Amendments Nos. 112 and 113 form a composite proposal and amendment No. 114 is related. All may be taken together by agreement. Is that agreed? Agreed.
SECTION 22.
I move amendment No. 112:
In page 23, subsection (1), line 28, after "Convention" to insert "provided, however, that none of the provisions of this Act or the Dublin Convention will authorise the transfer of an applicant for asylum to a Dublin Convention country from which there is reasonable cause to believe that he/she may be returned, whether directly or indirectly, from the country which he/she has fled persecution.
Section 22 deals with the Dublin Convention and provides that the Minister may make such orders as appears to him or her to be necessary or expedient for the purpose of giving effect to the Convention. Under the legislation, the Dublin Convention can be brought into Irish law by ministerial order. It is not coming into law in this country by a separate Act of the Oireachtas and, accordingly, will not receive the scrutiny which it deserves from the Houses. I understand that it was not subjected to much scrutiny in the European Parliament either.
The Dublin Convention allows Ireland to refuse to deal with a genuine application for asylum if another member state of the European Union is responsible under the criteria of the Convention for dealing with that application, and will permit Ireland to return the applicant to that other member state. That is fine as far as it goes. However, amendment No. 112 would provide that none of the provisions of this Act or the Dublin Convention would authorise the transfer of an applicant for asylum to a Dublin Convention country from which there is reasonable cause to believe that he or she may be returned, whether directly or indirectly, from the country which he or she has fled persecution.
If there is a problem with the drafting of my amendment or if further amendments are required to achieve that objective, I will gladly welcome them. I am trying to prevent the return of a person who has arrived in this country to any EU member state which might have an agreement with the original country whereby the individual could be returned to that country. It was wisely pointed out by Amnesty International that there have been cases in which persons who were entitled to refugee status were sent back to the country which they had fled as a result of agreements with that country.
For example, there is a great deal of freedom of travel between the United Kingdom and Ireland. There has been wide speculation that the UK will publish a list of so-called "white countries" in which it is assumed that applicants for asylum are not at risk. According to Amnesty International, the countries concerned include Nigeria and Sri Lanka. For example, if a Nigerian national fleeing persecution in Nigeria sought asylum in the United Kingdom, because Nigeria is a "white list" country the UK would refuse consideration of the application. If the individual then sought asylum in Ireland, under the Dublin Convention the Irish authorities could send him back to the UK. As a result of the UK's agreement with Nigeria, the applicant could then be returned to Nigeria. It is necessary to have an express provision in this Bill to ensure that nothing in the Bill or the Dublin Convention would authorise the transfer of an applicant for asylum to a Dublin Convention country from which there is reasonable cause to believe that he or she could be directly or indirectly returned to the country from which they fled.
In relation to amendment No. 113, it is necessary to oblige the Minister to make sufficient inquiries and obtain assurances from any Dublin Convention country to which it is proposed to return an asylum seeker that there will be no breach of subsection (1), as I have proposed it be amended. These amendments are very important. I would be satisfied if the Minister could say that the matter is already covered. However, I do not believe it is and the amendments are necessary.
Under the Dublin Convention, EU member states specifically reaffirm their commitment to the UN Convention and undertake to co-operate with the UNHCR in its implementation. In August 1991, the UNHCR adopted a formal position on the Dublin Convention welcoming its principles, including the guarantee that an asylum application will be examined by one of the member states.
There is a requirement in Article 29.5.2 of the Constitution that the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement have been approved by Dáil Éireann. As the Dublin Convention will be regarded as falling within the scope of that Article, the Convention will have to be specifically approved by the Dáil before it can be ratified by this country. This will require the bringing of a motion before the House seeking such approval. That motion will facilitate a full debate in the Dáil on the subject of the Convention. The advice available to me is that, before the Convention can be ratified by this country, it is necessary that specific provision should be enshrined in statute to enable its terms to be implemented. This was the purpose of including section 22 which covers the making of orders to enable the Convention to have effect. These orders are in the course of being prepared at the moment. I plan to bring the drafts of the orders before the Deputies before we attempt to bring the terms of the Convention into effect.
The non- refoulement principle applies absolutely in relation to the Dublin Convention. In other words, we cannot send a person back to a country where there is any suggestion that they could be at risk. In relation to the example given by Deputy O’Donoghue, if we were fearful that a person might be sent from the United Kingdom — or any other EU member state — where their life or person was at risk, we could not send them there under our own legislation.
The Dublin Convention permits us to return an applicant to the EU member state where they first arrived, which is the appropriate state in which to make an application. We are not obliged to do this, responsibility rests with the Minister whether the Dublin Convention is applied. I understand the fears expressed in relation to the Dublin Convention but I believe they are misplaced due to the non-refoulement principle and the fact that we have the option to exercise the Dublin Convention — which must be brought before the Dáil for ratification.
I am concerned at the suggestion that Ireland cannot trust its fellow EU member states to fulfil their obligations under the UN Convention. It is important that Ireland and its European partners play a full role in the affairs of the Union. We must, or are obliged to, operate in a climate of mutual trust and co-operation. The commitment was entered into on Ireland's behalf during our last Presidency of the European Union by the then Minister for Justice, Deputy Burke, in June 1990. The UNHCR considered this a positive development in relation to the protection of refugees in Europe. I cannot stress this point enough, but I appreciate the fears raised by a number of the refugee organisations. This convention includes a commitment by our partners in the European Union, many of whom must deal with hundreds of thousands of refugee applications and have accepted large numbers of refugees. We cannot state that these countries are acting in good faith when they may have accepted 250,000 million people in one year.
Section 5 (1) of the Bill states:
A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
This prohibits refoulement of an individual to a state where they would be under direct threat. Accordingly, section 5 could not be used as an argument for safeguarding an applicant who is returned to a member state of the European Union and then sent on to a third country due to an agreement between the two. The third country, having no legislation such as that under discussion, would then return the individual to the country from whose persecution they originally fled. There is no point arguing that section 5 covers this eventuality, it only covers the return of the individual to the place from which they originally fled.
We are aware that member states of the European Union have agreements with third countries in relation to the return of individuals. We are also aware that those "white list" countries have no legislation such as that under discussion and may have an active policy of returning such individuals to what might be described as the fourth country. It appears that the proposed amendment is not merely desirable but necessary if the legislation is to become watertight in the context of implementing the Dublin Convention in this country.
Section 22 provides that the Minister may make an order or orders to give effect to the Dublin Convention. We can debate motions before the Dáil over long periods but that will not change the order or the motion because legislation is not discussed in that context. If we were discussing legislation, I understand how safeguards could be inserted. However, if an order or motion is placed before the Dáil it can be debated but it is not legislation. Section 22(1) of the Bill contains an enabling provision to bring the legislation into effect by order. This, in turn, buttresses the argument that the amendment should be made now in order that the Bill be made watertight. The opportunity to do so may not arise in the foreseeable future.
The wording of the Deputy's amendment is unacceptable, particularly the assumption implicit in the final words that every applicant is fleeing persecution. It attempts to guarantee that no applicant for political asylum will be returned to their country of origin. This is based on the assumption that every person who applies for asylum is entitled to it. The logic of that assumption dictates that there is no need for any of the elaborate provisions of the Bill that deal with the application process. Applications would simply be accepted uncritically and refugee status granted to each applicant.
I assume this is why the UNHCR welcomed the Dublin Convention which upholds the integrity of the concept of the term "refugee" contained in that Convention. People may leave countries for valid reasons but the Convention and this Bill seek to protect genuine refugees. No guarantee can, or should, be given to an applicant, as distinct from a refugee, that he or she will not be returned to their country of origin. As a general principle, the UN High Commission accepts that this should happen where an applicant has exhausted proper asylum procedures without success.
To return to the Dublin Convention — signed by the Deputy's distinguished colleague, former Minister for Justice, Deputy Burke — this seeks to place certain things on an EU footing. It is implicit in the section that the Minister will not send a person to a country which is likely to immediately deport that person to an unsafe country. I understand, in relation to the current proposed changes in Britain, that the UNHCR has been assured that there will be an examination of cases. Effectively, it is proposed that there be a fast-track approach. The Dublin Convention undertakes that member states examine applications. The purpose of the Dublin Convention is to give effect to the UN Convention on an EU-wide basis. The heart of the Dublin Convention is that EU member states undertake to uphold the UN Convention. That is why it has been welcomed.
Clearly a point of difficulty exists but Ireland entered into this as an equal partner — the convention actually took place in Dublin — with other member states. I do not know if we can cast aspersions on their bona fide commitments to upholding the UN Convention.
I agree that a difficulty exists. I take the Minister's point that this amendment assumes that every applicant for asylum was a valid applicant and that no applicant, irrespective of the merits of his or her case, would be returned to the country from which he or she has fled persecution. The difficulty I had in drafting this amendment was that if I used the word "refugee" instead of "applicant for asylum" I would be making a nonsense of it. I had no choice but to put in "applicant for asylum"; if I had put in "refugee" it would mean that the individual had been granted refugee status in this country and the matter would self-destruct.
If somebody in the Department can come up with a better idea than "applicant for asylum" I would welcome it. However, the fundamental point remains; we have a difficulty here as I have outlined. I appreciate the Minister of State's concern in relation to respect for European partners and so forth. I also understand the necessity for diplomacy and even niceties, but I must balance that against the clear loophole and danger which exists in this legislation. That loophole remains despite the Minister's explanation and it must be closed. Rather than keep everybody here all day discussing this, I am prepared to withdraw the amendments pending Report Stage and see if the Minister can devise something more ingenious. I am sure she and her Department can do that.
Does the Minister of State see merit in Deputy O'Donoghue's amendment?
I understand the Deputy's fears but they are unfounded. The core of the Dublin Convention is that an application has to be considered either in this State or in another EU member state. In addition, we are not obliged to adopt the Dublin Convention in every case. We can decide to send somebody to, for example, France if that was the first country in the European Union where they arrived. Equally, however, we might decide that there were good reasons we should not do that and hear their application here.
There is a genuine difficulty in EU terms. We committed ourselves to the Convention when the Deputy's party and the Progressive Democrats were in Government and we are not in a position to turn our backs on the European Union Convention. I am prepared to see if some of the fears can be addressed but I do not have a great deal of optimism. We accept the principle but I would be dishonest if I were to say I am optimistic about it. However, I am prepared to examine it.
On that basis I withdraw the amendments until Report Stage.
As a result of the difficulty in trying to draft an appropriate amendment which would deal with our concerns, as has been outlined by Deputy O'Donoghue, I decided to delete the section because that appeared to be the faster course.
This aspect of the Bill is common to the 1994 Bill and we all expressed concerns about it. An aspect of particular concern is the fact that the implementation of the Dublin Convention is by ministerial order rather than by an Act of the Oireachtas. The Minister said that, because of Article 29.5.2 of the Constitution, there would be implications for the Exchequer so it would have to be done by way of a motion in the Dáil. That goes some way towards addressing the concerns I had that accepting the concept of the Convention, which had implications for this law, had the potential of avoiding the attention and scrutiny of the Oireachtas.
It will be noted that the states contracting to the Dublin Convention declare that they are "determined in accordance with the common humanitarian tradition to guarantee adequate protection to refugees in accordance with the 1951 Convention and the 1967 Protocol". Having finally enacted legislation to give effect to these instruments it still appears wrong, even after all the Minister of State has said and I know that she appreciates the difficulties, that we should be simultaneously bringing into force an instrument which has the potential to undermine the 1951 Convention. When we signed the Dublin Convention the aspiration was that there would be a harmonisation of asylum law in the contracting states. We have not, as far as I know, reached a stage where there is agreed harmonisation of our asylum laws. Whether that is attainable in terms of the different cultural dimensions of the various countries is another question.
However, there is a concern — other concerns have been addressed by the Minister of State — that people might still be sent back directly or indirectly to a country from which they have fled persecution. That remains a concern even after the debate today. The Minister of State is not hopeful of any change because we have signed the Dublin Convention. However, in view of the fact that asylum laws have not been harmonised even within EU countries there is a danger that injustice could be done because of the adoption of the Dublin Convention.
The Minister of State has noted the concern of both Deputies about these amendments and, however pessimistic she might be, we will resume debate on this matter on Report Stage. In the meantime, the Minister of State will have a close look at it.
Amendment, by leave, withdrawn.
Amendment No. 113 not moved.
I move amendment No. 114:
In page 24, subsection (4), lines 25 and 26, to delete "is responsible for the examination of the application under the provisions of the Dublin Convention or".
This is to put beyond doubt that without the prior agreement of the other country no applicant will be transferred.
Amendment agreed to.
Section 22, as amended, agreed to.
SECTION 23.
Amendment No. 115 is out of order as it involves a potential charge on the Exchequer. Amendments Nos. 116 and 117 are also out of order.
Amendments Nos. 115 to 117, inclusive, not moved.
Section 23 agreed to.