Vol. 467 No. 2
I move that the Committee agree with the Seanad in amendment No. 1:
Section 9: In page 8, subsection (2) (b), line 18, "or (16), as the case may be," deleted.
This is a technical amendment which deletes a phrase which is meaningless as a result of a Report Stage amendment to section 9 (16) in the Dáil and I recommend it to the House.
Amendments Nos. 2, 10, 11 and 14 form a composite proposal and it is proposed to take them together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 2:
Section 9: In page 9, between lines 10 and 11, the following inserted:
"(d) intends to avoid removal from the State in the event of his or her application for asylum being transferred to a convention country pursuant to section 22,".
These amendments are all of a piece and provide for, or follow as a consequence of, the introduction of a review mechanism for Dublin Convention cases. Deputies will recall that the purpose of the Dublin Convention is to lay down criteria for determining which member states are responsible for examining an asylum application. In the light of comments made in this House and the Seanad and bearing in mind submissions made to me by the UNHCR and other interested parties I sought the further advice of the Attorney General in the matter of an appeal mechanism for persons who may come within the ambit of the Dublin Convention. The Attorney General advised me there would be merit in including further enabling provisions in section 22 which would specifically provide for a review mechanism to be set out in an order made under the section. I accepted his advice, and amendments Nos. 10 and 14 provide a mechanism for establishing an appeal process and for the appointment of a person to consider any such appeals. By introducing this amendment I have met the concerns expressed in this matter.
The amendment spells out a specific enabling provision which allows for the inclusion in the order of procedures for an appeal against a decision to return a person to another convention country. The Dublin Convention is essentially a set of procedural or technical rules as opposed to a development in the area of asylum philosophy or thinking. It is, accordingly, proper that the statutory instrument should spell out a procedure to deal with the situation where an applicant whose application is to be transferred under the Dublin Convention can appeal against what he or she considers to be a misapplication of these rules.
There are two further points in connection with the Dublin Convention that I wish to reiterate. First, subsection (4) provides that an application cannot be transferred unless the other convention country has agreed to accept responsibility for the examination of the application. This is a very important safeguard. Second, section 4 of Article 3 of the Dublin Convention provides that each state may decide to examine a claim for asylum even if that responsibility lies with another state under the terms of the convention. The order to be made under section 22 (2) (a) of the Bill will provide for this. In making a decision to return an individual to another convention country the official appointed by the Minister by virtue of the new subsection (4) (a) will take all issues into account before issuing a decision.
In so far as the person to be appointed to hear the appeal is concerned, amendment No. 14 provides that such a person will have at least seven years experience as a practising lawyer. While it is probable that the person to be appointed to hear appeals will be the Refugee Applications Commissioner, the new paragraph (c) of subsection (4) is flexible enough to allow for another suitably qualified person to be appointed in the event that the commissioner is unable to deal expeditiously with an appeal because for example, he is out of the country or indisposed.
On re-reading section 22 in connection with amendments Nos. 10 and 14, it occurred to us that the reference to "detention" in paragraph (f) was unwarranted. Amendment No. 11 provides for the deletion of the reference to "detention" from the current paragraph (f) of section 22 (2). It is only proper that, where the detention of a person whose application has been accepted by the State is required, such detention should be governed by the general rules already set out in the Bill. This amendment ensures that this will be the case.
Amendment No. 2 was introduced in the Seanad as a consequence of the introduction of an appeal mechanism in Dublin Convention cases. It may happen that some persons who are advised that their applications are to be transferred to another State may lodge an appeal against the decision and then disappear in an effort to frustrate their possible removal. Such an action would be a complete abuse of the asylum process. I am of the view that where there is a reasonable suspicion that such will be the case, it is proper that such a person be detainable and this should be a ground for detention under section 9.
This provision limits detention to those cases where it would clearly be needed, rather than having a blanket provision allowing any Dublin Convention appellant to be detained. The inclusion of the provision in this section avoids the need to provide for detention in the regulations to be made under section 22 and the drafting difficulties of having that subordinate legislation apply the section 9 provisions regarding detention in cases not contemplated by the current section 9 (8).
By including the detention provisions here, I am ensuring that all detentions are properly seen to be under the direct supervision of our courts.
I recommend the amendment to the House.
I welcome these amendments, having felt strongly on Committee and Report Stages that a loophole in relation to the Dublin Convention needed to be closed off. At that time I explained that my concern related to an individual transferred to another Dublin Convention country who might be transferred from there to another country which might not be a signatory to the convention. It was just feasible that an individual could end up in the country from which he or she had originally fled persecution.
These amendments close off that loophole to a certain extent. I feared that the consequence of not closing off that loophole would result in a genuine applicant not receiving asylum in this or in another country signatory to the Dublin Convention.
I move that the Committee agree with the Seanad in amendment No. 3:
Section 9: In page 9, subsection (10) (c), line 46, "concerned" deleted.
This amendment removes the superfluous word which remained following an amendment to this subsection on Report Stage in the Dáil. I commend it to the House.
Seanad amendment No. 4. Seanad amendment No. 6 is related. With the agreement of the House, it is proposed that both be debated together.
I move that the Committee agree with the Seanad in amendment No. 4:
Section 9: In page 11, subsection (15), lines 15 to 17, "and a person referred to in subsection (2) shall not be entitled to remain in the State under that subsection" deleted.
During Report Stage in the Dáil these subsections were amended to confine their application to persons outside the State. They no longer apply to persons already in the State. These amendments merely tidy up the wording of the two relevant subsections consequent on an earlier amendment. I commend the amendment to the House.
I move that the Committee agree with the Seanad in amendment No. 5:
Section 9: In page 11, subsection (15) (a), line 19, after "1935", "relating to particular aliens" inserted.
This amendment was introduced in the Seanad to ensure that the restriction contained in the provision would not encompass exclusion orders which apply to a class of non-nationals but should apply only to persons clearly, specifically and uniquely identified in the relevant order. I commend the amendment to the House.
I note that the word "aliens" is used in this subsection. I had been under the impression that a former Minister for Justice had decided that the word "aliens" was politically incorrect. Would the Minister explain the present position?
The Deputy has made a very fair point. Once the Aliens Act itself is amended, the term "alien" will be replaced by the term "non-national", but until then the former remains the effective term in force. I commend the amendment to the House.
I move that the Committee agree with Seanad in amendment No. 6:
Section 9: In page 11, subsection (16), line 26, "or is not entitled to remain in the State" deleted.
I move that the Committee agree with Seanad in amendment No. 7:
Section 16: In page 17, subsection (11) (b), line 12, "Subparagraph" deleted and "Subparagraphs" substituted.
This amendment corrects a minor grammatical error. I commend it to the House.
I move that the Committee agree with Seanad in amendment No. 8:
Section 16: In page 17, between lines 36 and 37, the following subsection inserted:
"(15) Notwithstanding subsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings."
It is perfectly reasonable that appeal hearings should be accessible to the High Commissioner. I would not intend otherwise. The Seanad identified a matter which I was glad to put beyond doubt by spelling out such provision in the section. I commend the amendment to the House.
I move that the Committee agree with Seanad in amendment No. 9:
Section 21: In page 23, subsection (3) (a), line 15, "reason" deleted and "reasons" substituted.
I move that the Committee agree with Seanad in amendment No. 10:
Section 22: In page 24, subsections 13 and 14, paragraph (b) deleted on the following substituted:
"(b) provide for an appeal against a determination to transfer an application for asylum to a convention country and for the procedure in relation to such an appeal,".
I move that the Committee agree with Seanad in amendment No. 11:
Section 22: In page 24, subsection (2) (f), line 26 and 27, "entry into, temporary stay and detention" deleted and "entry into and temporary stay" substituted.
Seanad amendment No. 12. As amendment No. 13 is cognate I suggest that, with the agreement of the House, both be discussed together.
I move that the Committee agree with Seanad in amendment No. 12:
Section 22: In page 24, subsection (2) (g), line 32, "(other than the State)" deleted.
I move that the Committee agree with Seanad in amendment No. 13:
Section 22: In page 24, subsection (2) (g), line 33, "(other than the State)" deleted.
I move that the Committee agree with Seanad in amendment No. 14:
Section 22: In page 24, between lines 44 and 45, the following new subsection inserted:
"(4) (a) The Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2) (a).
(b) The Minister shall appoint a person (who shall have had not less than 7 years' experience as a practising barrister or solicitor before his or her appointment) to consider and decide appeals under subsection (2) (b).
(c) A person appointed under paragraph (b) shall hold office of such period and on such other terms and conditions as the Minister may determine when appointing him or her.".
I move that the Committee agree with Seanad in amendment No. 15:
Section 27: In page 26, line 18, "section 17" deleted and "section 17)" substituted.
