protection for mothers who wish to protect their infant children from genital mutilation.
There are specific and well documented cases of gender persecution which it would be wise to address at this stage. In incorporating the Geneva convention, the Bill as it stands would provide no effective protection for such women. The Canadian decision is humanitarian and necessary and we should support it.
Discrimination against gays and lesbians is also well documented. Reports from Brazil and Colombia suggest gays have been subjected to torture and extra-judicial execution by state approved death squads. I am not plucking these instances from the sky — there are well documented reports from Mexico, Costa Rica, Romania and other countries suggesting that homosexuals may be subject to arbitrary detention, torture and ill-treatment.
I understand gay rights activists have raised this with the Minister and she has indicated gays and lesbians would come under the term "social group" but I would like her assurance that this is the case. I ask her to present any precedents she may have to the committee and to assure us that Ireland would be generous in considering applications from such people. I am interested in the Minister's response.
I agree we should seek to update definitions to include groups in society whom we wish to have the opportunity to make their case. I would have thought the two headings "social group" and "political opinion" would have encompassed most if not all of the issues referred to by Deputy O'Donnell. Both amendments here refer to conscientious objection to military service. I understand that to refer to someone who has a definite political opinion — perhaps the Minister can enlighten me if I am wrong. If we identify sub-groups under a particular heading — and this appears to be a sub-group under the "political opinion" heading — where do we stop? I am not necessarily opposed to what the Deputy proposed because there is much merit in what she said. Nevertheless, we should be cautious about listing specific categories of persons who could be accepted as fitting into the definition of "political opinion".
Equally, many of the categories of person listed as being subject to persecution in some jurisdictions, could be legitimately accommodated under the heading "social group". I am open to correction on that interpretation. My main point is that it would be wrong to go too far in listing specific categories.
I am glad to see the definition of refugee in this section being drawn as widely as possible. As matters stand it is nearly as hard to get into this country as it is to become President of the High Court. Deputy Rabbitte's amendment proposes to delete Section 2 (c) and (d). I would have difficulty with that but I also have difficulty with the use of the word "committed" in those paragraphs. Surely the word should be "convicted". How are we to know that somebody committed a crime if they are not convicted of a crime? I would hate to see a situation develop where, acting on information received, so to speak, from Interpol or the state police in Africa, South America or elsewhere, we would somehow decide that somebody has committed a crime without that person having gone through due process.
I support the thrust of the amendment but I would have difficulty with the deletion of paragraph (d) because the effect would be to allow a person who has committed a serious non-political crime outside the State to be considered a refugee. There are circumstances where we would not want a person who has committed a serious non-political crime to be considered a refugee, particularly if he was a refugee from justice. However, I have difficulty with the use of the word "committed" and the word "convicted" should be considered instead. If our law is to decide that some person has committed a crime in the region from which he or she is fleeing, I am anxious that it should only be on the basis of due process and that that person has received a fair, reasonable and open trial in that region.
It is right that Ireland should not become a refuge for non-political convicted criminals. I would support the section as drawn if we could delete the word "committed" and replace it with "convicted".
On a point of clarification, I understood that we were dealing with amendments Nos. 5, 5a. and 6 and not amendment No. 7 is in Deputy Mitchell's name.
Yes, I have gone on to amendment No. 7.
We are not dealing with amendment No. 7 now.
Do you want to deal with it now that Deputy Mitchell has raised it?
Yes. We can discuss it now with amendments Nos. 5, 5a. and 6.
The effect of amendment No. 7 is to excise paragraph (d). Added to what Deputy Mitchell said, I am very concerned about the inclusion of the term "non-political". In the type of repressive regime about which we are probably talking there is very little difficulty in trumping up any charge or in construing any charge in a fashion which would be encompassed by paragraph (d). Apart from the definition of the term "committed", a non-political crime could easily be construed by any of regimes about which we are talking.
There is a necessity to specifically include the term "trade union" as proposed in amendment No. 6 because there are several examples of repressive regimes particularly leaning on trade unionists because they are members of a trade union. In the region of 60 per cent of executions in Malawi were carried out on trade unionists. There is a gentleman called Bongo in charge in Gabon who seems to have a fetish for the lumberjacks' trade union. In many of those regimes being a member of a trade union is seen as an offence and a justification for persecution.
Whatever the Minister understands to be included in a particular social group I agree with Deputy O'Donnell that we should hear her on what she thinks is encompassed by that term. I do not know if a trade union is encompassed by that term. I cannot see why she would be reluctant to expressly include the term "trade union". It is a term which ought to be enshrined and there is no reason why it should not be.
I also find it difficult to appreciate how conscientious objection to military service could be construed under that term. Perhaps it can be drawn from treaties and inferred in Irish law as a result of international practice. However, many people here would regard conscientious objection to military service in some of these countries as heroism rather than a cause for excluding them from seeking asylum here.
I do not have any difficulty with the inclusion of trade unions but I agree with Deputy Fitzgerald that we should get a global term which covers everyone because an endless number of people could be specifically included such as anti-blood sports, pro-life and anti abortion groups.
I am fascinated by the proposal to eliminate paragraph (d) because, despite the assertion by my colleague that the word "convicted" should be used and Deputy Rabbitte's explanation that some people might be accused of crimes which they have not committed in oppressive regimes, if it is eliminated it means that officially bank robbers, rapists, murderers and so on will be allowed in. Do we not have enough of them here already? We could export them. We surely do not want to have a special clause which allows them to come here as refugees.
I agree with the point Deputy Rabbitte made. I am not up to date on Mr. Bongo's latest political thought but trade unionists have suffered greatly in Latin America, for example. Perhaps it does come under "political opinion". In those countries it certainly would be political opinion but it would not be the same thing in Ireland. Political movements have been started around the trade union movement in many countries and I would like to see it included. Perhaps the Minister has already included it under political opinion but it should be looked at.
Will the Minister indicate if terms used in this section about religion, for example, have been carefully considered? For example, there were applications from Polish in transit refugees at Shannon Airport who told me that they were Jehovah's witnesses. They were fleeing Poland because of religious difficulties but this Government sent them back. Inquiries were made on that occasion about their status but the Government decided to send them back. These people still write to me, they do not understand what happened here.
Can I take it that from now on people coming from Poland, or any other country which was formerly behind the Iron Curtain, who have conscientious objections to military service or feel there is a religious bias against them will have their applications processed here?
I will deal with amendments Nos. 5, 5a. and 6 and then with amendment No. 7. These three amendments in the names of Deputies Gilmore and O'Donnell propose changes to the definition of "refugee". The definition in the Bill is identical to the definition of a refugee in Article 1 of the Geneva Convention, which we ratified on 29 November 1956, relating to the status of refugees. The primary purpose of this Bill, as outlined in its long title, is to give statutory effect to that convention. In so doing, I am concerned that as far as possible we should ensure that its provisions are not at odds with the convention. Furthermore, I am concerned that altering the definition may not be in the overall interests of applicants and could, in certain circumstances, have the opposite result to that intended and lessen the broad scope of the Bill. As it stands, the definition includes what can be described as a catch-all phrase, that is "a member of a particular social group". This category was included in the definition in the convention to take in groups of persons who might be subject to persecution but who did not fall within the specific categories of race, religion, nationality or political opinion. It extended the protection of refugees far beyond what had previously been the norm.
Ireland, in common with its European partners, interpreted the category of membership of a particular social group in a most flexible and open manner. It is clear that a person who can show he has a well founded fear of persecution because of gender, sexual orientation or trade union membership comes within the scope of the definition of refugee provided, namely "particular social group".
Similarly, persons who are considered to be conscientious objectors to military service may come within the general scope of the term "social group" or could also be embraced by the religious or political grounds covered by the definition. As I indicated, the UNHCR handbook on procedures and criteria for determining refugee status was taken into account when the Bill was being prepared. The handbook lays down very useful guidelines on the criteria to be applied to persons claiming refugee status on the basis of objections to military service. It states that while draft evasion does not constitute a ground for establishing a well founded fear of persecution, it may constitute such a ground where the draft evasion is linked to other relevant motives within the meaning of the convention, or where a person would suffer disproportionately severe punishment for desertion on account of race, religion, nationality, membership of a particular social group or political opinion, or where that participation in military action is contrary to a person's genuine political, religious or moral convictions or to valid reasons of conscience. This would include a situation where the military action is condemned by the international community as contrary to basic rules of human conduct.
I appreciate and accept the spirit behind the amendments. However, I am fully satisfied that the categories of persons which the Deputies want included in the definition are already covered by it. If we were to specify particular groups, we could weaken the catch-all effect of the term "membership of a particular social group". In so doing, we might perhaps open the way for the adoption of a very narrow interpretation of that term, which would not serve the general interest of other groups. For example, I have great sympathy for the point raised by a number of Deputies that trade union membership should be specifically stated in this section. This equally applies in the case of gender or sexual orientation. However, the more one defines categories, the greater the risk of people saying afterwards in interpreting this Bill that if we meant to include X, Y or Z, we would surely have put it into the definition category. This is my difficulty.
Nevertheless, I have sympathy for the Deputies' points. Perhaps the three specific cases of gender, sexual orientation and trade unionism could be examined, but I would have to look at it on the basis that the section would not be weakened. I am conscious of this point and the Deputies who contributed are equally conscious of it. If we were to include those three areas, people might bring up various definitions in the future and state that if the Dáil and Seanad intended that those groups should be included, would they not have specifically mentioned them in the definition. This is my only difficulty. I will talk to the draftsman between now and Report Stage on that basis.
I referred to the points Deputies O'Donnell and Rabbitte asked me to cover in what we believe is included under the term "membership of a particular social group", what the convention stated and what our EU partners understand by that term, which is included in the convention. I will look at the specific groups that are mentioned in the amendments.
Deputies Carey and de Valera probably have the largest population of refugees in their county and constituency. Offhand, I cannot, nor can my officials, recall the question Deputy Carey raised. However, I will take it upon myself to inquire into it, as will my officials, and I will come back to the Deputy on it.
My query was whether it would be acceptable for a Jehovah Witness to make an application now on the grounds of religion.
Absolutely. The definition clearly states that if a person is being persecuted in his own country for religious reasons, which would include somebody who is a Jehovah Witness, and this does not conform with the views held in that country, it would be acceptable for him to apply for refugee status.
The effect of amendment No. 7, in Deputy Gilmore's name, would be to delete paragraph (d), which excludes from the definition of refugee a person who has committed a serious non political offence outside the State prior to his or her arrival. In this context, the provision which the Deputy proposes to remove is based on Article 1F (b) of the 1951 UN convention relating to the status of refugees, which specifically provides that the convention will not apply to any person with respect to whom there are serious reasons for considering that he or she has committed a serious non political crime outside the country of refuge prior to his or her admission to that country.
The drafters of the convention were concerned to avoid the granting of refugee status to persons who might pose a threat to the internal security of asylum countries. The decision to exclude those persons who were considered not to deserve recognition as refugees was deliberate. It is rooted in an international commitment to ensure the preservation of the laws of individual states and a realistic assessment of the fact that states are unlikely to agree to be bound by a regime which requires them to protect undesirable refugees.
I am not prepared to accept that we should be expected to confer the special status and entitlements of a refugee on a person who has committed serious offences, such as murder or rape, in another country. In the circumstances, a provision such as paragraph (d) of section 2 is required, which for all practical purposes is identical to that in Article 1F (b) of the UN convention.
I understand Deputy Mitchell's point on the word "committed". He wants the subsection retained but the word "committed" changed to "convicted". I will have to check between now and Report Stage, but I think the reason for "committed" is that it is used in the convention. It was used specifically because in many countries people have been fleeing the law and even though the law has the evidence to prove they committed these crimes, it has not been able to find them. The word is used to ensure that they would not end up on our shores and then have no possibility of going back. However, I will examine it between now and Report Stage.
On the term "membership of a particular social group", it would not be the wish of anybody on this side of the House to restrict or constrain it in any way. If the Minister fears that this would be its effect I am open to advice.
Is the Minister advised by her legal advisors or the Attorney General's office that the courts would interpret the clause "membership of a particular social group" in accordance with the Geneva Convention? Is it likely that the court confronted with a case, for example, where a person sought asylum here because of trade union membership in another jurisdiction — and although membership of a trade union is not expressly included in the Bill as a cause — that the phrase would be interpreted in that broad fashion merely because it is included in the Geneva Convention? The Geneva Convention was established a long time ago — certainly in terms of the definition of gender or sexual orientation that we discussed earlier. If that is the Minister's view of how the courts would interpret it I would be disposed to accept it.
My reservation about paragraph (d) which amendment No. 7 proposes to excise is that it effectively judges refugees according to the laws of the country from which they are fleeing. If one also considers Deputy Mitchell's point about the use of the term "committed" rather than "convicted" the potential to treat a political dissident on the basis that he or she has committed some trumped up charge appears to be infinite. On the one hand one does not require a conviction — and I understand the Minister's comments in that regard — yet, on the other hand, one is judging the refugee on the basis of the laws applying in the country from which he or she is fleeing. It is an old phenomenon that the refugee or the political dissident in those circumstances can be deemed to have committed whatever crime he or she is alleged to have committed by the country from which he or she is fleeing. History is littered with famous examples of such occurrences. We might be confronted with the less famous or less notorious examples. However, if we automatically accept the word of the other jurisdiction that the person committed a crime, how are we to evaluate that? There is no conviction. Obviously the person fleeing is wanted by the other jurisdiction. If, in order to evade the provisions of this section, that jurisdiction asserts that the person has committed a crime and our Department of Justice automatically accepts that assertion, that will be the end of it.
The Minister gave an assurance that, on the advice of her officials, she believes the term "social group" includes the categories of people whom I sought to cover in my amendment. I can understand that the catch-all flavour of "social group" is very tempting but it is entirely a matter of interpretation of the term. In the Netherlands, for example, gays and lesbians are regarded as part of the social group for purposes of refugee recognition and may apply for asylum where they have fled persecution related to sexual orientation. However, in the United Kingdom the same people have not been so regarded.
Is the Minister qualified to give that assurance based on precedents? In our jurisdiction, for example, can the Minister point to various cases where the term "social group" has proved to be useful, generous and flexible in allowing such cases which technically may fall under the definition in the Geneva Convention? Can the Minister give examples of how this State has been flexible in using the term "social group" to include people fleeing gender based persecution, gays or lesbians fleeing persecution or those fleeing persecution for their trade union activities? It is a little loose to leave this matter to interpretation given that, under section 12, if an application "is not founded on any of the grounds referred to in the definition of refugee in section 2" the refugee's case can be summarily dismissed as a manifestly unfounded application. The definition or the interpretation of the definition of refugee is quite crucial to what happens thereafter — it has the capacity to ride a coach and horses through the entire procedure we are establishing for a fair hearing. The definition is quite important to what happens and how the applicant is treated.
Perhaps the Minister would offer examples of this State being flexible under the term "social group". We have had 38 years of practice in this regard. Unfortunately, much of it has been carried out in secret. Until now, the Minister has been solely responsible for the determination of whether a person is a refugee. It would be interesting to know the degree of flexibility and the practices that have been developed in the Department for the treatment of such social groups.
The Minister is right in saying that the definition in this Bill reflects that in the Convention. The previous speakers are right in saying that the concepts in 1951 of what might have been included within social groups probably were quite different from our view of them today.
I wish to make a constructive suggestion in this context. The Minister appears to be well disposed to the inclusion within the definition of people who might suffer persecution due to sexual orientation, gender or trade union membership. However, she is concerned that if the groupings are listed the general concept might be damaged. A way of resolving this — which the Minister might consider on Report Stage — which does not damage what the Minister is trying to achieve is to define, either in this section or in the definition section, what is meant by "social group" by simply stating "Social group without prejudice to the generality of the meaning of the term shall include the following...". The following could include reference to trade union membership, sexual orientation, etc. The Minister is concerned that we might regret specifically nominating groups because it might be interpreted by the judges or tribunal which have to deal with such cases as excluding other groups. My suggestion would resolve that problem.
The Minister is absolutely right that the phraseology of subsection (d) is the same as that used in the Convention. It is not based on us simply accepting the assertion of the state from which somebody has fled that the refugee has committed a non-political crime. It must be based on an objective assessment by the tribunal deciding the application for political asylum as to whether such a crime was committed and whether, although the state from which somebody is fleeing might say it is a non-political crime, the reality is that the crime clearly is due to the political position of the person claiming asylum. It is an area of difficulty. In practice, under the Convention, wrong decisions within the meaning of that term have been made in its administration in other states. Some states have refused to grant asylum to inconvenient people seeking political asylum when they thought it might do damage to that state's national interests.
It is an area we could tease out more. The Departmental precedents might give us some insight into how we are operating this provision although I have little faith in the Departmental precedents over the years and in the manner in which we have administered our refugee political asylum laws. I have one question for the Minister. I am conscious that I had an identical definition in the Bill I introduced. A later section deals with somebody who seeks asylum and arrives in the State with false travel documents. It is almost a sine qua nonthat if one is fleeing from a state where one is seen as a political threat more often than not one will only escape with false travel documents. What will happen if someone arrives in this State with false travel documents and the country from which he came says he committed a crime there by doing this? This is not regarded as a serious non-political crime in other states but as part and parcel of the background, we should make explicit somewhere later in this Bill that by his mere arrival in this State with false travel documents a refugee will not at any stage be regarded as having committed a serious non-political crime outside the State so as to exclude him from entitlement to political asylum.
On Deputy Gilmore's amendment, I would be extremely concerned about the deletion of subsection (d). I would also be concerned at the inclusion of "convicted". For example, when I visited a foreign country a few years ago, I was introduced to a professional who held a certain political opinion. During the course of my stay, that individual was brought up on charges relating to drug trafficking. From listening to others I associated with there, I was convinced this person was totally innocent and the charges were trumped up because of his political opinion. As it happened, the charges were not followed through in that case but were quickly dropped when it became an embarrassing public issue. I am sure it is one of many examples where people in repressive jurisdictions or regimes find themselves in conflict with the prevailing favourable political climate. They are not necessarily invariably charged with a political offence, but I am sure that, in many cases, convenient non-political charges can be drummed up against them.
I would go along fully with what I understood Deputy Browne (Carlow-Kilkenny)to say. If one restricts the wording to “convicted”, one can make errors as people can be convicted of non-political charges because of their political conviction or opinion. I understand repressive regimes are adept at drumming up such charges. One can equally fall foul on the other side, as Deputy Shatter rightly mentioned. If a tribunal or a board uses as part of its adjudicative process a reference to a conviction within a certain jurisdiction, then subsection (d) would direct such a tribunal, on the basis of that conviction, to automatically unjustly eliminate such a person from their consideration.
We must be extremely careful about how we treat applicants who are, in the public mind or by reason of report, associated with committing a non-political crime. It is an extremely sensitive area. In the tribunal the best available expertise needs to be brought to bear on that so the best possible independent adjudication can be made on the case. To base one's considerations solely on a report from the most recent jurisdiction of origin of that person stating that he was convicted of a non-political offence would be too narrow and restrictive. While I sympathise with much of what has been said, I ask the Minister to be extremely cautious about restricting it in that way.
I originally raised "committed" as against "convicted" and listened with interest to the Minister's reply. I am glad the Minister will look at the matter. I can see there would be difficulties with adopting "convicted" in certain circumstances. If a person came from an oppressive regime, he may not have committed any crime but have been convicted of one simply because of the corrupt regime and the way it works. Nonetheless, I remain anxious about these sections, whether "convicted" or "committed" is used. If a person fled from Idi Amin's Uganda, for example, with whom would our authorities check as to whether he committed a serious non-political offence? Would one take him at his word? In that case, what is the point of having this section? If a person was asked whether he committed a non-political offence, he would always say "no". Would one instead check with the oppressive regime and take its word? My concern still remains. I do not know whether "convicted after due process" or something of that kind would be the correct wording, but I have serious difficulties with the wording as it stands.
I also have difficulty with the amendment which would delete section 2 (d), although I do see the concerns expressed by Deputy Rabbitte as genuine. Nonetheless, I would not want to see a non-political criminal escaping justice by coming to this country when, especially if he committed murder, rape or some other serious offence of that kind, a person should face the music in the jurisdiction from which he is trying to escape. I recognise there are difficulties but the section, if not amended, will be too widely drawn. Maybe "convicted after due process" or words of that kind should be considered. I again ask the Minister to look at this matter between now and Report Stage. Some tightening up needs to be done here.
If someone is a refugee from a regime, it is not likely to be a regime whose word either we or our authorities would want to take in ascertaining if someone seeking refuge here is a person who has committed a crime. We would want to see due process within that regime for trial of such crimes and evidence to support a regime which claims that someone who is fleeing has committed them. I hope the Minister takes my sentiments into consideration when she addresses this matter and replies to it on Report Stage.
Perhaps the Minister could look at the question of sexual orientation along the lines Deputy Shatter suggested to include "which would not have the effect of excluding anything which is not defined". That may be a way of dealing with that problem.
We have been discussing that point. While different people referred to subsection (d), which Deputy Rabbitte wants eliminated altogether others say they are prepared to leave it but want it safeguarded in some way. Rather than saying "has committed", inserting "is satisfied that he has committed" may be one way in which we could amend it between now and Report Stage. I have given a commitment that we will talk to the draftsman on the matter.
The Department of Justice officials have never made direct approaches to a regime where somebody claims refugee status on the basis of persecution in that regime nor have we approached such countries, even if they might have diplomatic representation here. Our first avenue of approach is, and will continue to be, the UNHCR. It has the people on the ground and has the most experience and knowledge in this area. I am delighted to see that one of its representatives, who was with us on the last occasion we had this debate, is with us again today. The UNHCR is obviously taking a keen interest in what we have to say on this legislation. I acknowledge its commitment and the tremendous help it has given us in the preparation of this new legislation. Deputy Shatter made the point that the particular regime might say that a crime was committed in their own country. We have always said that false travel documents are almost invariably part and parcel of any application for refugee status by virtue of the fact that the person is fleeing from persecution. I am introducing an amendment to clarify this area later.
Deputy Shatter made a valid point about changing the definition of the Bill to state that "particular social group" shall include specific categories. That is certainly another avenue we can discuss to try to get over the particular difficulty. I am conscious of the fact that if we over define the section, a court may later interpret this to mean that we, as Members of the Oireachtas, did not intend to include particular groups because if we did so intend, we would have specifically included them in this section. Therefore, the suggestion made by Deputy Shatter is worth examining. The problem of persecution, and the possibility of regimes presenting trumped up charges, is always assessed objectively in compliance with the UNHCR.
In answer to Deputy O'Donnell's question, we have not had any cases based on persecution due to sexual orientation or, indeed, based on membership of a trade union, as Deputy Rabbitte asked. I cannot, therefore, give examples of where these cases might have been included. Deputy O'Donnell made a point on sexual orientation in the UK. She suggested previously that the UK did not accept that homosexuals could be granted refugee status on the basis of their belonging to a particular social group. I am informed that this in fact is not the case.
The UK apply the catch all interpretation of "particular social group". Their policy is that if homosexuals can show that they have a well founded fear of persecution because they are homosexuals then they would qualify for refugee status. They would not qualify on the basis of being homosexual but not persecuted. That is the difference.
I accept that all of the points made are aimed at strengthening the legislation and ensuring that it does not contain any loopholes whereby someone could get around it or the officials here, the Department or the refugee applications board might in some way refuse a genuine application. In order to avoid those difficulties we will try, between now and Report Stage, to tighten up that area and take account of the views put forward today.
Is amendment No. 5 being withdrawn?
Yes, on the understanding that the Minister will be examining this between now and Report Stage.
Amendment No. 5, by leave, withdrawn.
Amendments No. 5a, 6 and 7, inclusive not moved.
Section 2 agreed to.