Select Committee on Legislation and Security debate -
Wednesday, 7 Feb 1996

SECTION 17.

Ms Burton

I move amendment No. 88:

In page 18, lines 5 to 14, to delete subsection (1) and substitute the following:

"(1) Subject to the subsequent provisions of this section, where a report under section 13 is furnished to the Minister or where the Appeal Board sets aside a recommendation of the Commissioner under section 16, the Minister—

(a) shall, in the case the report or, as the case may be, the decision of the Appeal Board includes a recommendation that the applicant concerned should be declared to be a refugee, give to the applicant a statement in writing (in this Act referred to as 'a declaration') declaring that the applicant is a refugee, and

(b) may, in any other case, refuse to give the applicant a declaration,

and he or she shall notify the High Commissioner of the giving of or, as the case may be, the refusal to give the applicant a declaration.".

Section 17 provides that where the commissioner or, as the case may be, the appeal board makes a recommendation that an applicant should be declared a refugee, the Minister must, subject to certain provisions of the section which will be discussed under amendment No. 89, grant that person a declaration. The section also provides by implication that the Minister may in any case where there is not a positive recommendation refuse the application.

The purpose of amendment No. 88 is to spell this out more clearly. The amendment does not change the meaning of the subsection, but removes any ambiguity which might exist in relation to the Minister's powers if refugee status is not recommended by the commissioner or appeal board.

Amendment agreed to.

Chairman

Amendment No. 90 is an alternative to amendment No. 89 and both may be discussed together. Is that agreed? Agreed.

Ms Burton

I move amendment No. 89:

In page 18, lines 15 to 17, to delete subsection (2) and substitute the following:

"(2) (a) If the Minister considers that in the interest of national security or public policy (‘ordre public’) it is necessary to do so, he or she may by order—

(i) provide that sections 3, 9 and 18 shall not apply to a person specified in the order, being a person to whom a declaration has been given, and

(ii) require the person to leave the State and the order shall specify the measures to be taken for the purpose of the removal of the person from the State including where necessary the temporary detention or restraint of the person.

(b) A person with respect to whom an order under paragraph (a) (ii) is made shall not be required to leave the State before the expiry of 30 days from the date of the making of the order.

(c) Where the Minister has made an order under the said paragraph (a) (ii) in respect of a person, he or she shall send a copy of the order to the person, the High Commissioner and the applicants solicitor (if known).".

Section 17 provides for the granting of the declaration of refugee status by the Minister. Subsection (1) obliges the Minister to give a declaration to any person who is the subject of a positive recommendation from the commissioner or appeal board. The exception to this provision is declared in subsection (2), which relates to national security or public order which we discussed the other day. The Geneva Convention recognises the right of states to refuse protection to persons on the grounds of national security or public policy. Given its nature, this power will be rarely used. However, it is important for the security of the State and provision must be made for it.

Deputy O'Donoghue's amendment proposes the complete deletion of this provision. I will not agree to such a proposal as it would be irresponsible to do so. However, the UNHCR has expressed concern about this provision. It accepts that protection of the State can be refused to a refugee and that persons can be expelled from the State in the interest of national security and public policy. However, its concern is that subsection (2) not only refuses protection to a person who is considered a refugee but also refuses to recognise that the person is a refugee. It is concerned that such action may lead to the person being denied international protection as a refugee.

Accordingly, I propose to amend subsection (2) to provide that, where a person is granted a declaration that he or she is a refugee, the Minister may in the interest of national security or public policy, while granting the declaration of refugee status, at the same time provide by order that the rights and privileges of the State attaching to persons granted a declaration will not apply and the person will be required to leave the State.

The person concerned will be given 30 days between the making of the order and the date of removal from which he or she can seek to find a state which will be prepared to take them or within which they will have access to the courts. The UNHCR is satisfied that this proposal fulfils our obligations under the convention. It also ensures that appropriate provisions are made to safeguard the security of the State and I hope the committee will agree to the amendment as a good compromise. It may be necessary to make some minor consequential amendments to the Bill as a result of the amendment and I will introduce them on Report Stage.

Mr. O'Donoghue

I am happy to withdraw amendment No. 90 in the light of the Minister's amendment. I was particularly concerned about the Minister having sole discretion to overturn the entire process. However, the Minister's amendment is a reasonable compromise and I welcome it.

Amendment agreed to.

Amendments Nos. 90 to 92, inclusive, not moved.

Chairman

Amendment No. 94 is an alternative to amendment No. 93 while amendment No. 95 is related and all may be discussed together.

Mr. O'Donoghue

I move amendment No. 93:

In page 18, lines 46 to 50, and in page 19, lines 1 to 18, to delete subsection (8).

Ms Burton

Amendment No. 93 proposes to delete completely subsection (8). This subsection represents the final stage in the asylum process. It provides that the Minister should make a deportation order in respect of persons who have been refused refugee status or have not otherwise been given permission to remain in the State, which is the humanitarian clause.

I specifically provided in subsection (6) that a person refused refugee status may be granted permission to remain in the State as there may be humanitarian or other good reasons to allow the person to stay. However, if a person has not been given refugee status or has not been granted permission to stay in the State, the logical follow on is that the person should be removed. Subsection (8) provides a fair procedure which must be used if deportation is made. In particular, the person is given 30 days between the making of the order and his or her removal. This provision will allow the person to seek entry to another country.

Deportation is a most unpalatable concept, particularly to Irish people. I hope it will not be necessary to use the measure frequently, but we have responsibility to the people we serve and this mechanism must exist. Inevitably, there will be situations where there may be no reason to allow the person to remain and positive reasons the person should be removed. It would be a mockery of all the carefully designed procedures of the Bill not to provide for the removal of persons at the end of the process.

As I said earlier, this view is strongly held by the UNHCR in relation to the integrity of the asylum process and it has put this point forcibly to me on a number of occasions. It firmly believes the asylum process must contain two sides to the coin. On one side there must be a fair examination procedure, open to all genuine asylum applicants, while, on the other, a removal process for those who do not meet either the convention requirements or the humanitarian grounds to remain.

The UNHCR is committed to preserving the concept of refugee status for those who desperately need it. While this is not a particular problem for Ireland, given the small number of applicants, we should bear in mind that countries, such as Germany, received 240,000 applications for refugee status last year. It is important in terms of those who are in genuine fear of persecution as opposed to those who for very valid reasons may wish to migrate to another area, that the position of the genuine refugee is upheld and protected. This is in everybody's interest. The issue of migration must be addressed. However, it is not being done in this Bill as it is a separate issue.

Mr. O'Donoghue

The rationale behind the amendment is related to that behind the amendments to subsection (2). In those circumstances, since the Minister has amended the subsection, I will withdraw my amendment.

Amendment, by leave, withdrawn.

Ms Burton

I move amendment No. 94:

In page 19, subsection (8), lines 12 to 14, to delete paragraph (d).

Amendment agreed to.

Ms Burton

I move amendment No. 95:

In page 19, between line 18 and 19, to insert the following subsection:

"(9) The Minister may by order amend or revoke an order under this section including an order under this subsection.".

Amendment agreed to.

Section 17, as amended, agreed to.