Select Committee on Legislation and Security debate -
Tuesday, 30 Jan 1996

SECTION 1.

Ms O'Donnell

I move amendment No. 1:

In page 4, subsection (1), between lines 20 and 21, to insert the following definition:

"‘political opinion' includes a conscientious objection to the use of force;".

This section deals with the definition of "refugee". In the 1994 Bill, we sought to update the Geneva Convention definition of refugee and grant refugee status to individuals who were in flight by reason of a well founded fear of being persecuted because of gender, sexual orientation or conscientious objection to military service. We must acknowledge that this Bill is an improvement and has taken on board many of the amendments to the previous Bill. It extends the definition of refugee to cover such matters as gender, sexual orientation and so on.

The purpose of my amendment is to ensure that a conscientious objector comes within the updated definition of refugee. I accept that it may well be encompassed in the term "political opinion". The provision states:

"a refugee" means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. . .

It may well be that political opinion could be interpreted as including a person who has a conscientious objection to war and is fleeing his own country to avoid being persecuted on the grounds of that political belief. I invite the Minister to assure the House that the definition of refugee, as presented in this Bill, would cover such a category of refugee seeking asylum.

The definition of refugee is an important part of the Bill because this is ground breaking legislation. It is the first time we will put on our Statute Book formal legislative details and procedures for dealing with asylum seekers. In the past there has been great criticism of our State procedures which are ad hoc and, to a certain extent, this legislation is needed immediately.

An international body, the CPT, recently examined our places of detention and other matters relating to procedures, particularly the immigration service at Shannon, and it was critical. Our procedures have been heavily criticised by all international observers. We do not have clear and comprehensive procedures which are fair and in accordance with international law. For this reason it is important to ensure clarity in the Statute so everybody dealing at the coal face with people seeking asylum will know the exact parameters of what is meant by a refugee. The CPT report states that at Shannon individual immigration officers were determining who were refugees on the basis of their own prejudices. This matter must be examined by the Government.

There is evidence in the report that, when the delegation was making its inquiries over a two-week period, the officers in question gave misleading information to it and were unco-operative. There is, therefore, a clear need for the legislation to ensure that everybody is clear as to what is a refugee and that firm procedures must be adhered to. I am putting down the amendment for this purpose and I would welcome the Minister's response as to whether she believes that conscientious objectors would be included in the term "political opinion".

Mr. O'Donoghue

The strongest political opinion a person may hold may be conscientious objection to the use of force. To that extent the amendment in the name of Deputy O'Donnell is desirable and, accordingly, I support it.

At this historic time, as the Bill is to be passed by the House, the need for clarity is paramount so that everybody knows precisely where they stand. The most fundamental aspect of the Bill will be the definition of what precisely constitutes a refugee. The Minister may say it is her view and that of the Government that section 2 already encompasses the objective of the amendment. However, it is not stated in the section with any great clarity, and, accordingly, I see no objection to having this provision inserted in the Bill.

Minister of State at the Department of Justice (Ms Burton)

In presenting the Bill to the Dáil, an opportunity was taken to use the work on Committee Stage of the earlier Bill and to expand the definition of a refugee in this section to include any discrimination with regard to gender and to sexual orientation.

However, I am concerned about any changes in the definition of refugee. The definition which is contained in the UN convention relating to the status of refugees and which is used in the Bill, in the UNHCR handbook and in case law should be used to provide guidance to our interpretation. The UNHCR is concerned that altering the definition by seeking to clarify its terms in the way proposed by the Deputy can have the opposite effect to that intended and can lessen the scope of the Bill.

Draft evasion or conscientious objection to military action is complex and the international practice is to examine all such cases on an individual basis. The UNHCR handbook provides that it may be ground for refugee status where the draft evasion is linked to other relevant motives within the meaning of the convention, where a person would suffer disproportionately severe punishment for desertion on account of race, religion, nationality, membership of a specific 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 valid reasons of conscience. These cover the areas specifically referred to by the Deputy and would include a situation where the military action is condemned by the international community as contrary to basic rules of human conduct.

I would be concerned that, the more we try to define what is included in the definition of refugee, the more we leave open the inference that categories not so defined are excluded. In other words, the list would be so long that if one was not on the list one would automatically not qualify for consideration on broader grounds.

The amendment was moved from the very good motive of seeking to ensure that persons who, for example, refuse to participate in military action which involves crimes against race, genocide or other acts contrary to the purposes and principles of the UN should receive protection. However, the established law is that this is the case already and I would, therefore, oppose any amendment which would interfere with these well established principles and could, in effect, result in the exclusion of bona fide applicants from the definition. I appreciate the Deputy’s good intention, but our legal advice on this point is very strong in that it may end up having the opposite effect to what she generously attempts to achieve.

Ms O'Donnell

I take the point made by the Minister. If there was an endless amount of time we could debate it at length in the context of evil regimes where war is being waged and in which many people would not wish to participate. This would constitute a legitimate ground for their being accepted as refugees.

The Minister advises it is accepted international practice that such a person may well fall into the definition of refugee in the context of the UNHCR rules. I will therefore withdraw the amendment, but it would be worthwhile placing a marker at this stage of our deliberations in terms of our own practice of implementing this legislation. The proof of it will be how it is enforced at our ports and airports. A message should go from this stage of our deliberations that such a person is, in our view, included in the definition of refugee, as it will be implemented by the people at the coalface.

I raised this matter to ensure that this category of refugee would be considered at this point in our deliberations. I will withdraw the amendment on the assurances given the Minister that there is an international practice which may include such a person.

Mr. D. McDowell

What is current practice, and what has been previous practice with regard to draft dodgers in countries such as Libya or Iraq? My understanding is that we have not been anxious to accept such people. Is the Minister satisfied that, in the future, we will be able to accept people of this kind?

Ms Burton

Every case is taken on its merits. The fact that somebody claims to be a deserter is part of the general presentation of their case. It may be the most important point in the case or it may be a factor. However, every case is judged on its individual merits. In addition, when somebody presents to an immigration officer at a port, that officer is not a deciding officer in any sense and is not there to make a judgment.

The CPT report made a number of specific criticisms with regard to Limerick. Substantial attempts have been made to improve the training of immigration officers. I recently met with such officers in Shannon. There are approximately 250,000 landings at Shannon of which there are approximately 60 applications per year with regard to asylum. There have been years when there have been more but it is still not a great many. The training which the officers are now receiving has resulted in a substantial improvement in terms of the understanding of their role as immigration officers and their attempts to assist.

We also have leaflets in a number of different languages at the ports which give the addresses and telephone numbers of independent agencies, such as the Red Cross and the Refugee Council, which can be contacted. The immigration officer is not there to make a decision but for processing purposes; he or she does not make a preliminary decision.

Mr. D. McDowell

Since we are considering the definition of the term refugee, am I to take it with regard to somebody who is draft dodging in a country such as Libya, which has a regime that has attracted a fair measure of international criticism over the years, that the fact of being a draft dodger is not in itself sufficient?

Ms Burton

It depends on the individual case. Since I became Minister of State with responsibility in this area, applications have been brought to me in which one of the most salient factors have been the person's relationship or possible relationship with an army. That is a factor often mentioned by people moving from a country. Each case and the full range of information on it is examined on its merit, before a decision is made.

Mr. D. McDowell

I understand what the Minister is saying but I am quoting a simple case where there are no other facts, except that this person dodged the draft in Libya, a country whose regime has been subject to international criticism. He is a conscientious objector, in the terms of the amendment proposed by Deputy O'Donoghue. If we assume for the moment that there are no other facts, other than that the person dodged service in the army, and can presume——

Ms Burton

That is a hypothetical case. When the matter comes to me as Minister, there is a detailed file in relation to the person seeking asylum, which relates a history and provides an opinion from the Department of Justice, the UNHCR and the Department of Foreign Affairs. All the factors are taken into account.

Mr. D. McDowell

It is the hypothesis of the amendment.

Chairman

Whatever the hypothesis of the amendment, I understand it is being withdrawn.

Amendment, by leave withdrawn.

Sections 1 and 2 agreed to.