Amendments Nos. 103 to 105, inclusive, are related and we will take them together. Is that agreed? Agreed.
SECTION 20.
I move amendment No. 103:
In page 21, subsection (2), line 24, before "that" to insert "and such giving or making was not, having regard to the applicant's particular circumstances, reasonable,".
Article 51 of the 1951 Convention provides that penalties should not be imposed for illegal entry or presence if good cause is shown. The penalties for false information and the use of illegal documents should be in this context. Accordingly, the concept of good cause should be introduced into the section, and that is the purpose of my amendment. As with section 9, some measure of subjectivity should be introduced into this provision. The same formula used in my amendment to that section is, therefore, used here also.
The Irish Refugee Council has suggested that a reference be inserted to the presence or absence of independent legal advice. I prefer the formula in my amendment about the applicant's particular circumstances, which I think would cover legal advice. Amendment No. 104 in my name covers the same point.
My amendment No. 105 is broadly similar except that it is more explicit than Deputy O'Donnell's amendments. A person could be prosecuted under the section while being a genuine applicant for asylum. It is conceivable that an individual would arrive in the State under the mistaken belief that if he or she had documents showing his or her true identity, this would prejudice his or her claim and the person would accordingly arrive with papers which were not proper. If a person destroyed or concealed documents in order to assist in escaping a country where he or she was fleeing persecution, or did so under a mistaken belief that identity documents could prejudice his or her claim, the provisions of the subsection should not apply. This is a reasonable amendment because it would ensure that a genuine applicant for asylum would not be penalised under this subsection.
Subsection (2) makes it an offence to give false or misleading information to the commissioner, an authorised officer of the commissioner or the appeal board. Subsection (3) makes it an offence for a person to destroy or conceal identity documents of an applicant with intent to deceive. It is important to be clear about what activities these subsections cover and I reiterate they are not intended to cover the position of a person who has no choice but to be misleading or to destroy or conceal identity documents in order to escape persecution — that is accepted. The offence must be committed in the State in connection with an application. This is important: under subsection (2) the applicant must know the information is false or misleading; under subsection (3) he or she must have the necessary intent to deceive — that is, to deceive this State, not another state — in their application.
When a person has made or is pursuing an application for a declaration, that person is expected to come clean with the commissioner and to reveal his or her true identity because true identity is central to the examination of an application. The person will have been reassured by the guarantee of a fair examination and the right to remain in the State until the examination is completed.
If the person is a genuine applicant there should be no reason to conceal identity. In practice the immigration officers and the Department of Justice would have directed such applicants to organisations, such as the Refugee Council, who would be in a position to offer counselling and welfare independently of the State if such a person was fearful legitimately of "the State and its apparatus" because of where they had lived previously.
On the other hand, if a person decides to deceive the commissioner on the basis that he would have a better chance of being granted a declaration — for example, if they pretended to be a Bosnian Muslim when they are of another religion or nationality — that is an abuse of the process and merits the sanctions. The commissioner cannot fulfil his or her role if deception is to be condoned.
I have sympathy with the purpose of the amendments. They are concerned with a person who might act out of the best of motives and not out of malice, yet who could commit an offence. The amendments give too wide an immunity to deception but I am prepared to look at the subsection and to consult with the draftsman to see if the provisions need to be amended to take account of the concerns expressed.
That seems reasonable. I will withdraw my amendment and await Report Stage.
I still believe there is a need to amend subsection (3) because a person could intend to deceive and be under the mistaken belief that in so doing it would assist his or her claim. We have to remember the emotional state of the people involved; people in such situations can be desperate. As a matter of humanity it would be necessary to allow for a mistake and in such circumstances the matter should be looked at again. In view of what the Minister of State has said I will not move my amendments and await Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 104 and 105 not moved.
Section 20 agreed to.